Case Summary

The applicant sought interim and retroactive child support and payment for s. 7 expenses. The respondent sought interim access and an order to be registered as the child's father. The court determined child support based on actual income for prior years, rejecting the applicant's attempt to use a higher past income. It dismissed the claim for s. 7 expenses for childcare provided by the applicant's parents but allowed claims for daycare and sister-in-law's care. The court granted the respondent unsupervised access, finding no evidence to justify continued supervision despite past emotional abuse in the parental relationship, emphasizing the child's best interests and the need for a meaningful relationship with both parents. The respondent was also declared the child's father, enabling registration under the Vital Statistics Act. interesting_citations_summary: > This decision clarifies the application of the Federal Child Support Guidelines regarding income calculation for retroactive support, affirming that actual income for the relevant year should be used (Vanos v. Vanos). It also provides guidance on the reasonableness of s. 7 expenses, particularly for childcare provided by family members, distinguishing between professional care and gratuitous family support (Aukstuolyte v. Balchun, Sage v. Sage). Crucially, the case extensively applies the "best interests of the child" principle to access, emphasizing the importance of maximizing contact with both parents and rejecting prolonged supervised access without clear evidence of risk, drawing heavily from Guenther v. Vanderhoof, Young v. Young, and Gordon v. Goertz. final_judgement: > The court ordered child support for 2014 and 2015 based on actual Line 150 incomes, and for 2016 based on an annualized income of $82,360.72 for the respondent, with future annual adjustments. The applicant's motion for childcare expenses to her parents was dismissed, but her motion for childcare expenses to her sister-in-law and for full-time daycare was allowed. The respondent was granted unsupervised access according to a detailed transitional schedule, and the court declared the respondent to be the father of the child. winning_degree_applicant: 4 winning_degree_respondent: 2 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 5297 file_number: "FS-15-20295" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc5297/2016onsc5297.html" keywords: - Child support - Retroactive child support - Section 7 expenses - Special expenses - Childcare - Access - Supervised access - Unsupervised access - Best interests of the child - Emotional abuse - Paternity - Vital Statistics Act - Federal Child Support Guidelines - Family Law Rules - Children's Law Reform Act - Divorce Act areas_of_law: - Family Law - Child Support - Custody and Access cited_cases: legislation: - title: "Vital Statistics Act, RSO 1990, c V.4" url: "https://www.ontario.ca/laws/statute/90v04" - title: "Family Law Rules, O. Reg. 114/99, R. 13(12)" url: "https://www.ontario.ca/laws/regulation/990114" - title: "Federal Child Support Guidelines, SOR/97-175, s. 2(3), s. 17, s. 19" url: "https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/" - title: "Children's Law Reform Act, RSO 1990, c C.12, s. 24" url: "https://www.ontario.ca/laws/statute/90c12" - title: "Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8), s. 16(10), s. 17(6), s. 17(9)" url: "https://laws-lois.justice.gc.ca/eng/acts/d-3.4/" - title: "The Children's Law Act, 1997, S.S. 1997, c. C-8.2, s. 6(5)(a), s. 8(b), s. 9(1)(b)" url: "https://www.canlii.org/en/sk/laws/stat/ss-1997-c-c-8.2/latest/ss-1997-c-c-8.2.html" case_law: - title: "Vanos v. Vanos, 2010 ONCA 876" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca876/2010onca876.html" - title: "Aukstuolyte v. Balchun, 2005 ONCJ 290" url: "https://www.canlii.org/en/on/oncj/doc/2005/2005oncj290/2005oncj290.html" - title: "Sage v. Sage, 2014 ONSC 1330" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc1330/2014onsc1330.html" - title: "Guenther v. Vanderhoof, 2014 SKQB 296" url: "https://www.canlii.org/en/sk/skqb/doc/2014/2014skqb296/2014skqb296.html" - title: "Young v. Young" url: "https://www.canlii.org/en/ca/scc/doc/1993/1993canlii34/1993canlii34.html" - title: "Dinius v. Hoskins, 2008 SKQB 114" url: "https://www.canlii.org/en/sk/skqb/doc/2008/2008skqb114/2008skqb114.html" - title: "Mitchell v. Mitchell (1988) 16 R.F.L. (3d) 462 (Sask. Q.B.)" url: "" - title: "Groves v. Meyers, 2003 SKQB 38" url: "https://www.canlii.org/en/sk/skqb/doc/2003/2003skqb38/2003skqb38.html" - title: "W. (B.H.) v. W. (S.M.), 2002 SKQB 455" url: "https://www.canlii.org/en/sk/skqb/doc/2002/2002skqb455/2002skqb455.html" - title: "Gordon v. Goertz" url: "https://www.canlii.org/en/ca/scc/doc/1996/1996canlii191/1996canlii191.html" - title: "MacGyver v. Richards (1995)" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii8886/1995canlii8886.html" - title: "King v. Low" url: "https://www.canlii.org/en/ca/scc/doc/1985/1985canlii59/1985canlii59.html" - title: "Sheikh v. Shahid, 2012 ONSC 1793" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc1793/2012onsc1793.html" - title: "R.K. v. M.S." url: "https://www.canlii.org/en/on/onca/doc/2002/2002canlii44989/2002canlii44989.html" --- # Court File and Parties **COURT FILE NO.:** FS-15-20295 **DATE:** 20160822 **ONTARIO** **SUPERIOR COURT OF JUSTICE** **BETWEEN:** Margot Catizzone Applicant – and – Evan Cowell Respondent **Counsel:** Gordon A. Meiklejohn, for the Applicant Julie Layne, for the Respondent **HEARD:** August 18, 2016 **F.L. Myers J.