N.G. v. A.M.A., 2025 ONCJ 280

ONTARIO COURT OF JUSTICE

Date: 2025-05-08
Location: Brampton, ON
Court File No: 212/23

BETWEEN:

N.G.
Applicant

— AND —

A.M.A.
Respondent

Before Justice Susan Sullivan
Heard on March 3, 4, 5, 6, 2025
Reasons for Judgment released on May 8, 2025

Counsel:
A. Praveen — Counsel for the Applicant
A.M.A. — Respondent, on his own behalf

Part 1 – Introduction

[1] This trial was about the parenting and child support arrangements for the children CER (born March XX, 2015) and CEL (born August XX, 2017) and the Applicant’s claim for spousal support from the Respondent.

[2] The Applicant is N.G., the children’s mother.

[3] The Respondent is A.M.A., the children’s father.

[4] The trial proceeded via Zoom. Consecutive interpretation was carried out throughout the trial by two Arabic interpreters.

[5] The Applicant requests the following final order:

• (a) She shall have sole decision-making responsibility for the children.
• (b) She shall be entitled to apply for and renew government issued identification, including passports, for the children without the Respondent’s consent.
• (c) She shall be entitled to travel with the children without the Respondent’s consent.
• (d) The court order shall be silent with respect to the Respondent’s parenting time. In the alternative, the Respondent shall have professionally supervised in-person parenting time when he returns to this jurisdiction and until then, he shall have virtual parenting time once he provides her with an internet plan and a device to use for it to occur. If ordered, virtual parenting time shall occur on the weekends and take into consideration the children’s schedules.
• (e) With respect to Guideline child support:
  • i. At the outset of trial: The Respondent shall pay her Guideline child support, based on an imputed income of $50,000; in the alternative, child support shall be based on an imputed income of full-time work at minimum wage.
  • ii. At the end of trial: The Respondent’s child support obligation shall be based on an imputed income of $48,994.
  • iii. Child support shall be retroactive to November 1, 2020, and the Respondent shall be given credit for the child support payments made to date in the amount of $2,931.
• (f) She and the Respondent shall share the children’s future section 7 expenses, including post-secondary expenses (after deducting scholarships and/or bursaries received) proportionate to their incomes.
• (g) The Respondent shall pay her spousal support, retroactive to November 1, 2020.
• (h) Prejudgment and postjudgment interest.

[6] The Respondent requests the following final order:

• (a) With respect to decision-making responsibility:
  • i. At the outset of trial: He shall have sole decision-making responsibility for the children.
  • ii. During trial and at the end of trial: He and the Applicant shall have joint decision-making responsibility for the children.
• (b) The Applicant shall disclose the children’s current residential address.
• (c) His written authorization and/or signature shall be required for the application and renewal of government issued identification for the children.
• (d) His consent to the children travelling outside of Canada shall be required.
• (e) The Applicant shall be supervised by the paternal grandmother, and the paternal grandmother shall be entitled to “check the situation of the household on a regular basis.” (This request was made for the first time in closing submissions).
• (f) With respect to parenting time,
  • i. At the outset of trial: Upon his return to Canada, he shall have supervised parenting time with the children once every two weeks, for two to four hours per session and thereafter, upon the success of this supervised parenting time, he shall have in-person parenting time once every week for two hours on the weekends at a third-party’s residence, i.e. the paternal grandmother’s home.
  • ii. When asked by the court at the outset of trial if he is requesting parenting time pending his return to Canada: He shall have virtual parenting time with the subject children one to two times a week, for three to four hours per session.
  • iii. At the end of trial: He shall have virtual parenting time two hours weekly or bi-weekly and if he is in Canada, he shall have in-person weekend parenting time.
• (g) The paternal family shall have contact with the children. (This request was made for the first time in closing submissions).
• (h) His Guideline child support obligation shall be temporarily suspended. In the alternative, he shall pay child support based on an imputed income of full-time work at minimum wage.
• (i) There shall be no retroactive child support payable by him to the Applicant. If ordered, he shall be given time to make these payments.
• (j) He shall not be obliged to contribute to the children’s section 7 expenses, including post-secondary expenses.
• (k) There shall be no order as to spousal support.
• (l) The Applicant be found guilty of “children alienation and costs of the mental recovery costs.”
• (m) Prejudgment and postjudgment interest shall be waived.

[7] The following are the issues to be decided:

• (a) What parenting orders are in the children’s best interests?
• (b) With respect to Guideline child support:
  • i. What is the start date for child support?
  • ii. What is the Respondent’s annual income for each year he is required to pay child support? Should income be imputed to him in any of these years, and if so, how much?
  • iii. What amount does the Respondent owe the Applicant for Guideline child support?
  • iv. How should any child support arrears be paid?
• (c) What is the appropriate order to make with respect to prospective section 7 expenses?
• (d) With respect to spousal support:
  • i. Is the Applicant entitled to spousal support?
  • ii. If so:
    • • What are the parties’ incomes for the purpose of the support analysis?
    • • What should be the duration and amount of the support order?
    • • When should the support order start?
    • • How should spousal support arrears, if any, be paid?
• (e) Should prejudgment interest be ordered? Should postjudgment interest be waived?

[8] Given that the Respondent was self-represented, the court was mindful of and guided by the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in Pintea v. Johns . [1] The court did what could to provide a fair and impartial process and prevent an unfair disadvantage to the Respondent.

Part 2 – Evidence

[9] Pursuant to the order of Justice Beazley dated November 1, 2024 the evidence of each party and their witnesses was to be by affidavit. However, in addition to providing evidence in writing, each witness was given a generous amount of time to provide further evidence orally.

[10] In reaching the conclusions herein, the court has relied only on relevant, trial-worthy evidence.

[11] The Applicant’s witnesses were:

• (a) Herself;
• (b) ZM (mutual friend of the parties while they resided in Florida); and
• (c) SA (mutual friend of the parties while they resided in Florida).

[12] The Respondent’s witnesses were:

• (a) Himself; and
• (b) YA (paternal grandmother).

[13] In total, twenty-seven exhibits were filed and given their due weight. This included, on consent, the Discontinued Report of the Office of the Children's Lawyer dated December 6, 2023 and authored by social worker Wendy MacKenzie, which was filed for the truth of its content, without Ms. MacKenzie being cross-examined.

[14] The Applicant was a credible witness. Her evidence was presented in a clear and straight-forward manner. When she made an allegation, she provided sufficient detail about it. She was child focused. She was able to acknowledge events that were not necessarily favourable to her (such as her parenting struggles in around 2020); this enhanced her believability regarding all issues. Her testimony was consistent and was not undermined by cross-examination.

[15] The evidence of ZM and SA was also credible. It was presented in a matter of fact, balanced fashion. It was limited in scope. The court had no concerns regarding the veracity of what they had to say about what they witnessed.

[16] The Respondent was not a credible witness. His evidence was often devoid of necessary detail. He avoided addressing key issues, even when asked by the court to do so (such as why he moved to Egypt in 2023). It was obvious that his main goal was to malign the Applicant. He was not child centered. At times, his evidence was inconsistent. For example, he repeatedly stated that the Applicant ‘kidnapped’ the children when she took them to Egypt in November, 2020, however, on November 15, 2020 he signed a consent which allowed the children to travel to Egypt with the Applicant for an unspecified period; the paternal grandmother bought their one-way tickets to Egypt; the paternal grandmother accompanied the Applicant and the children to Washington D.C. from where they departed; the Respondent knew they were residing with the Applicant’s family while in Egypt. At other points in this litigation the Respondent was not forthright with the court (he did not disclose to Justice Clay on July 31, 2023 when a supervised parenting time order was made that he was moving to Egypt two days later) and with the Office of the Children's Lawyer (he did not disclose to Ms. MacKenzie during their conversations in October and November, 2023 when she was attempting to schedule a meeting with him, that he had moved to Egypt; he provided many reasons why he would not meet with her, but living in Egypt was not one of them). Such deception negatively impacts the believability of what he had to say at trial.

[17] The paternal grandmother was also not a credible witness. A fair amount of her evidence consisted of bald assertions that lacked the necessary foundations. It was blatantly obvious that she wholly supports the Respondent and would say anything to further his goals. She found it difficult to answer the questions asked; she proceeded with whatever negative statements she wanted to say about the Applicant regardless of their relevance to the question posed. On occasion, she did not even wait for a question to be asked and said what she wanted to say about the Applicant. All of this materially affected the trustworthiness of her testimony.

[18] Based on the foregoing, where the evidence of the Respondent and the paternal grandmother conflicted with that of the other witnesses, the evidence of the others was preferred.

Part 3 – Background Facts

[19] The Applicant’s date of birth is September XX, 1988. She is 36 years old.

[20] The Applicant resides in the Peel Region with the two subject children.

[21] The Applicant attended the Higher Institute of Languages in Cairo, Egypt from September, 2006 to July, 2010 and obtained a Bachelor’s degree in German.

[22] The Applicant is currently attending college and studying to be a dental assistant. Prior to this, since her return to Canada in October, 2021, she studied English and early childhood education.

[23] Presently, as of around November, 2024, the Applicant’s source of income is OSAP (student loan) and government benefits (such as child tax credit; not social assistance). Prior to this, since her return to Canada in October, 2021, her source of income was social assistance and other government benefits.

[24] The Respondent’s date of birth is January XX, 1986. He is 39 years old.

[25] The Respondent resides in Egypt.

[26] The Respondent has a Bachelor’s degree in mathematics and physics and a Master of Science degree in applied mathematics and mathematical physics from Brock University. In 2022, the Respondent received a Doctoral degree in applied mathematics from the University of South Florida. In July, 2022 the Respondent started post-doctoral studies at Brock University, but discontinued these studies, as the salary was low.

[27] The Respondent is currently residing in Egypt, working approximately twenty hours a week as a tutor. His family provides him with financial assistance, which includes living in the family home in Egypt at no cost to him.

[28] On May 25, 2012 the parties married in Egypt.

[29] They separated in November, 2020.

