Machado v. Viera, 2025 ONCJ 49

ONTARIO COURT OF JUSTICE

DATE: 2025-01-16
COURT FILE No.: 560/21

BETWEEN:
Chery Machado
Applicant

— AND —

Luis Manuel Rodriguez Viera
Respondent

Before Justice A.D. Baker

Heard on September 9, 10, 11, 12, 17, 18, October 8, 25, and 31, 2024
Reasons for Decision released on January 16, 2025.

Frances M. Wood .............................................................................. Counsel for Applicant
Karen Dosanjh ............................................................................. Counsel for Respondent

Baker A.D. J.:

INTRODUCTION

[1] This trial was about incidental parenting issues, contempt and child support/s.7 expenses concerning the parties’ one child namely Charlotte born […], 2019.
[2] The applicant Chery Machado is the mother. The respondent Luis Manuel Rodriguez Viera is the father.
[3] The parties were in a relationship from between 2017 to 2019.
[4] The original application in this matter commenced on August 6, 2021. Mother sought orders inter alia for sole decision-making authority, incidents of decision-making authority, parenting time and child support/s.7 expenses.
[5] Father filed an Answer dated September 23, 2021, seeking orders inter alia for decision making authority, incidents of decision-making authority and parenting time.
[6] This matter was case managed through to August 2024, initially by Madam Justice Parent and then by Madam Justice Cheung.
[7] On January 8, 2024, Madam Justice Cheung made a final order on consent for the parties to have joint decision-making responsibility, a process by which joint decisions would be made, access to information, communication process, parental conduct, designating Dr. Cole as Charlotte’s family physician, a process to book medical appointments, dealing with medical emergencies and a structured in person/virtual parenting time arrangement whereby Charlotte would primarily reside with the mother and visit father according to a fixed schedule inclusive of March Break and Summer Holidays.
[8] Residual issues as outlined in Madam Justice Cheung’s endorsement of March 19, 2024 were adjudicated at trial.
[9] Subsequently the father brought a Contempt Motion which was returnable before Madam Justice Cheung on May 29, 2024. The Contempt Motion was adjourned to be heard as part of the trial.
[10] On the first day of trial, in addition to the issues as set out in Madam Justice Cheung’s endorsement of March 19, 2024, and the contempt allegation, an additional issue was raised for adjudication at trial, that being whether the parents could jointly attend scheduled extra-curricular events for Charlotte.

ISSUES

[11] The issues for the court to determine are as follows:

1. What dentist will Charlotte be seeing for her ongoing dental needs?
2. What school will Charlotte be registered in?
3. Whether consent of a non-travelling parent is dispensed with for travel with Charlotte to specific regions in the world for vacation purposes?
4. How will the parents share parenting time holidays with Charlotte over winter break, PA days and Statutory Holidays?
5. Whether both parents may attend scheduled extracurricular events for Charlotte?
6. Whether mother is in contempt of the Order of Madam Justice Cheung dated January 8, 2024, by failing to facilitate parenting time to father on the weekend of May 3, 2024?
7. What income should be attributed to father and mother for child support/s.7 expenses for each year dating back to October 2019?
8. Whether claimed contribution to expenses are in fact legitimate s. 7 expenses?
9. How much child support and proportionate s. 7 expenses should the father pay each year ongoing and dating back to October 2019?

OVERVIEW

[12] The amount of information put before the court at trial was voluminous. There was much evidence at trial, while of some assistance in providing a background context, in my view largely went to the core issues of decision-making responsibility and parenting time which were resolved pursuant to Madam Justice Cheung’s order dated January 8, 2024.
[13] The applicant mother Ms. Chery Machado provided an Affidavit sworn December 1, 2023, and an updated Affidavit sworn August 30, 2024 as her evidence in chief supplemented by oral testimony in court. The respondent father Luis Viera provided an Affidavit dated December 18, 2023, updated Affidavit sworn August 30, 2024, and Affidavit sworn May 8, 2024 in support of his contempt motion supplemented by oral testimony in court. Both parents were cross-examined by opposing counsel.
[14] Both parents had additional witnesses provide evidence. There were multiple volumes of documents/recordings admitted as evidence. I will identify and reference evidence as necessary in these reasons.
[15] Mother described her relationship with the father as “toxic”, that the father presented with anger management issues, that she was a victim of verbal/physical abuse administered by the father, that he would threaten her and take a “my way or the highway” approach to decisions that need to be made. Mother described the father as unprepared to compromise, unwilling to consider her opinion or listen to the advice of professionals involved with Charlotte.
[16] The mother acknowledged there are communication difficulties with the father despite her best efforts to converse effectively with him. These challenges have manifested in contentious issues which require court intervention.
[17] Father’s description of his relationship with the mother appeared to be one beset by turbulence, tensions, and communication challenges. Like mother, he characterized the relationship as “toxic”. Father’s evidence was that mother was very proactive in wanting to get pregnant with him and that once she had, she appeared to pull back from the relationship. He felt used.
[18] Following Charlotte’s birth, the tenor of father’s evidence was that mother presented as being determined to exert exclusive parental control of Charlotte, to in effect marginalize him.
[19] In essence, this trial represented a power struggle between the parents. Both accusing the other of attempting to control and dictate parenting of Charlotte at the expense of the other and to Charlotte’s detriment. Both parents deeply mistrust the other.
[20] The issues at trial in these reasons for decision are divided into three clusters namely 1. Incidents of decision making/parenting time 2. Contempt and 3. Child Support and S. 7 expenses.

1. INCIDENTS OF DECISION-MAKING/PARENTING TIME

Choice of Dentist – Summary of Evidence

[21] A most pressing issue has been Charlotte’s dental care. The mother’s evidence is that Charlotte was initially seen by Dr. Daljeet. In and around June 4, 2021, it was noted the child had developed cavities which necessitated a referral to another dental office. This ignited a period of conflict between the parents spanning two years. While it was clear that Charlotte required dental treatment, the mother and father could not agree on the dentist.
[22] The parties came before Madam Justice Cheung on June 23, 2023, for a Settlement Conference who noted in her endorsement that the parents had allowed their inability to decide on the child’s dental care to result in the child having no dental care whatsoever in over a year. The parties were urged to reach an agreement at court on Charlotte’s dentist.
[23] A temporary consent was reached for Dr. Kevin Dann to provide dental care to Charlotte. The mother maintains she agreed to this “out of total desperation” to ensure Charlotte was in fact receiving dental care.
[24] The dental records of Dr. Dann reveal that Charlotte had significant tooth decay and required repair to 6 teeth. It is noted in Dr. Dann’s records that he was recommending mother cease breast feeding Charlotte as he felt this was a contributory factor to tooth decay.
[25] The evidence is that Charlotte has had four dental appointments at Dr. Dann’s office since June 2023. The first appointment was held on June 28, 2023, for a consultation, July 5, 2023, was for a dental surgery performed by another dentist at that office. The third appointment was for a cleaning and examination in January 2024 and then a subsequent examination on July 18, 2024.
[26] The mother’s concern with Dr. Dann has been that he specializes in sleep dentistry which Charlotte does not require and further that pediatric dentistry is not his focus. The location of the dental office is near the intersection of Bay and Bloor in Toronto which according to the mother would involved travel time from her home between 45 minutes to 2 hours each way.
[27] The mother’s evidence is that she has heard Charlotte state she does not like Dr. Dann.
[28] The mother herself perceives Dr. Dann as biased, that she does not trust his opinion.
[29] The mother stated that Dr. Dann’s office scheduled dental appointments for Charlotte absent her consent for July 18, 2024. For her this has fostered a lack of trust.
[30] Mother did not have any concern with the quality of dental care provided to Charlotte by the dental office of Dr. Dann.
[31] Mother acknowledged that she continued to breast feed Charlotte till at least March 2024, after Dr. Dann recommended that this cease. Ms. Machado stated that other dental professionals had a differing view as to the cause of Charlotte’s tooth decay.
[32] The mother’s evidence has been that her first dentist, Dr. Daljeet recommended that she see a paediatric dentist with an office that has a welcoming and child friendly environment and the dental professionals are trained specifically to deal with children.
[33] The mother proposed in her Affidavit that Dr. Ostro be the pediatric dentist as he had previously seen Charlotte and was familiar with her care.
[34] In her Affidavit, mother noted she would also like Charlotte to attend at Winston Churchill Dentistry as it is more child focused and closer to her home. Mother proposes that father can choose the specific dentist at this office. In her oral testimony, mother appeared to clarify that Winston Churchill dentistry was in fact her primary choice.
[35] The mother is concerned about a perception that Dr. Dann is now the “status quo” dentist. She was clear that she only reluctantly agreed to Dr. Dann as a dental care provider pending adjudication of this issue at trial.
[36] Father has been of the view that historically mother had kept him largely uninformed about Charlotte’s dental concerns and had attempted to exert control of the decision-making process over him.
[37] Father acknowledged that between 2021 and 2023, he and mother were unable to agree on a dentist to provide dental care for Charlotte. According to the father the mother had been taking Charlotte to Dr. Daljeet whom he did not know about nor authorize. Following insistence by the case management judge both parents set upon finding a mutually agreeable dentist for Charlotte.
[38] Father states that in June 2023, he and mother had a consultation with Dr. Dann.
[39] Father notes that Dr. Dann has an office near his home and is close to Dr. Cole who is Charlotte’s family doctor. Father described Charlotte as comfortable having fostered a trusting and fun relationship with Dr. Dann and treating hygienists at the clinic.
[40] According to father, Dr. Dann’s clinic had been able to offer the parties the ability to attend virtually in the event both parents were unable to personally attend at the visits.
[41] Father wishes for Dr. Dann to continue as Charlotte’s dentist. Father has no concern for the quality of dental care provided by Dr. Dann.

