DATE: May 20, 2025

COURT FILE NO. D44979/24

ONTARIO COURT OF JUSTICE

B E T W E E N:

D.E.S.A.
Akash Saha for the APPLICANT
APPLICANT

• and –

N.B.
Stefan Juzkiw, for the RESPONDENT
RESPONDENT

HEARD: MAY 6-9, 2025
JUSTICE: S.B. Sherr

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties’ 5-year-old son (the child).

[2] The applicant’s (the father’s) claims include:[1]
a) Joint decision-making responsibility for the child, with the right to make final decisions if the parties cannot agree.
b) The right to enroll the child in French immersion school when he is in grade one.
c) Incidents of decision-making, including the right to obtain and renew government documentation for the child and to travel internationally with the child, without the respondent’s (the mother’s) consent.
d) Equal parenting time on a rotating 2/2/3 schedule.
e) Non-removal of the child from Toronto without the other party’s consent.
f) An order changing the child’s last name to hyphenate it with both parties’ last names.
g) Ongoing child support from the mother of $624 each month, based on a shared parenting arrangement pursuant to section 9 of the Child Support Guidelines (the guidelines). This is premised on an imputation of annual income of $66,996 to the mother and $35,776 to himself.

[3] The mother opposes the father’s claims. Her claims include:
a) The child’s primary residence shall be with her.
b) Sole decision-making responsibility for the child.
c) Incidents of decision-making, including the right to obtain and renew government documentation for the child and to travel internationally with the child, without the father’s consent.
d) The father’s parenting time with the child take place on alternate weekends from Saturday at noon until Sunday at 7:30 p.m., and on each Monday evening from 4:30 p.m. to 7:30 p.m.
e) The father shall not leave the child alone with his partner (J).
f) Child support retroactive to May 30, 2020, based on an imputed annual income to the father of $55,000.
g) A contribution to the child’s ongoing special and extraordinary expenses, under section 7 of the guidelines (section 7 expenses).

[4] The father opposed the relief sought by the mother. However, during the trial he shifted his position regarding the mother’s ability to travel with the child to Bulgaria. He agreed she can travel with the child to Bulgaria for two weeks each year during school vacations.

[5] The child primarily lives with the mother. He sees the father on alternate weekends from Saturday at noon until Sunday at 7:30 p.m. and on each Monday evening pursuant to the temporary court order of Justice Melanie Sager, dated December 2, 2024 (the temporary order).

[6] Both parties filed affidavits for their direct evidence and gave additional oral direct evidence. The mother called her mother (the maternal grandmother) and a friend as witnesses. She also filed medical records. The father called a doctor, a daycare provider and the mother’s father (the maternal grandfather) as witnesses. He also filed business and medical records.

[7] The mother did not produce two other witnesses she had proposed to call – her psychotherapist and the child’s teacher. Letters she had filed from them were struck.

[8] The issues for the court to determine are as follows:
a) What parenting orders are in the child’s best interests? In particular:
(i) Which parent should the child have his primary residence with?
(ii) What decision-making responsibility orders are in the child’s best interests?
(iii) What parenting time orders are in the child’s best interests?
(iv) What incidents of parenting and terms of communication are in the child’s best interests?
(v) Does the court have jurisdiction to order that the child’s name be changed? If not, should it make any other orders regarding the child’s name?
b) What child support should be ordered? In particular:
(i) What is the presumptive start date for child support?
(ii) Should the court depart from the presumptive start date, and, if so, to when?
(iii) What are the parties’ incomes for each year that support is ordered? What, if any, income should be imputed to either of them in any of those years?
(iv) Who should be paying child support, and how much should they pay?
(v) What amounts, if any, should the parties pay for the child’s section 7 expenses?
c) If the court finds that a party owes support arrears, how should they be paid?

Part Two – Background facts and court history

[9] The father is 29 years old. He lives with J in Toronto.

[10] The father is presently employed as a sous chef at a restaurant.

[11] The mother is 30 years old. She lives with the child in Toronto.

[12] The mother is self-employed as a 3D Modeler. She works from home.

[13] The parties had a short cohabitation. The mother says they separated at the end of May 2020. The father says they separated in August 2020.

[14] After the parties separated, the mother and the child resided with the maternal grandfather until April 2021 when they moved to Toronto.

[15] The father lived in Jackson’s Point after the parties separated. He moved to Willow Beach in August 2021 to live with his grandmother. In September 2022, he moved to Toronto and began cohabiting with J.

[16] In September 2023, the father left his job as a machine operator. He started attending Centennial College in Toronto taking an Electrical Engineering Technology program.

[17] The father issued this application on April 8, 2024. He served it on the mother on April 19, 2024. He amended his application on February 12, 2025.

[18] The mother’s Answer/Claim is dated September 27, 2024. She included a claim to relocate with the child to Bulgaria. She amended her Answer/Claim on March 3, 2025. She no longer sought the relocation order.

[19] On December 2, 2024, Justice Melanie Sager made the temporary order. It included the following terms:
a) The father will have parenting time with the child on alternate Saturday from noon until Sunday at 7:30 p.m.
b) The father shall pay temporary child support of $319 each month to the mother, starting on January 1, 2025, based on an imputed annual income of $36,422.
c) The father shall not consume marijuana 12 hours before or during his parenting time.
d) The father shall be the child’s primary caregiver during his parenting time.
e) The parties are to immediately advise each other of any emergencies while the child is in their care.

[20] On December 11, 2024, Justice Debra Paulseth heard an urgent without notice motion brought by the father. She made a temporary without prejudice order prohibiting the mother from removing the child from Canada.

[21] On January 28, 2025, Justice Sager made financial disclosure orders regarding both parties.

[22] The father has exercised the parenting time ordered by Justice Sager.

Part Three – Parenting orders

3.1 General legal considerations

[23] Subsections 24 (2) to (7) of the Children’s Law Reform Act (the Act) set out factors for the court to consider in determining a child’s best interests. The court has considered the relevant factors in those subsections in this decision.

[24] Section 28 of the Act sets out the types of parenting orders the court can make.

[25] Subsection 33.1 (2) of the Act states that any party to a proceeding shall, to the best of their ability, protect any child from conflict arising from the proceeding.

[26] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[27] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz, 1996 SCC 17. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONCJ 6510.

[28] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: Armstrong v. Coupland, 2023 ONSC 5451; N.D. v. R.K., 2020 ONCJ 266.

[29] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201; Seyad v. Pathan, 2022 ONCJ 501; Mulik v. McFarlane, 2023 ONCJ 148.

[30] A party's failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, supra; I.A. v. I.G., 2023 ONCJ 523.

[31] Subsections 18 (1) and (2) of the Act define family violence as follows:

(1) “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.

[32] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. (par. 145).
3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[33] Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

[34] The court is very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

[35] Denigrating your spouse in front of a child fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v. Baker, 2022 ONSC 4235.

[36] Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, supra; El Khatib v. Noun, 2023 ONSC 1667.

[37] Recording the other spouse, insults, unwarranted criticism about parenting and demanding to know whereabouts can constitute psychological abuse. See: K.M. v. J.R., 2024 ONSC 1338.