[30] At the time of marriage, the Applicant was residing in Egypt, and the Respondent was residing in St. Catharines, Ontario. Following the marriage, the Respondent returned to Canada and the Applicant remained in Egypt.

[31] The Respondent sponsored the Applicant, and she arrived in Canada in February, 2014.

[32] The Applicant is a permanent resident of Canada. The two subject children were born in Canada.

[33] For a year in 2015-2016, the Respondent resided in Qatar and was a teaching assistant at Qatar University. The Applicant and the child CER joined him in Qatar for around two and a half months.

[34] From 2016 to 2022, the Respondent resided in Florida and pursued his Doctoral degree.

[35] The Applicant and the child CER resided with the Respondent in Florida for a brief period in 2016. The next time they lived together as a family was in 2018, when the Applicant and the two children moved to Florida. They lived together until the Fall of 2020.

[36] CEL was around one year old when the Respondent had his first in-person contact with her; it occurred when she, CER, and the Applicant moved to Florida in 2018.

[37] In November, 2020 the Applicant and the children went to Egypt and remained there until October, 2021 when they returned to Canada.

[38] The Respondent returned to Canada in July, 2022.

[39] On August 2, 2023 the Respondent left Canada and moved to Egypt. He continues to reside in Egypt. The Respondent made plans to move to Egypt in around June/July, 2023.

[40] The Respondent has no concrete plans to return to Canada.

[41] On July 31, 2023 Justice Clay made a temporary without prejudice order that included:

• (a) The children’s primary residence shall be with the Applicant;
• (b) The Respondent shall have supervised parenting time at PSAP, which is operated by Social Enterprise for Canada; and
• (c) The Respondent shall pay Guideline child support in the amount of $491 a month, based on an imputed full-time minimum wage income of $32,240.

[42] Justice Clay’s July 31, 2023 order also provided that the Respondent may bring a motion on the return date of December 12, 2023 for expanded parenting time.

[43] On July 31, 2023 Justice Clay also requested that the Office of the Children's Lawyer become involved and prepare a report pursuant to section 112 of the Courts of Justice Act . The Respondent had requested this in his Answer.

[44] The Respondent did not attend the supervised parenting time. As already noted, he moved to Egypt two days after the order was made.

[45] The Respondent has not complied with Justice Clay’s child support order. He has paid a total of $2,931.

[46] The Office of the Children's Lawyer assigned social worker Wendy MacKenzie to complete a section 112 report. Ms. MacKenzie’s investigation was discontinued, as the Respondent declined to schedule an interview with her.

[47] The Respondent has not had in-person parenting time with the children since November, 2020. At that time, CER was 5 years old, and CEL was 3 years old.

[48] When the Applicant was in Egypt with the children from November, 2020 to October, 2021, the Respondent had occasional calls with the children.

[49] The Respondent has not had any virtual/phone contact with the children since their return to Canada in October, 2021.

[50] The Applicant issued her Application for parenting and support orders on April 3, 2023. Service was effective as of May 16, 2023.

[51] The Respondent’s Answer is dated June 29, 2023.

[52] The children do not have any special needs.

Part 4 – Parenting Issues

4.1 Legal Considerations

[53] Section 24 of the Children’s Law Reform Act [2] sets out that the court must make decision-making responsibility and parenting time decisions that are in the best interests of the subject children.

[54] Subsection 24(2) of the CLRA provides that the court must give primary consideration to the child's physical, emotional, and psychological safety, security and well-being in determining best interests.

[55] Subsection 24 (3) of the CLRA sets out a list of factors for the court to consider when determining a child’s best interests. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include,

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[56] The child’s best interests are not merely ‘paramount’; they are the only consideration in this analysis. [3]

[57] The list of best interests considerations in the CLRA is not exhaustive. [4] 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. [5]

[58] The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. [6] 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. [7]

[59] Findings of family violence are a critical consideration in the best interests analysis. [8]

[60] Family violence is defined in sections 18(1) and (2) of the CLRA 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;

Family violence

(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.

[61] Factors relating to family violence are outlined in section 24(4) of the CLRA as follows:

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3)(j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person's ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[62] Justice Chappel wrote about the importance of family violence as a best interests factor in McBennett v. Danis [9] as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent's physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child's physical and emotional needs.

[63] The Supreme Court of Canada in Barendregt v. Grebliunis, supra m ade the following observation about family violence:

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: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al."A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth" (2014), 5 I.J.C.Y.F.S. 493, at p. 497. [10]

[64] Violence need not be physical. Emotional and psychological abuse can have a devastating impact on children. [11]

[65] Having regard for the damaging impacts of family violence, the courts must construe family violence provisions in a broad and purposive manner so as to maximize the protective scope of the provisions for children and their family members who are facing family violence in its many forms. [12]

[66] With respect to proof of domestic violence allegations:

(a) 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. [13]

(b) Notwithstanding this, allegations of abuse require particular evidence of particular events that caused the harm. General statements are not enough. [14]

[67] Section 33.1(2) of the CLRA addresses the importance of the parties protecting children from conflict. It reads as follows:

Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party's ability, protect any child from conflict arising from the proceeding.

[68] 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. [15]

[69] With respect to joint decision-making responsibility, the Ontario Court of Appeal in Kaplanis v. Kaplanis [16] set out the following principles in determining whether a joint decision-making responsibility order is appropriate:

(a) There must be evidence of historical communication between the parents and appropriate communication between them.

(b) It can't be ordered in the hope that it will improve their communication.

(c) Just because both parents are fit does not mean that joint decision-making responsibility should be ordered.

(d) The fact that one parent professes an inability to communicate does not preclude an order for joint decision-making responsibility.

(e) No matter how detailed the joint decision-making responsibility order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

(f) The younger the child, the more important communication is.

[70] 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. [17] 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. [18]

[71] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. [19]

[72] In Izyuk v. Bilousov , [20] the court wrote:

In the wrong family circumstances, a joint decision-making order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family break-down - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[73] Courts should carefully assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

(a) More or less likely to de-escalate or inflame the parents' conflict;

(b) More or less likely to expose the child to parental conflict; and,

(c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending, and the best interests of their children can be secondary considerations. For such parents, a joint decision-making responsibility order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult. [21]

[74] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. [22]

[75] 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 decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child's interests. [23]

[76] Pursuant to subsection 28 (1)(b) of the CLRA , the court may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child. It is pursuant to this subsection that the court can deal with requests regarding government identification and travel. The legal test is a best interests analysis.

[77] I t does not necessarily follow that if a parent is granted decision-making for a child that the right to obtain government documentation for the child without the other parent's consent or to travel with the child outside of Canada without the other parent's consent will be ordered. These are parental rights distinct from who has decision-making for the child, and without a dispensation order from a court, the consent of the other parent is usually required by government authorities. These are important parental rights that are not to be dispensed with lightly. [24]

[78] It is generally accepted that parents have the right to know the contact information of the other parent. [25] This includes their residential address. However, this is not an absolute right. [26] Subsection 28(1)(c)(iv) of the CLRA provides the court with the ability to require that a party give information respecting the child’s well-being to another party (or other person specified by the court). This subsection is broad enough to include the provision of the child’s residential address to the non-residential parent. Subsection 28(1)(c) is also sufficiently expansive to encompass the power to order limits on access to information. What order is “necessary” and “proper” must be determined by an application of the best interests principle, as all decisions affecting children are.

[79] Subsection 24(6) 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.

[80] In resolving disputes over parenting time, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children. The best interests of the child are generally met by having a loving relationship with both parents. Moreover, children have a right to have contact with both parents. [27]

[81] The above does not mean that a parent has an absolute right of parenting time. Parenting time is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that parenting time will not harm the child; that is far too low a threshold. However, refusing parenting time should only be ordered in extreme circumstances. [28] It is a remedy of last resort. [29]

[82] If a person seeks supervised parenting time, that person bears the burden of establishing that supervision is necessary. [30] Supervision may be an intermediate step in certain situations such as where the child requires protection from emotional abuse, and where the child is being introduced or reintroduced to a parent after a significant absence. In all situations where supervised parenting time is ordered, the hopes and expectations are that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve. [31]

[83] The lapse of time without seeing a child is a very important consideration in parenting time decisions. [32]

4.2 Decision-Making Responsibility

[84] The evidence overwhelmingly supports the Applicant having sole decision-making responsibility for the children.

[85] The children have always resided with and been primarily cared for by the Applicant.

[86] Even prior to the parties’ separation in November, 2020, there were meaningful time periods when the parties and the children did not live together as a family.

[87] The Respondent has never cared for the children overnight, on his own.

[88] The roles in the marriage were well-defined; the Applicant cared for the children and managed the household while the Respondent pursued his education and interests. For example, at the time they all resided together in Florida from 2018 to 2020, the Respondent focused on his studies and in his off time, played soccer and spent time with his mistress, while the Applicant cared for the children and the home. The Respondent’s time with the children was largely restricted thirty to sixty minutes a day, when he got home in the evenings, which was usually between 8:00 p.m. and 9:00 p.m.

[89] The Applicant has demonstrated the ability and willingness to care for and meet the children’s needs.

[90] The Applicant acknowledged that while in Florida (the second time with both children), she experienced mental health challenges (depression). The Applicant also recognized that her mental health struggles impacted her ability to care for the children, and she did the best she could.

[91] The Applicant’s care of the children did not cause the Respondent sufficient concern that he gave up or reduced his studies and extra-curricular activities to focus on caring for the children. It also did not stop him from providing his written consent on November 15, 2020 for the Applicant to take the children to Egypt for an undefined period.

[92] The Respondent’s concerns were also not serious enough for him to remain in Ontario (in 2023) and pursue primary residence of the children, or alternatively, meaningful parenting-time so that he could monitor the situation and/or off-set the poor parenting he believes the Applicant is providing the children.

[93] The court directly asked the Respondent to explain his choice to move to Egypt in the face of serious stated concerns regarding the Applicant’s care of the children and him having the opportunity to address those concerns through engagement with Ms. MacKenzie and the court process. He did not directly or helpfully answer the question.