Choice of School – Summary of Evidence

[42] The mother’s evidence is that Charlotte had been enrolled in an online Montessori School Program with Guidepost Montessori where she attended since 2021. It is a US based education program. Charlotte remained in this schooling program until 2023.
[43] The mother described Charlotte as having received a “first rate” education at Guidepost.
[44] The mother’s evidence is that she received feedback from Guidepost recommending that Charlotte remain in the Montessori program until the end of kindergarten. The father disagreed with this feedback wanting Charlotte to be enrolled in person at a local public school. His position at trial is that Charlotte should attend […] Public school.
[45] Consequently, the parents have been at an impasse and Charlotte is not currently receiving any educational instruction.
[46] The mother’s proposal going forward is that Charlotte be enrolled at Sherwood Heights School. In her view, Charlotte is well past what the public school could offer her academically. Mother believes Charlotte is functioning at a high academic level and because of this, Sherwood would better meet her needs. Mother acknowledged there had been no educational assessment of Charlotte’s needs.
[47] Sherwood Heights is a private school. The cost of tuition appears to be approximately $18,000.00 plus extra for school uniforms per annum. Mother states she will solely cover the cost.
[48] Mother’s financial statements sworn February 15, 2024, and August 30, 2024 report her monthly expenses are more than double her monthly income. Her monthly income does not include child support. Her monthly tax expenses were listed as “TBD”.
[49] Her August 30, 2024, Financial Statement states she is carrying a debt in the amount of $786,969.17. Her total assets are $26,092.50. Mother states she will rely on her mother for additional financial support.
[50] Mother wants Charlotte to attend this school because of the low teacher to student ratio, an easier transition from Guidepost given what she has already learned and the ample resources which would enable Charlotte to thrive academically.
[51] An additional concern of the mother is that after grade 5, children at […] Public School have a choice of 2 different middle schools and a choice of several high schools. In contrast Sherwood operates from kindergarten to grade 12 so there would be no need for school change consideration.
[52] Mother acknowledges that […] Public School and Sherwood Heights School are both within 10 minutes drive from her home.
[53] Maria Margarida Pimentel Resendes is the maternal grandmother to Charlotte. She testified in support of her daughter’s case. She provided evidence that if Charlotte were permitted to attend Sherwood Heights, she would be willing and able to fund her granddaughter’s tuition costs. Ms. Resendes is retired.
[54] Father states that mother unilaterally enrolled Charlotte in Guidepost Montessori absent his consent.
[55] In 2023, father’s evidence was that he told mother he would prefer that Charlotte be enrolled in a regular school, that she would attend in person Monday to Friday during the week. Father noted that while he acknowledges Charlotte is very bright and quite articulate, he feels she should be in a social environment where she would be able to develop and learn age-appropriate skills.
[56] Father is aware that mother wants Charlotte to attend a private school at Sherwood Heights. He attended a private school orientation in January 2024 and described the affordability as “unattainable.” He is of the view that the local public school, […] Public School is very reputable and will provide Charlotte with the support and resources needed to achieve success.
[57] Father believes there is no compelling reason for Charlotte to attend a private school. He notes that Charlotte does not have any learning disability or IEP. She has not been identified with any needs that cannot be met by a public school. Additionally, he has reservations that the private school could restrict or conform Charlotte to being taught in a certain method.

Easter, Thanksgiving, Christmas and PA/Statutory Holidays – Summary of Evidence

[58] Mother’s evidence is that the parents have been unable to resolve how to share Thanksgiving and Easter as both those holidays are important to them. The mother’s proposal is that Charlotte spend the Monday with the parent she is not otherwise with on the weekend which would allow her to celebrate the holiday with both.
[59] Mother’s evidence is further that the parents have been unable to resolve how to share Christmas although they agree in principle that Charlotte spend half of the holiday with each parent. The mother proposes that Charlotte reside with the father from December 24 at noon to December 25 at noon and with the mother from December 25 at noon to December 26 at noon. In odd numbered years, this would reverse.
[60] By the close of the trial, at closing submission and in review of the competing draft orders it appeared the parties were closely aligned as to how these holidays should be shared.
[61] The mother proposes that for P.A. Days, the father picks up Charlotte at 9:30AM if he is available on that date. The mother’s concern is that on P.A. days, father often must work so he brings her to work or drops Charlotte at her grandmother’s home.
[62] Father’s proposal on the PA days was that given his parenting time visits are Wednesday to Thursday, where PA days fall on a Friday, he would simply keep Charlotte in his care through to Friday to avoid a parenting time exchange at the mother’s home which have been difficult at times. Mother’s evidence was that this would be too long for Charlotte to be away from her. Her proposal was that Charlotte return to her care on Thursday evening and that father retrieve Charlotte from her home on Friday morning at 9AM.

Travel Consent – Summary of Evidence

[63] The mother’s evidence is that since separation in response to requests to travel on vacation with Charlotte, the father has either ignored her, refused her or made unreasonable demands as a condition of providing his consent to allow Charlotte to travel with her outside of Canada. Episodes of proposed travel were as follows:
(a) Mother sought to travel with Charlotte to Varadaro, Cuba in April 2022. The father refused to consent and threatened he would notify the police and the airport authorities if she attempted to take Charlotte outside of the country.
(b) The mother and Charlotte sought to travel to Palm Coast, Florida in October 2022 and a resort in Dominican Republic from end of 2022 to early 2023. Her evidence is that the father did not respond to her request to travel to Florida and refused to consent to the travel to Dominican Republic.
(c) In September 2023 an opportunity arose for the mother to take Charlotte to Disney World in Orlando, Florida. According to mother father initially did not respond and then subsequently indicated he would only consent if he could also travel during the same time and take Charlotte to Disney World.
[64] Mother’s evidence is that prior to separation, she was able to travel with Charlotte to Palm Coast, Florida. She views father’s position on travel post separation is now designed to punish her and is not about what is in the best interests of Charlotte.
[65] Mother seeks for father’s consent for travel to be dispensed with and that she be able to travel to Portugal/Brazil/USA and Caribbean. Brazil is where her family is based. Portugal is where father’s family is based.
[66] On the issue of travel, father states that mother continues to request a blanket unrestricted consent to travel with Charlotte. He views this as unfair and not reasonable. He states he has never had the opportunity nor has been permitted by mother to travel anywhere with Charlotte.
[67] Father confirmed that in September 2023 in response to a request by mother to travel on vacation with Charlotte for a 12-day trip to Disney World, he proposed travelling with her 4 days earlier to Florida to Disney World and that she could pick up Charlotte from there. He claimed he made this proposal as the mother would not consent to any previous requests by him for overnights.
[68] Father states that he is happy to have mother travel with Charlotte at any time so long as he is offered the same opportunity. He is of the view that travel consent be required.

Attendance at Extracurricular Activities – Summary of Evidence

[69] An additional issue arose regarding parental attendance at extracurricular activities.
[70] An event that appeared to ignite this issue of conflict occurred on November 5, 2023, during father’s parenting time. Mother’s evidence was that she had invited father to have Charlotte participate in a capoeira recital event where she would perform and receive recognition for her progress. Charlotte’s performance would be earlier in the program and that at the end there would be a closing element which she would get to be a part of.
[71] Mother’s evidence was that Charlotte wanted to stay till the end. Father wanted to leave earlier and expressed frustration that Charlotte was resistant to his efforts to get her to leave earlier. She wanted to stay with her friends. This started to cause a “scene” and consequently father left the event without Charlotte.
[72] On July 25, 2024, mother testified that she did attend Charlotte’s capoeira class one time while she was in father’s care, that Charlotte gave her the belt to hold onto when father aggressively pulled the belt from her caused her finger to bleed. Her evidence was that Charlotte was present during this incident.
[73] Ahead of father’s scheduled parenting time weekend of November 5, 2023, father’s evidence was that mother had requested a switch in parenting time weekend as Charlotte had to attend a extracurricular event competition. Father responded that he would bring Charlotte to the event and that a switch in parenting time would not be necessary. It was agreed that Charlotte would be brought to the competition between hours of 9AM and 1PM.
[74] Father states that he had brought Charlotte to the competition and that by 12:30PM, all the children in Charlotte’s category had finished and most had gone home. The mother and her extended family continued to stay. Charlotte was observed to be engaging with them and having a good time.
[75] Father stated that at 2:00PM he asked on multiple occasions that Charlotte be changed so they could leave. His evidence was that mother ignored or resisted his requests. Charlotte was observed to get visibly upset, not wanting to leave. Father further alleged that mother did not encourage Charlotte to get ready to leave with her father and instead held her. As time progressed after 3PM, Charlotte had become even more visibly distraught. Ultimately father stated he decided to leave Charlotte with the mother.
[76] According to father, on July 25, 2024, he took Charlotte to a capoeira class in Toronto which was one he had enrolled Charlotte in addition to her regular capoeira classes due to his extended summer scheduled with her. After approximately 40 minutes, while taking Charlotte to the washroom, mother attended the class.
[77] Father’s evidence during that time was that mother was engaged with Charlotte, distracting her with Charlotte running back and forth. At the end of the class, Charlotte went to her mother, and passed her the belt. Father engaged with mother requesting that she return the capoeira belt. A physical altercation with the parents ensued. Father was ultimately able to retrieve the belt.
[78] Father was subsequently contacted by Toronto Police service who notified him that the mother had contacted the police seeking to have him criminally charged with assault. Following an investigation, they were informed no charges would be laid.