3.2 Summary of the parties’ narratives

3.2.1 The father’s narrative

[38] The father deposed that:
a) He is a very good parent who is more capable of meeting the child’s needs than the mother.
b) He has always been a very involved parent except for the times when the mother has tried to exclude him from parenting.
c) He equally parented the child when the parties cohabited.
d) In 2020 and 2021, the child spent three out of four weekends with him.
e) In 2022, the child spent 40% of the time with him. In 2023, the child spent 60% of the time with him and he enrolled the child in daycare. In January 2024, he and the mother agreed to an equal time-sharing arrangement. The mother unilaterally ended that arrangement in late March 2024.
f) He is in a long-term relationship with J. The child loves her. She is very capable of caring for the child when he is at school or working.
g) The mother acts unilaterally in making decisions for the child. He provided a number of examples, including her registering the child in his present school and obtaining his passport without his consent.
h) The mother is focused on her own needs and not the child’s needs. She sought to relocate with the child to Bulgaria. She then changed her mind and wanted to relocate to Hamilton. She gave the child’s relationship with him little consideration.
i) The mother has poor judgment about the child’s education. The child is missing too much school. The mother has proposed homeschooling the child. He feels this is a poor decision.
j) The mother makes poor medical decisions. She was hesitant about vaccinating the child. He had to do this. She missed many medical appointments when the child was a baby. The family doctor at the time confirmed this. She waited until January 2025 to register the child with a family doctor.
k) He tries to communicate with the mother about the child, but she is extremely difficult to deal with. She will often send him dozens of text messages at a time, demanding an immediate response. He tries to place boundaries on his communications with her.
l) He denies all of the mother’s allegations of abuse. He says the mother is verbally abusive to him and abusive to him in her text communications. He described incidents where the mother lost self-control and screamed at him in public in front of the child.
m) He is trying to protect J from the mother’s abusive behaviour.
n) The mother suffers from depression. He filed texts from 2022 where she expressed suicidal ideation. He says that is when he started taking the child more often.
o) The mother is manipulative and dishonest. She only recently made false abuse allegations against him. She recently reported him to the Toronto Children’s Aid Society (the society) alleging child neglect. He has not been charged with any offence and the society has not contacted him again. He states that she has done all this to obtain a litigation advantage.
p) The mother is undermining his relationship with the child and telling the child negative things about him and J. The child is now having tantrums and acting out during his parenting time with him.
q) He does not trust the mother. He believes she only updates him about the child to look good in court.
r) The mother has been resistant to his requests for increased parenting time.
s) He is the parent much more willing to facilitate the child’s relationship with the other parent.
t) He presently does not have enough parenting time. There is not enough time for the child to spend time with the paternal family or go to extra-curricular activities.
u) He plans to leave his job and go back to school in September 2025. He will work part-time. He is looking for accommodation closer to the child’s school. He wants to keep the child in his current school until he completes senior kindergarten. He wants the child to attend French immersion school starting in grade one. He says he will pay for a tutor for the child to catch up on his French.

[39] The maternal grandfather testified. He has a positive relationship with the father. He is now estranged from the mother. He feels she is very much like the maternal grandmother who he divorced many years ago. The mother and the child lived with him for about 8 months in 2020 and 2021. He said she spent much of her time lying on her bed, scrolling on her phone. He said she was pre-occupied with a new relationship. He said she did very little around the house. She did not work. He often fought with her. He said he asked her to leave with the child.

3.2.2 The mother’s narrative

[40] The mother deposed that:
a) She has always been the child’s primary caregiver.
b) She is the parent who has the best understanding of the child’s needs.
c) She is the parent who has been involved with the child’s education and medical care. The father has not been involved with the child’s school. He has not taken the child to the doctor since March 2024 and has never taken the child to the dentist.
d) She is the parent who arranges and takes the child to extra-curricular activities. The child takes dance and taekwondo classes. She takes him on many outings. She is teaching the child to play piano. She has asked the father to assist in paying for these expenses. He has paid nothing. She has invited him to attend these activities. He has not done so. He does not take the child to similar activities during his parenting time.
e) She is the parent who has primarily met the child’s physical and emotional needs. She has created a stable environment for the child.
f) She has arranged her work schedule to be available to meet the child’s needs. The father works late hours and has little availability to be with the child.
g) The father leaves the child with third parties for much of his parenting time. She does not want the child left alone with J or the maternal grandfather. She wants the child to be with her if the father is not available for more than two hours.
h) She lives minutes from the child’s school. The father does not own a car and it takes him over one hour and 15 minutes to transport the child.
i) The child has his closest connection to her.
j) She receives significant support from the maternal grandmother. The child has a very close relationship with her.
k) The father abandoned her and the child soon after the child was born, leaving her alone to raise the child. During their relationship, the father was depressed and smoked marijuana to excess. He was uninvolved with the child.
l) The father has perpetrated family violence against her. The violence has been physical, psychological and emotional. The child has been exposed to this violence. She reported this abuse to the police in February 2025 and again in late April 2025. She stated the police are investigating her allegations.
m) The father has caused her significant harm through his abuse. She is engaged in psychotherapy to help her deal with this trauma.
n) She has tried to facilitate the child’s relationship with the father. She has given him additional parenting time.
o) She does not trust the father. She feels he is dishonest, secretive and manipulative. She said he overheld the child during the December 2024 winter school break, permitted J and the maternal grandfather to care for the child without telling her, and took the child to a different doctor without telling her and after she asked him not to do so. She said she agreed to give the father additional parenting days with the child in 2023 and 2024. He has turned this against her by falsely claiming they had shared parenting during this time.
p) The father has blocked her ability to travel with the child to see her family in Bulgaria. She was born in Bulgaria and spent much of her childhood there, living with her grandmother. She used to travel to Bulgaria every year. The father told her he would let her travel with the child to Bulgaria if she agreed to a week-on/week-off parenting arrangement. In January 2025, she agreed to this. However, the plan was never implemented.
q) The father will provoke her to say nasty things to him in text messages to use against her. He constantly videotapes their interactions against her will.
r) She feels the father’s claims for final authority over decision-making and equal parenting time are more about controlling and abusing her than they are about the child.
s) She tries to communicate with the father about the child. The father ignores her.
t) She and the father disagree about everything about the child.
u) The father constantly, and unjustifiably, criticizes her.
v) She has tried to co-parent with the father, but it is impossible.
w) She is very worried about the father’s ability to care for the child. The child has returned from visits with scratches and bruises. It takes her a day to settle the child down after a visit with the father. She said the child pees his pants, punches the walls, and his stomach is sick.[2] The father keeps the child up too late. She is concerned about what he is feeding the child.
x) The father often will not let her speak with the child during his parenting time. He will not communicate with her about the child. She has called the society to express her concerns about the father.
y) The child is thriving in her care. She feels the status quo is working and asks the court not to change it.

[41] The maternal grandmother testified about her close relationship with the child and her ability to support the mother in parenting the child. She described the mother as an excellent parent.

[42] The mother’s friend described her as an excellent parent with a close relationship with the child. He described her as being gentle, nurturing and responsive with the child.

3.3 Assessment of the parties’ evidence and findings on contested facts

3.3.1 The father

[43] The father was calm, composed and polite throughout the trial. He answered questions directly and candidly, even when the answers did not place him in a positive light. For instance, he admitted he has, at times, acted unilaterally regarding the child and that he breached the temporary parenting order during the 2024 winter school break.

[44] The court finds that the father was for the most part, a credible witness.

[45] The court also found the father’s evidence, for the most part, to be reliable. He demonstrated a good memory. Much of his evidence was supported by documentation. His observations about the mother’s volatility were corroborated by the mother’s presentation during the trial.

[46] The reliability of the father’s evidence was adversely affected by his perception of the mother. He deeply distrusts her and interprets her actions through that perspective, sometimes unfairly.