[94] The Applicant’s historical mental health struggles appear to have been situational. There is no evidence to suggest that she currently is (or has in the recent past) experiencing mental health challenges that negatively impact her parenting. To the contrary, the evidence demonstrates that the Applicant is willing and able to meet the children’s needs in an appropriate manner. The Applicant secured housing in Peel Region for herself and the children (after her return to Canada in October, 2021 and following residing in a shelter for approximately four months) and has maintained the same residence since then. The children share a room and have their own beds. Ms. MacKenzie visited the home and reported no concerns with respect to its safety or appropriateness. The children are well fed; the Applicant accesses food banks when necessary. The children are maturing, doing well in school, and maintaining friendships with peers. The Applicant has the children involved in educational programs outside of school. The Applicant ensures that the children engage in age-appropriate activities; she has secured skates for winter activities and bikes for summer activities. The children have been involved in swimming lessons. The Applicant takes the children to Mosque where they participate in religious-based learning and activities.

[95] In stark contrast, the Respondent has no demonstrated ability and willingness to care for the children and to meet their needs. He has been content to delegate this responsibility to the Applicant from the time the children were born. He moved to Egypt in 2023 at the precise time he was afforded the opportunity to re-connect with his children and pursue the ability to engage in their care through the court process. He has not consistently provided for his children financially, notwithstanding there being an existing order that he do so. Further, as detailed below, he has not protected the children from conflict.

[96] With respect to the nature and strength of the Applicant’s relationship with the children, Ms. MacKenzie reported that at her observation visit:

• (a) Both children were smiling and stayed close to their mother.
• (b) CEL jumped into her mother’s lap and hugged her.
• (c) The mother played with the children, and they appeared comfortable with her.
• (d) CER told Ms. MacKenzie that her mother is nice to her.
• (e) CEL told Ms. MacKenzie that she likes to play with her mother and hug her. She said that her mother is fun.
• (f) CEL told Ms. MacKenzie that she wouldn’t change anything about her mother.

[97] Given the extended absence of the Respondent from the children’s lives and their ages the last time they spent any time together, it logically flows that the Respondent’s current relationship with the children is non-existent. CER told Ms. MacKenzie that she remembers her father and said that he used to buy her a lot of toys. CEL told Ms. MacKenzie that she doesn’t know anything about her father.

[98] The evidence clearly establishes that the Respondent has perpetrated family violence against the Applicant. The Respondent’s coercive and controlling behaviour is significant and has occurred over a meaningful period of time. For example:

• (a) When the Applicant resided with the Respondent and his family in the Niagara Region following her arrival to Canada in 2014, the Respondent would frequently shout at her and call her names.
• (b) When the Applicant and the Respondent resided together in Florida in 2016, the Respondent screamed at the Applicant and continued to call her names. The Respondent would also tell her that she is not a good wife. He would wake her up from her sleep to fight with her.
• (c) When the Applicant and the children returned to Florida in 2018:
  • i. The Respondent regularly hit her, sometimes leaving bruises.
  • ii. There were times that the Respondent quickly became angry towards the Applicant, over small things. For example, he became quite angry with her while at a Christmas parade with the children and friends (including SA) because in his view, she took too long in the washroom with the children.
  • iii. SA responded to the request of a mutual friend (Osama) to attend the parents’ home. The Applicant, the children, and the paternal grandmother were also in the home. The Respondent was quite angry. As SA tried to calm down the Respondent, the Respondent argued that he had a right to punish the Applicant as she had to listen to him.
  • iv. There was an incident when the Respondent returned home upset that the Applicant had called him too frequently that day. He slapped her in the face and hit her in the head. The children were sitting with the Applicant and were crying. The Respondent apologized and then continued to hit the Applicant.
  • v. On February 14, 2020 the Applicant attended a hospital in Tampa following being hit by the Respondent and was treated for a perforated eardrum.
  • vi. In October, 2020, the Respondent broke the Applicant’s phone as they fought in their backyard. The Respondent tried to choke the Applicant. The children were present. When the Applicant screamed, the Respondent placed the children inside the home. The police were called. The Respondent was arrested. A child protection worker came to the home and assisted in taking the Applicant and the children to a shelter, where they stayed for three weeks. The charges were dropped.
  • vii. The Respondent would hide the Applicant’s phone so she could not talk to her family in Egypt.
  • viii. The Respondent maintained an extramarital affair which negatively impacted the Applicant’s self-worth and overall psychological well-being. [33]
• (d) When the Applicant resided in Egypt with the children from November, 2020 to October, 2021:
  • i. The Applicant requested money from the Respondent so the children could attend school (they are Canadian citizens and therefore could not attend public school in Egypt at no cost). In response, the Respondent threatened to cancel the Applicant’s permanent residency status in Canada and threatened to take the children.
  • ii. The Respondent had occasional calls with the children. When the children got distracted and left the call to play, the Respondent blamed the Applicant (and her family) for this. This would be followed up with insulting texts. This had a negative impact on the Applicant’s well-being; it caused her anxiety and depression.
• (e) Most recently, the Respondent attempted to exert control over the Applicant by requesting at trial that her parenting be supervised by the paternal grandmother and that the paternal grandmother be entitled to “check the situation of the household on a regular basis”.

[99] The Respondent denied he was ever abusive towards the Applicant. He acknowledged breaking her phone during an argument in anger but went on to state that his behaviour was justified because the Applicant was neglecting her parental responsibilities. The Respondent steadfastly maintained that all their difficulties and arguments were the Applicant’s fault. The Respondent’s lack of acknowledgement and insight into his troubling behaviour does not instill confidence that his mindset and treatment of the Applicant will be different in the future.

[100] Joint decision-making responsibility would be disastrous. There is no evidence of appropriate historical communication between the parties. The Respondent does not respect the Applicant; his disdain for her is palpable and unjustifiably, he believes she is a poor parent. If decisions for the children had to be made jointly, the Applicant would be subjected to the Respondent’s coercive and controlling behaviour, which is obviously not appropriate. Last, r equiring the Applicant to engage with the Respondent in decision-making would inevitably and unduly complicate the decision-making process for the children, and they deserve for decisions about them to be made quickly, properly, and uneventfully.

[101] Based on the foregoing, the court finds that it is in the children’s best interests that the Applicant be granted sole decision-making responsibility.

4.3 Parenting Time

[102] The court order cannot be silent with respect to parenting time, as the Applicant requests. The Respondent has made a claim regarding this issue and thus it must be adjudicated.

[103] The court cannot determine, at this time, what arrangements for in-person parenting time will be in the children’s best interests if/when the Respondent returns to Canada. Presently, he has no plans to return to this country. The children’s needs will change over time. A review of what in-person parenting time arrangements (if any) are in the children’s best interests ought to be carried out in reasonable proximity to when the parenting time will occur.

[104] When determining whether virtual parenting time should be ordered, The court has considered the best interests analysis above.

[105] The court has also taken into account the children’s views and preferences, as shared with Ms. Mackenzie:

• (a) CER said that she has not seen her father in a long time and would like to see him again. She said she would see her father, but she would be nervous, so she would like to have someone there with her.
• (b) CEL told her that she would like to see her father someday because she likes to meet people.

[106] The court has also considered the following:

• (a) The court is not limited to the positions taken by the parties. [34]
• (b) The children require and deserve relationships that are child focused, consistent, and conflict-free.
• (c) The Respondent’s commitment to parenting time is questionable. The Respondent did not comply with Justice Clay’s July 31, 2023 order for supervised parenting time; he moved to Egypt just as he was about to re-connect with the children. He did not ask for virtual parenting time on a temporary basis by way of motion. He did not include virtual parenting time in his draft order; it was only after the court asked him if he had a claim of this nature he put one forward.
• (d) As a result of the Respondent’s choices, the children do not have an existing relationship with him. If virtual parenting time was ordered, the Respondent and the children would be starting anew. In these circumstances and given CER’s stated nervousness to see the Respondent again, virtual parenting time, at least at the outset, would have to be supervised. Given the family violence that has occurred, the Applicant is not an appropriate supervisor. It would be inappropriate to order that the paternal grandmother assume this responsibility. She does not have a current relationship with the children. She is clearly aligned with the Respondent and believes that he has done no wrong. Her dislike for the Applicant was very evident as she testified; the court is concerned that she would impart her views of the Applicant onto the children. It is highly doubtful that the Respondent would follow-through with and pay for professional supervision; he did not do so in the Summer of 2023 when supervised in-person parenting time was ordered. All of this leaves a serious gap in the Respondent’s last-minute plan for virtual parenting time.
• (e) Virtual parenting time would provide the Respondent, on an ongoing basis, with a means to have contact with and exert control over the Applicant. The children are of an age that they would require assistance with the mechanics of setting up for virtual parenting time. When the Respondent had contact with the children while they resided in Egypt from November, 2020 to October, 2021, he behaved inappropriately towards the Applicant, and it had a profound impact on her well-being. It is not in the children’s best interests to be directly or indirectly exposed to the Respondent’s troublesome treatment of the Applicant, and there is a real risk this would occur if there was virtual parenting time.
• (f) The Applicant does not have a dependable means to facilitate virtual parenting time. She lacks reliable electronics and data plan. This was evident at trial; she was not able to maintain a consistent attendance via Zoom. The Applicant requested that the Respondent provide her with a data plan and an electronic device to facilitate virtual parenting time. He did not respond to this request. The court could order that the Respondent pay for these, as an incident of parenting time. However, the Respondent has not complied with the existing support order, so there is little reason to think that he would follow-through with an order regarding these expenses. Enforcement of such an order is complicated by the fact the payor resides in Egypt. The Respondent’s financial situation is already strained; requiring her to pay for a means to facilitate virtual parenting time would meaningfully impact the Applicant’s ability to provide for the children in other ways. Given the totality of the evidence, it is not appropriate to expect the Applicant to take further alternate steps to facilitate the Respondent’s virtual parenting time with the children.
• (g) The Respondent has a demonstrated inability to comply with court orders. Any concerns the court may have with respect to his parenting time could not be assuredly addressed by terms and conditions.