Law

[79] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act (the Act). The court has considered these factors, where relevant.
[80] Subsection 24 (2) of the Act 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.
[81] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. 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, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) 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
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[82] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
[83] An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. See: Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).
[84] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz, 1996 SCC 17. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.
[85] The general principles guiding the court in deciding where a child shall attend school when the parties disagree were set out by Audet, J. in Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) at para. 37 as follows:

The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child's best interests. They can be summarized as follows:
a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));
b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));
c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));
d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 SCC 17);
e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.));
f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));
g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));
h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));
i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));
j. Third party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));
k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.));
l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431 (Ont. C.J.));
m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.)).

[86] In Cibuku v. Cibuku, 2023 CarswellOnt 12614 (S.C.J.) the court found that there must be evidence that private school satisfies some specific and identified need that cannot otherwise be addressed appropriately in public school.
[87] In Roberts v. Symons, 2023 ONSC 4757, the court found that, absent evidence that private school is necessary, or that a child has any particular needs which could only be met at private school, or any other such "compelling reason" — public school is the default.

Choice of Dentist – Analysis

[88] The most important factor for the court in resolving this issue was whether the dentist of choice could provide competent and capable dental care to Charlotte.
[89] The quality of dental care provided by the dental office of Dr. Dann was not disputed by either parent. Prior to attendance at his office, Charlotte had multiple cavities. Since her dental care was monitored by Dr. Dann, the evidence was that Charlotte’s cavity issues have been resolved. She has been scheduled for standard 6-month checkup appointments.
[90] There was disagreement between the parents about Charlotte’s thoughts on the matter. Charlotte’s views on dentist do not need to be determined. Charlotte is only 5 years old. She is too young to choose a dentist. The adults needed to decide this issue.
[91] The court found mother’s objections to Dr. Dann to be somewhat vague. Although she did not question the quality of care provided, her evidence was that he was biased and she could not trust his opinion.
[92] There appears to have been some disagreement with Dr. Dann over his recommendation that she cease breast feeding. The evidence was that mother continued breast feeding notwithstanding his recommendation, although that is a moot issue as mother testified that she was no longer breast feeding.
[93] Mother was concerned that Dr. Dann’s office had scheduled a subsequent appointment for Charlotte in July 2024 over her objections and therefore she could not trust him. No-one from Dr. Dann’s office testified at this trial. It appears Dr. Dann’s office had scheduled the follow up appointment through father.
[94] The litigation process at the time of the July 2024 appointment being scheduled was fluid in that the matter had not yet been scheduled for trial. There was no court order on choice of dentist. In the court’s view the dental office was seeking to diligently schedule a checkup appointment to monitor Charlotte’s dental health.
[95] The parties had agreed for Dr. Dann to provide dental care to Charlotte pending final adjudication of this matter. Given that this matter had not yet proceeded to trial, as a matter of common sense it would logically follow that Dr. Dann dental office should continue to provide dental care to Charlotte until a trial decision had been rendered.
[96] I do not find concern over the appointment booking for Charlotte an adequate ground to disqualify Dr. Dann as Charlotte’s ongoing dentist.
[97] Mother’s concern about the location of Dr. Dann’s office is overstated. Unlike school, dental appointments do not involve everyday attendance. There was evidence that mother had accessed other professional service providers including the child’s family physician at a distance comparable to Dr. Dann.
[98] Concern was expressed about Dr. Dann offering “sleep dentistry” as opposed to “pediatric dentistry”. There was no expert evidence put before the court explaining how the dental care provided through Dr. Dann’s dental office was inappropriate for Charlotte’s needs.
[99] Mother’s choice of dentist is one through Winston Churchill Dentistry. No specific dentist was identified. No particulars or credentials were provided. Her proposal to address Charlotte’s dental needs is speculative in nature.
[100] Dr. Dann is a known entity. His office is familiar with the family and Charlotte’s recent dental history. The dental office of Dr. Dann has provided Charlotte with quality dental care. This should continue.
[101] Booking dental appointments should follow the same process for medical appointments as set out in Justice Cheung’s January 8, 2024 order at paragraph 20, 21 and 22.

Choice of School – Analysis

[102] The driving factor behind mother’s position that Charlotte should attend the private school Sherwood Height rested on her view that Charlotte was an academically advanced child and that for this reason Sherwood Heights was better suited to her needs.
[103] There was nominal reliable independent evidence before the court to support mother’s assertions.
[104] Mother’s position in large part was based on information she had received from Charlotte’s attendance at Guidepost Montessori school and the education staff from that school she had spoken to.
[105] Direct substantive input from Guidepost Montessori came in the form of a letter from Cicily Cortex dated September 13, 2024, and report cards from 2021 to 2023. A complete file from Guidepost was not produced. Although a summons was served, no educational professional from Guidepost Montessori attended to testify at the trial. Given the foregoing, the court can only place marginal weight on the information from this educational institution.
[106] The report card information from Guidepost communicated to the court that Charlotte is a capable and engaged student, however there was nothing in these reports indicative of advancement and exceptionalities placing her beyond what […] Public School could offer.
[107] I also consider that […] Public School is publicly funded, follows a standardized provincial curriculum and is subject to government oversight.
[108] Guidepost aside, there was no psychoeducational assessment performed on Charlotte. The only other independent information, according to the mother was feedback from a school representative at […] Public School who apparently opined that Charlotte was too advanced for their school. This individual was not called to testify at trial. I cannot place meaningful weight on this statement.
[109] There was very little information about Sherwood Heights School aside from a promotion publication which provided a general scope overview of what the school could offer.
[110] To consider if it were in Charlotte’s best interests to attend Sherwood Heights School, the court required an evidentiary nexus between the child’s needs and how Sherwood was exceptionally placed to meet those needs. The evidence of same was insufficient.
[111] The court heard no reliable evidence that […] Public school is an inadequate educational institution beyond the assertion that Charlotte was at an academic level beyond what […] Public School could offer. The court places no weight on mother’s assertions that she had heard anecdotal information from non-identified persons questioning the quality of […] Public School.
[112] Both schools are in relatively close proximity to Charlotte’s primary residence. I note that […] Public School is a few minutes closer. I do not consider this a significant factor.
[113] The cost of Sherwood Heights as a private school is a factor of more concern for the court. The evidence of the mother’s financial circumstances without the added burden of private school tuition is that she is living beyond her means even considering child support that could be paid by father. Her debt load approaching three quarters of a million dollars is significant. Mother’s representation that the maternal grandmother could assist did not relieve the court’s concern.
[114] The evidence of Ms. Maria Resendes amounted to a bald assertion that she would provide financial assistance to her daughter. There was no independent financial information such as a sworn financial statement which could address the extent of her assistance.
[115] Considering mother’s current financial circumstances, incurring private school fees would place a significant stress on her financial budget which could in turn adversely impact her ability to provide for Charlotte in other respects. While mother touted that a benefit of Sherwood is that Charlotte could attend right through to grade 12 without any school change, her ability to finance same over the course of the next 12 years is a concern.
[116] In summation, the evidentiary gaps in mother’s case that Charlotte should attend Sherwood Heights School in terms of how it would meet her needs as a primary factor and affordability as a secondary factor were too significant to be overcome.
[117] There will be an order for Charlotte to attend […] Public School forthwith.

Easter, Thanksgiving, Christmas and PA/Statutory Holidays – Analysis

[118] The only evidence led on this issue was regarding PA days. By the close of the trial, it appears the parties had agreed for a sharing of Christmas holidays and that statutory holiday inclusive of Easter and Thanksgiving would follow a regular schedule.
[119] Mother did request that New Year’s Eve and Day be shared however given the difficulties experienced at parenting time exchanges acknowledge by both parents, in my view it is preferable to keep the division of winter break as simple as possible with minimal parenting transfers.
[120] The concern regarding PA Days as the court understood it, is that with father having parenting time on Wednesday to Thursday each week, if Friday were a PA Day, his proposal would be to simply keep Charlotte in his care continuously through the Friday if adjacent to his weekend. Mother objects to this on the basis that it would be too long for Charlotte to be away from her. Her proposal was that Charlotte return to her care on Thursday evening and that father retrieve Charlotte from her home on Friday morning at 9AM.
[121] As noted above, the parties agree there have challenges during parenting time exchanges at mother’s home. To allow for additional at home pickups would invite the prospect of Charlotte being exposed to further difficulties. Whenever possible exchanges should take place through school.
[122] Additionally, it is noted in Madam Justice Cheung’s order that holiday time for father would expand in 2025 where she could be with her father for extended time. This trial concluded in December 2024 with a decision being rendered in 2025. I see no reason father could not now have extended parenting time with Charlotte when PA days align with his weekends as same is also anticipated in the holiday schedule for 2025 going forward.