[47] The father demonstrated the following parenting strengths:
a) He loves the child.
b) He has a positive relationship with the child. He described very positive interactions with him. This was corroborated by the maternal grandfather.
c) He has attended all his parenting time even though he travels a long time to see the child. This demonstrates commitment.
d) He exchanges the child on a timely basis, demonstrating organization and responsibility.
e) He has a large extended family and understands the importance of the child’s relationship with them. He facilitated that relationship when he had more parenting time.
f) The father has a long history of positively parenting the child. The court preferred his evidence that he spent shared parenting time with the child from May 2023 until August 2024. The reasons for this finding will be reviewed in more detail when discussing child support.
g) The court has no concerns about his parenting abilities. He has a different parenting style than the mother. However, there is no credible evidence that he mistreats or neglects the child. The child’s first family doctor testified it was the father who usually brought the child to medical appointments. He observed that the father was parenting the child responsibly and following his medical recommendations.
h) He testified that he rarely smokes marijuana anymore. The court found his evidence credible.
i) He has maintained a stable relationship with J. The court has no concerns about her ability to assist him in caring for the child.
j) The court does not find that he was physically violent to the child or the mother, as alleged by the mother, for the following reasons:
i) He was more credible than the mother.
ii) There is no independent evidence corroborating the mother’s evidence. The mother did not file police reports or society records despite making complaints to both.
iii) The mother provided pictures of bruising on her neck and a scratch on the child’s face. The pictures were undated.
iv) The timing of the mother’s abuse allegations to the police and the society so close to trial cause the court to treat this evidence with caution.

[48] However, there are concerns about the father and his parenting proposal, including:
a) He has often acted unilaterally and secretively. For instance:
i) He signed the child up for daycare in 2023 and delayed advising the mother.
ii) He continued to take the child to a doctor in Aurora, without the mother’s consent or knowledge, after the mother had moved with the child to Toronto and had asked him to stop taking the child to that doctor.[3]
iii) He made direct visiting arrangements with the maternal grandfather without telling the mother.
iv) He overheld the child during the December 2024 winter holiday break against the mother’s wishes. He admitted he breached the court order by doing this.
v) He returned the child to the maternal grandfather at the end of that visit, instead of to the mother, as required by the court order. This was an aggressive act against the mother.
vi) He did not advise the mother he was living with J and that J was often caring for the child during his parenting time. The mother learned about this during the court proceeding.
b) He frequently has acted in a controlling and immature manner by videotaping his interactions with the mother. He is aware how this triggers her, and he has kept on doing it, exposing the child to needless conflict.
c) He is unresponsive to the mother, even when she is reasonably sharing information about the child. This can only partially be explained by a need to set boundaries. The court finds that much of his conduct is passive-aggressive and meant to upset her.
d) He communicates poorly with the mother about the child’s needs. He often ignores her requests to speak to the child or to update her about how the child is doing during his parenting time, knowing this causes her considerable anxiety.
e) He demonstrated little insight at trial regarding how he has contributed to and escalated the parental conflict. He took no responsibility for his conduct.
f) He has shown little interest in meeting with the child’s school since September 2024. The mother invited him to a parent-teacher meeting. He did not attend. She gave him a detailed report of the meeting. He did not respond. He only recently attended at the school to obtain the child’s attendance record.
g) The father has not attempted to speak to the child’s doctors or dentists since September 2024.
h) The mother has invited the father to attend the child’s extra-curricular activities. He has not done this yet.[4]
i) He has not changed his work schedule to facilitate more parenting time with the child. He is not present for some of the limited parenting time he has. He is only available to see the child on Saturday before his evening shift, on Sunday, and on Monday evenings.
j) He has taken no steps to reduce the child’s travel time for visits. He presently travels with the child on the TTC for close to one hour and 15 minutes each way. He does not own a car. He says he will sign up for Zipcars. However, he has not done this yet.
k) He has done the bare minimum to financially support the child.
l) He has presented a plan to have a plan. He says he will leave his job, go back to school and find a residence closer to the child in September. He plans to enroll the child in extra-curricular activities. However, he has taken none of those steps.
m) His proposal for joint decision-making responsibility is entirely unrealistic given the mistrust and poor communication between the parties.

3.3.2 The mother

[49] The mother presented at trial as extremely anxious and hypervigilant. She demonstrated little impulse control. She frequently had to be redirected by the court for outbursts. She tried very hard to contain herself and follow the court’s direction but was often unable to do so. The court is concerned about her self-regulation when she cannot even control herself in a very structured setting.

[50] Impulse control and self-regulation are important parenting qualities. Children learn by observing their parents. If a parent is unregulated, there is a strong possibility that is what the child will learn. This might explain some of the child’s behavioural issues being described by the parents.

[51] The mother also struggles with listening and processing information. She frequently went off on tangents when asked simple questions, often not answering the question asked. She often misinterpreted questions and quickly became agitated, loud and argumentative. The ability to listen and process information is an important parenting quality.

[52] The mother was a very credible and reliable witness when it came to the child. She answered questions about the child clearly and in detail. It was evident she had a deep understanding of the child and his needs.

[53] The mother was not a credible or a reliable witness regarding the rest of her evidence for the following reasons:
a) She was often evasive and avoidant when answering questions she did not like. She would instead launch into attacks on the father.
b) Her evidence was often inconsistent. This was apparent when questioned about her financial statements. She quickly blamed her counsel and the person who prepared her tax information for any inaccuracies.
c) She blamed her counsel for statements made about relocation in her pleadings and trial material. She took no responsibility for making these statements.
d) The timing regarding her abuse allegations against the father to the police and the society are concerning. They were made after a case conference and just before this trial. She provided no police or society records that might corroborate these allegations.
e) When confronted with text messages that contradicted her evidence, she claimed she was lying in those messages to get a reaction from the father.
f) Her evidence was presented through the prism of her anger at the father (and the maternal grandfather) and her fear of the father taking the child from her.
g) Her allegations against the father escalated the closer it got to the trial and her fears about losing her child to him increased.
h) She unilaterally registered the child’s birth. She did not deny that she signed the father’s name. She did a poor job trying to rationalize doing this.
i) She unilaterally obtained a passport for the child without notifying the father. She tried to rationalize this by telling the court she had discussions with the father to obtain this. She did not tell him once she obtained it without him. She did not explain how she was able to obtain the passport without his consent.
j) The documentary evidence shows that the father was exercising much more parenting time than she claimed from 2022 to August 2024.

[54] The court has other concerns about the mother, including:
a) She showed little insight into how she has contributed to the family conflict. She takes no responsibility for her actions.
b) She often bombards the father with dozens of text messages at a time, late at night. Many of these message are abusive and inappropriate. Many are laced with profanities. Some go on racist rants. This is family violence as defined in the Act.
c) She is impulsive and has, at times, shown poor judgment. For instance:
i) She asked to relocate to Bulgaria and signed the child up for school there in August 2024. She felt that video calls and summer visits between the child and the father would suffice.
ii) She told the father she may move to Hamilton once the case is over.
iii) She is contemplating homeschooling the child, which is not in his best interests. This will be reviewed in more detail below.
iv) The child is missing too much school because the mother wants to take him on outings instead. This year, the child has missed 34 days of school and has been late 20 times. The mother is very emmeshed with the child. The child needs to be in school.
v) The mother was very hesitant to get required vaccines for the child when he was a baby. She also missed several scheduled medical appointments.
d) She often acts unilaterally. She named the child, baptized the child, chose the child’s present school, changed the child’s doctor, changed the parenting schedule, enrolled the child in extra-curricular activities and obtained a passport for the child without the father’s consent.
e) She is unreasonably trying to control the father’s parenting of the child. She is trying to control who can and cannot take care of the child during his parenting time. She mistrusts J, who she has never met, and does not want J to be alone with the child. She is angry at the maternal grandfather and does not want him to be near the child. She wants to call the child throughout the father’s parenting time and receive regular reports from him. She wants the child returned to her if the father is not available for more than two hours. This is unreasonable.
f) The mother’s anxiety and hypervigilance about the child are not healthy and run the risk of impairing the child’s development, including the development of his relationship with the father.

