V.T. v. L.V.R., 2025 ONCJ 76

Warning

The court hearing this matter directs that the following notice be attached to the file:

The court has prohibited the disclosure of any information that could identify the child in this proceeding. Subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), reads as follows:

135.— (2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Subrules 31(5) and 31(6) of the Family Law Rules state as follows:

31.— (5) Contempt orders.— If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property.

Ontario Court of Justice

Date: February 3, 2025
Court File No.: Toronto 44457-FO23

Between:

V.T.
Applicant/Mother

— AND —

L.V.R.
Respondent/Father

Before Justice Debra Paulseth
Heard on January 20, 21, 22, and 23, 2025
Reasons for Judgment released on February 3, 2025

Jeffrey Ordon and Yasmeen Zamanian — counsel for the applicant
Darlene Rites and Pritinder Nanda — counsel for the respondent

Paulseth, J.:

Overview

[1] The parties married in 2012 and separated in February 2018. They have one child, a daughter, J., born in 2016. Both parents are in their 30s. They were divorced in 2021.

[2] An interim separation agreement from August 2018 provided for father’s parenting time to be alternate weekends and two midweeks for the alternate weeks. No financial matters were addressed in the agreement.

[3] By Application commenced in October 2023, mother seeks sole decision-making responsibility with parenting time to father, guideline (Child Support Guidelines or CSG) child support retroactive to the date of separation and ongoing section 7 expenses for daycare, tutoring, and any additional medical expenses over and above those covered by insurance.

[4] In his Answer, father seeks joint decision-making responsibility with shared parenting time and offers to share equally section 7 expenses.

[5] Father re-married MM on May 12, 2022 and they have a child, born May 15, 2023.

[6] Mother works in a senior administrative position at a local hospital and father is in the construction framing business. Mother seeks to impute father’s income greater than indicated in his Notice of Assessment (NoA) for the Canada Revenue Agency (CRA).

[7] The child is an energetic and sociable little girl. She enjoys a wide variety of extracurricular activities and many play dates with friends. She does well in school but has been supported through Kumon tutoring at times.

[8] Until the court order of March 2024, father provided child support in an amount determined by him and without financial disclosure.

[9] During the relationship, the parties worked hard, saved their money, bought a house, and went on modest vacations.

Current Positions

[10] Mother is seeking sole decision-making responsibility for the child. At the beginning of the trial, father agreed.

[11] Mother wants to keep the current parenting time schedule which includes alternate weekends from Friday to Monday and alternate weeks with a midweek overnight. Father wants week-about shared parenting.

[12] Each parent has a detailed proposal for holiday parenting time:

[13] Mother seeks retroactive child support to June 2018. Father disagrees but if the court goes back to 2018, father wants reimbursement of his alleged overpayment of section 7 expenses, in the amount of $47,909.

[14] It is mother’s position that father has always worked for cash in addition to his reported income. She seeks to impute income to him of approximately $150,000 for each year. The arrears of support would be approximately $48,000.

[15] Father takes the position that he overpaid section 7 expenses over the years such that there would be no arrears owing. He retained a business income valuator who reports that his average income is about $71,000. Father will only contribute to extracurricular activities that he agrees with in advance.

[16] By the conclusion of the trial, both parents were essentially in agreement with the following proposal for section 7 expenses:

1. Each party would pay his or her proportionate share of necessary expenses such as before and after school daycare and summer camps; swimming is an agreed upon activity.

2. J could also have one extracurricular activity. There is unlikely to be disagreement about the activity.

3. The issue is scheduling. Mother agrees to consult father. Father wants an agreement in writing in advance.

Parenting Issues

[17] Subsection 21(1) of the Children’s Law Reform Act (the Act) reads as follows:

21 (1) A parent of a child may apply to a court for a parenting order respecting,
(a) decision-making responsibility with respect to the child; and
(b) parenting time with respect to the child.

[18] Subsection 18(1) of the Act defines decision-making responsibility as follows:

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,
(a) health,
(b) education,
(c) culture, language, religion and spirituality, and
(d) significant extra-curricular activities;

[19] Any proceeding with respect to children is determined by the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Act.

[20] 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.

[21] 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:

(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(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.

[22] The list of best interests’ considerations in the Act is not exhaustive and is not simply a tabulated checklist. Case law has added some context to this list and the court includes a brief summary of those comments:

1. The court is 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.

2. It will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

3. The parents should make every effort to protect the child from adult conflict see section 33.1 of the Act.

4. Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 ONSC 6423.

5. The test for determining parenting time is what order is in the best interests of the child. A child should have as much time with each parent as is consistent with the best interests of the child. See Knapp v. Knapp, 2021 ONCA 305, and Baredregt v. Grebliunis, 2022 SCC 22.

6. The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

7. A custodial parent must not just accommodate access, they must facilitate it. See: Scrivo v. Scrivo, 2012 ONSC 2727; Tran v. Chen, 2012 ONSC 3994.

8. There is a presumption that regular parenting time by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. See Jafari v. Dadar [1996] N.B.J. No. 38 (NBQB).

[23] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962; J.N. v. A.S., 2020 ONSC 5292; L.B. v. P.E., 2021 ONCJ 114 and V.P. v. D.M., 2019 ONCJ 289.

Summary of the Evidence

[24] In addition to her own evidence, mother provided affidavits from two friends and her brother.