** --- # Reasons for Decision [1] Ms. Catizzone moves for interim child support and retroactive child support. Mr. Cowell moves for interim access and an order that Ms. Catizzone take steps to have him entered as their child’s father on government registries under the [Vital Statistics Act, RSO 1990, c V.4](https://www.ontario.ca/laws/statute/90v04). ## Child Support [2] The child was born April 8, 2014. She is two years old. The parties were never married and have not lived together. The child lives with Ms. Catizzone and her parents in Toronto. Mr. Cowell lives with his parents outside of Ottawa. [3] Mr. Cowell has paid child support regularly. But, the parties disagree on the proper basis to calculate Mr. Cowell’s child support obligations. [4] In 2014, Mr. Cowell had his most remunerative year of employment while living in Stoney Creek. When Ms. Catizzone became pregnant and the parties’ relationship ended, Mr. Cowell moved home to his parents’ house outside of Ottawa. Although he obtained a good job there, it pays less than his prior job in Stoney Creek. Ms. Catizzone seeks to maximize her access to Mr. Cowell’s 2014 income for support and arrears calculation purposes. [5] According to his Notices of Assessment, Mr. Cowell’s Line 150 income over the past two years has been: | Year | Income | | :--- | :----- | | 2014 | $98,893 | | 2015 | $77,903 | [6] Mr. Cowell failed to deliver an updated sworn financial statement before the return of this motion as required by [R. 13(12) of the Family Law Rules](https://www.ontario.ca/laws/regulation/990114). He did deliver a sworn financial statement dated April 3, 2016 anticipating the first return of this motion. In that financial statement, Mr. Cowell disclosed pay stubs establishing that his gross pay to March 24, of this year was $19,006.32. Annualizing 12 weeks’ pay to project a full year (multiplying $19,006.32 x 52/12) yields a projected annual income for Mr. Cowell for 2016 of $82,360.72. [7] Mr. Meiklejohn accepts that under the [Federal Child Support Guidelines, s. 2(3)](https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/), the most currently available information is to be used to calculate support. He argues however that Mr. Cowell breached his obligations to update his financial statement before the hearing. As a result, the income calculation from March of this year is not the most current information. Moreover, he relies on evidence given by Mr. Cowell, that he has worked as much overtime as he possibly can in order to afford counsel, to argue that Mr. Cowell may be suppressing his current income by not disclosing his current pay slips. This argument must assume that Mr. Cowell’s current pay slips include overtime being worked at a higher rate than Mr. Cowell was working during the first 12 weeks of the year. There is no factual support for such an inference or assumption. [8] Rather than asking me to order disclosure of current numbers by Mr. Cowell or seeking to impute income to him under [s. 19 of the CSG](https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/), Mr. Meiklejohn argues that the fairest thing to do under [s. 17 of the CSG](https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/) is to use last year’s Line 150 income as the basis for this year’s support obligation for Mr. Cowell. That number is at least known to be accurate. Then, Mr. Meiklejohn extrapolates, once 2015 results are being used for this year’s support calculations, Mr. Cowell’s 2014 (higher) income should be used to calculate a retroactive adjustment to his 2015 support obligations. It is not fair, Mr. Meiklejohn argues, that Ms. Catizzone should only have had the benefit of Mr. Cowell’s higher 2014 income for the few months of that year after the baby was born instead of having that higher number count for 2015 so she could reap a full year’s worth of support payments from it. In addition, using 2014 results for 2015 will boost Mr. Cowell’s share of s. 7 expenses. [9] If one assesses fairness from the vantage point of maximizing one’s own benefits, as most family law claimants do, then Ms. Catizzone’s argument is at least