[55] What makes the mother, and this case, so complex, is that despite these considerable flaws, she has demonstrated a number of parenting strengths. The court finds:
a) She is the parent with the deepest understanding of the child’s needs. She described them in considerable detail at trial.
b) The child, for the most part, is doing well in the mother’s primary care. There are some concerns about tantrums in the father’s home and having difficulty settling in the mother’s home after visits with the father. However, all witnesses stated the child is happy and meeting his developmental milestones. He is doing well in school. His current doctor reported that he is healthy, and the mother is responsibly attending to his medical care.
c) She is the parent who has been doing the hard work. She is the parent who is involved with the school. She takes him to the doctor and the dentist. She is the parent who has adjusted her work schedule to meet the child’s needs. She takes him to and picks him up from school. She is the parent who cares for the child when he is sick. She is the parent who has primarily financially supported the child.
d) She has established structure and routine for the child. She described her days with the child in considerable detail.
e) She has been described as calm and nurturing with the child. She is able to redirect him when he is upset.
f) Her house has been described as clean and filled with age-appropriate toys and books.
g) She engages the child in many activities and outings. She is supporting the activities the child enjoys. She is teaching him how to play the piano. She pays for these activities on her own.
h) She is the parent who is trying to communicate about the child. She sends the father updates about the child’s accomplishments in school. The father acknowledged that she does a good job updating him. She invited him to a parent-teacher meeting. She tries to engage him in discussions about the child. Instead, he ignores her.
i) Her facilitation of the child’s relationship with the father is hit and miss. At times, she minimizes his relationship with the child and wants to control it. At other times, she encourages it by trying to engage the father. She has also suggested and facilitated extra overnight visits so he could take the child to school.
j) She tried to improve communication with the father by suggesting they use the MyFamilyWizard communication program. The father rejected this idea.
k) She shows some insight into her emotional difficulties and has seen a psychotherapist.
l) She reaches out for support. She gets this support from the maternal grandmother and her friend who testified at trial.

3.4 Primary residence

[56] The complexity of these dynamics creates challenges in crafting parenting orders that are in the child’s best interests.

[57] The court finds that the father’s proposal for equal parenting time is not in the child’s best interests.

[58] In Barendregt v. Grebliunis, 2022 SCC 22, the Supreme Court of Canada wrote the following about the maximum time principle at paragraphs 134 and 135:

[59] An equal parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.

[60] The parties have nowhere close to the requisite level of communication to make an equal time parenting plan for the child work. It would only increase the child’s exposure to adult conflict. This would be destabilizing for the child.

[61] It is in the child’s best interests to have his primary residence with the mother. The child is doing reasonably well in her primary care. She lives minutes from the school and has established structure and routines for the child. She is the parent with the better understanding of the child’s needs and is the parent who is engaging with the school and the child’s doctors. She has arranged her work schedule to be available for the child.

[62] By comparison, the father’s plan is aspirational. He has not taken any of the steps required to implement his plan. To date, he has not adjusted his life to spend more time with the child. He has not engaged with the child’s doctors and has had limited engagement with the school.

[63] The court cautions the mother that the child’s school attendance needs to improve starting in senior kindergarten in the fall of 2025. If it doesn’t, the court may need to reassess the issue of the child’s primary residence.

3.5 Decision-making responsibility

3.5.1 Legal considerations

[64] The court has considered the best interest factors set out in Part 3.1 above in determining the issue of decision-making responsibility.

[65] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625, sets out the following principles in determining whether a joint decision-making responsibility order is appropriate.

[66] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 ONSC 6423.

[67] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; El Khatib v. Noun, 2023 ONSC 1667.

[68] Families that require constant intervention by Children’s Aid Societies and the police due to high conflict are poor candidates for joint decision-making responsibility or parallel parenting orders. See: S.A. v. Y.M., 2020 ONCJ 147; Dayboll v. Binag, supra.

[69] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes about joint custody orders perpetuating hostilities in the wrong family circumstances.

[70] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint or shared parenting order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, 2015 ONCJ 619; McBennett v. Danis, 2021 ONSC 3610; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.

[71] Where a conflict between parents is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. See: Geremia v. Harb, 2008 ONSC 19764.

[72] Courts will sometimes order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties. See: Roloson v. Clyde, 2017 ONSC 3642.

[73] Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option to leave some aspects silent. See: M. v. F., 2015 ONCA 277.

3.5.2 Analysis

A. Preliminary comments

[74] The father’s claim for joint decision-making responsibility for the child is unrealistic. Positive communication between the parents is almost non-existent. Both parties acknowledged this – they just blamed the other for this problem. The parties completely mistrust each other and act pre-emptively and in secret and in dishonest ways to get what they want. Both parties acknowledge they have made unilateral decisions about the child without informing the other. The mother is now involving the police and the society in the parental dispute.

[75] The parties have been separated for almost five years and rarely agree on anything. For instance:
a) The father wanted to vaccinate the child. The mother was hesitant.
b) They could not agree on the family doctor and each took the child to separate doctors.
c) They could not agree on getting the child a Canadian passport.
d) They could not agree on the child’s school. The mother registered the child unilaterally in the school near to her.
e) The mother has been seriously considering homeschooling the child in grade one. The father wants the child enrolled in a French immersion school, starting in grade one.
f) The mother does not want J or the maternal grandfather caring for the child.
g) They cannot agree on extra-curricular activities for the child.

[76] Major decisions will need to be made for the child. Ordinarily, the court would grant decision-making responsibility to the parent who has primary residence of the child. However, there are problems with making that order in this case because:
a) The mother often acts impulsively and without emotional regulation.
b) The mother sometimes demonstrates poor parenting judgment.
c) The mother has difficulty separating her own needs from the child’s needs.
d) There is a real risk that the mother will use the decision-making designation to marginalize the father, especially if he does anything to anger her.

[77] The court will not grant sole decision-making responsibility to either parent. Instead, the court will make orders regarding major issues concerning the child and set up a mechanism to make any other major decisions for the child in the future.

B. Medical decisions

[78] The court will order that the child’s present doctor and dentist shall not be changed without the prior consent of both parties. Unless there is an emergency affecting the child, the father shall not take the child to any other doctor.

[79] The parents shall take the child to any specialist the family doctor or dentist refers them to.

[80] The court has a concern, based on her past actions, that the mother may hesitate to obtain required vaccines for the child.

[81] Whether and how a child should be vaccinated is an incident of parenting pursuant to clause 28 (1) (b) of the Act. The test is best interests as set out in section 24 of the Act. See: A.M. v. C.H., 2019 ONCA 764.

[82] The leading case on vaccinations and decision-making responsibility is now J.N. v. C.G., 2023 ONCA 77.

[83] The court will order that the child shall receive all vaccinations recommended by any level of government, Health Canada or the child’s school board, unless the child’s family doctor indicates there is a medical reason for not receiving any specified vaccination. If the mother fails to take the child for any such vaccination within 14 days of being requested to do so by the father, he may take the child to be vaccinated, without the mother’s consent.

[84] The mother shall make any other major emergency medical decisions regarding the child if the parties cannot agree after consultation.

C. Choice of school and educational decisions

C.1 Legal considerations

[85] Choice of school is an incident of decision-making responsibility. Only when there is no order granting a party sole decision-making responsibility should a court be asked to determine particulars of a child’s education. See: Piper v. Hare, 2021 ONSC 2139.

[86] When a child is already enrolled in a program of education, the starting point for the determination is clear: absent compelling circumstances, students will continue their education in September at the school at which they were enrolled in June. Disrupting a child’s school placement is to be avoided. See: D.B. v. M.R.B., 2019 ONSC 4925.

[87] The general principles guiding the court in deciding where a child shall attend school when the parties disagree were set out by Justice Audet in Thomas v. Osika, 2018 ONSC 2712.

[88] As a general proposition, the parent requesting something other than in-person schooling has the onus of presenting expert evidence that such alternative schooling is in the best interests of the particular child. See: A.C. v. L.L., 2021 ONSC 6530 at para. 17.