[25] A summary of the mother’s evidence includes the following:

1. Since birth, mother has been the primary decision-maker for J. J has also primarily resided with mother.

2. She is fully capable and committed to caring for J. She has been the parent who took J to medical appointments, extra-curricular activities, and play dates.

3. She felt forced to go to court as father was not providing adequate financial support and was causing conflict around the parenting schedule.

4. She is supportive of J’s relationship with her father and the paternal family. Mother volunteers information and shares photos with the paternal family.

5. She tries to prioritize J’s best interests but does not find that father does the same. For example, father will not take J to scheduled activities or birthday parties during his parenting time.

6. After separation, father would only see the child at random times in the mother’s home.

7. She moved many times after separation: to maternal grandmother’s for about six months, to a basement apartment owned by a friend’s parents for a few months, to an apartment organized by the hospital for the month of March 2020 due to the pandemic, two further apartments, then with a boyfriend who became abusive, back to maternal grandmother’s home, to an apartment near her sister’s home, and finally to the one she is living in now. The child only had to change schools once for senior kindergarten. J is now back at her original school.

8. She has developed a supportive community of friends whose children are playmates of J.

9. J was not present during the altercation with the abusive boyfriend.

10. She currently has a boyfriend, with whom she does not live, who has two children, aged 3 years and 8 years.

11. The parents executed an Interim Separation Agreement in August 2018; each parent having independent counsel. In the Agreement, mother had sole decision-making authority and the father had parenting time on Tuesdays and Thursdays and alternate weekends. Two weeks after signing the agreement, father said he didn’t understand it and would not follow it.

12. From that time until June 2024, father exercised regular parenting time on alternate weekends only. In June 2024, alternate Wednesdays overnight was added to the regular schedule.

13. On one visit in March 2023, father lied to her, saying the child was sick and would stay home with him. The child went to work with father’s partner, even though she was sick.

14. In December 2023, the child was invited to a birthday party occurring during the father’s parenting time. He refused to let her go but then changed his mind and said she could go if mother picked her up and dropped her off.

15. Father can be uncooperative around scheduling. When the court asked the parents to agree upon summer parenting time by a certain date, father failed to send his request until six weeks after the deadline.

16. Both she and the child were to participate in the wedding party of a good friend. Both parents consented to J being a flower girl but then the father changed his mind and refused to sign the travel consent until just a few days before the scheduled departure.

17. She had purchased an air tag tracker for J to wear when on vacation with mother. She also put the tag on J’s bracelet when she was about to travel with father a month later. The parents did not communicate about this. When father found it he removed it.

18. On occasion, father has dropped J at school when she was sick. The school contacted her later to come and pick her up, which mother did.

19. J is a friendly energetic child who enjoys sports and camps. She is currently in swimming classes but may want to take kickboxing or soccer. Mother likes her to have one weekly activity. In the summer months, mother works part-time and sends J to camp from Tuesday to Thursday.

20. In comparison, father has shown little interest in J’s activities. He did not attend her recital or awards ceremony. Father removed the child from soccer after twenty minutes one time as he “had things to do”. In November 2024, father missed the first communion parents’ meeting.

21. J is an intelligent child and excellent student. However, she requires additional support as, like many children, she fell behind during Covid. She enrolled her in a weekly tutoring program. Father has never attended the tutoring session; does not know the school calendar despite having direct access to the school web site; and did not attend her kindergarten graduation.

22. Father has never attended a parent and teacher interview.

23. Two of mother’s friends supported aspects of her evidence in their affidavits.

24. The maternal uncle provided her and J with tremendous support over the years: financial, practical, and emotional support.

[26] The father and his wife both gave evidence. A summary includes the following:

1. He has always been a very involved father. He wants a week-about schedule because:

   a. It would minimize the number of exchanges between the parties and the number of transitions between households.

   b. It would maximize the amount of time with him and with his new family, including the younger half-sister.

   c. It would provide an easier and more practical schedule, and

   d. It would permit him to be involved with J’s extra-curricular activities.

2. Mother often offered him additional parenting time but she would not agree to expand it on a regular schedule. For example, father said that mother needed parenting help during covid as she worked in a hospital and when she had housing issues.

3. In August 2024, he said that mother gave him additional parenting time, including mother’s weekends. He enjoyed this extra time with J.

4. Mother agreed to J going with father and his family to Brazil from December 27 to January 12, 2025. She then asked him to care for J from January 13 to 15, 2025.

5. On the other hand, mother would often suspend his parenting time. One example father gives is when she was moving in 2021. Since this court application began, there have been no interruptions of his parenting time.

6. The father points to examples of significant conflict with the mother since separation: when he was late, scheduling of extracurricular or playdate events during his parenting time; and an incident reported to the father by the step-mother (although not included in the step-mother’s evidence).

7. Despite the allegations by the mother, father supports J’s extra-curricular activities. He states that if he doesn’t take her to an activity, then it is in J’s best interests. He wants discretion as to whether he takes her or not.

8. J has become used to spending long periods with father and could easily transition to a week-about schedule.

9. He would like a right of first refusal because mother has left J with other caregivers. For example, J stayed with her maternal grandmother for a week last July 2024.

10. Father said he had no work in July nor August 2024 and could have cared for J during all of that time.

11. He is not agreeable to J travelling with mother without his consent, because mother refused consent for his trip to Mexico in January 2023 due to a government travel advisory. Mother also refused consent for a trip to Portugal in September 2023, because it was the beginning of school. Father always gave travel consents, although he admitted there may have been some delays.