explicable. However, it does not represent either the law of the land or fairness measured from a more objective viewpoint in which equity to all parties is engaged. [10] In [Vanos v. Vanos, 2010 ONCA 876](https://www.canlii.org/en/on/onca/doc/2010/2010onca876/2010onca876.html) the Court of Appeal held as follows: > In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor’s actual income for the period is known. [11] I am bound by this decision of the Province’s highest court. It means that in looking backwards now, the parties’ known 2014 incomes must be used to calculate 2014 child support including s. 7 expense sharing percentages and the parties’ known 2015 incomes must be used to calculate 2015 child support including s. 7 expense sharing percentages. [12] Mr. Meiklejohn argues that I am not bound by Vanos if I find that using the incomes earned in the years in issue is unfair. Even were I to accept that proposition, I do not see how matching the parties’ actual incomes to the years in which their support obligations were due can be said to be the least bit unfair. The CSG process is designed to be simple, certain, and self-correcting. It calculates the parties’ ongoing obligations in accordance with their current incomes at the time that the obligations are due. It treats likes alike. Moreover, when a party’s next Notice of Assessment is produced by the CRA, amounts can be adjusted. The process is dynamic. I see nothing unfair about it at all. [13] As to 2016, I find that Mr. Cowell’s obligations are to be calculated for now based on an annualized income of $82,360.72. If, in 2017, his NOA for taxation year 2016 discloses that Mr. Cowell’s Line 150 income was higher than that amount, Mr. Cowell shall pay the difference between the amounts of child support and s. 7 expenses that he paid for 2016 as compared to what he should have paid had his income been known throughout the year. If he paid more than he would have paid had his Line 150 income been used throughout 2016, Ms. Catizzone shall repay the difference. In either case the adjustment payment shall be made by June 30, 2017. [14] The parties are required to file their 2016 and future income tax returns on time and are required to disclose to each other their NOA’s forthwith upon receipt. Each NOA will be used to adjust the prior year’s child support and s. 7 expense payments either up or down accordingly with the resulting adjusting payment to be made by the party who owes the adjustment by no later than June 30 of the year in which the NOA for the prior year is received. [15] In addition, support obligations for each new year shall automatically continue at the rate being paid as at the end of the prior year until NOAs are exchanged in respect of the prior year. Then the current year’s support and s. 7 expense sharing percentages shall be adjusted to reflect the Line 150 incomes in the NOAs and the party that owes the other any amount for the current year to date shall make such payment by June 30 of the year as well. [16] As to s. 7 expenses, Mr. Cowell challenges the appropriateness of the amount of $14,409 that is claimed by Ms. Catizzone for babysitting services for her child provided by her parents in 2015. Mr. Cowell mildly objects to a further sum of $2,364 claimed for child care services provided by Ms. Catizzone’s sister-in-law in 2015. He also questions whether their child needed full time day care at a cost of $9,225 in 2015 during the period when Ms. Catizzone was only working part time. He has paid almost $9,000 of these challenged expenses in any event. [17] Ms. Layne argues that until Mr. Cowell is able to assess the terms of Ms. Catizzone’s contract of employment and obtains full disclosure of all part time hours that she actually worked, he will not be in a position to truly assess whether full time daycare was appropriate. This position makes perfect sense on a legal basis and no sense at all on any practical basis aimed at helping these parties to move forward in a way that lets them get along so as to reduce the stress and anxiety that they will feel and pass to their child. [18] Legally one is perfectly entitled to inquire into the reasonableness of s. 7 expenses claimed. But is this how these parties want to go forward? Will every expense, no matter how normal and reasonable on its face, be subject to full legally inquiry? On what standard will Mr. Cowell assess how many hours of work and how much travel time Ms. Catizzone must have before she is entitled to put the child into full time daycare? [19] This is no different than Ms. Catizzone’s arguments, that I will come to below, in which she assesses Mr. Cowell’s every fault from the least generous assumptions to drive claims to the fullest of legal inquiry. Ms. Catizzone also layers on generous claims of fear driven from the tumultuous end of their relationship