C.2 Analysis

[89] The court considered the benefits of the child attending French immersion school starting in grade one, as proposed by the father. He speaks French and he attended a French school as a child.

[90] The court sees no benefit to the child being homeschooled by the mother. The court has expressed its concern about the mother being too emmeshed with the child. Her hypervigilance about the child is not healthy. He is missing too much school. She wants to place unreasonable conditions on how the father parents the child. Homeschooling will only exacerbate these concerns. The child needs the opportunity to be independent from the mother and learn social and problem-solving skills he will only obtain at school. School is a stable and neutral place for the child, away from conflict. Further, the court finds, based on her presentation at court, that the mother does not have the necessary skills to adequately homeschool the child.

[91] The court finds it is in the child’s best interests to continue to attend his current public school for the following reasons:
a) The mother is the child’s primary caregiver. The school is very close to her home. This means the child’s routines are not rushed. The mother is close by to attend the school if needed. This gives her more flexibility in arranging her work schedule. This is important because the father proposes paying a small amount for child support while he returns to school.
b) The child is familiar with the school. His teachers know him and he is making friends there. This creates stability for him.
c) The child has done well at the school.
d) Both parents stated the child likes his school.
e) Neither parent has established that the child’s school should be changed.
f) The father acknowledged the child will be behind if he starts French immersion school in grade one and said he will hire a French tutor. It is not in the child’s best interests to order this because:
i) He should not be placed at an academic disadvantage in grade one.
ii) The child will be with the mother during the weekdays. It will be more challenging for her to assist the child with homework in French.
iii) To date, the father has not been generous when it comes to child support. The court is not confident he will maintain paying French tutoring expenses, as proposed.
iv) The child already has to navigate through considerable parental conflict. The court will not create more obstacles for him.

[92] The court will order that the child shall continue to attend his present school through grade one unless the parties agree otherwise.

[93] If the mother moves her residence in Toronto, the mother may register the child in a public school in her new catchment area, starting in grade two. That school shall not be changed unless both parties agree, or someone obtains a court order.

[94] The father will be granted direct rights to information from the child’s schools. He is entitled to attend all parent-teacher meetings and school events.

[95] Either party may obtain a tutor for the child at their own expense.

[96] If the parties cannot agree on any other educational issue after consultation with each other, the mother will make the final decision.

[97] The court repeats its caution to the mother. If the child’s school attendance does not improve starting in the fall of 2025, the court may need to reassess this issue.

D. Culture and religion

[98] The mother was born in Bulgaria and practises the Eastern Orthodox religion. The father said he is Macedonian and speaks fluent French. He said he is Eastern Orthodox but agnostic. The parties shall have decision-making responsibility over religion and culture while the child is in their care. The father will have the right to train the child in the French language during his parenting time.

E. Extra-curricular activities

[99] The parties may enroll the child in extra-curricular activities during their parenting time at their own expense. They shall not schedule these activities during the other parent’s parenting time without that parent’s consent.

F. Government documents and travel

[100] The mother shall hold the child’s original government documents, including his health card, passport, birth certificate and social insurance card. She shall provide copies of the child’s government documents to the father.

[101] The mother may apply to obtain or renew all government documents for the child, with the consent of the father, such consent not to be unreasonably withheld.

[102] The court will not dispense with either parent’s right to consent to obtaining government documentation or to travel internationally with the child. Without a dispensation order from a court, the consent of an access parent is usually required by government authorities. This is an important parental right that is not to be dispensed with lightly. See: R.B.J. v. B.N.R.J., 2020 ONCJ 399.

[103] However, the parties are cautioned that if they unreasonably fail to provide their consent and the other party has to come to court to dispense with it, there will likely be considerable costs consequences. In Blackman v. Zanre, 2023 ONCJ 220 this court ordered what it called “its going rate” of $2,500 for costs of a parent having to bring a travel motion when the other parent unreasonably refused to give their consent.

[104] It is in the child’s best interests to travel internationally with both parents. The father now agrees to the mother traveling to Bulgaria with the child.

[105] The court will make orders to facilitate both parents traveling internationally with the child and to ensure that the child can communicate with the other parent during these trips. The father will be entitled to take the child for a one-week trip in 2025, and for two-week trips starting in 2026.

G. Day to day decisions

[106] Day to day decisions regarding the child shall be made by the parent the child is with.

H. Child’s residence

[107] The child requires stability and to live reasonably close to both parents. The child’s habitual residence shall remain in Ontario. Further, the mother shall not change the residence of the child outside of Toronto without the father’s prior written consent or court order.

I. Change of name

I.1 – Positions of the parties

[108] The child presently has the father’s last name as his middle name and the mother’s last name as his last name.

[109] The father seeks an order to change the child’s name so that the child’s last name is hyphenated with his last name and the mother’s last name.

[110] The mother opposes this request. She testified in Bulgarian culture if parents are unmarried, the child takes the mother’s last name. The name is not hyphenated. The father’s last name, in these circumstances, is used as the child’s middle name. The mother provided no evidence to corroborate this cultural practice.

I.2 – Legal considerations

[111] The Ontario Court of Justice does not have jurisdiction to change the child’s name under the Change of Name Act. See: Hermanson v. Kiare, 2027 ONCJ 598, pars. 15 to 25. However, it can grant one or both parties decision-making responsibility regarding the child’s name. This would enable that party to bring a Change of Name Act application. If the other party did not consent to changing the child’s name, they could apply to this court to dispense with that consent. See: Benko v. Torek, 2013 ONCJ 331.

[112] The Ontario Court of Justice has the authority to prohibit a name change under clause 28 (1) (b) of the Act, as an incident of decision-making responsibility. See: Benko v. Torek, supra; Hermanson v. Kiare, supra.

[113] The jurisprudence has set out factors for the court to consider in determining whether a prohibition of a name change is in a child’s best interests.

I.3 – Determination

[114] The court finds it is not in the best interests of the child to grant either party decision-making responsibility to apply for a change of the child’s name for the following reasons:
a) This dispute is part of the power struggle between the parents rather than based on any benefit to the child.
b) The father waited until April 2024 to bring the issue to court.
c) If either parent is granted decision-making responsibility regarding this issue, it will likely invite more litigation. This is not in the child’s best interests.
d) The father is not being excluded from the child’s identity. His last name is the child’s middle name.
e) The mother is impulsive. It is not in the best interests of the child to give her a pathway to eliminate the child’s middle name if she is upset with the father.

[115] The court will order that the child’s last name not be changed without the written consent of both parties.

J. Communication

[116] The court will make communication orders to protect the child from adult conflict. The parties will be required to use a parenting application such as WhatsApp for their written communication. The court will place restrictions on how many messages can be exchanged on any day and the times these messages can be sent. The court will prohibit the parties from videotaping or audiotaping each other. This is a destructive practice that is heightening their conflict. It needs to stop.

3.6 Parenting time

3.6.1 Legal considerations

[117] In determining the father’s parenting time, the court must consider the relevant best interests considerations set out in Part 3.1 above.

[118] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[119] The most appropriate allocation of time in any given situation will depend on many factors including: the child's age; temperament; stage of development; the relevant schedules and commitments of the child and each parent; and any other considerations relevant to the determination of the child's best interests. The parenting schedule must accord with the child's best interests. See: McBennett v. Danis, 2021 ONSC 3610; Drodge v. Gadjadhar, 2025 ONSC 244.

[120] A custodial parent must not just accommodate parenting time, they must facilitate it. See: Scrivo v. Scrivo, 2012 ONSC 2727; Tran v. Chen, 2012 ONSC 3994.

[121] The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position.