12. Father suggested that swimming be expanded from 30 minutes to 60 minutes but objected when the mother took an afternoon time slot on Saturdays as it conflicts with his younger daughter’s activity.

13. Shortly after separation, father used one of mother’s work security fobs and went to the hospital parking lot and took the car she drove to work that day without telling her. They were in disagreement about who had been paying, out of which bank account, and who had ownership.

14. MM gave evidence about her close relationship with J. Prior to the birth of her own child in May 2023, she worked seven days a week and often 16 hours a day. She and the father were saving up their money to buy a house. All of her income was cash as she was not yet legal to work in Canada. These funds were not reported to CRA.

Best Interests of J

The Child’s Needs

[27] The child is described by mother as smart and very active. She likes her extracurricular activities and her friends. It is a great age – gymnastics, play dates, swimming, school, friends, and birthday parties. She loves family events.

[28] Father and stepmother also describe the child as loving to spend time with family. She likes spaghetti and macaroni and cheese. Stepmother tries to make the food she likes.

[29] J has some challenges with school and has taken Kumon tutoring for math. This means she needs to keep up with her math worksheets.

[30] Both parents agree that J will be raised in the Catholic faith. She goes to Catholic school and takes classes to prepare for her first communion.

[31] The evidence is clear that mother has been the primary parent in organizing school, schedules, activities, and friends.

[32] Father agrees that mother will consult but feels he has to do what she suggests. He resents this and sees it as controlling.

[33] Because of the liberal parenting time arrangements to date, father needs to keep up with these plans and schedules. This must be stressful as he works long hours in the construction business. In his own evidence, he often worked 12, 14, even 16 hour days.

[34] Father also now has another child with her own activities and his new wife operates a very busy company.

The Child’s Relationships

[35] There is no dispute that the child enjoys relationships with both family and friends. J loves her parents and extended families and they love her.

Each Parent’s Willingness to Support the Other Parent

[36] Mother has consistently supported the father’s relationship with J. Father disputes this because J’s friends and birthday party invitations can sometimes appear to him as though they have priority.

[37] They do. At J’s age, navigating peer relationships and socialization events are very important to her development. Parents have to work around the schedules and be flexible where they can.

[38] Father sees the hand of mother in all these requests and believes she is purposely trying to cut him out. The court does not agree.

Communication and Cooperation

[39] The parents do not communicate well. Each can find fault with the other. If father had decided sooner in these proceedings to agree to mother’s request for sole decision-making responsibility, the trial affidavits could have been more child-focused rather than aggressive and defensive.

[40] The parties only parented together for about 18 months, from J’s birth in June 2016 until their separation in February 2018. New babies are a very stressful time for parents. They could not cooperate then and that has continued.

[41] Father pleads long work hours and mother is left juggling her job and the child and housing. Father met a new girlfriend who needed immigration residency and who makes a lot of tax free money. Shortly afterwards, the pandemic occurred, and mother was working at a hospital, a very busy and high risk centre during the epidemic.

[42] Father admitted in cross-examination that mother did consult with him and kept him advised of important events.

[43] The court gives very little weight to the incidents and allegations that date from the early years after the separation. Sadly, those disagreements set a pattern for the parents.

The Plans for the Child

[44] Mother is working full time and going to school part time. The child has daycare before and after school. J is very comfortable in her current school. Mother has friends in the community and some family support. She wants to continue the current schedule which just began last summer; specifically adding the alternate midweek overnight. It works well and provides for a sharing of transportation for extracurricular activities; such as swimming and one other sport. As another option, mother would agree to switching the midweek overnight to the alternate weekends, so as to give J more time in one visit with father and his family. This would also result in fewer transitions for the child and parents.

[45] Father would rather a week-about schedule as it gives him more time and minimizes contact between the parents. The challenge with week-about is that it requires a high degree of cooperation and communication. Homework and activities will be increasing at the same time as supervision will become more important. Father is not accustomed to the same close supervision of homework, friends, and activities as the mother.

[46] Father wants a provision in the final order that mother cannot change the child’s school; such that it is more than 25 kilometres from his current home. Father bases this request on the mother’s frequent moves when she had housing challenges after the separation. Mother returned to the child’s original school area by the time the child entered grade one, a few years ago. There is no need for this provision.

[47] Father also seeks a right of first refusal so that he can care for the child instead of; for example, the one week she spent with maternal grandmother. Father was offered two weeks vacation last summer and didn’t take it. There is no child focused need for this provision. It is in the child’s interest to have a positive relationship with the maternal grandmother, as the paternal grandparents live in the same house as father.

Ability to Act as a Parent

[48] Mother has had more practice in acting as a parent; particularly during tough times, such as Covid and housing crises. Throughout these times she has encouraged parenting time with the father.

[49] Due to the poor communications between the parents, father saw the mother’s overtures as controlling rather than being flexible and/or requests for help. Now father would like the right of first refusal, when he often refused to change his plans when mother wanted help or offered him more time with J.

[50] For the summer of 2024, father was given two weeks with J for vacation but he had to let the mother know his dates by a particular date. He didn’t. He had J for the week he asked for and then the two alternate weekends, which were ordinarily his time. Labour Day in 2024 was supposed to be with father, so he got that time too. He thought he had received the entire two weeks as offered by the court but that was not true. Now the father complains that he didn’t have more time last summer when he was off work for parts of July and August. Statements like that must grate on the mother, who is trying to juggle camps and vacation and work.