Travel Consent – Analysis

[123] The evidence at trial was that the abundance of travel requests had come from mother. Her travel requests were refused by father who presented as motivated by a “quid pro quo” approach as in his view the mother has not been flexible or accommodating with respect to his parenting time,
[124] The history of conflict pertaining to travel is unfortunate. It is in Charlotte best interests to travel, to have new experiences and to connect with her heritage and culture. Mother in her evidence noted travel destinations such as Brazil and Portugal, countries where both parents trace their familial roots.
[125] Given the historical struggles over travel, the court has little confidence in the parents’ ability to cooperate in having travel consents signed. If consent to travel is required in all circumstances, the court is doubtful that Charlotte will have an opportunity to travel abroad absent further conflict or litigation.
[126] Both parents should have the freedom of planning a vacation and for Charlotte to experience the exciting anticipation of travel without worry or stress of such a trip being held up because one parent has not provided a travel consent.
[127] It is notable that on this travel issue neither parent alleged that the other was a flight risk.
[128] Given the expansion of holiday parenting time in 2025, either parent should be permitted to travel abroad with Charlotte during their own parenting time without requiring the consent of the other. If vacation travel is proposed to overlap on the other parent’s time, consent of the non-travelling parent will be required. Consent should not be unreasonably withheld on condition that there is a commitment to makeup of parenting time.

Attendance at Extracurricular Activities – Analysis

[129] This issue was driven to trial by father and was generally framed as a concern that mother was attending at extracurricular events for Charlotte during his parenting time behaving in a manner designed to undermine him.
[130] The court found it difficult to untangle the competing narratives of the parents of what exactly occurred at these extracurricular events other than to simply note that when the parents are in the same space the risk of parental discord is higher than when they do not occupy the same space.
[131] On one hand, it would be simplest to order that neither parent is permitted to attend any extracurricular event of Charlotte when same falls on parenting time of the other parent. On the other hand, it would be unfair to penalize Charlotte because of the risk of conflict between her parents.
[132] The court has no doubt that these parents love Charlotte, and that Charlotte loves her parents. Taking a child focused and common-sense approach, being able to master a skill or excel in an activity whether it be academic or extracurricular in nature is important for a child’s self-esteem and sense of well-being.
[133] The culmination of mastering such skill or excelling in an activity comes in the form of special events which connote recognition, that being public performances, public competition, or graduations. In the court’s view it is important for Charlotte to have sense of validation at such events by knowing that the two most important persons in her life are present to witness and praise her achievements. The attendance of both parents in these circumstances is important to the child’s wellbeing.
[134] The thrill for Charlotte knowing both parents are present to support her carries more value and is more intrinsic to her best interests then any parental conflict or concern for infringement of their “parental rights”.
[135] Regarding regular week to week extracurricular attendances/practices, only the parent who is exercising parenting time and is responsible to transporting her should be present.
[136] Regarding special events which connote recognition as noted above, both parents should be present regardless of whose parenting time it is.

2. CONTEMPT

Summary of evidence

[137] Father brought a Notice of Motion for Contempt against the mother for not facilitating a parenting time visit with Charlotte on the weekend of May 3, 2024, contrary to Madam Justice Cheung’s order of January 8, 2024.
[138] As part of his evidence, father put forward historical context to the contempt motion, that over four years of litigation the mother has sought to limit and interfere with father’s parenting time by making parenting time exchanges challenging, calling CAS/Police on him and going so far as to place a recording device in the child’s backpack during his parenting time.
[139] Father’s evidence was that on April 29, 2024, he received communication from mother stating that one of her friends, Joti Grewal had reached out to him about Charlotte’s friend’s upcoming birthday party on May 3, 2024. He was informed the child was looking forward to attending this birthday party.
[140] Father felt that plans for this birthday party were unilaterally imposed on him, absent his consent. He viewed this as unfair given it was his parenting time with Charlotte.
[141] Father would not agree for Charlotte to attend the friend’s birthday party. His reasons for taking this position were based on what he perceived as mother’s historical lack of regard for his parenting time, taking advantage of any flexibility on his part and then refusing to provide him with any make up time. He also noted that the request for Charlotte to attend the birthday party had come on the heels of an ongoing CAS investigation in which he was notified that mother had reported a concern for Charlotte returning from her father with a bruise on her arm.
[142] Father’s evidence was that he attended at the mother’s residence on May 3, 2024 to pick up Charlotte for his scheduled parenting time where he noted Ms. Grewal collecting decorations for her daughter’s birthday party. Father states that the mother confronted him in the presence of Charlotte about his refusal to permit her to attend the parenting time visit. He acknowledged that Charlotte presented as being very upset about not being able to attend the party.
[143] Father stated he was not going to engage in verbal communication with mother in the presence of Charlotte. He says he told mother he would wait in his truck and that when Charlotte was ready, the mother could bring her to his truck. Father believed mother was trying to goad him into getting upset.
[144] Father advised that mother subsequently informed him that if he wanted parenting time that weekend, he would need to call the police.
[145] Father’s evidence was supplemented by his partner, Adrianna Racca. Her evidence in chief was presented in the form of an Affidavit sworn December 18, 2023, an Affidavit sworn May 8, 2024 as part of the contempt motion brought by father in addition to oral testimony in court.
[146] Ms. Racca’s evidence was that she and father had been in a relationship for approximately four years. She has been strongly supportive of him and adopts his narrative of the mother not wanting to be a part of any co-parenting role. She describes being a witness to challenges that father has had in engaging with mother as well as witnessing the mother not encouraging Charlotte to get ready and transition into her parenting time with her father.
[147] As the responding party to the contempt motion, mother denied the father’s allegations that the context to the contempt motion being brought was that she had historically not complied with or obstructed father’s parenting time.
[148] The mother acknowledges there has been a history of Charlotte being resistant to attending parenting time visits and notwithstanding this resistance, she had fulfilled her obligation to apply reasonable parenting pressure to ensure visits take place with the one exception being the May 3, 2024, weekend visit.
[149] The context for the May 3, 2024, missed weekend visit arose from three reports to CAS citing protection concerns for the father’s interactions with Charlotte in and around March 26, 2024, April 17, 2024, and April 30, 2024.
[150] Ms. Gloria Sekyere, child protection worker with the Children’s Aid Society of Toronto testified as a witness as part of father’s case.
[151] Ms. Sekyere had been the worker responsible for child protection investigations of Mr. Viera commencing the spring of 2024. None of the concerns were verified by the agency. Ms. Sekyere noted that the mother did not agree with the Society determination.
[152] At the time of the May 3, 2024, missed parenting time episode, the Society had an open file. They were continuing their investigation and no verification had been made to that point. There was communication directly with Ms. Sekyere following the missed parenting time weekend until May 14, 2024 when Toronto CAS counsel Nichole Horwitz sent an email to counsel for both parents. Ms. Horwitz was clear that the Society had no jurisdiction to direct mother not to comply with the parenting order.
[153] During the same time that these protection concerns were reported, Mother learned that Charlotte’s friend was to have a birthday party on May 3, 2024. This occurred on father’s parenting time weekend. The mother notified the friend’s mother Joti Grewal of this who indicated she would reach out directly to the father.
[154] According to the mother, Ms. Grewal had communicated with the father who in turn had responded by stating “ok send me the invite”. Mother inferred from this that the father had consented to bringing Charlotte to the party. Subsequently she learned that the father had in fact not agreed to Charlotte’s attendance at the parenting time visit.
[155] Joti Grewal, the mother of the child whose birthday party was scheduled to proceed on the father’s parenting time weekend was called as a witness as part of mother’s case.
[156] Ms. Grewal stated she is a friend of the mother. Her daughter is the same age as Charlotte. The girls have been friends since they were little.
[157] Ms. Grewal’s evidence was that she had invited Charlotte to her daughter’s birthday party and that she had been informed by mother that Charlotte was scheduled to be with her father on that day. Ms. Grewal was directed to reach out to father about Charlotte attending the party.
[158] Ms. Grewal stated that she communicated with father and told him about the party, that he was welcome to attend. According to her, father asked her to send him the invitation which she did.
[159] Ms. Grewal stated that she followed up a few times via text message, but father never confirmed he would bring Charlotte.
[160] On the day of the party, Ms. Grewal attended at mother’s home to pick up décor items for the party. After bringing the items to her car, Ms. Grewal stated she went back to the house and had a brief conversation with mother and Charlotte. She states that she was affectionate to Charlotte and told her that if she couldn’t come to the party, she could celebrate another day.
[161] The mother’s evidence is that on this day she simply could not persuade Charlotte to attend the parenting time visit with father. Mother states that on this specific day after about two hours, Charlotte had said “now he is mad at me, I am scared to go”.
[162] The mother stated that she made the decision to stop trying to convince the child to attend as a culmination of the missed birthday party, pending CAS investigation and Charlotte’s expressed fear about going to the parenting time visit.
[163] The mother acknowledged that since the missed May 3, 2024, Charlotte has attended every scheduled parenting time weekend and that CAS subsequently closed their protection investigation.
[164] The parents embarked on efforts to negotiate make up weekend but were unable to agree on same.
[165] The mother also argued as part of her evidence that in bringing the contempt motion, father has not come to court with “clean hands”, that he himself is breaching the final court order in several respects as follows:
(a) Video calls between Charlotte and her mother while she is at the father are not taking place in a room free of distractions.
(b) That the father has refused to facilitate calls between Charlotte and her mother.
(c) That father has breached the spirit of the joint parenting order by allegedly booking dental appointments behind her back.
(d) Father has breached court order by not consistently ensuring Charlotte attend her capoeira classes on Friday evenings and has further unilaterally registered Charlotte at a capoeira class closer to his home.
(e) Mother alleges father has refused to have her attend important events such as year end graduate from her capoeira classes.
(f) Father has refused to allow Charlotte to bring her personal belongings to mother’s home.