to justify her own lack of desire to be subject to Mr. Cowell’s inquiries. For example, she swore that she was afraid to disclose the terms of her part time employment to Mr. Cowell for his scrutiny. Then, in the next paragraph of her affidavit, she disclosed her current full time equivalent position through a letter from her immediate superior. I do not make light of concerns about emotional abuse that I will deal with below. But I equally do not accept the all too frequent family law case paradigm in which parties who claim to have been subject to abuse then get to trot out allegations of fear in a self-serving manner. Ms. Catizzone puts forward inadmissible hearsay evidence from an undisclosed informant claiming that Mr. Cowell said something to upset the child’s daycare facility. From this she draws a fear that if she discloses her part time position, he will interfere with her employment. But that same fear did not stop her from disclosing the name and position of her immediate superior, that she did not need to disclose, just to set out the terms of her current full time equivalent employment. Is it coincidence that the material that was not disclosed due to fear involved the job which Mr. Cowell questioned for s. 7 purposes, whereas now that she has full time equivalency, so that the reasonableness of full time daycare is no longer an issue, she can disclose even the name of the person whom Mr. Cowell might contact were he to be inclined to misbehave? [20] The point of this is that the parties can put up all manner of disputes to all manner of issues and pay their able counsel to dig deeply into each other’s affairs if they choose. Or, they can accept that their child is going to have a relationship with the other parent which neither of them can or ought to control and that their child will be hurt if they continue to approach each other with anger and anxiety-inducing demands and assumptions. [21] Digging through the minute details of each other’s lives to fight each other off, while legally permissible, is expensive, and inevitably creates resentment and distress. I will deal with the three claims and Ms. Catizzone’s claims regarding access below as I must. But I encourage the parties to consider closely any further desires to trudge through the muck of each other’s lives. Section 7 expenses and access are both to benefit their daughter after all. [22] The daycare expense and sister-in-law’s child care payments readily meet the tests of necessity and reasonableness in s. 7 of the CSG. Ms. Catizzone’s desire to pay her parents does not. [23] Only the net cost of allowable expenses (after Ms. Catizzone’s tax benefit is deducted) is to be split. Divorcemate will take this into account automatically. The child’s current daycare costs $1,770 per month on a gross basis. [24] Ms. Catizzone and her daughter live with her parents rent free. If the parents wanted to charge for room and board, then Ms. Catizzone would be indemnified for her child’s ostensible portion of those expenses from basic child support. The Catizzones have manufactured a charge to claim as a s. 7 expense so as to make an additional claim against Mr. Cowell that is not caught by basic child support. I have no doubt that if they could not claim a piece from Mr. Cowell, they would not be charging their daughter anything for babysitting. Nor am I satisfied that they actually did so. I have no idea what happened with the funds that Ms. Catizzone gave to her parents purportedly on account of this charge. [25] I find it telling that Ms. Catizzone only paid a piece of the parents’ ostensible charge after having brought this motion. Mr. Meiklejohn says that she only paid her parents once her hours of work increased so she could afford to pay. Does that mean that her parents were charging her for babysitting at a time that they knew she could not afford to pay? As unlikely as that is, I also note that there is no indication in the evidence that Ms. Catizzone could not afford to have paid her parents on what she was making before she obtained full time equivalent employment. In my view, she paid them when she did to make the s. 7 claim look better. [26] In [Aukstuolyte v. Balchun, 2005 ONCJ 290](https://www.canlii.org/en/on/oncj/doc/2005/2005oncj290/2005oncj290.html) at paras. 