Conclusion on Parenting Time

[51] The paramount importance of the child’s best interests leads to a conclusion that father’s parenting time continue as it is now, for these reasons:

1. The additional overnight is a relatively recent addition.

2. Mother has consistently been the primary school and daycare contact for J.

3. Mother has consistently been the organizer of play dates and school events.

4. Mother takes the child to the doctor and father takes the child to the dentist.

5. Longer periods of time with father will be more consistent with her best interests if they fall during a vacation time, when there isn’t homework and other scheduling pressures.

6. Father has other distractions which he needs to learn how to juggle without blaming the mother. For example, the child occasionally falls asleep in the car when he picks her up. He immediately thinks mother is to blame somehow and should therefore provide him with more or better quality time.

7. Father at one point in the trial started to talk about J wanting more time with him. This is not a conversation to have with J.

8. The parents do not enjoy the high level of cooperation and communication required for a more equal sharing of time.

[52] The parents may agree on changes to the parenting time in writing in advance.

Holiday and Vacation Time

[53] The parents were largely in agreement on holiday time but not summer vacation.

[54] If parenting time falls on a long weekend, including both statutory and school holidays, the weekend will begin on the Thursday if Friday is the holiday or extend to the Tuesday morning if Monday is the holiday.

[55] For the Easter 4 day long weekend, mother can have the Thursday to Saturday in odd numbered years and father the Saturday to Tuesday. In even numbered years father would have the first days and mother from Saturday to Tuesday.

[56] Subject to specific times for Christmas and New Years, the parents will split the two weeks of Christmas break - the first week will be mother’s in even years.

[57] Every December 24th the child will be with father from 10:00 am until noon on Christmas Day and with mother from noon on December 25 until 6 pm on December 26. In odd years, the child will be with mother from 3:30 pm on December 31st until 1 pm on January 1. In even years the same times will apply to the child’s time with father.

[58] On Mother’s Day, the child will be with mother from 10 am until 8 pm. On Father’s Day the same times apply to time with father.

[59] For summer vacation, each parent will have one protected week with the child in July and one week in August. Parents should exchange requests for these weeks by March 1st. If there is a conflict, father will have his preference in even years and mother in odd years.

Documents and Travel

[60] Mother should be responsible for obtaining and maintaining the child’s identifying documents, including all government issued documents. She can manage this without notice to nor the consent of the father. She should give father a copy of these documents.

[61] Mother may travel outside the country without the father’s consent but should give him a detailed itinerary with contact information and provide for regular contact between the child and father.

[62] Father should obtain the mother’s consent to any travel outside the country. Mother should not unreasonably withhold this consent. Father should provide a detailed itinerary and ensure regular contact between the child and mother.

Financial Issues

Evidence

[63] It is mother’s evidence that there are no arrears of section 7 expenses. She believes that the father has underpaid his child support obligations, by relying on his income as stated to CRA and not including cash income.

[64] Shortly after their separation, each party had counsel who assisted with the Interim Separation Agreement. Mother received financial disclosure at that time and then never again until this court case. The agreement did not address child support, but father began paying child support.

[65] Mother testified that Father’s Notices of Assessment would never reflect his accurate income as he always worked for cash. During the marriage, father worked for several different construction companies. He worked full time for Casaframing and GPC. He was paid by cheque and cash. He often worked from early morning until 9:00 in the evening. She recalled that from November until April, father would be paid by cheque from Casaframing and from April to November, he would be paid by GPC half by cheque and half by cash. The owner of Casaframing is a good family friend and godfather to their daughter.

[66] Mother asked father to pay for 50% of the child’s extracurricular activities and daycare costs and he did. Mother agreed that he also paid for some clothes and school related expenses.

[67] Mother said that father began paying $295 a month in May or June 2018. It then increased to $305. Father’s chart indicates he only made 4 payments in 2018. From the time of the Interim Separation Agreement until this court proceeding, father did not provide any financial disclosure.

[68] In March 2020, Father increased his monthly child support to $427, and in March 2021 he increased it by $7 to $434 a month. In July 2023, he increased it to $540 a month. Effective April 1, 2024, the court ordered temporary child support to be $654 a month on imputed income of $79,000.

[69] Father provided a chart that purported to summarize all of his child support payments, sometimes blended with section 7 expenses, from June 1, 2018 until October 1, 2024. The total is $45,736. The chart does not include his annual income. The chart does not differentiate between expenses and child support. Father said that mother did supply receipts but he doesn’t still them.

[70] Father’s Notices of Assessment indicate line 150 income as follows:

1. 2020: $58,033
2. 2021: $55,915
3. 2022: $58,427
4. 2023: $63,433

[71] On the weekend before trial, father provided his Notices of Assessment for the early years:

1. 2018: $36,729
2. 2019: $4,866

[72] Father’s Form 13’s indicate income and expenses as follows:

Date	Income	Expenses
January 13, 2025	61,105	124,549
November 21, 2023	58,426	91,440
November 30, 2023	same	same

[73] On March 26, 2024, the court imputed father with annual income of $79,000 and made a temporary order for child support of $654 a month, commencing April 1, 2024.