[107] Based on the foregoing, the court finds that this is one of those exceptional circumstances where a no parenting time order is in the subject children’s best interests.

4.4 Other Parenting Claims

[108] The court will order that the Applicant shall be permitted to apply for and renew all government issued identification, including passports, for the children without the Respondent’s consent or signature. The Applicant is the children’s primary caregiver. It is in their best interests that she has their necessary documentation. The Respondent is controlling. The court has no confidence that the Respondent would willingly sign consents for documentation for the children in a timely and conflict free manner, if at all.

[109] The court will also order that the Applicant shall be permitted to travel with the children outside of Canada and arrange for the children to travel with others outside of Canada without the Respondent’s consent or signature. It is in the children’s best interests that they be able to freely travel and experience the benefits of seeing other parts of the world and spending time with extended family without unnecessary complications. The court is confident that the Applicant can make reasonable decisions regarding the children’s travel; she has not made poor decisions in this regard to date. The court has no confidence that the Respondent would provide consents to travel in a timely or reasonable manner (if at all) and is concerned that the Respondent will use opportunities of this nature to exert control over the Applicant.

[110] The court will not order that the paternal family have contact with the children. Whether it is in the children’s best interests for the children to have contact with the paternal grandmother and other paternal family members requires a thorough and careful review, and paternal family contact with the children is not properly before the court . [35] The evidence suggests a cautious approach to this issue is warranted. Notably, the paternal grandmother’s significant dislike of the Applicant is quite concerning. Further, the paternal grandmother has exhibited controlling behaviour over the Applicant. In the Fall of 2020 when there were outstanding criminal charges against the Respondent, the paternal grandmother travelled to Florida, met with the Applicant, and convinced her to take steps to have the case dropped. While living in Egypt following their separation, the Applicant asked the Respondent for money so the children could attend school; the paternal grandmother responded to this request by threatening to call the embassy and report that she had kidnapped the children. Last, the paternal grandmother’s allegiance to the Respondent was quite evident; it is questionable whether she would be able and/or willing to set this aside and focus on the children, or whether the focus of contact would be on establishing and facilitating parenting time between the Respondent and the children.

[111] The court will not order that the Applicant shall disclose the children’s residential address to the Respondent. It is not in the children’s best interests that the Respondent know where they live. There is a risk that either he or his family members may show up to their residence and that the Applicant and the children will be exposed to conflict or other inappropriate and unwanted behaviour. The court appreciates that the Respondent resides in Egypt and currently has no concrete plans to return to Canada. However, most of his immediate family resides in Ontario and they financially support his ventures; it is not unreasonable to anticipate he may return to Canada at some point in time. Further, the Respondent spent an inordinate amount of time at trial on the issue of how the Applicant has unjustly refused his family contact with the children; it is reasonable to believe that if the children’s residential address was provided, the paternal grandmother (and potentially other family members) would simply show up and demand to see the children. The children’s physical, emotional, and psychological safety may be negatively impacted by such contact.

[112] The court will not order that the Applicant shall be supervised by the paternal grandmother, and the paternal grandmother shall be entitled to “check the situation of the household on a regular basis.” The court does not have the authority to make such an order. Even if the authority existed, there is absolutely no need for such oversight.

[113] The court will not order that the Applicant be found guilty of “children alienation and costs of the mental recovery costs.” The Respondent did not pursue this claim. The court does not find that the Applicant has taken steps to alienate the children from the Respondent. The court does not have authority to impose findings of guilt or order damages.

Part 5 – Child Support

5.1 W hat is the start date for child support?

[114] The court's authority to make retroactive support orders is contained in subsection 34(1) (f) of the Family Law Act . [36] This clause reads as follows:

Powers of court

34 (1) In an application under section 33 , the court may make an interim or final order,

.......(f) requiring that support be paid in respect of any period before the date of the order;

[115] Any support claimed after an application is issued is prospective support, not retroactive support and is presumptively payable. [37]

[116] In Colucci v Colucci , [38] the court set out the framework that should be applied to requests to retroactively increase support contained in an order or agreement. The Colucci framework is also applied, with necessary modifications, to an original request for retroactive support. [39]

[117] The first step will be to determine the presumptive date of retroactivity as described in Colucci . A presumption arises in favour of ordering child support to the date the recipient gave the payor effective notice that child support was being requested, up to three years before formal notice of the application. For there to be effective notice, there must be some mention of financial need, however vague or indirect or allusive it seems. There does not need to be an explicit reference to "child support”. This is not a demanding test. If there has been no effective notice, child support should generally be paid back to the date of formal notice. The date of formal notice is typically the date the court application is served.

[118] 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. [40] factors will guide the exercise of this discretion, as described in Michel v. Graydon . [41] The D.B.S . considerations are:

(a) Reasons for delay: When considering delay in applying for support, courts should look at whether the reason for the delay is understandable, not whether there is a reasonable excuse for the delay. A delay, in itself, is not inherently unreasonable. 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. [42] Even if an unreasonable basis for the delay is established, this does not negate the payor parent's blameworthy conduct; indeed, the blameworthy conduct may sometimes cause or contribute to the delay. Over time, delay has been relegated to a minor role in a Colucci analysis. This view is consistent with the over-arching policy that it is the child’s right to support, a right which should not be compromised by a recipient parent’s delay in seeking retroactive child support. [43]

(b) Blameworthy conduct: Courts should apply an expansive definition of blameworthy conduct. 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. The payor’s subjective intention is rarely relevant; the real question is whether the payor’s conduct had the effect of privileging his or her interests over the child’s right to support. [44]

(c) Circumstances of the child: The purpose of the inquiry is to determine how the failure to pay adequate child support has affected the child. The court must address support from a child-centred approach, recognizing that it is the child's right. A loss of benefit is presumed where the payor parent fails to pay the amount of support required under the Guidelines . [45] Further, 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. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child. [46]

(d) Hardship: T he onus is on the payor to show hardship. The payor must adduce evidence to "establish real facts" supporting a finding of hardship. Bald assertions are not enough. The payor must also provide a complete picture of their financial situation, including income, assets, and debts. [47] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. [48] 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. [49]

[119] 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.

[120] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. [50]

[121] Retroactive awards are not exceptional. They can always be avoided by proper payment. [51]

[122] The uncontroverted evidence of the Applicant is that she asked the Respondent for financial assistance with respect to the children when she was in Egypt following their separation (therefore sometime between November, 2020 and October, 2021). The Applicant further asked for financial assistance for both her and the children in October, 2021 (immediately upon her return to Canada). The Respondent advised that he did not pay child support as he was a student and could not afford to do so, and since graduating with Doctoral degree, he has not been able to secure work.

[123] Given that it is unclear when the Applicant raised the issue of child support with the Respondent while she was in Egypt and that she was in Egypt for a relatively long period of time, the court cannot not find that the discussions had at that time constitute effective notice. Rather, the court finds that the effective date of notice was in October, 2021, when the Applicant returned to Canada and immediately thereafter asked the Respondent for financial assistance.

[124] It is understandable that there was some delay in the Applicant bringing the case to court. In November, 2020 she left an abusive relationship with two young children and spent time with family in Egypt. The family violence had a serious negative impact on the Applicant’s well-being; it is reasonable that it took time for her to develop the emotional means to engage in litigation with the Respondent. Upon her return to Canada, there were pressing issues the Applicant had to prioritize. She lived in a shelter for four months, during which time she found a permanent home for the children. She also took English classes.

[125] The Respondent has engaged in blameworthy conduct. He has not provided complete or timely financial disclosure. He failed to pay child support as ordered. He chose to move to Egypt, without a job, where he earns a menial income; far less than he could make if he remained in Canada and did the same job (tutoring at 20 hours a week). Last, without justification, the Respondent has not engaged in a reasonable job search for employment that is commensurate with his education.

[126] The circumstances of the children have been disadvantaged by the Respondent’s failure to pay appropriate child support. Their education was compromised when they resided in Egypt due to the lack of financial support from the Respondent. Since returning to Canada in 2021, the children were supported by social assistance, until the Applicant received OSAP in around November, 2024, which continues to provide them with a very low economic experience. They also had to reside in a shelter for four months upon their return to Canada in 2021. On occasion, the children must rely on food banks. Their participation in extra-curricular activities has been limited to that which the Applicant can arrange on her exceptionally limited income.

[127] There is no doubt that hardship would be caused to the Applicant and the children if the Respondent was not ordered to pay the child support he owes. While the Applicant has done an admirable job managing her meagre income to ensure the children’s basic needs are met, they struggle financially. There is no justifiable reason to expect this to continue. The children would benefit greatly from the Respondent’s child support payments.

[128] The Respondent did not establish that an order for retroactive support will cause him hardship. His expenses are extremely low. He isn’t paying his debts (namely child support as ordered, and his student loan). He has consistent and meaningful financial support from family. Notwithstanding this, the court anticipates that an order for retroactive support may cause the respondent some hardship; this can be dealt with when the form of payment is considered.

[129] Based on the foregoing, the Applicant’s proposal to start child support on November 1, 2020 is fair and will so be ordered.

5.2 What is the Respondent’s annual income for each year he is required to pay child support? Should income be imputed to him in any of these years, and if so, how much?

[130] The final step in the Colucci framework is to quantify the proper amount of support for each year from the start date of retroactivity . The Respondent’s income for each year needs to be assessed to do this.

[131] One of the objectives of the Child Support Guidelines is to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents. [52]

[132] Pursuant to section 16 of the Guideline s, subject to sections 17-20, a parent’s annual income is determined by using the sour ces of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[133] However, subsection 19(1) of the Guidelines permits the court to impute income to a party as it considers appropriate. Relevant to this case are subsections 19(1)(a) and (f), which state,

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;...

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

[134] Rule 13 of the Family Law Rules [53] outlines the particulars of the Respondent’s disclosure obligations.