LAW

[166] In Moncur v. Plante, 2021 ONCA 462, paragraph 10, the following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

[167] In Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870 (SCJ), Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:
(a) It ultimately remains a matter for the Court’s discretion
(b) because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint
(c) it cannot be reduced merely to a mechanism for enforcing judgments
(d) it should be used sparingly and as a measure of last resort where there are no other adequate remedies available
(e) it is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted
(f) the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.

Analysis – Contempt

The order alleged to have been breached must state clearly and unequivocally what should and should not be done.

[168] The order of Madam Justice Cheung dated January 8, 2024 states at paragraph 6 that Charlotte shall reside secondarily with the father such that commencing January 12, 2024, he would have in person parenting time on alternate weekends from Friday at 3:30PM to Monday at 9:00AM.
[169] There is no ambiguity or lack of clarity regarding the court order. Neither parent alleged as such.

The party alleged to have breached the order must have had actual knowledge of it;

[170] There is no dispute that that mother was aware of the court order.

The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels:

[171] The order was clearly breached. The May 3, 2024, weekend was father’s parenting time weekend. It did not take place. As the primary resident parent, it was the mother’s obligation to comply with the court order and to ensure Charlotte was transferred into her father’s care for that weekend.
[172] In my view the issue of intent and evidence of same is encapsulated at paragraph 53 of her August 30, 2024 Trial Affidavit which states as follows:

On this one occasion Charlotte just kept getting more and more upset no matter how much I reassured her and ultimately, I told the Respondent that I was unable to convince her to attend. On this specific day, after about two hours, when she said, “Now he’s mad at me, I am scared to go.” I made the decision to stop trying to convince her to attend. It was a culmination of the missed birthday party, the pending CAS investigation and Charlotte’s expressed fear that brought me to this decision. By the end, she wasn’t even talking about the party, it was about being afraid of the Respondent being mad at her.

[173] This statement of the mother communicates to the court, that having weighed her perception of several factors, she made a conscious unilateral decision, to not exercise parental authority and thus not facilitate court ordered parenting time.
[174] The troublesome nature of mother’s thought process is that she appears to be of the view that she could exercise her parental discretion to override what the court order required. A court order is not a guide, or a suggestion and it is not subject to the discretionary whim of either parent.
[175] I do not accept mother’s statement that she was unable to convince Charlotte to attend. In terms of Charlotte’s own feelings about the matter, she is only 5 years old. It is not her choice whether she goes on a parenting time visit with her father. By not complying with the court order, an unhealthy message is communicated to Charlotte that rules and orders need not be followed.
[176] This brings the court to a consideration of whether it should exercise its discretion to find mother in contempt. The following factors are to be considered:
(a) This is the first occasion that mother has had a contempt motion brought against her.
(b) A finding of contempt is to signify defiant conduct on the most severe end of the spectrum. The breach involves one missed parenting time weekend. There have been no further missed weekends. I do not consider the breach to be most severe.
(c) There are remedies other than a finding of contempt to address the breach.
(d) Father’s decision to not take Charlotte to her friend’s birthday party during his parenting time was not child focused. His concern was “his time” and maintaining his perception of a power equilibrium with the mother.
[177] The court will exercise its discretion to not find mother in contempt. Instead, mother will provide father with a full make up weekend.
[178] Mother should consider herself fortunate that a finding of contempt was not made. She should not take the court’s exercise of discretion as providing her with a liberty to disregard court orders at any future time.