[74] By court order of June 11, 2024, mother was to serve a Request For Information on or before July 15, 2024. The RFI was served within the stipulated time frame but was not fully responded to by the father. Despite four follow-up letters from counsel, father did not respond until a month after the deadline and it was still incomplete. Father refused to provide financial disclosure for the years of 2018 until 2020. There were gaps in his bank statements until the weekend before trial.

[75] Mother’s Notices of Assessment indicate her line 150 income as:

1. 2018: $55,260
2. 2019: $52,464
3. 2020: $69,330
4. 2021: $61,107
5. 2022: $66,664
6. 2023: $80,440

[76] Mother works full time at a hospital and goes to school part time in a human resource management program. Her Form 13’s indicate income and expenses as follows:

Date	Income	Expenses
March 18, 2024	79,080	62,680
June 3, 2024	79,080	64,234

[77] By Affidavit of September 26, 2024, father stated that MM earned cash income between $500 and $1000 a week, depending on how many houses she cleaned. In her evidence at trial, MM admitted that her cash undeclared income was at a minimum $62,000.

[78] It was father’s evidence that mother had been threatening to take him to court for years before she finally commenced this application in 2023.

[79] Father said that he commenced a court proceeding against mother because he wanted more time with J. This was not true. He commenced a divorce but did not make any other claims for relief. In the Divorce application, he indicates that he is paying above guideline support.

[80] A review of his Line 150 income compared with his child support over three years indicates that father had underpaid child support. He was forced to admit this.

[81] MM gave evidence about her income. She met father in 2019. They became common law partners after dating for about a month. She was then able to have a joint bank account with father which helped her immigration status. She always worked for cash:

1. She first worked in a bakery and then started to clean houses.

2. She then developed her cleaning business into a full time job.

3. She now employs her mother-in-law and her sister-in-law. It is all cash and not declared to CRA. Since the birth of her baby she has been earning a minimum of about $62,000 a year. Before the baby, she earned more than that.

[82] The business valuator found that MM earns a salary from the father’s construction company. She did not mention this work or income in her trial affidavit.

Principles of Child Support

[83] The Family Law Act (FLA) and the Child Support Guidelines (CSG) govern the obligations of a parent to pay child support to the extent that the parent is capable of doing so. An order for child support must be in accordance with the CSG, which is essentially guided by the income of the payor.

Retroactive Child Support

[84] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.).

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

Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
(f) requiring that support be paid in respect of any period before the date of the order;

[86] In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for retroactive applications to increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors[^1] continue to guide this exercise of discretion, as described in Michel.[^2] If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[87] In an original application, like this case, the first step is unnecessary. The next step is to determine when mother gave effective notice to the father of her request for an increase in child support.

[88] Colucci sets out that the presumptive start date cannot be more than three years before the date of formal notice.

[89] Effective notice was the date when the parties engaged counsel and reached an interim agreement for parenting time but were unable to reach an agreement for child support. Father began paying child support in June 2018. He knew it was to be based on the CSG. He had to have known it was to include all forms of income. Mother knew it was to include his cash income.

[90] Father admitted that mother threatened to bring him to court for child support for years.

[91] Effective notice can be up to three years before formal notice of this application was given. This would indicate that October 2020 is the presumptive start date for child support.

[92] The next step in the Colucci framework is to determine if the court should deviate from the presumptive start date.

[93] The court in Colucci (at paragraphs 32, 48-54) emphasizes that the child support system has informational symmetry as its foundation and states specifically:

it would be unfair and contrary to the child’s best interests to require the recipient to police the payor’s ongoing compliance with their obligations:

[94] In Roberts v. Roberts, 2015 ONCA 450, the Court of Appeal described the duty to disclose financial information as “[t]he most basic obligation in family law”. A payor’s failure to make timely, proactive and full disclosure undermines the policies underlying the family law regime and “the processes that have been carefully designed to achieve those policy goals”. Without proper disclosure, the system simply cannot function and the objective of establishing a fair standard of support for children that ensures they benefit from the means of both parents will be out of reach.

[95] Retroactive child support is not an unusual concept:

1. It simply holds payors to their existing (and unfulfilled) support obligations. (Michel - par. 25).

2. It is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (Michel – par. 132).

3. It can always be avoided by proper payment. (D.B.S. - par. 97).

4. It will commonly be appropriate where payor parents fail to disclose their increases in income. At any given point in time the payor has knowledge of what their support obligation should be, while the recipient parent may not (Michel - par. 32).

[96] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel - par. 36).

[97] After determining the presumptive commencement date for child support, the court can apply the discretionary factors from the SCC decisions in D.B.S. (2006 SCC 37) and Michel v Graydon (2020 SCC 24):

1. Mother’s delay in coming to court: mother could not have known when the father’s income began to increase substantially until she observed his lifestyle changes.

2. Father’s conduct is blameworthy: he knew his obligation was to pay on his full income. In his divorce application, he said he was paying more than the guideline amount. His conduct clearly privileged his own interest more than his child’s interest in receiving the right amount of child support. His income was only within his own knowledge and not the mother’s.

3. In this case the child and mother live in a one bedroom apartment, while father houses his new wife and child and his parents in a home. Mother has been able to borrow money and favours from her family and friends. The mother’s unwavering love and attention to the child has perhaps overcome any difficult and unstable circumstances for her.

4. Is there potential for hardship to the payor/father? A lump sum of arrears is always painful but can be managed through a repayment scheme. Mother’s situation in this case is very similar to that described in paragraph 126 of Michel: she was forced into debt and/or spending all her money to stay afloat with housing and daily needs rather than buying property like father has. It is the mother who has suffered the hardship of not having that money when she should have and having to pursue this litigation. If the funds are not forthcoming to her for the child, it will surely be a hardship.