49 – 50, Justice G.A. Campbell determined that child care provided by a live-in family member is not generally provable under s. 7 of the CSG. I agree with his reasoning. In [Sage v. Sage, 2014 ONSC 1330](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc1330/2014onsc1330.html), Barnes J. set out a very helpful list of common sense questions to guide a determination of when claims for child care services by family might be recognized. Here, there is no evidence that the parents gave up remunerative income so as to be available to provide child care. There was no objective basis for the charges levied. The parents do not run a daycare or have a business charging for babysitting. They have no special child care qualifications to justify a charge like a daycare facility. In my view, Ms. Catizzone’s parents have been very supportive and giving parents who had no reasonable expectation of being paid for the time they willingly and lovingly enjoyed spending with their granddaughter. Under the factors set out in Sage too therefore, I do not accept the reasonableness of the claimed fee. ## Access [27] The parties filed reams of evidence on the question of whether Mr. Cowell was emotionally abusive to Ms. Catizzone during their relationship. Much of the evidence was couched in inadmissible oath helping (“Ms. Catizzone told me he was abusive”) or inadmissible past conduct that was not relevant to abuse or access (i.e. mudslinging). But, Mr. Cowell admits that the relationship was, to quote Ms. Layne, “difficult, tumultuous, and at times volatile.” In a contemporaneous Facebook post, Mr. Cowell admitted to a friend that Ms. Catizzone was afraid of him due to his anger. Emotional abuse is rightly a mandatory factor in considering access issues under [s. 24 of the Children's Law Reform Act, RSO 1990, c C.12](https://www.ontario.ca/laws/statute/90c12). The difficulty is that the term “abuse” is a general word that can be subjectively interpreted. A person can quite properly perceive herself or himself to be being abused although outward or objectively viewable signs may be less clear to others. Yelling, demeaning, threatening behaviour can certainly be abusive. I have no difficulty in finding that Mr. Cowell had outbursts of anger that were abusive of Ms. Catizzone. He believed that she was hypercritical and controlling so as to subject him to some emotional manipulation. The relationship ended badly with Mr. Cowell emotionally abusing Ms. Catizzone whether or not Ms. Catizzone’s behaviour might also have amounted to abuse of him. [28] The difficulty I have with this finding, that Mr. Cowell was abusive, is that it applies to a boyfriend/girlfriend relationship that could not survive an unexpected pregnancy over two years ago. That alone does not tell me much about how Mr. Cowell will behave with his daughter. Abusive conduct between adults in a relationship is unacceptable and should be stopped by all available lawful means. Given the breadth of the term “abuse” however, one cannot necessarily draw conclusions applicable to one situation from a finding of abuse in another. It is common sense to be wary of the risk that a person who is abusive of another may be abusive toward a child. The finding of abuse is therefore the starting point rather than the end of the inquiry. [29] In this case, Ms. Catizzone has insisted that all access visits for Mr. Cowell for the two-plus years since the child was born had to be supervised by one or more of her parents or a friend and one or both of his parents. In that time, Mr. Cowell has had supervised access visits without incident. There is no evidence of Mr. Cowell engaging in any inappropriate anger or other abusive behaviour to anyone since his breakup with Ms. Catizzone. [30] Ms. Catizzone argues that Mr. Cowell’s behaviour is indeed problematic. When they broke up, Mr. Cowell was in a state of distress. He left Stoney Creek to go home to his parents in Ottawa. At about the same time, she went to live with her parents in Toronto. Mr. Cowell took three months to get his emotions under control before he first came to see his daughter. He has re-engaged with AA and he has been seeing a therapist actively. In fact, he has been seeing therapists since at least 2009. Mr. Cowell’s medical records have not been disclosed. Ms. Catizzone argues that Mr. Cowell has mental health challenges that justify the restrictions that she has placed on his access. [31] I reject such a stereotypical view born of the stigma of mental health. Mr. Cowell is a person who has been in treatment for some time. He saw that he was suffering triggers for inappropriate behaviour as his relationship disintegrated, so he took appropriate steps. He removed himself from the source of his distress. He sought out the support of his parents. He took counselling. There has been no repeat of his abusive behaviour. When a person demonstrates insight into his or her mental health status that is a very positive sign in my view. Mr. Cowell was able to recognize his anxiety, implement measures to draw on the supports that he already had in place, obtain treatment, and revert to appropriate functioning. That type of insight, drawn perhaps from many years of therapy, demonstrates maturity and fitness in my view. [32] Despite Ms. Catizzone’s efforts, there is also no evidence that Mr. Cowell has abused alcohol at any time during or since their