3. CHILD SUPPORT AND S. 7 EXPENSES

Summary of Evidence

[179] The evidence is that the father is self-employed, that he owns and operates several corporate entities as follows:
(a) Maplestar Carpentry Limited – its main business activities being general construction and carpentry, this being the father’s primary source of income.
(b) Prego Disposal Limited – its main business activity being to provide disposal services to Maplestar and third-party companies.
(c) Vieira Properties Investments Inc – a real estate investments holding company started in 2019 which earns rental income and owns 3 rental properties in Toronto.
[180] The mother is of the view that father’s true income for child support purposes is difficult to ascertain due to his refusal to provide full financial disclosure.
[181] The court heard evidence from two business valuators. Their credentials as expert witnesses in their field were not questioned.
[182] The father relied on the income valuation report of Thomas A. Koger at Koger Valuations Inc. (Income report dated March 23, 2023). Mr. Koger provided oral testimony and was cross examined.
[183] The mother relied on the income valuation report of Vivian Alterman at AP Valuations Ltd. (income report dated September 18, 2023). Ms. Alterman provided oral testimony and was cross examined.
[184] The mother is of the view that father earns substantial income above what he has disclosed, based on the following:
(a) Father employs subcontractor Vitor Valente whom he pays strictly in cash. The mother says that father refused to provide contact information for Mr. Valente.
(b) Father has refused to provide credit card statements and bank statement despite multiple requests that he do so.
(c) Father owns a condo in Portugal, motorcycle and race car the details of which have never been provided.
(d) While together the father refinanced his mortgages in order to obtain funds to buy out his previous business partner. The respondent submitted a financing application on which he declared his income to be $400,000.00.
(e) Father has regularly given cash to finance vacations.
[185] The mother’s position is that the lack of disclosure by the father had a significant impact on these proceedings and adversely impacted her ability to take an informed position regarding the respondent’s income for support purposes.
[186] Ms. Kimberley Lopez was called as a witness for the mother. Ms. Lopez relied on her Affidavit of December 1, 2023. Paragraphs 11 to 14 of the Affidavit were struck.
[187] Ms. Lopez described herself as a close friend of the mother, that they had met in 2016 when mother became her real estate agent.
[188] Ms. Lopez’ evidence was that she had employed the services of the father for numerous construction and renovation projects in her mother’s home. She stated that the father gave her the option of paying for his service via cash. She confirmed providing cash for repair to her mother’s home.
[189] Ms. Lopez acknowledged most of the projects for which work was performed by the father was paid for via bank draft however some of the work was paid for via cash payments.
[190] The mother is seeking a final order that commencing January 1, 2023, the father pay child support for Charlotte in the amount of $1,479.00 based on an imputed income of $175,000.00 per year with a payment schedule on arrears backdated to 2019.
[191] Attached to mother’s affidavit was a retroactive child support chart backdated to October 2019 to December 2023 setting out her position of child support that should have been paid and child support that was actually paid. Mother’s evidence is that child support has mostly been paid since October 2019, and that father has continued to pay $550 per month dating back to March 2021. Given her position that income should be imputed to father, she views child support provided as underpayments and thus arrears are continuing to accumulate.
[192] It was noted in the mother’s closing submissions, that she was content that capital gains earned by father when he transferred real property from himself to the corporation not be included as income to father for child support purposes in 2019.
[193] The mother states the father’s failure to pay proper child support has adversely impacted her, that she has negatively taken on debt and minimized her own expenses to keep Charlotte in most of her same activities.
[194] The mother states the father has unreasonably refused to consent to or financially contribute toward Charlotte’s special/extraordinary expenses. Mother is seeking an order that the following are special or extraordinary expenses:
(a) Montessori school regular classes and additional language program like French/Spanish.
(b) Uninsured medical/dental expenses
(c) Extracurricular activities including but not limited to ballet, gym and martial arts.
[195] Father states that he has been paying child support from when Charlotte was born. He states that he paid $1,000.00 per month from October 2019 to August 2020 and that he has been paying $550 per month from September 2020 to present.
[196] Father states that his financial situation has become challenging due to expenses pertaining to lawyer fees, property taxes and increases in interest rates. He has had challenges paying down debt.
[197] Father takes the position that child support should be based on the income reported on his Income Tax Returns at line 1500.
[198] In his Form 13 Financial Statement sworn August 30, 2024, father reports an annual income of $70,800.00. He reports annual expenses at $80,384.00.
[199] Father testified that given how his businesses were arranged, he had some confusion about completing the financial statement forms. He conceded there may be some errors and noted a purpose of retaining the services of Mr. Koger was to explain his income.
[200] Father notes that he has never provided permission to enroll Charlotte in any programs. He claims he repeatedly reached out to the mother for information over a long period without response. His position is that he should have to contribute to expenses which the mother unilaterally incurred. He states he has contributed to dental/medical expenses and capoeira.
[201] As noted earlier in this decision, both parents retained expert valuators to assess the income of father.
[202] Both valuators agreed that the starting point for income valuation for father was his line 1500 total income. For 2019, this total income was listed as $150,454.00. For 2020 total income was listed as $35,000. For 2021 total income was listed as $60,000 and for 2022 as $60,000.00.
[203] Although not considered as part of the income valuation reports, the line 1500 in father’s income tax return for 2023 was $60,000.00.
[204] Ms. Vivian Alterman of AP Valuations Ltd. in her income valuation report provided two scenarios by which income was determined for father between 2019 and 2022.
[205] Scenario one adjusted income for unreported employment income and personal/discretionary expenses and income tax gross ups for such adjustments.
[206] The basis for unreported employment income was Mr. Viera’s confirmation that management remuneration reported on Maplestar financial statements for 2019 -2022 were paid to him. There was a noted discrepancy between management remuneration from Maplestar and the employment income noted in Mr. Viera’s personal tax returns. This was listed as unreported employment income, for 2020 at $11,568.00, for 2021 at $20,991.00 and for 2022 at $5,636.00. A tax gross up was applied for these income amounts.
[207] The basis for personal/discretionary expenses were life and disability insurance premiums listing Charlotte Viera as beneficiary ($2,975 per annum), advertising/promotion expenses based on expenses for beer/LCBO expenses (over a four year period, from a low of $57 to a high of $421), entertainment expenses based on an assumption of 50% being personal expenses and telephone/motor vehicle expenses based on father’s own admission that 10% were personal basis. A tax gross up was applied to these amounts.
[208] Scenario two made further adjustments to income based on expenses that were less verifiable specifically add backs for amortization on corporately owned real estate, unverified cost of materials (“missing cheques” from Maplestar) with tax gross up, unverified rentals/lease equipment/insurance (from Prego disposals) with tax gross up, unverified insurance/unverified repairs/maintenance (from Viera Properties Investment Inc.) with tax gross up.
[209] The basis for potential addbacks for amortization is based on Schedule III, Paragraph 11 of the Guidelines which notes provision to include a spouse’s deduction for allowable capital cost allowance regarding real property however the Guidelines do not address amortization deducted in a corporation.
[210] The basis for addbacks for unverified cost of materials were the cost of material which were reported in the general ledger as “missing cheques”. The mother indicated that these “missing cheques” were personal/discretionary expenses. Copies of original invoices or missing cheques were requested but not provided. According to the report, the father characterized these expenses as a bookkeeper mistake.
[211] The basis for add backs for unverified rentals/lease equipment/insurance was father not responding to requests for invoices or not providing an explanation of these expenses. The mother indicated these expenses were of a personal/discretionary nature.
[212] The basis for unverified insurance/repairs/maintenance rested on father not providing the requested information. Mother indicated these expenses were of a personal/discretionary nature.
[213] The report of AP Valuations Ltd. also highlighted the potential for other unknown adjustments regarding unreported cash income, unreported rental income and any additional personal or discretionary expenses paid through father’s business interests. According to AP Valuations Ltd., mother expressed the view that these adjustments were not captured in the analysis, however these other potential adjustments were non-quantifiable based on scope limitation.
[214] Under scenario 1, income was attributed to the father for 2019 in the amount of $403,000.00; for 2020 in the amount of $72,000; for 2021 in the amount of $117,000 and for 2022 in the amount of $91,000.00.
[215] Under scenario 2, income was attributed to the father for 2019 in the amount of $453,000.00; for 2020 in the amount of $129,000; for 2021 in the amount of $150,000.00 and for 2022 in the amount of $175,000.00.
[216] Mr. Thomas Koger of Thomas Koger Valuations Inc. provided an income report for 2019 through to 2021 as well he provided a critique of the income valuation report presented by AP Valuations Ltd. dated November 2, 2023.
[217] Mr. Koger accepted the line 1500 reported income for Mr. Viera 2019 to 2021 save for adding back life insurance which he described as “arguably an expense that is personal in nature.”
[218] Information reviewed by Mr. Koger was the CRA assessment notice between 2019 and 2021, full detailed T1 personal tax returns 2019 to 2021, financial statements for Maplestar, Prego and Vieria Properties between 2019 and 2021.
[219] Income for child support purposes was attributed to the father by Mr. Koger in the amount of $40,000 for 2019 (absent Capital Gains), $39,000.00 for 2020 and $65,000.00 for 2021.
[220] Mr. Koger’s critique of the AP Valuations report can be summarized as follows:
(a) The adjustments in the AP report are very large in quantum, large in comparison to the expenses of the companies and unlikely to be at that level.
(b) An adjustment was made for life insurance premiums. It was not clear to who the beneficiaries of the policies were. If the company was the beneficiary, a gross up would be inappropriate.
(c) Given that not all information was received, it was suggested that the missing information were personal expenses subject to a gross up based on what the mother advised them. Given the lack of proof, it was noted a lack of professional skepticism in making such wholesale adjustments.
(d) Given that the AP report noted not all the information had been received, with the receipt of additional information, the conclusions in the report could change.
[221] The evidence of Mr. Koger in terms of his stylistic approach to the income valuation is a two step one. He first reviews the core information of the nature that father provided him with and then determines based on his review of the initial material whether further investigation is warranted.
[222] Mr. Koger’s assessment in reviewing the information provided from the father was that there was nothing causing him concern to move to the second stage of his analysis. He characterized the father’s expenses as “modest” and his initial stage one analysis as an “overview”.
[223] He acknowledged under cross examination that he did not make requests for information to the same extent as AP Valuations Ltd. Amongst other things he did not review the general ledgers, bank statements, credit cards statements or updated income for 2022-2023.
[224] Mr. Koger testified that he does not go by allegations, conjecture or what either party has to say. He states he goes on the evidence that he has before him.

LAW

[225] Section 19 provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the 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 spouse;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

[226] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. See: Drygala v. Pauli, [2002] O.J. No. 3731, Ont. C.A.
[227] A review of the case-law respecting business deduction claims reveals a general theme that in determining whether expenses should be added back into a parent’s income for child support purposes, an important consideration is whether there is a benefit derived from the business expenses that employed people would have to cover from their personal income. See: Izyuk v. Langley, 2015 ONSC 2409.
[228] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, [2006] O.J. No. 1660, (Ont. Fam. Ct.). This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184.
[229] The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 31 R.F.L. 5th 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur the expense to understand it. See: Reyes v. Rollo.
[230] The onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to those deductions, failing which an adverse inference may be drawn. See: Orser v. Grant, [2000] O.J. No. 1429 (S.C.J.).
[231] Section 18 comes into play when the payor is the sole shareholder of a corporation. This section gives the court discretion to attribute some or all of the pre-tax income of a corporation to the shareholder, director or officer personally or, in the alternative, to attribute an amount less than or equal to the pre-tax corporate income that is commensurate with the services that the parent provides to the corporation. Section 18 provides:

18(1) [where] the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include:
(a) All or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) An amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.

[232] Whenever s.18 comes into play the onus is on the shareholder, director or officer to show that corporate monies, whether retained earnings or pre-tax corporate income, are not available for support purposes: Nesbitt v. Nesbitt, 2001 MBCA 113, [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32, [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61. That is because the payor parent knows more about the business than the recipient and is therefore in the best position to explain why some or all of the company’s pre-tax income is not available for support. Elder v. Dirstein, 2012 ONSC 2852.
[233] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.).
[234] The income analysis does not end there. It is appropriate in these circumstances to gross-up the payor’s income, as the payor is declaring and paying tax on substantially less income than the payor is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (Ont. S.C.).
[235] The relevant provisions of the guidelines regarding section 7 expenses are as follows:

7 (1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least of $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
7 (1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
7 (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
7 (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[236] Unlike section 3 of the guidelines, which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. See: Park v. Thompson, 77 O.R. (3d) 601, (Ont. C.A.).
[237] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, supra.
[238] In Titova v. Titov, 2012 ONCA 864, the court set out the following framework for determining a party’s contribution to a child’s section 7 expenses:
(a) Calculate each parties’ income for child support purposes.
(b) Determine whether the claimed expenses fall within one of the enumerated categories of section 7 of the guidelines.
(c) Determine whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.”
(d) If the expenses fall under paragraphs 7 (1) (d) or (f) of the guidelines, determine whether the expenses are “extraordinary” as defined by subsection 7 (1.1) of the guidelines.
(e) The court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
(f) The court determines the proportions that each party should contribute to the expenses, with the guiding principle being that the expenses will be shared in proportion to their incomes.