[98] The court finds that it is fair that discretion be exercised in this case such that the commencement date for child support should be August 1, 2018.

[99] The next step in the Colucci analysis is to quantify CSG for each year from the start date. Mother seeks to impute income to the father for each year. The following sections contain that analysis.

Self Employed Business Income

[100] 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 ONSC 13554. 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 ONSC 2806.

[101] 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.

[102] The income analysis does not end there. It is appropriate where personal expenses have been unreasonably deducted to add them back to the income and to gross-up the payor’s income by the tax he or she would have paid, but for the deduction. 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 ONSC 22639.

[103] Section 19 (CSG) 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.

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli, 2002 ONCA 41868.

[104] From the time of separation in 2018 until father started his own company with two partners in 2021, we have very little information about his revenue and expenses. On the weekend before trial, father provided a photocopy of one page of his 2018 Notice of Assessment and photocopies of two pages of his 2019 Notice of Assessment, as well as further bank statements. There is no information about his business; for example, what expenses were deducted from his gross income.

Raufino’s Framing Limited: Business Income

[105] Father retained an expert to provide a valuation of his business income from 2021 to 2023. He started his business in 2021, with the owner of Casa Framing, his friend and godfather to J, and the owner of Paystar construction. They share revenues but there is no partnership agreement. There may have been two additional partners; although the evidence of the valuator was that two of the companies were the same.

[106] There was no disagreement about the valuator’s expertise in examining and providing income valuation for the father’s business. Father paid the valuator about $6,000.

[107] As part of the usual process, the valuator reviewed both the company ledgers and tax returns and the father’s tax returns. He did not review the company bank statements nor the father’s personal bank statements.

[108] This valuator correctly made adjustments based on the Guidelines for child support:

1. Union dues were deducted from gross income

2. Income splitting with MM was identified and 50% was added back and grossed up for tax

3. Some personal expenses were added back also and grossed up for tax.

[109] The only employees of the company were the father and his spouse MM. MM provided some bookkeeping, payment collections, and picked up material occasionally. Together they were paid $95,037 in 2023.

[110] The valuator concluded that the father’s income for support purposes from this company was:

1. 2021: $63,000
2. 2022: $89,000
3. 2023: $71,000

[111] The two year average (most recent two years) is $80,000 and the three year average is $74,000.

[112] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 ONSC 22560.

[113] Further, father has a positive obligation to proactively disclose information and evidence to support his position, including evidence about why income should not be imputed to him. He cannot simply rely on bald statements. See: M.A.B. v. M.G.C., 2022 ONSC 7207.

Cash Income

[114] Where additional income is imputed to a parent who engages in cash, the undeclared income is “grossed up” to take account of its tax-free nature, notwithstanding the payor’s liability to be reassessed by CRA. See: Ali v. Williams-Cespedes, 2015 ONSC 3560.

[115] Once satisfied that there is undeclared income, trial judges have considerable leeway in imputing additional income to calculate support. See: Levin v. Levin, 2020 ONCA 604.

[116] Where the evidence respecting a party's income is not credible, income may be imputed. See: Gostevskikh v. Gostevskikh, 2018 BCSC 1441; M.A.B. v. M.G.C., 2022 ONSC 7207. This includes situations where the party's deposits into their personal or business accounts suggest that their income was greater than reported in their income tax returns and they fail to provide a reasonable explanation. See: Lazarevic v. Lazarevic, 2014 ONSC 7348; where a party has made representations outside of the court context that their income is higher than they have stated in the court proceedings; or where there are inconsistencies respecting their income on the one hand and their expenses and debts on the other which indicate that they are being dishonest about their true income. See: M.A.B. v. M.G.C., 2022 ONSC 7207.

[117] It is mother’s position that father’s income is at least twice the stated T4 or business income. To support this position, she points to:

1. In 2021, father deposited over $100,000 into his personal account. Over $35,000 was in cash deposits and over $8,000 in e-transfers.

2. In 2022, father deposited over $214,000 into his personal account and withdrew about $150,000. He made cash deposits of about $108,000 at various ATM machines and e-transfers of $48,500.

3. In 2023, father only provided a statement for one month (prior to the weekend before trial) and there was $4,500 in e-transfers. Mother calculated over $30,000 in cash deposits, excluding the $101,000 which was a gift from the paternal grandparents for a down payment.

4. Cash deposits in 2024 totaled over $51,000.

5. In 2021-2022, father sent over $10,000 to “Brazil remittance”. Mother believes that father bought property in Portugal which father denies; although he says he would like to buy something there.

6. Monthly electronic transfers range in amount from $100 to $300 and from a variety of individuals.

7. Father testified that the cash and e-transfers were from his wife’s business.

8. In cross-examination, father admitted that the total payments for his mortgage, property tax, and car payments was just short of $100,000 annually after tax. This does not include any insurance or living expenses or support payments.

[118] Father testified that he works the most in the summers, but last summer he said he didn’t have work for parts of July and August.

[119] Father alleged that mother made cash income from dog sitting and babysitting. Mother denied receiving any money from helping out friends. There was no evidence to support this allegation.

Lifestyle

[120] On the sale of the matrimonial home, each party received $50,000, as their respective share of the equity. Mother banked her money. Maternal uncle loaned mother some money when she was short, but she has repaid it.