relationship. There is a possible credibility issue between witnesses who say that they saw him drink beer and Mr. Cowell who says he drinks non-alcoholic beer. But no witness reports any drunkenness or any sign that Mr. Cowell has abused alcohol at any material time in this proceeding. Of course alcoholism persists. But absent misconduct, the existence just raises a question. Ms. Catizzone has not provided any evidence to justify limiting access as a result of this issue. [33] Mr. Cowell complains that his access to his daughter has been so circumscribed by Ms. Catizzone so as to impair his ability to develop a relationship with her. For a long time, he was confined to meeting his daughter with grandparents present in the living room of the Catizzones’ home. No doubt that Catizzones were gracious hosts. But sitting on the good chesterfield in the formal room is hardly conducive to anything but long silences and social discomfort. [34] At first the child was hesitant with Mr. Cowell and his parents. However, over time she has come to know him as “Dada” and they have been given the run of the house and yard (always supervised of course). Ms. Catizzone raises a significant issue in noting that she has encouraged Mr. Cowell to spend more access time with his daughter and he has been reluctant to do so. For example, he drives to Toronto from Ottawa for Saturday access but he declines to stay in Toronto overnight so as to have access again on Sunday. Moreover, he only comes once a month. [35] It has taken a long time for Mr. Cowell to develop a relationship with his daughter, Ms. Catizzone says, because he will not come here more often or stay overnight. Mr. Cowell’s evidence is that he cannot afford to do so. This evidence is undermined to a degree by the access plan that he puts forward that would have him coming to Toronto twice a month. I find it more likely that he does not like to sit at the Catizzone’s house under the constant gaze of what he perceives as judgmental eyes. [36] Ms. Catizzone’s position is somewhat inconsistent. While she purports to be very inviting to Mr. Cowell, to have him spend more time with their daughter, she also erects barriers that make her invitations seem quite uninviting. [37] Ms. Catizzone criticizes Mr. Cowell for having initially wanted to wake the child from her naps for access visits because his time in Toronto was limited to a few hours. She criticizes him for handling the stroller roughly one time and waking the child. Ms. Catizzone took the child to Ottawa to see her family this past July and she gave Mr. Cowell access (supervised) at a park. At one point he was looking toward another child and his child started to wander away. [38] Ms. Catizzone did not favour the court with any evidence of whether she has ever woken the child from a sleep or ever had the child wander on her watch. I venture to speculate that while in the care of Ms. Catizzone and her parents, the child has fallen down, bumped her head, scraped her knee, and possibly even become ill. [39] Ms. Catizzone is critical of Mr. Cowell for not taking any parenting courses yet. She has not taken any either. Mr. Meiklejohn quickly backed away from a possible suggestion that mothers are more fit parents who do not need parenting courses. Instead, he quite fairly pointed out that Ms. Catizzone has had time to learn on the job while Mr. Cowell has not. And that is the important point. Whether by design of one or the other or not, Mr. Cowell may not have had sufficient time with his daughter to demonstrate that he knows what to do to bathe her, to treat a cut or scrape, to console her when she suffers an inevitable fall or when she cries inconsolably at bedtime. The barriers erected by Ms. Catizzone and by Mr. Cowell’s distance may have slowed his ability to grow into the role of father. They have certainly impaired the ability of their daughter to develop a meaningful relationship with her father and his family. [40] The evidence of Ms. Catizzone’s mother is that she has been positively impressed with the development of a positive relationship between her granddaughter and Mr. Cowell. Despite this positive growth, Ms. Catizzone testifies as follows: > I do not want Evan to exercise unsupervised access until he has demonstrated that his anger does not prevent him from properly parenting [the child] and that he can be truthful in our dealings and communications with respect to [the child] and he is a constant presence in her life. [41] It is Ms. Catizzone’s position that she gets to set the tests and she gets to be the judge of Mr. Cowell’s satisfaction of her wants. [42] [Guenther v. Vanderhoof, 2014 SKQB 296](https://www.canlii.org/en/sk/skqb/doc/2014/2014skqb296/2014skqb296.html) is a case with very similar facts to this one. Turcotte J. set out the relevant legal analysis completely and convincingly. I