3.6.2 Analysis

[122] The court agrees with the father, based on the parenting history, his positive relationship with the child and his parenting strengths, that his parenting time with the child should be increased.

[123] The court will order that the present parenting time schedule shall be increased from every other weekend to two out of every three weekends. The father will have two consecutive weekends with the child, followed by the child spending one weekend with the mother.

[124] The court would prefer to immediately increase this parenting time even further. However, the father’s present work schedule, combined with his distance from the child, does not practically allow him to spend more time with the child yet.

[125] If the father is able to change his schedule so that he does not work on Friday evenings, his parenting time will be increased to pickup of the child at the end of school on Friday to a return of the child to school on Monday morning. This will take place on two out of every three weekends. This arrangement will have several benefits for the child.

[126] The father must advise the mother at least one week in advance if he will exercise the extended weekend parenting time.

[127] If there is a statutory holiday on the Monday of his parenting time weekend, the father will return the child to school on Tuesday morning.

[128] If there is a statutory holiday on the Monday of the mother’s parenting time, the father will not have a Monday evening visit that week.

[129] It is also in the child’s best interests to spend extended holiday time with the father. The order will provide that the child shall spend equal time with the parents during the winter school break and March school break. The child shall also be permitted to spend up to two exclusive weeks with each parent during the summer holidays. In 2025, the weeks with the father shall be non-consecutive. Starting in 2026, the father may choose to have two consecutive weeks with the child. The order will set out a detailed holiday parenting schedule.

[130] The father shall conduct the parenting exchanges.

[131] The court will place no restrictions on who can care for the child during the father’s parenting time. The court trusts the father to make responsible parenting decisions. The mother needs to accept that J is now an important part of the child’s life and will be permitted to parent him.

[132] The mother has unreasonable expectations regarding communication with the child and the father’s obligation to report to her during his parenting time. The court will order that the mother may have one telephone or video call with the child during his regular parenting time with the father. The father will be given the same right when the child is with the mother.

Part Four – Child support

4.1 Positions of the parties

[133] The mother seeks guidelines table child support, retroactive to May 30, 2020, based on an imputed annual income to the father of $55,000.

[134] The mother asks that the father pay his proportionate share of the child’s section 7 expenses. She only seeks this on an ongoing basis.

[135] The father opposes any claim for retroactive child support. He proposed paying ongoing child support based on an imputed annual minimum wage income to him of $35,776.

[136] The father proposed that each party assume payment for the section 7 expenses they incur.

4.2 Start date for child support payable by the father to the mother

4.2.1 Legal considerations

[137] The mother issued her claim for support on September 27, 2024. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 ONCA 331. The support claimed by the mother before that date requires a retroactive support analysis.

[138] The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act.

[139] In Colucci v. Colucci, 2021 SCC 24 (Colucci), the court set out the framework that should be applied for applications to retroactively increase support.

[140] This framework in Colucci addressed a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support.

[141] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

[142] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel - par. 25.

[143] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel – par. 132.

[144] Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S. - par. 97.

4.2.2 What is the presumptive start date to change support?

[145] The first step in the Colucci framework is to determine the presumptive start date for support to be changed. To determine this, the court must look at when effective notice and formal notice of her support claims were given by the mother to the father.

[146] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated.

[147] The mother filed little evidence addressing the Colucci framework. The court finds that the mother gave effective notice to the father on September 1, 2020.

[148] However, the presumptive start date cannot be more than three years before the date of formal notice – September 27, 2024, when she issued her Answer/Claim. Accordingly, the presumptive start date for support shall be September 27, 2021.

4.2.3 Should the court depart from the presumptive start date?

[149] The second step in the Colucci framework is to determine if the court should depart from the presumptive start date, as requested by both parties.

4.2.3.1 Reasons for delay

[150] In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. See: Michel, par. 121.

[151] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

[152] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

[153] In Michel, the court set out understandable reasons for delay in a support recipient coming to court.

[154] The mother did not address any of the reasons for delay set out in Michel in her evidence. When asked by the court, the only reason she could think of for her delay in coming to court was that she didn’t want to go through a contested court case.

[155] The court finds that a major reason for the mother’s delay in coming to court was that the parties had a shared parenting arrangement from May 2023 until August 2024.

4.2.3.2 Blameworthy conduct

[156] Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

[157] Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

[158] The father engaged in some blameworthy conduct. He paid the mother inadequate child support in 2021. He did not pay child support to her for several months in the fall of 2024.

[159] The father paid regular support to the mother during 2022. The father did not pay child support from May 2023 until August 2024. This was not blameworthy conduct as the parties had a shared parenting arrangement during this time and had comparable incomes.

4.2.3.3 Circumstances of the child

[160] There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. See: Michel - par. 123.

[161] The child’s circumstances have not been disadvantaged due to the father’s failure to pay adequate support. The mother said she would have liked to arrange more activities for the child. However, this disadvantage is more attributable to the limited financial circumstances of both parties than the father’s failure to pay appropriate support.

4.2.3.4 Hardship

[162] While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid. See: Michel, par. 125.

[163] The parties are of limited financial means. The mother appears to be living a better lifestyle than the father. She took the child on two vacations in 2024 and bought a Land Rover in 2024.

[164] A retroactive support order will cause the father some hardship. However, this can be addressed through a payment order.

4.2.3.5 The start date for support

[165] The court finds that the presumptive start date is fair in these circumstances. The court will not depart from it. The court will start child support on October 1, 2021, the first day of the month after the presumptive start date.

4.3 Quantification of support

[166] The third and final step in the Colucci analysis is to quantify the proper amount of support starting from October 1, 2021.

4.3.1 Evidence of the father’s income

[167] The father filed his notices of assessment for 2021 to 2024. These documents set out annual income as follows:
2021 - $44,853
2022 - $40,577
2023 - $29,894
2024 - $16,080

[168] The mother claims that the father is deliberately underemployed and is not reporting cash tips. She seeks to impute annual income to him of $55,000.

[169] The father deposed that he worked as a machine operator until September 2022. He was earning $20 an hour, plus overtime. He left that job and started working as a cook in Toronto in October 2022, earning $18 an hour. He said he left that job in May 2023 and applied to go back to school in Electrical Engineering Technology. He went to school from September 2023 until September 2024. The father said he left school in September 2024 due to the stress of this court case. He returned to work as a sous chef earning $18 an hour. He said his weekly hours are in the “low 30’s”. He says he receives about $50 each month in tips.

[170] The father plans to return to school in September 2025. He now plans to study to become an Electrical Engineering Technician. This will take two years. He says this course will secure him an apprenticeship with the IBEW union and enhance his career prospects.

[171] The father testified he will support himself through student loans and part-time work.

4.3.2 Legal considerations in imputing income

[172] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

[173] The jurisprudence for imputation of income sets out the relevant principles.

4.3.3 Analysis of the father’s income

[174] The court finds that the father was not deliberately underemployed during 2021 and 2022 and will use his annual income reported to the Canada Revenue Agency (the CRA) for the purpose of this support analysis.

[175] The court finds that the father has been deliberately under-employed since January 1, 2023. He left his well-paying job as a machine operator. He left his job as a cook. He now plans to leave his present job and go back to school.

[176] The issue is whether the father’s choice to return to school is reasonable in these circumstances.

[177] The court finds it is not reasonable. Properly financially supporting your child is an important part of being a parent. The child needs appropriate child support now – not two or three years from now. To date, the mother has assumed an unfair share of the child support obligations for the child.

[178] The father produced no medical evidence that he was required to reduce his work hours in 2024 and 2025 due to stress.

[179] The court also considered that the father has already taken one year off school due to stress. It is uncertain if he will complete the proposed program. It is unlikely that his life will be less stressful after this case ends.