[135] The jurisprudence regarding imputation of income sets out the following:

(a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. [54]

(b) The Ontario Court of Appeal in Drygala v. Pauli [55] set out the following three questions which should be answered by a court in considering a request to impute income:

(i) Is the party intentionally under-employed or unemployed?

(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?

(iii) If not, what income is appropriately imputed?

(c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. [56]

(d) Intentional underemployment requires a voluntary act by the payor. But there is no need to establish a specific intent to evade child support obligations or bad faith before income is imputed. A payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. [57]

(e) If the court is not satisfied that the support payor is intentionally under-employed, the inquiry ends there. [58]

(f) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. [59]

(g) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. [60]

(h) Parents can take jobs with less money, as long as the decision is reasonable. [61]

(i) Parents must not arrange their financial affairs to prefer their own interests over those of their children. [62]

(j) When an employment decision results in reduced or no child support being paid, it needs to be justified in a compelling way. [63]

(k) The absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. [64]

(l) If intentional under-employment is established, and if the payor cannot establish a reasonable explanation, then the court must decide what income should properly be imputed in the circumstances. What is the payor capable of earning? [65]

(m) The court has broad discretion to impute income where a party is not working to their potential. The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. [66]

(n) In exercising its discretion, the court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency, and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support. [67]

(o) Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected must be grounded in the evidence. [68]

(p) The court can impute income where the Respondent’s evidence respecting income is not credible. [69]

[136] The Respondent’s evidence about his income and financial circumstances is incomplete, unreliable, and inconsistent:

(a) His Answer is silent with respect to the issue of child support.

(b) Pursuant to Rule 13, his Financial Statement was to be served and filed by June 16, 2023. His one and only Financial Statement is dated October 27, 2024.

(c) He did not provide an updating Financial Statement for trial but was permitted to provide oral evidence on this issue.

(d) He did not provide his Notice of Assessment for 2020.

(e) His October, 2024 Financial Statement includes the statement that he resides in St. Catharines and has no employment income. At the time he swore his Financial Statement he was residing in Egypt, working 20 hours a week tutoring, earning an income of around $400 (CDN) a month.

(f) His October, 2024 Financial Statement also includes that he has no bank accounts. However, his oral testimony was that there is $200 in his bank account, which he has had since 2015.

(g) When asked to explain the above-noted discrepancies, he advised that the agent he retained completed his Financial Statement and he did not read it before he signed it. He was non-responsive to the question why he would sign a court document without first reviewing it.

(h) His Form 35.1 Affidavit dated June 29, 2023 includes the statement that he works full-time, which is contrary to his oral evidence, which was that he has not worked full-time since completion of his Doctoral degree. When asked to explain this discrepancy, his response was the same as that noted above regarding his Financial Statement.

(i) In his October, 2024 Financial Statement, he lists his sole expenses as his cell phone ($50 a month), clothing ($70 a month), and child support ($300 a month). The existing child support order requires that he pay $491 a month and on his own evidence, he has only made nine payments totalling $2931 (he does not consistently pay this debt).

(j) While providing oral evidence, he indicated that the above continue to be his expenses and included that his groceries are $100 a month as he does not eat much.

(k) He stated that when the Applicant asked him to provide financial assistance upon her return to Canada in October, 2021, he could not do so as he had his own rent and other expenses to pay while in Florida. However, he also testified that from 2021 to 2022 (until he finished his studies) he was sleeping in his office and did not have rental accommodations.

[137] The evidence regarding the Respondent’s income and financial circumstances also includes the following:

(a) During his Doctoral studies, his salary was $1,600 a month (US). (He provided no evidence as to whether he received scholarships, grants, and/or bursaries, and as to what his educational (if any) expenses were).

(b) He started post-doctoral studies at Brock University but quit as he as dissatisfied with the salary. (He provided no evidence as to what his salary was in this position).

(c) He worked at Brock University from September 1, 2022 to June 30, 2023 as a research associate. He earned $30.00 an hour; his total salary was $26,220 (exclusive of vacation pay) for 874 hours (around 20 hours a week). He stated that he could not work another part-time job during this employment because he had to always be available to complete his work as a research associate; his super visor did not give him a schedule and work could be given to him at any time.

(d) He moved to Egypt without having a job there.

(e) He lives rent-free in his family’s home in Egypt. The paternal grandmother also pays the utilities for this residence.

(f) His brother occasionally helps him out financially.

(g) His October, 2024 Financial Statement lists his sole debts as being his student loan ($40,000), to which he makes no monthly payments, and his child support debt to the Applicant. As already noted, he does not pay child support as ordered, and even when payments have been made, they have not been in the amount of $491, as ordered.

(h) His Notice of Assessment for 2023 states at line 150 that his total income for this year was $16,213.

(i) His Notice of Assessment for 2022 states at line 150 that his total income for this year was $19,644.

(j) His Notice of Assessment for 2021 states at line 150 that his total income for this year was $0.

(k) When asked, he advised that if he tutored in Canada, he would charge between $15 and $20 an hour.

(l) He mainly looks for employment via LinkedIn. The last time he applied for a job via LinkedIn was in August, 2023.

(m) He has also applied directly to universities but did not receive confirmation of having done so. (He did not provide particulars as to when these direct job applications were submitted and where specifically he applied to). When asked if he made any such applications since 2023, he said he does not remember; he may have done so once or twice, but he cannot recall.

(n) He sometimes just shows up to universities and schools seeking employment. (He did not provide any specifics).

[138] Based on the totality of the foregoing, the court finds that:

(a) The Respondent has not provided timely and complete disclosure.

(b) The Respondent was intentionally unemployed for the period from July, 2022 to August 2022, and under-employed since September, 2022.

(c) The Respondent’s unemployment and under-employment was not and is not required by virtue of his reasonable educational needs (to the contrary, he is a very educated man), the needs of the subject children (or any other children), or reasonable health needs.

(d) The court does not accept that his job responsibilities as a part-time research associate in mathematics and statistics at Brock University (from September, 2022 to June, 2023) rendered the Respondent unavailable to enhance his earnings by working at another job.

(e) The Respondent did not establish that it was reasonable to move to Egypt to pursue employment. He had no employment there. From Egypt, he searches for jobs internationally, including Canada. This could have been done from Canada. At the very least, if he stayed in St. Catharines, he could have made substantially more money tutoring than he makes in Egypt.

(f) The Respondent has not prioritized his obligation to financially support his children over his own interests and desires to live abroad.

(g) He has not established that he has undertaken a reasonable job search. He has not engaged in reasonable efforts to find full-time work in the field for which he has trained.

(h) The Respondent has not worked to his income potential since completing his Doctoral degree.

(i) From November 1, 2020 to June 30, 2022, it is appropriate to impute an annual income to the Respondent in the amount of $24,960 ($1,600 US x estimated exchange rate of 30% x 12 months).

(j) Given the Respondent provided no evidence as to his income while he briefly was a post-doctoral student, it is appropriate to impute an annual income to him for this period at the same rate that will be imputed to him for the period he worked as a research associate.

(k) While the Respondent worked as a research assistant at Brock University, he could have earned income as a tutor (conservatively $17.50 an hour x 15 hours a week, for a total of $13,650). Therefore, from July 1, 2022 to June 30, 2023 it is appropriate to impute an annual income to the Respondent in the amount of $40,919 ($26,220 + $1,048.80 (estimated vacation pay at 4%) + $13,650). This approach provides the Respondent with a fair opportunity to transition from student to professional.

(l) As of July 1, 2023 it is appropriate to impute an annual income to the Respondent in the amount of $ 48,994. The Applicant submitted evidence from the Government of Canada’s Job Bank; evidence from this website falls within the public records hearsay exception and is presumptively admissible . [70] The Job Bank states that the low hourly wage for a university mathematics professor in the Hamilton-Niagara Peninsula Region is $26.92 an hour. Full-time work at this rate ($26.92 x 35 hours x 52 weeks) is $48,994. This rate of pay is generally in keeping with the Respondent’s hourly rate when he worked at Brock University as a research associate. Further, applying the low rate acknowledges the recency of the Respondent’s completion of his studies and his minimal work experience.

(m) The Job Bank search, which was generated during trial, also states that there are 47 mathematics professor university jobs in Ontario, and 87 in Canada.

[139] In sum:

(a) For the period of November 1, 2020 to June 30, 2022 the Respondent shall be imputed an annual income of $24,960.

(b) For the period of July 1, 2022 to June 30, 2023 the Respondent shall be imputed an annual income of $40,919.

(c) Commencing July 1, 2023 onward, the Respondent shall be imputed an annual income of $48,994.

5.3 What amount does the Respondent owe the Applicant for child support?

[140] The Guideline amount of support to be paid for two children based on $24,960 is $375. For November 1, 2020 to June 30, 2022 (20 months) the total amount of Guideline support owed by the Respondent to the Applicant is $7,500.

[141] The Guideline amount of support to be paid for two children based on $40,919 is $609. For July 1, 2022 to June 30, 2023 (12 months) the total amount of Guideline support owed by the Respondent to the Applicant is $7,308.

[142] The Guideline amount of support to be paid for two children based on $48,994 is $738. For July 1 2023 to April 30, 2025 (22 months) the total amount of Guideline support owed by the Respondent to the Applicant is $16,236.

[143] In total, for the period of November 1, 2020 to April 30, 2025 the Respondent owes the Applicant is $28,113 ($31,044 - $2,931 (the amount he has paid).

5.4 How should any support arrears be paid?

[144] The Applicant made no submissions as to how arrears are to be paid. The Respondent simply asked that if retroactive child support is ordered, he be given time to pay it.

[145] It is fair to provide the Respondent some time to ready himself for these payments. The Respondent’s payment of child support arrears shall commence September 1, 2025.

[146] It is also appropriate to provide the Respondent with meaningful time in which to satisfy this debt. Monthly payment towards arrears shall be at the rate of $470. This will provide the Respondent approximately five years to pay off the amount owing.