[121] Father bought a condo and then his parents gave him about $100,000 towards a downpayment. The paternal grandparents live in the lower level of father’s house, where they have their own kitchen. Father also renovated a bathroom downstairs for them.

[122] Mother borrowed some money from her brother and then paid it back.

[123] Mother has gone on a southern holiday some years. Usually, it is funded by a friend.

[124] Father and his new partner have vacationed in 2024 to Brazil, Portugal and Mexico. In the first two locations, they stayed with family or friends.

[125] Father testified that he has sent money to Portugal and plans to buy property there.

[126] Father has bought two very high end luxury vehicles:

1. The family car is a BMW, valued at about $87,000. He pays about $18,720 a year in car payments for this car.

2. His car for work is a GMC Sierra truck, worth about $117,274 (a small amount of this price was the trade-in debt from the previous car of a few thousand dollars). He pays about $1,300 a month in car payments for this car.

3. In total, father pays more than $34,000 a year in after tax income for his two vehicles.

Disclosure

[127] In cross examination, father admitted that he failed to disclose a BMO account and a Line of Credit from BMO.

[128] Father’s 2018 and 2019 Notices of Assessment were only disclosed, specifically a page or two of the Assessment, the weekend before trial as he had decided they were irrelevant.

[129] Father and step-mother have two joint accounts - one at CIBC and one at BMO. His business account is at CIBC.

[130] The letters from the bank indicate that MM was added to Father’s account in February 2023. Father said it happened in 2020.

Conclusion on Financial Issues

[131] Based on all of the above; in particular:

1. Father only paid the amount of child support he wanted from 2018 until the court order of March 2024.

2. Father failed to disclose his business income and his true income from 2019 until 2024, and some accounts not until early 2025.

3. Mother and father were together for 6 years. Father always earned cash income in addition to recorded income. It makes no sense that he would make less income after the separation and starting his own company.

4. Father’s declared income as reported to the CRA could not support father’s lifestyle nor meet his expenses.

5. Father’s declared income is less than his business valuator’s opinion of the business income.

6. Neither the business valuator nor the CRA were aware of the father’s cash income.

7. Father cannot substantiate his claim for overpayment of section 7 expenses. He should not get a credit for paying for the odd snowsuit, pair of boots, and school pizza lunch expense.

8. Father would not have agreed to pay 50% of the section 7 expenses if he was actually making less income than the mother. See years 2018 to 2023.

9. Father cannot explain all of the cash deposits and e-transfers, based solely on his new wife’s income.

The court concludes that father’s income should be imputed higher than reported or valued and also be grossed up for unpaid tax, by a combined percentage of 40% for each year of this analysis.

[132] Mother gave specific information about when father changed his support payments and how much he announced he would pay. Father summarized all monthly payments without specifically saying what he paid in child support and how much was section 7 expenses. The court accepts mother’s evidence on the amount paid for CSG. In some months, father does not indicate a payment so those months are excluded.

[133] The chart that follows is a summary by year of the amount of CSG paid according to mother’s evidence, the father’s NoA income, the valued income of the business, the imputed income (which is 40% higher than the greater of the two previous incomes), and the amount of child support owing according to the imputed income.

Year	CSG Paid (Credit) Since August 1, 2018	NoA Income	Valued Income	+40% Imputed Income	CSG Payable	Net Owing
2018	(305 x 8) 2440	36,729	51,421	(474 x 8) 3792	1,352
2019	(305 x 12) 3660	44,866	62,812	(581 x 12) 6972	3,312
2020	(305 x 2 + 427 x 10) 4880	58,033	81,246	(455 x 2 + 757 x 10) 8480	3,600
2021	(427 x 2 + 434 x 10) 5194	55,915	63,000	88,200	(12 x 821) 9852	4,658
2022	(434 x 12) 5208	58,427	89,000	124,600	(12 x 1103) 13236	8,028
2023	(434 x 6 = 2604 + 540 x 6 = 3240) 5840	63,433	71,000	99,400	(12 x 906) 10872	5,032
2024	(540 x 4= 2160 + 654 x 8 = 5232) 7392	71,000 / 79,000	99,400 / 110,600	(4 x 906) 3624 + (8 x 993) 7944 = 11,568	4,176	30,158

[134] Father owes mother $30,158 in arrears of child support as of December 31, 2024.

[135] On a go forward basis, the court finds that father’s business income should be consistent with the 2022 valued amount, $89,000, because:

1. That amount was the valued amount before this court case began.

2. Probably most of MM’s paid salary should be added back into the business income and grossed up for tax.

3. Father did not work most of last summer. This strikes a chord called underemployment; particularly, as he was able to take several vacations.

[136] This amount of business income plus 40% for the grossed-up cash income equals a total income of $125,000 effective January 1, 2025. This amount is also consistent with his Form 13 from January 2025 where he states his expenses to be $124,549.

Section 7 Expenses

[137] The retroactive support analysis equally applies to claims for retroactive section 7 expenses. See: Smith v. Selig, 2008 NSCA 54; Hetherington v. Tapping, 2007 BCSC 209; Surerus-Mills v. Mills, 2006 ONSC 3839.

[138] The parties have agreed that there are no arrears of section 7 expenses. In applying the above income analysis, father has underpaid by using the 50% approach. To the extent that the court may not have totally appreciated the father’s payments, as they were a blend of CSG and section 7, that underassessment can be applied against his underpayment of section 7.