[180] The court finds that the father can earn approximately $800 each week (based on $20 per hour for a 40-hour work week) – either as a sous chef or as a machine operator. This translates to an annual income of $41,600. The court will impute this amount to him starting on January 1, 2023.

4.3.4 Was there a shared parenting arrangement at any time, and if so, what amount of child support should the father pay during that time?

[181] The mother claimed she has always been the child’s primary caregiver and should receive guidelines table support.

[182] The father claimed the child was with him 40% of the time in 2022, 60% of the time in 2023 and 50% of the time in 2024.

[183] Both parties provided calendars of their parenting time with the child. They were very different.

[184] Both parties provided texts they claimed substantiated their positions.

[185] There were flaws with the calendars filed by both parties. They were self-serving and a reconstruction of events based on memory and their interpretation of text messages.

[186] The father’s evidence was better supported by the documentation, particularly text exchanges, than the mother’s evidence. He was a more credible witness than the mother.

[187] However, the court does not fully accept the father’s version of events. When cross-examined, mother’s counsel pointed out two dates where the father claimed the child was with him when the mother had taken him to dental appointments. Further, many of the text messages provided by both parties did not prove the duration of time the child was with either parent.

[188] The court finds that the parties did not have a shared parenting arrangement in 2022. The father lived outside of Toronto until September 2022. He paid regular monthly child support to the mother. This makes it unlikely that he had shared parenting time. The court also notes that the father has provided inconsistent information regarding his 2022 parenting time. In his application, he claimed that the child was in his primary care as of January 1, 2022. In his affidavit, he said the child was in his care only 40% of the time.

[189] The court finds that the parenting arrangements changed in May 2023. The child started spending more extensive time with the father. It might not have been 60% of the time, as claimed by him, but it was over 40% of the time. This is the time when the father enrolled the child in daycare for the days he was working. He also stopped paying child support. The mother did not come to court to seek support. She provided no text messages asking for support, despite the dozens of text messages she provided to the court.

[190] In January 2024, the parties agreed in a text exchange to a week/on - week/off parenting arrangement. The father testified this started on January 29, 2024. The mother claimed she only agreed to this as the father promised she could take the child on vacation to Bulgaria. She said this plan was not implemented and it was not in the child’s best interests to do so.

[191] The mother provided no independent evidence that the agreement was contingent on a vacation to Bulgaria or that the plan was not implemented. Text messages filed from February and March 2024 show this parenting arrangement was being implemented. Further, the father did not pay child support during this time. There was no documentation filed showing the mother was dissatisfied with this.

[192] The mother changed her mind about this arrangement in late March 2024. This led to the father issuing this application. The evidence is unclear about exactly how much parenting time the father had with the child after May 1, 2024. The mother withheld the child from the father for a few weeks in May 2024. He had weekend parenting time and some additional parenting time starting in June 2024. The father may not have been exercising parenting time 50% of the time, as he claimed; however, the court finds he was exercising parenting time more than 40% of the time until August 31, 2024.

4.3.5 What impact does this shared parenting arrangement have on the retroactive support claim?

[193] The father will not be required to pay child support to the mother for the period from May 1, 2023 until August 31, 2024.

[194] Section 9 of the guidelines guides the calculation of child support in shared parenting arrangements.

[195] The first step under section 9 is to determine the set-off amounts each party is required to pay the other under the guidelines.

[196] The parties declared comparable incomes to the CRA during this time. The set-off amount would be close to zero.

[197] The mother claims that her declared income to the CRA in 2022 and 2023 is too high and she is in the process of reassessing this. There was no evidence to support her contention that her reported income was inaccurate.

[198] The father has a legitimate argument that the mother was deliberately under-employed in 2024, as her income dropped significantly. However, any additional imputation of income to her is offset by her paying for the child’s dental bills and extracurricular activities.

[199] The parties filed no evidence addressing the remaining two factors in a section 9 analysis. Neither parent showed increased costs of a shared parenting arrangement or that child support should be adjusted based on their condition, needs, means and circumstances.

[200] The court will exercise its discretion under section 9 of the guidelines and order no child support during this time frame.

4.3.6 The arrears calculation and payment of arrears

[201] The parties agreed on the support the father paid the mother from 2021 to 2024.

[202] The guidelines table amount for one child based on the father’s 2021 income of $44,853, is $416 each month. The father shall pay that amount starting on October 1, 2021. From October 1, 2021 until December 31, 2021, he paid $480. This leaves a balance owing for 2021 of $768 ($416 x 3 months - $480).

[203] The guidelines table amount for one child based on the father’s 2022 income of $40,577, is $366 each month. The father paid child support of $3,445 in 2022. This leaves a balance owing for 2022 of $947 ($366 x 12 months - $3,445).

[204] The guidelines table amount for one child at an imputed annual income of $41,600 is $377 each month. The father paid the mother $950 until the end of April 2023. This leaves a balance owing until April 30, 2023 of $558 ($377 x 4 months - $950).

[205] No support is owed from May 1, 2023, until August 31, 2024.

[206] Support accrued again after September 1, 2024. The father paid the mother $700 in 2024. This leaves a balance owing for 2024 of $808 ($377 x 4 months - $700).

[207] The total arrears owing at the end of 2024 is $3,081 ($768 + $947 + $558 + $808).

[208] The father shall be credited with child support paid in 2025, as reflected in the records of the Family Responsibility Office (the Director).

[209] The father may pay support arrears created by this order at $200 each month, starting on June 1, 2025.

Part Five – Section 7 expenses

[210] The mother is asking that the father pay his proportionate share of ongoing section 7 expenses.

[211] Unlike section 3 of the guidelines, which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. See: Park v. Thompson, 2005 ONCA 14132.

[212] In Titova v. Titov, 2012 ONCA 864, the court set out the framework for determining a party’s contribution to a child’s section 7 expenses.

[213] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable.

[214] The mother provided no evidence that she is presently incurring any section 7 expenses. The child is attending dance classes and taekwondo classes. However, the mother provided no evidence that these qualified as extraordinary extra-curricular activities, as defined in subsection 7 (1.1) of the guidelines.

[215] The mother did not provide any receipts for these expenses.

[216] In these circumstances, the court declines to make an order regarding section 7 expenses. The assessment of what constitutes a section 7 expense is complex. Ordering that section 7 expenses be shared proportionately to the parties’ incomes will only lead to confusion and fuel more conflict between the parties.

[217] The court will order that each party shall be responsible for paying for any extraordinary extra-curricular activities they register the child in and any tutoring expenses they arrange for the child that are section 7 expenses. If either party believes they are incurring any other section 7 expenses that the other party should contribute towards, they are free to return to court for a determination.

Part Six – Conclusion

[218] A final order shall go on the following terms:

Primary residence
a) The child shall have his primary residence with the mother.

Decision-making responsibility
General
b) The parties shall consult with one another regarding any major decision regarding the child.
c) Day to day decisions regarding the child shall be made by the parent the child is with.
d) The father may obtain information about the child directly from any of his schools, doctors or other service providers. The mother shall execute whatever documentation is required to facilitate this.

Major medical decisions
e) The child’s current doctor, Dr. Behhami, and current dentist shall not be changed without the consent of both parties.
f) The parents shall take the child to any specialist they are referred to by their family doctor or dentist.
g) The child is to receive all vaccinations recommended by any level of government, Health Canada or the child’s school board, unless the child’s family doctor indicates there is a medical reason for not receiving any specified vaccination. The mother shall take the child for the vaccinations. If she fails to do so within 14 days of the father requesting her to do so, the father may take the child to be vaccinated without the mother’s consent.
h) The mother shall make all other major medical decisions regarding the child if the parties cannot agree after consultation.