CHILD SUPPORT/S.7 EXPENSES – ANALYSIS

[239] The nature of the father’s financial circumstance is not simple or straight forward. He wholly owns and operates three separate companies from which he derives an income. He controls how these corporate entities function.
[240] The very nature of how he has chosen to operate his businesses invites scrutiny because unlike an individual who is a “T4 salaried employee”, the father is able to potentially “manipulate” income reported as offset by expenses incurred through the company. He is also able to control method of payment be it through bank draft, e-transfer or cash. The latter can be difficult to trace and hence report. The father’s own expert witness, Mr. Koger noted that cash transactions are possible in the line of work that father operates.
[241] Expenses that should be characterized as personal and instead are characterized as business expenses could be improperly used to report a lower income than would otherwise be the case.
[242] The case law is clear and recognizes that in circumstances where income for child support purposes is at issue and the support payor derives their income from self-employment or solely operating a company, the onus/burden of proof rests clearly on the support payor to establish what they pay themselves is a reliable indicator of actual earnings.
[243] In questioning from both counsel on financial issues, father presented at times as hesitant and lacking a measure of confidence. Most of his direct evidence at trial focused on the parenting and contempt issues. Aside from his sworn financial statements with attachments/personal/corporate tax information, his own personal evidence on the financial issues was very modest.
[244] His expression of some “confusion” in relation to his financial statements, his acknowledgement that there “maybe some errors” and deferral to Mr. Koger was noted by the court.
[245] The focus at trial on the issue of income determination rested largely on the competing income valuation reports from valuation experts.
[246] The court found the income valuation report of AP Valuations Ltd. to be impressive. A thorough and detailed analysis was undertaken to assess the businesses of father with a breakdown of how and why adjustments to income was made.
[247] In cross-examination and on closing submissions, the father’s contention with the AP Valuations report rested on three core concerns; firstly, that the report adjusted income/reached conclusions based on self-report of the mother, buoyed by Mr. Koger critique of there being a lack of “professional skepticism”; secondly that the methodology undertaken by AP Valuations Ltd. was flawed as Ms. Alterman did not speak with father, his accountant or Mr. Koger and thirdly that the Income valuation report was outdated and did not address income valuation in 2023/2024.
[248] Regarding the first concern, there were in effect three levels of analysis to the AP Valuation report. The first level was characterized a “scenario one” where expenses were added back based on acknowledgements by father himself regarding receipt of management remuneration, ”10%” add back of personal expenses and life insurance policy expenses listing the child as the beneficiary. These were all expenses which AP Valuations Ltd. were able to confirm as legitimate add backs. Adjustments for advertising and entertainment seemed to be based more on professional expert assumptions but were not directly challenged by the father in the form of contradictory evidence.
[249] The second level characterized as “scenario two” was largely premised on more speculative adjustments. Ms. Alterman acknowledged same in her evidence. The amortization issue aside, the balance of adjustments were made because of gaps in the financial information provided by the father and the lack of response/clarification to her queries summarized in her final request for information on August 16, 2024. While these adjustments were in line with the mother’s narrative, the lack of a direct response by father to the queries of AP Valuations Ltd. was a concern for the court.
[250] Regarding the amortization issue, Schedule III of the Child Support Guidelines specifically requires that amortization for real property be included as income for child support. The rationale here is that real property is not a depreciating asset and therefore the payor should not benefit from same at the expense of the child receiving less child support. I accept that amortization on the corporately owned real estate (which is in effect entirely controlled by father) should be added back into his income.
[251] The third level was not characterized as a distinct scenario but acknowledged the potential for there being unreported cash sales, unreported rental income or discretionary expenses which were too speculative for AP Valuations Ltd. to attribute any income. It was noted at Schedule 1 Page 6 of 9 at note 14 and again at Schedule 1 Page 8 of 9 at note 17 of the report that mother was of the view that further adjustments were not captured in the analysis of AP Valuations Ltd.
[252] I do not accept there was a lack of “professional skepticism” on the part of AP Valuations Ltd. Having input from the mother may have assisted in provided some context for the income valuation but in my view setting out a spectrum of analysis for the court’s consideration and acknowledging the vulnerabilities of the second and third level of analysis was transparent and fair.
[253] Regarding the second concern, specifically the challenge to the methodology of AP Valuations Ltd., that no one spoke to father or his accountant in preparing the report; Ms. Alterman conceded in her evidence that ideally when valuations are conducted it would be standard to speak directly with the payor/accountant but she was not clear as to why this did not happen.
[254] Regardless, there were lines of communication. Written requests for information were made. Some responses were provided. As set out in the report as of August 16, 2023, there were outstanding requests for information which were not responded to. Ms. Alterman noted her openness to receiving additional information which in turn could permit a reconsideration of conclusions reached.
[255] My difficulty with the challenge to methodology employed by AP Valuations Ltd. is that it ignores the legal onus/burden of proof which rests on father not the income valuator. There is an informational asymmetry in this case regarding income assessment. Gaps in information were identified and confirmatory documentation was requested. The focus of concern should not be why AP Valuations Ltd. did not do more to follow up but rather father’s responses to the inquiries or lack thereof.
[256] I concur with Ms. Alterman’s impressions of the Koger Valuations Inc. report being limited in scope. I found Mr. Koger’s approach of drawing conclusions from a general overview of the initial documents as too vague. There was no detailed analytical breakdown of why he chose not to move to the second stage of inquiry.
[257] Similarly, the critique of Ms. Alterman’s report was also limited. Mr. Koger does not address the different scenarios tendered by AP Valuations Ltd. The critique simply notes the adjustments in the report were very large in comparison to the expenses of the company and “unlikely to be at that level” without in detail addressing explanations provided for the add backs or the gaps in information from the father.
[258] The AP Valuations report could have been most simply addressed by father or his accountant giving evidence at trial providing explanations for the gaps in information referenced by AP Valuations Ltd. None was given. An adverse inference is drawn against father.
[259] Regarding the third concern, of the AP Valuation report being outdated; the report focused on a period where child support is claimed. Given that the report was rendered in September 2023, the AP Valuation report could not fully valuate for 2023. Particularly given father’s deferral to Mr. Koger to explain his income, a more current addendum report could have been obtained, it was not. It was further incumbent on father to not only directly address the gaps in information highlighted by AP income valuation but to proactively contextualize the concerns of the AP Valuations Ltd. report for 2023 and into 2024.
[260] I consider that the most appropriate attributed income range for father is as per scenario 2 of the AP Valuations Ltd. report between $129,000.00 and $175,000.00. I determine the annual income for father for 2019 absent the capital gains factor to be $106,083.00. Given the pattern of income earned by father between 2019 and 2022, the adverse inference drawn against him given the lack of updated disclosure/responses to queries of AP Valuations Ltd. and the absence of any evidence connoting a significant downturn in business; income will be imputed to father for child support purposes in 2023 and going forward at an annual income level of $175,000.00.
[261] Pursuant to the child support guidelines, child support payments retroactive from October 1, 2019 to December 31, 2024 are determined as follows:
(a) For 2019, father should have paid child support in the amount of $958.00 per month based on an income of $106,083.00. Total amount for this year is $11,496.00.
(b) For 2020, father should have paid child support in the amount of $1,138.00 per month based on an annual income of $129,000.00. Total amount for this year is $13,656.00.
(c) For 2021, father should have paid child support in the amount of $1,299.00 per month based on an annual income of $150,000.00. Total amount for this year is $15,588.00.
(d) For 2022, father should have paid child support in the amount of $1,479.00 per month based on an annual income of $175,000.00. Total amount for this year is $17,748.00.
(e) For 2023, father should have paid child support in the amount of $1,479.00 per month based on an annual income of $175,000.00. Total amount for this year is $17,748.00.
(f) For 2024, father should have paid child support in the amount of $1,479.00 per month based on an annual income of $175,000.00. Total amount for this year is $17,748.00.
[262] Total amount of child support that should have been paid by father between October 1, 2019 and December 31, 2024 is $94,984.00.
[263] In determining the child support amounts that father has in fact paid since October 1, 2019, there is a modest discrepancy between the parents. On the assumption that father has continued to pay $550.00 per month through to December 2024 absent any evidence to the contrary, mother’s calculation of child support paid as set out in exhibit “GGG” of her Affidavit sworn December 1, 2023 would be $34,925.34 while father’s calculation of child support paid as set out at paragraph 5 of his Affidavit sworn December 18, 2023 would be $38,600.00.
[264] The court was unable to locate any independent evidence supporting which “child support paid” calculation is more correct. In the absence of same, half the difference in the two calculations ($3,674.66/2 = $1,837.33) will be applied as an additional credit of payments made beyond the $34,925.34. In total, “child support paid” will be credited to father in the amount of $36,762.67. Net child support arrears owed by father stand at $58,221.33.
[265] I appreciate the child support payments that father has been ordered to pay is a significant step up from what he has been used to paying for the past several years. The court will provide father with a 6-month grace period to commence his arrears payments.
[266] Income imputed to father as noted above will be attributed in consideration of his contribution to s. 7 expenses alongside income for mother reported on her line 1500 Notices of Assessment which were not challenged.
[267] The issue of whether claimed s.7 expenses did in fact fit within the categorical definition of s. 7 expenses pursuant to the Child Support Guidelines was not explored at length at trial. The onus is borne by the mother.
[268] The issue of whether Montessori school expenses was a legitimate s. 7 expense links back up with the issue of school choice. In this analysis, while the expense is significant within the scope of being considered an extraordinary expense pursuant to s. 7(1)(d) of the Guidelines, the court must consider the necessity of the expense in relation to the child’s best interests.
[269] This was a US based online education program. As noted earlier in this decision, the representative from Guidepost Montessori did not respond to a summons to witness and did not provide a full copy of the school record. There was no evidence of efforts made to explore alternative Canadian based education/childcare programs which could have offered subsidy/tax benefit/credits or even whether Canadian based programs could have been offered at a lower cost or none at all. Consequently, I am not satisfied that this expense was necessary in relation to the child’s best interests for purposes of ordering father to contribute to this schooling.
[270] I am also not satisfied that the multiple extracurricular activities which mother enrolled Charlotte in since 2021 which includes gymnastics, swimming, ballet and soccer qualify as extraordinary extra-curricular expenses pursuant to s. 7(1)(f) of the Child Support Guidelines.
[271] There was little evidence tendered as to how many of these extra-curricular activities met the definition of an extraordinary expense pursuant to s. 7(1.1.) of the Guidelines. Most of these expenses were not significant in nature. They were of an amount that the mother could afford without a contribution from the father. There was little evidence about each of these extra-curricular activities in terms of their necessity in the relation to the child’s best interests.
[272] In closing submissions and in her evidence the mother referenced her claim for a contribution to retroactive s. 7 expenses. In the mother’s draft order, there was no reference to a quantum claimed, only for ongoing s. 7 expenses.
[273] I am prepared to order a contribution to capoeira martial arts retroactively/ongoing as this is a significant extracurricular activity for the child that was noted by both parents. There is also a court order for Charlotte to be transported to this activity on father’s parenting time. This expense was incurred as of April 2023. In determining the amount to be contributed for 2023, father’s income has been set at $175,000.00 and the best evidence of mother’s income for 2023 going forward as set out in her Financial Statement is $56,278.54. Father will contribute 75% to this expense and mother will contribute 25% to this expense.
[274] I could not find updated receipts for capoeira, nor was there a spreadsheet for payments made to date. Updated evidence of payments made by father toward capoeira was not clear. If the parties are unable to calculate father’s contribution to capoeira dating back to April 2023, based on a 75%-25% split; a 14B motion may be submitted to the court to determine this narrow issue of father’s net owe on this expense, if at all.
[275] Charlotte’s dental issues required intervention from dental professionals. Any amount not covered by insurance should be covered proportionately between the parties. These expenses claimed date to 2021 are for dental expenses incurred on June 8, 2021 ($228), June 21, 2021 ($72), July 13, 2021 ($72), October 5, 2021 ($191) and October 7, 2021 ($187) as set out at exhibit HHH in mother’s Affidavit sworn December 1, 2023. In determining the amount to be contributed for 2021, father income has been set at $150,000.00 and mother’s income for 2021 based on the line 15000 in her Notice of Assessment was $70,971.00. Father will contribute 67% and mother will contribute 33% to the net cost of this expense.
[276] Going forward, the parties will contribute a proportionate share to current s. 7 expenses that being capoeira and dental services. They will need to agree on future s. 7 expenses or otherwise return this matter to court.
[277] As a final note to the parents, it is extremely unfortunate that a trial was required to resolve the issues litigated. Litigation is not an ideal route for parents to address issues that arise while parenting. It is my hope that moving forward, the parents will be able to put the animosity they may have for one another aside and instead parent Charlotte in a manner that is child focused and guided by her best interests. Charlotte deserves no less. The parents are strongly encouraged to explore alternative dispute resolution options in the future such as mediation or explore retaining the services of a parenting coordinator.