[139] Commencing January 1, 2025, father’s income is the imputed amount of $125,000 or his NoA whichever is higher.

Final Orders

1. The Applicant/mother shall have sole decision-making responsibility for all major decisions concerning the child of the relationship, namely J, born 2016:

   i. health, including major non-emergency health care;
   ii. education;
   iii. religion/culture, and spirituality; and
   iv. significant extra-curricular activities.

2. Mother shall consult with the father on all important decisions and give him a reasonable opportunity to provide input.

3. Both parents shall have access to the child’s service providers. Mother shall keep the father informed of the contact information for the child’s school, doctor, daycare, camps, and activities. Father shall keep the mother informed about the contact information for the child’s dentist.

4. Mother shall apply for and/or renew J’s passport, birth certificate, health card, and/or other important or identifying documents without father's consent. Father shall be provided notarized copies of each document.

5. J shall reside primarily with mother, subject to parenting time for the father, on a schedule as follows:

   i. Alternating weekends commencing at 3:30 p.m. after school on Fridays until Monday morning drop off at school at 8:45 a.m.; and
   ii. During the weeks when father does not have parenting time, Wednesdays after school until drop off on Thursday morning.
   iii. Any changes to the parenting schedule must be communicated to the other party in writing at least 72 hours in advance.

6. If parenting time falls on a long weekend, including both statutory and school holidays, the weekend will begin on the Thursday if Friday is the holiday or extend to the Tuesday morning if Monday is the holiday.

7. Subject to specific times for Christmas and New Years, the parents will split the two weeks of Christmas break - the first week will be mother’s in even years.

8. Every December 24th the child will be with father from 10:00 am until noon on Christmas Day and with mother from noon on December 25 until 6 pm on December 26. In odd years, the child will be with mother from 3:30 pm on December 31st until 1 pm on January 1. In even years the same times will apply to the child’s time with father.

9. On Mother’s Day, the child will be with mother from 10 am until 8 pm. On Father’s Day the same times apply to time with father.

10. For the Easter 4 day long weekend, mother to have the child from Thursday to Saturday in odd numbered years and father the Saturday to Tuesday. In even numbered years father would have the first days and mother from Saturday to Tuesday.

11. For summer vacation, each parent will have one protected week with the child in July and one week in August. Parents should exchange requests for these weeks by March 1st. If there is a conflict, father will have his preference in even years and mother in odd years.

12. Mother may travel outside the country without the father’s consent but should give him a detailed itinerary with contact information and provide for regular contact between the child and father.

13. Father should obtain the mother’s consent to any travel outside the country. Mother should not unreasonably withhold this consent. Father should provide a detailed itinerary and ensure regular contact between the child and mother.

14. As of the date of this Order, there are no ($0.00) arrears of section 7 expenses owing between the parties.

15. From the date of separation to December 31, 2024, father shall pay retroactive child support to mother in the amount of $30,158, inclusive of interest. These arrears are payable within 30 days or according to a repayment plan agreed upon between the parties.

16. Commencing January 1, 2025, father shall pay child support to mother in the amount of $1,107 per month, pursuant to the greater of (a) an imputed income of $125,000 annually, or (b) his line 150 income.

17. Commencing January 1, 2025, the parties shall contribute to the cost of J's section 7 expenses in proportion to their respective incomes for support purposes, after the application of subsidies, benefits, or income tax deductions/credits.

a. J’s section 7 expenses shall include:

i. childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent who has the majority of parenting time;

ii. that portion of the medical and dental insurance premiums attributable to J;

iii. health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

iv. extraordinary expenses for primary or secondary school education or for any other educational programs that meet J’s particular needs;

v. expenses for post-secondary education;

vi. J’s extracurricular activities and camps as well as any extraordinary expenses stemming from these activities; swimming is an agreed upon activity; one additional activity may be chosen by mother in consultation with father.

vii. Any other reasonable future section 7 expense, with the consent of both parents in writing in advance of the expense being incurred, such consent not to be unreasonably withheld.

b. The parties shall exchange their Income Tax Returns and Notices of Assessment each year on or by July 15th, for the purposes of reviewing and varying child support, if necessary.

c. Child support shall be reviewable each year and any resulting adjustment in the amount of Table child support payable shall commence August 1st each year. The first year for reviewing child support shall be in July 2025.

d. The respondent will also provide the additional financial disclosure required of him pursuant to the Child Support Guidelines.

18. Father shall provide adequate extended health and dental care insurance for J if the coverage is available to him through his employment.

19. Father shall maintain his current life insurance policy to secure his child support obligations, where the mother shall be named as irrevocable beneficiary of the policy in trust for J, for as long as J is eligible for child support.

20. A support deduction order shall be issued.

21. The father’s claims are dismissed.

Costs

[140] Counsel for mother may serve and file a maximum of 3 pages of submissions for costs, excluding her bill of costs and any written offers within two weeks of this decision.

[141] Counsel for father may respond with a maximum of 3 pages of cost submissions, excluding her bill of costs and any written offers, within two weeks of receiving cost submissions from counsel for mother.

[142] Cost submissions are to be filed with the Trial Coordinator’s Office on the second floor.

Released: February 3, 2025
Signed: Justice Debra Paulseth

[^1]: See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors are:

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

[^2]: See: Michel v. Graydon, 2020 SCC 25.