Choice of school and major educational decisions
i) The child shall continue to attend his present public school through grade one unless the parties agree otherwise.
j) If the mother moves her residence in Toronto, she may register the child in a public school in her new catchment area starting in grade two. That school shall not be changed unless both parties agree, or the mother obtains a prior court order.
k) The child shall not be homeschooled by either parent.
l) Each party shall be designated at the child’s school as a contact in case of an emergency and have the right to participate in any function that is open for parents to attend, including school trips and parent-teacher interviews.
m) Either party may obtain a tutor for the child at their own expense.
n) The mother may make all other major educational decisions regarding the child if the parties cannot agree after consultation.

Culture and religion
o) Each party may make decisions about the child’s cultural, religious and spiritual training, as they see fit, when the child is in their care. Specifically, the father has the right to train the child in the French language during his parenting time.

Extra-curricular activities
p) The parties may enroll the child in extra-curricular activities during their parenting time at their own expense. They shall not schedule these activities during the other parent’s parenting time without that parent’s consent.

Government documents and travel
q) The mother shall hold the child’s original government documents, including his health card, passport, birth certificate and social insurance card. She shall provide copies of the child’s government documents to the father.
r) The mother may apply to obtain or renew all government documents for the child, with the consent of the father, such consent not to be unreasonably withheld.
s) The mother may travel outside of Canada and abroad with the child each year, when the child is not in school, for up to two weeks, with the father’s consent, such consent not to be unreasonably withheld. It will be presumptively unreasonable to oppose the mother traveling to Bulgaria with the child during the child’s summer school break.
t) The mother shall provide the father with a detailed itinerary of any vacation, including destination, address, mode of travel and emergency contact number, at least 30 days before travel.
u) The father may travel outside of Canada and abroad with the child each year, when the child is not in school, for up to one week in 2025, and for up to two weeks, starting in 2026, with the mother’s consent, such consent not to be unreasonably withheld.
v) The father shall provide the mother with a detailed itinerary of any vacation, including destination, address, mode of travel and emergency contact number, at least 30 days before travel.
w) If the father is traveling outside of Canada with the child, the mother shall at least 14 days before the trip provide him with the child’s original birth certificate, health card and passport. He shall return these documents to the mother within two days after returning from the trip.

Child’s residence
x) The child’s habitual residence shall be in Ontario.
y) The mother shall not change the child’s residence outside of the City of Toronto without the prior written consent of the father or court order.

Change of name
z) The child’s name shall not be changed without the written consent of both parties.

Communication orders
aa) All written communication between the parties shall be through a parenting communication application, such as WhatsApp.
bb) The communications between the parties should be brief, respectful, and only relate to issues pertaining to the child.
cc) The parties should not send more than three messages to the other parent about the child in any day, unless there is an emergency, or to coordinate a parenting exchange.
dd) Messages shall only be sent between 7 a.m. and 9 p.m.
ee) Each party shall respond within 48 hours of any communication from the other party, provided it is related to the child, except in an emergency.
ff) The parties shall keep each other informed as to their current contact information, including their telephone numbers, email addresses and residential address.
gg) If the child becomes ill or in need of medical assistance while in the care of one party, that party will notify the other party as soon as it is reasonably possible.
hh) Neither party shall make negative comments about the other party in the presence of the child.
ii) Neither party shall videotape or audiotape the other.

Parenting time
Regular parenting schedule
jj) The father shall have regular parenting time with the child on two out of every three weekends from Saturday at noon until Sunday at 7 p.m. To be clear, the child shall spend two consecutive weekends with him, and then one weekend with the mother. The first weekend of the father’s parenting time will start on May 24, 2025. He will have the child with him again on the second weekend, starting on June 7, 2025. The child will be with the mother the following weekend.
kk) The father shall also have parenting time with the child on Monday each week from after school until 7 p.m.
ll) If the father is able to arrange his work schedule so that he is not working on Friday evening, he may elect to have his parenting time take place on two out of every three weekends from Friday, with pickup after school, until he returns the child to school on Monday morning. The father must advise the mother at least one week in advance if he will exercise the extended weekend parenting time.
mm) If there is a statutory holiday on the Monday of his parenting time weekend, the father will return the child to school on Tuesday morning.
nn) If there is a statutory holiday on the Monday of the mother’s parenting time, the father will not have a Monday evening visit that week.
oo) The father shall facilitate the mother having one video or telephone call with the child during his regular parenting time and one video or telephone call with the child every other day during his holiday parenting time.
pp) The mother shall facilitate the father having one video or telephone call with the child during her regular parenting time and one video or telephone call with the child every other day during her holiday parenting time.
qq) There shall be no restrictions on persons who care for the child during each parent’s parenting time.

Mother’s Day and Father’s Day
rr) If not otherwise with the mother on that day, the child shall be with her on Mother’s Day from 9 a.m. to 6 p.m.
ss) If not otherwise with the father on that day, the child shall be with him on Father’s Day from 9 a.m. to 6 p.m.

Winter school break
tt) The parties shall share parenting time equally with the child during the two-week winter break. The child shall spend the first week of the break with the mother and the second week of the break with the father in odd-numbered years. The child shall spend the first week of the break with the father and the second week of the break with the mother in even-numbered years.

March school break
uu) The child shall spend the March school break with the father in even-numbered years and spend the March school break with the mother in odd-numbered years.

Summer schedule
vv) The mother may have up to two exclusive weeks with the child during the child’s summer school break. She shall notify the father in writing the weeks she is choosing by June 1st each year.
ww) In 2025, the father may have two non-consecutive weeks with the child during the child’s summer school break. Starting in 2026, he may have up to two exclusive weeks. He shall notify the mother in writing the weeks he is choosing by June 15th each year.

Other
xx) The holiday schedule shall take priority to the regular parenting schedule.
yy) The father shall have such further and other parenting time as the parties may agree to.
zz) Any parenting exchange that does not take place at the child’s school shall take place at the mother’s home.

Child support
aaa) Child support arrears as of December 31, 2024 are fixed at $3,081, as calculated in this decision.
bbb) The father may pay the arrears at $200 each month, starting on June 1, 2025.
ccc) The father shall pay child support to the mother in the amount of $377 each month, starting on January 1, 2025. This is the guidelines table amount for one child, based on an imputed annual income to him of $41,600.
ddd) Each party shall be responsible for paying any section 7 expense that is an extraordinary extra-curricular activity that they register the child in.
eee) Each party shall be responsible for any section 7 expense for tutoring that they arrange for the child.
fff) The father shall be credited with any child support payments made in 2025, as reflected in the Director’s records, or that he can prove that he paid to the mother through etransfers.
ggg) The Director is requested to adjust its records in accordance with this order.
hhh) Nothing in this order precludes the Director from collecting arrears from the father from any government source (such as income tax, GST/HST returns), lottery or prize winnings or inheritances.
iii) Starting in 2026, the father shall provide the mother, by June 30th each year, with complete copies of his income tax returns, including all schedules and attachments, and copies of his notices of assessment.
jjj) A support deduction order shall issue.

Other orders
kkk) If either party seeks costs, they shall serve and file their written costs submissions by June 3, 2025. The other party will then have until June 17, 2025 to serve and file their written response (not to make their own costs submissions). The submissions shall be no more than 3 pages, not including any bill of costs or offer to settle. The submissions may be delivered to the trial coordinator’s office on the second floor of the courthouse or emailed to the trial coordinator.
lll) All other claims by the parties not dealt with above are dismissed.

[231] The court thanks counsel for their civility during the case.

Released: May 20, 2025

Justice Stanley B. Sherr

[1] This list is not exhaustive. The father provided an 8-page draft order for trial.
[2] At another point in her testimony, the mother testified that “it has been the most peaceful time since the December 2, 2024 temporary court order. The child comes home completely calm”.
[3] The father last took the child to that doctor in March 2024.
[4] The father said he tried to attend a dance class, but the child was not in the class that day.
[5] See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors are:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.