[147] It is also fair and reasonable that if the Respondent is more than 30 days late in making any ongoing support payment or arrears payment, the entire amount of the arrears owing shall immediately become due and payable.

5.5 Ongoing Child Support

[148] For clarity, commencing May 1, 2025 and on the first day of each month thereafter, the Respondent shall pay Guideline child support to the Applicant for the two subject children in the amount of $738. This is the Guideline amount of child support to be paid for two children, based on the Respondent having an imputed income of $48,994.

5.6 Section 7 Expenses

[149] Neither party made meaningful submissions regarding the issue of section 7 expenses.

[150] There are no current or past section 7 expenses for which the Applicant is seeking contribution from the Respondent.

[151] The guiding principle when determining the amount of an expense referred to in subsection 7(1) of the Guidelines is that the expense is shared by the parents in proportion to their respective incomes. There is no reason to depart from this presumption.

[152] While not requested, the court considered whether it would require that prior to the Respondent being obliged to contribute to a section 7 expense, said expense must be agreed to in advance. The court will not make such an order for the following reasons:

(a) The Respondent’s attitude and conduct clearly demonstrates that efforts to consult and obtain his consent to section 7 expenses will very likely be pointless. The Respondent struggles greatly to appreciate his financial obligation to his children.

(b) There has been family violence. The Respondent does not respect the Applicant. He is unjustifiably critical of her parenting capacity. Requiring the Respondent’s consent for each expense will invite conflict, result in unnecessary scrutiny of the Applicant’s choices, and will expose the Applicant to ongoing control.

(c) To date, the Applicant has not been unreasonable with respect to section 7 expenses.

(d) The children require and deserve that important decisions about them be made in a timely and conflict-free manner.

[153] The court will not deal with the Applicant’s request to specifically address post-secondary expenses at this time. Subsection 7(1)(e) of the Guidelines already does so in a general sense. There are too many unknowns regarding this distant, potential expense (such as whether the children should contribute to their post-secondary education, and if so, how much) and therefore it is not possible to address it fairly, meaningfully, and specifically at this time.

Part 6 – Spousal Support

[154] Under Section 30 of the FLA , every spouse has an obligation to support the other spouse in accordance with need, to the extent that he or she is capable of doing so. This is consistent with the concept of marriage as a partnership. There is a presumption that spouses owe one another a mutual duty of support. [71]

[155] Subsection 33(8) of the FLA sets out the purposes of spousal support and states that an order for spousal support should:

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[156] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account. [72]

[157] A basic principle of spousal support law is that the recipient must make all reasonable efforts to become economically self-sufficient. [73]

6.1 Is the Applicant entitled to spousal support?

[158] Before applying the Spousal Support Advisory Guidelines ( SSAG) , entitlement to support must first be established. [74]

[159] In Bracklow , [75] the Supreme Court of Canada recognized three bases for an award of spousal support: compensatory; non-compensatory; and contractual.

[160] Briefly stated, compensatory support is based on the roles of the spouses during the relationship, specifically where the recipient has lost career advantages in order to support the other spouses' career or the children. [76]

[161] The legal considerations for the entitlement to compensatory support were reviewed by Chappel J. in Thompson v. Thompson: [77]

55 The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.

56 Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse's income earning potential as a result of assuming primary responsibility for child care and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party's career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit or assisting a party in establishing and operating a business that is the source of that party's income.

57 In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse.

58 A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties' separation. This situation can arise where, despite that spouse's ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family.

[162] Briefly stated, non-compensatory entitlement occurs w hen the support obligation arises from the marriage relationship itself (and not the roles adopted, or sacrifices made during the marriage) when a spouse is unable to become self-sufficient. It can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. [78]

[163] In Chutter v. Chutter , [79] the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement as follows:

Non-compensatory support is grounded in the "social obligation model" of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state ( Bracklow , at para. 23 ). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the "means and needs" approach to spousal support.

[164] A third type of spousal support entitlement is through an agreement between the parties. The express or implied term will either create or negate spousal support entitlement.

[165] Sponsorship agreements have been found to establish a contractual basis for entitlement to spousal support. [80] However, more prevalent in the case law is the idea that although an immigration sponsorship agreement is one factor to be considered in assessing spousal support, it is not determinative of the issue. [81]

[166] All three models of support must be considered. [82]

[167] In many cases, entitlement may be established on more than one ground. [83]

[168] Whether support should be awarded ultimately depends on what is just and fair in the circumstances. [84]

[169] The Applicant has a compensatory claim spousal support based on the roles she assumed during the marriage. The Respondent wholly expected the Applicant to be the children’s sole caregiver during their relationship, and she dutifully took on this responsibility. Since separation, the Applicant has continued to be the children’s sole caregiver. This responsibility has compromised her ability to earn income and it will continue to impact her ability to earn income in the future. Further, the Applicant relocated with the Respondent while they were married as he pursued his studies and career, which further made it difficult for her to pursue a career. Notably, while in Florida, she was not able to work, given her status (non-US resident). Given her responsibilities to the family, the Applicant was only able to take English classes since her return to Canada in 2021. The Applicant’s roles during marriage provided the Respondent the time and the flexibility to increase his income-earning ability; in turn, the Applicant’s ability to pursue a career was greatly compromised.

[170] The Applicant also has a non-compensatory claim for spousal support based on her need for support and the Respondent’s ability to pay it, considering the income imputed to him. The Applicant was financially dependent on the Respondent during the marriage. She was in financial need at the time of separation. She continues to suffer financial hardship. Upon her return to Canada in 2021 until around November, 2024 the Applicant was reliant on social assistance. Since around November, 2024 the Applicant’s sources of income are OSAP (which she will have to pay back) and government benefits (which does not include social assistance). She is unable to earn an income at this time, given her role as sole caregiver of two relatively young children and her full-time studies (which will assist with her moving towards self-sufficiency). The Respondent enjoys a higher standard of living than the Applicant, with minimal routine expenses.

[171] The court is unable to fully and fairly adjudicate whether there is a contractual basis for entitlement to spousal support. The court was not provided with a fulsome copy of the sponsorship agreement. It was the Applicant’s responsibility to ensure the court had all necessary documentation to support her claim for spousal support.

6.2 What are the parties’ incomes for the purpose of the spousal support analysis?

[172] Once entitlement is established, the next step will be to determine the incomes of both parties.

[173] Section 6 of the SSAG provides that the starting point for determining income for spousal support purposes is the definition of income under the Guidelin es. [85] However, there are some notable differences in “income” for spousal support purposes under the SSAG , as compared to income of a spouse determined for child support purposes. First, social assistance of any kind (whether for parents or for children), including Ontario Works benefits and Ontario Disability Support Plan benefits, is not treated as income for the purposes of the SSAG for the recipient or the payor. Second, under the with child support formula, the Child Tax Benefit, the Universal Child Care Benefit (UCCB), the child portion of the GST credit and any other child benefits for the children of the marriage are treated as income for spousal support purposes. The software automatically computes these benefits and thus these benefits should not be calculated manually and included as income, as that will lead to double-counting. [86]

[174] In Gallagher v. Gallagher , [87] Justice McDermot noted that there is no authority for the proposition that OSAP student assistance should be added to a party’s income for spousal support purposes as these funds are a loan and do not appear as taxable income and will eventually have to be repaid.

[175] In the spousal support context, the ability to impute income applies equally to the payor and the recipient spouse, since one the objectives of spousal support is to promote the economic self-sufficiency of each spouse within a reasonable time, in so far as practicable. As the authors of the SSAG emphasize, by focussing on income, including the possibility of imputing income to the recipient spouse, the SSAG encourage "a more sophisticated analysis of "self-sufficiency" on the part of the recipient, rather than some rough-and-ready downward adjustment of the monthly amount of support". [88]

[176] The test for imputing income for child support purposes applies equally for spousal support purposes. [89]

[177] The court relies on the analysis of the Respondent’s income made above when addressing child support.

[178] The court declines to impute an income to the Applicant. The Applicant is not intentionally unemployed. Her current employment status is justifiable by virtue of reasonable educational needs (the Applicant needed to learn English and further her studies to be employable, which she is currently doing) and the needs of the children (she has been the sole caregiver of two young children). Further, the Applicant’s income from social assistance and OSAP is not considered when determining her income for spousal support.

6.3 What should be the duration and amount of spousal support?

[179] The Court of Appeal in Fisher v. Fisher , [90] stated that the SSAG , while only advisory, are a useful starting point to assess the quantum and duration of spousal support once entitlement is established.

[180] Amount and duration of spousal support are interrelated parts of the SSAG formula. Using one part of the formula without the other undermines its integrity and coherence. [91]

[181] Section 33(9) of the FLA provides that in determining the amount and duration, if any, of spousal support, the court shall consider all the circumstances of the parties, including:

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(n) any other legal right of the dependant to support, other than out of public money.

[182] The SSAG suggests that the court consider (as applicable) the following when determining location with the range for both amount and duration of spousal support (this is not an exhaustive list):

(a) strength of any compensatory claim

(b) recipient’s needs

(c) age, number, needs and standard of living of children (if any)

(d) needs and ability to pay of payor

(e) work incentives for payor

(f) property division and debts

(g) self-sufficiency incentives

[183] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. [92]

[184] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. [93]

[185] The following analysis relates to prospective spousal support (from May 1, 2023 forward).

[186] The SSAG ranges are as follows:

(a) Based on the Applicant having an annual income of $0 and the Respondent having an imputed income of $40,919:

i. Low range: $0

ii. Mid range: $90

iii. High range: $221

(b) Based on the Applicant having an annual income of $0 and the Respondent having an imputed income of $48,994:

i. Low range: $106

ii. Mid range: $249

iii. High range: $393

[187] The SSAG set out the duration of the award as being indefinite (unspecified), subject to variation and possibly review with a minimum duration of 4.25 years and a maximum duration of 11 years from the date of separation.

[188] These SSAG calculations are attached.

[189] The court has considered:

(a) This was an 8.5-year marriage; on the low end of medium-term.