ORDER

[278] I make the following order:

1. Commencing forthwith the child Charlotte born […], 2019 shall attend […] Public School.
2. The child Charlotte born […], 2019 shall have her dental needs met by Dr. K. Dann Dental Office.
3. Dental appointments for Charlotte shall be scheduled in the same manner as medical appointments set out in paragraph 20, 21 and 22 of Madam Justice Cheung’s order dated January 8, 2024.
4. The parties will share equally the child’s school Christmas break.
5. In odd numbered years Charlotte shall reside with the applicant for the first half of the break commencing after school on the last day of school in December and ending on the day that is the halfway point of the break at noon. Charlotte shall reside with the respondent from the second half of the break commencing on the day that is the halfway point of the break at 12 noon and ending on the morning of Charlotte's first day back at school in January.
6. In even numbered years Charlotte shall reside with the respondent for the first half of the break commencing after school on the last day of school in December and ending on the day that is the halfway point of the break at 12 noon. Charlotte shall reside with the applicant for the second half of the break, commencing on the day that is the halfway point of the break, at 12 noon, and ending on the morning of Charlotte's first day back at school in January.
7. Notwithstanding the shared Christmas break schedule above, the parties shall equally share Christmas Eve/Day as follows:
   (i) In even numbered years, Charlotte shall reside with the applicant from December 24th at 9:00 AM to December 25th at 12 noon and with the respondent from December 25th at 12 noon to December 26 at 7:00 PM.
   (ii) In odd numbered years, Charlotte shall reside with the respondent from December 24th at 9:00 AM to December 25th at 12 noon, and with the applicant from December 25th at noon to December 26 at 7:00 PM.
8. Any statutory holidays including New Years Day, Family Day, Easter, Victoria Day, Canada Day, August Civic holiday, Labour Day, and Thanksgiving shall be spent in accordance with the regular parenting time schedule. The parents may agree to alternative arrangements through Our Family Wizard.
9. If the Friday adjacent to the Respondent’s parenting time weekend is a PA Day, the Respondent’s parenting time shall continue uninterrupted from the commencement of the midweek Wednesday to drop off at school on Monday morning.
10. The travelling parent may arrange for travel with Charlotte during their parenting time to a location within North America/Caribbean/Portugal/Brazil without the consent of the non-travelling parent. If travel is taking place within these conditions, he/she shall provide the travel details (flight information, date of departure, date of return, address of destination and contact information while abroad) to the non-travelling parent via “Our Family Wizard” at least 14 days in advance of the departure date.
11. Travel outside of North America, Caribbean, Portugal or Brazil or any travel occurring outside the travelling party’s parenting time, will require a written travel consent. Consent shall not be unreasonably withheld.
12. The parties will arrange make up time for any parenting time which is missed because of the vacation prior to departure.
13. Regarding regular week to week extracurricular activity attendances/practices for Charlotte, only the parent who is exercising parenting time and is responsible for transporting her to the activity should be present. If there are any competitions, graduations or performance arising out of such extracurricular activity both parents may be present.
14. The Respondent’s missed parenting time visit of May 3, 2024 (defined as Friday from 3:30PM to Monday at 9:00AM) shall be made up with the Respondent providing to the Applicant an option of three proposed parenting time weekends via OFW. Within 7 days of the proposal being sent, the Applicant shall notify the Respondent as to which of the three proposed parenting time weekend will be made up. The makeup weekend will convert one of the Applicant’s parenting time weekends to the Respondent’s parenting time weekend.
15. Commencing January 1, 2025, and continuing the first of each month thereafter, the Respondent shall pay child support to the Applicant in the amount of $1,479.00 per month for the benefit of one child namely Charlotte born […], 2019. This monthly child support payment is based on an imputed annual income in the amount of $175,000.00.
16. Arrears in child support owed by the Respondent shall be set at $58,221.33 as of December 31, 2024, with payments of $500.00 to be paid toward these arrears with the first payment to be on June 1, 2025, and to continue the 1st of each month thereafter until paid off. Father may accelerate payments at any time.
17. The Respondent will contribute a 67% share of the net cost of dental expenses for 2021. The total dental cost for 2021 is $750.00.
18. The Respondent will contribute 75% proportionate share to capoeira classes expenses incurred from April 2023 to December 31, 2024, and shall be given credit for payments made to date. If the parties are unable to agree on the Capoeira expense amount owed by father if any, a 14B Motion may be submitted to this trial judge for adjudication.
19. The parties shall share in special and extraordinary expenses for Charlotte born […], 2019. For the purposes of special expenses, the Respondent’s income is $175,000.00 and the Applicant’s income is $56,278.54. The Respondent shall share 75% and the Applicant shall share 25% of s. 7 expenses. Current s. 7 expenses are capoeira class and dental services.
20. If the parties cannot agree on a future s. 7 expense claim, they may explore alternative dispute resolution options such as mediation or return the matter to court for adjudication.
21. The applicant and respondent will exchange Income Tax Returns and Notices of Assessment by July 1 of each year.
22. SDO to Issue.
23. If a party wants to proceed with seeking costs, written submissions may be made to the court on the following terms:
    a. to be submitted no later than 14 days from today with a maximum length of three pages – double spaced, 12-point font, normal margins. Bill of costs and Offer to Settle may be attached to the costs submission without counting to the page limits.
    b. Responding submissions may be submitted no later than 14 days after being served with the Cost submissions and are subject to the same parameters as set out in a.
    c. No reply submissions permitted
    d. Parties are to file electronically.
    e. CA to send submissions to chambers upon expiry of the two deadlines.

Released: January 16, 2025
Signed: Justice A.D. Baker