(b) The Applicant’s compensatory claim is strong. The roles assumed by the Applicant both during and after the parties’ relationship allowed the Respondent to maximize his earning potential and negatively affected the Applicant’s career development and earning capacity.

(c) The Applicant’s needs are high.

(d) The Applicant is young.

(e) The children do not have special needs.

(f) The children’s standard of living is acceptable, but low.

(g) The Applicant is taking reasonable steps to become self-sufficient (she has learned English and is currently studying to be a dental assistant).

(h) The Applicant has no physical or mental health challenges that may impede her journey to self-sufficiency.

(i) The Applicant continues to be the sole caregiver of two relatively young children. This may very well limit/impact her ability to work upon completion of her studies.

(j) The Respondent’s needs are low. Given the consistent generosity of family, he does not have to incur reasonable living expenses.

(k) The Respondent has the means to provide support, in that he is a highly educated individual who is not making reasonable efforts to become employed in a job that is commensurate with his education.

(l) The Respondent is young and does not have any physical or mental health challenges that impact his ability to earn what he is capable of making.

(m) It is important to preserve work incentives for the Respondent.

(n) The Respondent’s debt prior to this order was minimal (and not being met). The debt created by this order (retroactive child support), while appropriate, is significant.

[190] The court will order that the Respondent shall pay the Applicant spousal support:

(a) For the period of May 1, 2023 to June 30, 2023 in the amount of $ 155 month.

(b) From July 1, 2023 and ongoing, in the amount of $322 per month.

6.4 When should the spousal support order start?

[191] In Kerr v. Baranow, [94] the Supreme Court of Canada set out following principles for retroactive spousal support:

(a) The D.B.S. factors apply as modified for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child).

(b) Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise.

(c) The failure to bring a temporary motion should not be penalized as we should be encouraging people to avoid the cost of bringing temporary motions. This is particularly the case, where the claimant moves the matter quickly to trial after obtaining disclosure.

(d) Spousal support has a different legal foundation than child support. A parent child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. It that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.

(e) There are two important underlying interests at stake. First, there is the payor's interest in having certainty regarding their legal obligations. Second, there is a general interest in creating appropriate incentives for spousal support claimants to advance their claims promptly. In regard to the issue of misconduct, the court clarified that the focus must be on "conduct broadly relevant to the support obligation, such as concealing assets or failing to make appropriate disclosure" (at para. 212). Consideration of the circumstances of the spousal support claimant must focus on that spouse's needs both at the time the spousal support should have been paid and at present.

(f) The general principles outlined in D.B.S. respecting regarding timing are applicable to the spousal support context, with the presumptive commencement date being the date of effective notice, to a maximum of 3 years prior to the date of formal notice. As with retroactive child support, these presumptions are subject to adjustment based on judicial discretion.

(g) D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.

[192] The Applicant’s request to the Respondent for financial assistance on her return to Canada in 2021 was not limited to support for the children, but was general in nature, and thus included her. As such the effective date of notice of the Applicant’s request for spousal support shall be October, 2021.

[193] The court’s findings above regarding delay and blameworthy conduct made in the context of child support apply to the analysis of retroactive spousal support.

[194] The Applicant has been disadvantaged by the Respondent’s failure to pay support. She had to live in a shelter for many months upon her return to Canada in 2021. From time to time, she must receive the assistance of food banks. From her return to Canada in October, 2021 to around November, 2024, she was supported by social assistance. From around November, 2024 to present, the Applicant is being supported by OSAP (and other government benefits, not including Ontario Works). Since separation, she has experienced a low standard of living. She has borrowed money to fund her education which will lead to self-sufficiency.

[195] There is no doubt that hardship would be caused to the Applicant if the Respondent was not ordered to pay retroactive spousal support. She continuously struggles financially.

[196] The court’s findings above regarding hardship to the Respondent of a retroactive child support award apply to the analysis of retroactive spousal support.

[197] Based on the foregoing, the Applicant’s proposal to start spousal support on November 1, 2020 is fair,

[198] However, the SSAG calculations based on the Applicant having an annual income of $0 and the Respondent having an imputed income of $24,960 are as follows:

i. Low range: $0

ii. Mid range: $0

iii. High range: $0

[199] This SSAG calculation is attached.

[200] As a result, there shall be no retroactive spousal support payable until from November 1, 2020 to June 30, 2022.

[201] For the period of July 1, 2022 to April 30, 2023 retroactive spousal support shall be $155 a month.

6.5 How should spousal support arrears be paid?

[202] The total amount of spousal support owing, to April 30, 2025 is $8,944.

(a) Retroactive spousal support from November 1, 2020 to June 30, 2022 is $0.

(b) Retroactive spousal support from July 1, 2022 to April 30, 2023 is $1,550 ($155 x 10 months).

(c) Arrears of prospective spousal support from May 1, 2023 to June 30, 2023 is $310 ($155 x 2 months ).

(d) Arrears of prospective spousal support from July 1, 2023 to April 30, 2025 is $7,084 ($322 x 22 months).

[203] It is fair to provide the Respondent some time to ready himself for these payments. The Respondent’s payment of spousal support arrears shall commence September 1, 2025.

[204] It is also appropriate to provide the Respondent with meaningful time in which to satisfy this debt. Monthly payment towards arrears shall be at the rate of $150. This will provide the Respondent approximately five years to pay off the amount owing.

[205] It is also fair and reasonable that if the Respondent is more than 30 days late in making any ongoing support payment or arrears payment, the entire amount of the arrears owing shall immediately become due and payable.

Part 7 – Prejudgment and Postjudgment Interest

[206] Subsection 128(1) of the Courts of Justice Act [95] states:

Prejudgment Interest

128. (1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.

[207] Subsection 129(1) of the CJA states:

Postjudgment interest

129. (1) Money owing under an order, including costs to be assessed or costs fixed by the court bears interest at the postjudgment interest rate, calculated from the date of the order.

[208] Subsections 130(1) and (2) of the CJA state:

Discretion of court

130. (1) The court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129,

(a) disallow interest under either section;

(b) allow interest at a rate higher or lower than that provided in either section;

(c) allow interest for a period other than that provided in either section.

Idem

(2) For the purpose of subsection (1), the court shall take into account,

(a) changes in market interest rates;

(b) the circumstances of the case;

(c) the fact that an advance payment was made;

(d) the circumstances of medical disclosure by the plaintiff;

(e) the amount claimed and the amount recovered in the proceeding;

(f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and

(g) any other relevant consideration.

[209] The Applicant included a claim for prejudgment interest in her draft order and Application. However, she did not provide evidence or make submissions on this point. In the absence of some guidance and calculations, the court is not prepared to grant this request.

[210] Similarly, the Respondent did not make submissions as to why postjudgment interest should not be ordered. Notwithstanding this, the court has considered the factors in section 130(2) of the CJA and find no justification to disallow postjudgment interest. As a result, postjudgment interest shall apply in the usual course in accordance with the CJA, and the standard postjudgment interest rate clause will be included in the order.

Part 8 – Final Order

1. The Applicant, N.G., shall have sole decision-making responsibility for the children CER (born March XX, 2015) and CEL (born August 22, 2017).

2. The subject children’s primary residence shall be with the Applicant.

3. The Applicant shall be entitled to apply for and renew government issued identification, including passports, for the subject children without the consent or signature of the Respondent, A.M.A.

4. The Applicant shall be entitled to travel with the subject children outside of Canada and arrange for the subject children to travel with others outside of Canda without the consent or signature of the Respondent.

5. The Respondent shall have no parenting time with the subject children.

6. Commencing May 1, 2025 and on the first day of each month thereafter, the Respondent shall pay to the Applicant child support for the subject children in the amount of $738. This is the Guideline amount of support to be paid for two children, based on the Respondent having an imputed income of $48,994.

7. Child support terminates when each child is no longer a “child” entitled to support pursuant to the Family Law Act .

8. Arrears of Guidelin e child support for the period of November 1, 2020 to April 30, 2025 shall be fixed in the amount of $28,113. Commencing September 1, 2025 and on the first day of each month thereafter, the Respondent shall pay the Applicant $470 a month towards these arrears until the amount owing is paid in full. If the Respondent is more than 30 days late in making any ongoing child support payment or arrears payment, the entire amount of the arrears owing shall immediately become due and payable.

9. The Applicant and the Respondent shall share the children’s future section 7 expenses proportionate to their incomes.

10. Commencing May 1, 2025 and on the first day of each month thereafter, the Respondent shall pay to the Applicant spousal support in the amount of $322.

11. Arrears of spousal support for the period of November 1, 2020 to April 30, 2025 shall be fixed in the amount of $8,944. Commencing September 1, 2025 and on the first day of each month thereafter, the Respondent shall pay the applicant $150 a month towards these arrears until the amount owing is paid in full. If the Respondent is more than 30 days late in making any ongoing spousal support payment or arrears payment, the entire amount of the arrears owing shall immediately become due and payable.

12. All other claims of the Applicant and the Respondent shall be dismissed.

13. Approval of the draft of this order by the Respondent shall be dispensed with.

14. SDO to issue.

15. Unless the support order is withdrawn from the office of the from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

16. For so long as child support is to be paid, the payor (and the recipient, if applicable) shall provide updated income disclosure to the other party each year within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.

17. This Order bears interest at the postjudgment interest rate of 5% set out in the Courts of Justice Act effective from the date of this order. A payment in default bears interest only from the date of default.

18. If costs are sought:

(a) Written submissions (not to exceed 6 pages in total, prepared using 12 pt. font, 1.5 spacing), bills of costs, offers to settle (with affidavits of service), and caselaw (not to exceed 3 cases) shall be served and filed by May 23, 2025 at 4:00 p.m.

(b) Responding written submissions (not to exceed 6 pages in total, prepared using 12 pt. font, 1.5 spacing), bills of costs, offers to settle (with affidavits of service), and caselaw (not to exceed 3 cases) shall be served and filed by June 6, 2025 at 4:00 p.m.

(c) Reply written submissions (not to exceed 3 pages in total, prepared using 12 pt. font, 1.5 spacing) shall be served and filed by June 13, 2025 at 4:00 p.m.

(d) In addition to filing these submissions per the court’s ordinary practice, a copy shall be emailed to 311 Jarvis.

Justice Susan M. Sullivan
Released: May 8, 2025

Footnotes and References

[1] 2017 SCC 23 .

[2] R.S.O. 1990, c. C.12 .

[3] Mattina v. Mattina , 2018 ONCA 641 .

[4] White v. Kozun , 2021 ONSC 41 ; Pereira v. Ramos , 2021 ONSC 1736 .

[5] Phillips v. Phillips , 2021 ONSC 2480 .

[6] Gordon v. Goertz .

[7] Young v. Young ; E.M.B. v. M.F .B., 2021 ONSC 4264 ; Dayboll v. Binag , 2022 ONSC 6510 .

[8] Barendregt v. Grebliunis, 2022 SCR 22.

[9] 2021 ONSC 3610 , at para. 86 .

[10] At para. 145.

[11] Dayboll v. Binag , supra; El Khatib v. Noun , 2023 ONSC 1667 .

[12] S.V.G. v. V.G ., 2023 ONSC 3206 .

[13] Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201 .

[14] Oriaku v. Ransome , 2021 ONCJ 660 .

[15] Dayboll v. Binag , supra ; I.A. v. I.G., 2023 ONCJ 523 .

[16] , [2005] O.J. No. 275.

[17] Griffiths v. Griffiths , 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ) .

[18] Warcop v. Warcop .

[19] G.T.C. v. S.M.G. , 2020 ONCJ 511 ; T.P. v. A.E. , 2021 ONSC 6022 ; Shokoufimogiman v. Bozorgi , 2022 ONSC 5057 ; Jacobs and Coulombe v. Blair and Amyotte , 2022 ONSC 3159 ; El Khatib v. Noun , supra.

[20] 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), at para. 504 ..

[21] S. (S.) v. K. (S.) , 2013 ONCJ 432, 2013 CarswellOnt 10801 (OCJ) .

[22] Bell v. Reinhardt, 2021 ONSC 3353 .

[23] Jama v. Mohamed, [2015] ONCJ 619 ; T.P. v. A.E. , 2021 ONSC 6022 ; McBennett v Danis , supra; J.T. v. E.J. , 2022 ONSC 4956 ; Shokoufimogiman v. Bozorgi , supra.

[24] R.B.J. v. B.N.R.J ., 2020 ONCJ 399 .

[25] Wia fe v. Afoakwa-Yeboah , 2021 ONCJ 68 , at para. 316 .

[26] Pidgeon v Brophy , 2017 ONSC 2273 , at para. 29 .

[27] Klymenko v. Klymenko , 2020 ONSC 5451 .

[28] Worthington v. Worthington , 2000 CarswellOnt 4889 (SCJ) .

[29] Jennings v. Garrett , 2004 CarswellOnt 2159 (SCJ) .

[30] Klymenko v. Klymenko , supra ; C.S. v. K.M. , 2023 ONCJ 106 .

[31] Izyuk v Bilousov , supra.

[32] H.P. v. P.L.C ., [2013] O.J. No. 3377 (OCJ) and Grube and Grube v. Binks and Grube-Binks, [2003] O.J. No. 1530 (OCJ) .

[33] Dayboll v. Binag , supra ; McBennett v. Danis , supra.

[34] Multani v. Rana , 2020 ONSC 1745 ; Richardson v. Richardson , 2019 ONCA 983 .

[35] See subsections 21(1)(3)(4); 21.1; 21.2; and 21.3 of the CLRA.

[36] R.S.O. 1990, c. F3 .

[37] Mackinnon v. Mackinnon , supra.

[38] 2021 SCC 24 .

[39] L.S. v. M.A.F. , 2021 ONCJ 554 ; M.A. v. M.E. , 2021 ONCJ 555 ; A.E. v. A.E., 2021 ONSC 8189 ; Hajak v. Hemmings, [2024] O.J. No. 4763 (SCJ) .

[40] D.B.S. v. S.R.G. ; L.J.W. v T.A.R. ; Henry v. Henry ; Hiemstra v Hiemstra , 2006 SCC 37, [2006] 2 SCR 231.

[41] [2020] 2 SCR 24 .

[42] Delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S. (a) Fear of reprisal/violence from the other parent. (b) Prohibitive costs of litigation or fear of protracted litigation.(c) Lack of information or misinformation over the payor parent's income. (d) Fear of counter-application for decision-making responsibility. (e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent. (f) Illness/disability of a child or the custodian. (g) Lack of emotional means. (h) Wanting the child and the payor to maintain a positive relationship or avoid the child's involvement. (i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation. (k) The deliberate delay of the application or the trial by the payor. These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger. See: Michel v. Graydon, supra, at para. 86.

[43] Retroactive Support: You Can’t Always Get What You Want, Or What You Need, by R. Thompson, 2025 43 CFLQ 393.

[44] Goulding v Keck , 2014 ABCA 138 .

[45] Henderson v Micetich , 2021 ABCA 103 .

[46] Michel v. Graydon, supra , at para. 123.

[47] Colucci , supra , at para. 107 .

[48] Michel v. Graydon, supra , at para. 124.

[49] Michel v. Graydon, supra , at para. 125.

[50] Michel v. Graydon, supra , at para. 25.

[51] D.B.S. , supra , at para. 97 .

[52] O. Reg. 391/97, subsection 1 (a).

[53] O. Reg. 114/99 .

[54] Drygala v. Pauli , [2002] O.J. No. 3731 (ONCA) .

[55] supra.

[56] Homsi v. Zaya , 2009 ONCA 322, [2009] O.J. No. 1552 (ONCA) .

[57] Drygala v. Pauli , supra ; Tanhehco v. Cao , 2018 ONCJ 388 ; Cowan v. Cowan , 2018 ONSC 2495 ; A .S. v. M.L. , 2021 ONCJ 105 ; Szifas v. Szifas , 2012 ONSC 1548 ; Lavie v. Lavie , 2018 ONCA 10 .

[58] Popp v. D’Entremont , 2019 ONCJ 484 .

[59] Lo v. Lo , 2011 ONSC 7663 ; Charron v. Carriere, 2016 ONSC 4719 .

[60] Thompson v. Gilchrist , 2012 ONSC 4137 ; DePace v. Michienzi , 2000 O.J. No. 453 .

[61] Charron v. Carriere, supra ; Vodden v. Furgoch , 2019 ONSC 953 ; M.T. v. J.L.-T ., 2018 ONCJ 654 ; Kinsella v Theophille , 2018 ONSC 5047 .

[62] D.B.S., supra ; Jackson v. Mayerle, supra.

[63] Riel v. Holland ; Newell v. Gaudet , 2018 ONSC 55 .

[64] Filippetto v. Timpano; T.L. v. D.S. , 2019 ONCJ 809 ; M cEachran v. Di Tommaso , 2017 ONSC 3603 ; Alalouf v. Sumar , 2017 ONSC 3043 .

[65] Popp v. D’Entremont, supra.

[66] Lawson v. Lawson .

[67] Riel v. Holland , supra; Manis v. Manis, [2000] O.J. No. 4539 (SCJ) ; C.V. v. S.G. , 2019 ONCJ 159 .

[68] Drygala v. Pauli , supra ; D.D. v. H.D. , 2015 ONCA 409 ; Fraser v Fraser , 2013 ONCA 715 ; Cordi v. Cordi , 2021 ONSC 128 ; Moreton v. Inthavixay , 2020 ONSC 4881 .

[69] Heard v. Heard , 2014 ONCA 196 , at paras. 33-35 ; Gostevskikh v. Gostevskikh , 2018 BCSC 1441 .

[70] Willis v. Lewis , 2022 ONCJ 421 .

[71] Bracklow v Bracklow , [1999] 1 SCR. 420 , at para. 20 .

[72] Rioux v. Rioux , 2009 O.R. (3 rd ) 102 (CA).

[73] Dingle v. Dingle , 2010 ONCJ 731 .

[74] Fisher v. Fisher , 2008 ONCA 11 .

[75] supra.

[76] S.N.S. v. K.N. S, 2023 ONCJ 55 .

[77] 2013 ONSC 5500 .

[78] S.N.S. v. K.N.S. , supra.

[79] 2008 BCCA 507 .

[80] Pola v Chammilard , 2018 ONCJ 813 ; Gaynor v. Cruz Belliard , 2024 ONSC 1661 .

[81] Pourian v. Zaghian , [ 2007 [ CarswellOnt 4116 ( SCJ) ; Nathoo v. Nathoo , 2005 ABQB 175, [2005] A.J. No. 255 (Alta. Q.B.) ; Ferron v. Ferron , [1997] O.J. No. 3706 (Ont. Prov. Div.) ; Niranchan v. Nadarajah , 2015 ONCJ 149 .

[82] S.N.S. v. K.N.S. , supra.

[83] Thompson v. Thompson , supra , at para. 54 .

[84] S.N.S. v. K.N.S. , supra.

[85] Mason v. Mason, supra, at para. 120; Slongo v. Slongo , 2017 ONCA 272 , at para.. 30; Jonas v. Pacitto , 2020 ONCA 727 (C.A.) , at para. 47 ).

[86] The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, April, 2016. Prepared by C. Rogerson and R. Thompson, at page 18.

[87] 2012 ONSC 6321 , at para. 33 .

[88] Kinsella v Mills , 2020 ONSC 4785

[89] Rilli v. Rilli , [2006] O.J. No. 4142, (Fam. Ct.) ; Perino v. Perino , O.J. No. 4298 (SCJ).

[90] supra.

[91] Domirti v. Domirti , 2010 BCCA 472 .

[92] Wharry v. Wharry , 2016 ONCA 930 , at para. 95 .

[93] Bastarache v. Bastarache , 2012 NBQB 75 .

[94] 2011 SCR 269.

[95] R.S.O. 1990, c. C. 43 .