set out a long quotation from the case because Justice Turcotte dealt with the issues so thoroughly and well. I note that the law of Ontario is the virtually the same as the law of Saskatchewan and the federal law discussed by Turcotte J.: > [10] Eden is 17 months of age. The parties have provided sparse evidence of Eden’s condition, needs or circumstances. The petitioner’s evidence suggests that Eden remains in diapers and has an established daily routine. Neither party have suggested that Eden has any special needs or sensitivities. It is uncontroverted that since her birth Eden has been primarily cared for by the petitioner, and the respondent has exercised the supervised access to Eden that has been dictated to him by the petitioner. The evidence supports that Eden is bonded to the respondent and is comfortable in his care. > > [11] [Sections 8(b) and 9(1)(b) of The Children's Law Act, 1997](https://www.canlii.org/en/sk/laws/stat/ss-1997-c-c-8.2/latest/ss-1997-c-c-8.2.html) prohibit the Court from considering past conduct of either of the parties, except to the extent that conduct is relevant to the ability of that person to act as a parent to Eden. Despite the concerns raised by the petitioner regarding the respondent’s conduct, she has provided no evidence that the respondent has inappropriately cared for Eden, including during times where he has had Eden while in the presence of the petitioner, her mother, his mother or Lois Machnee. She identifies specific incidents of concern where she alleges Eden has bumped her head while he was handling her or Eden was eating leaves off of a plant in her home during one of his visits that she had to deal with. However she does not situate any of these incidents to a specific time period or developmental stage of Eden over the last 17 months to give context to those concerns. There is no evidence of him being under the influence of alcohol or illicit drugs during any of his supervised visits with Eden. > > [12] He has had 17 months of supervised visits without incident. The petitioner indicates she is prepared to accommodate the respondent having more structured parenting time with Eden, subject to continuing supervision. Her suggestion that his visits continue to be supervised lacks foundation in the evidence before me. It also runs contrary in these circumstances to the principle of maximizing contact between a child and his or her parents in the child’s best interests as set out in [s. 6(5)(a) of The Children’s Law Act, 1997](https://www.canlii.org/en/sk/laws/stat/ss-1997-c-c-8.2/latest/ss-1997-c-c-8.2.html). Maintaining a protocol of supervised visits in these circumstances risks undermining the development of a natural and meaningful relationship between Eden and her father which is her entitlement. (See: [Young v. Young](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii34/1993canlii34.html), [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193). > > [13] Wilson J. in [Dinius v. Hoskins, 2008 SKQB 114](https://www.canlii.org/en/sk/skqb/doc/2008/2008skqb114/2008skqb114.html), [2008] S.J. No. 153 (QL), identified the concern that supervised access created an artificial environment which may impede the development of a natural parent and child relationship and also expressed the view that if supervised access is necessary, it should be for a short term: > >> 15 There is a general reluctance to grant supervised access unless it is clear that supervision is required. The reluctance to order supervised access arises from a concern that supervised access is artificial in nature and may inhibit the progress of a natural parent and child relationship. (Vide: Mitchell v. Mitchell (1988) 16 R.F.L. (3d) 462 (Sask. Q.B.). Further, if supervised access is ordered, it is recognized that the supervision should not continue for any significant length of time. As I stated in [Groves v. Meyers, 2003 SKQB 38](https://www.canlii.org/en/sk/skqb/doc/2003/2003skqb38/2003skqb38.html) at para. 12: >> >> ... supervised access orders do not normally stay in place for any significant amount of time as it is anticipated that, if the supervised access visits go well, unsupervised access would then be allowed. ... >> >> A similar expression of concern regarding long term supervised access is expressed by Baynton J. in [W. (B.H.) v. W. (S.M.), 2002 SKQB 455](https://www.canlii.org/en/sk/skqb/doc/2002/2002skqb455/2002skqb455.html), 226 Sask. R. 226 (Sask. Q.B.). He states, at para. 48, as follows: >> >> ... I am also concerned that the status quo of supervised access is not a realistic long‑term solution. The artificial environment that it provides makes it difficult for B. to re‑establish and develop his relationship with the children. Yet it is the only mechanism available to the court in this case to keep the parents apart and to protect the children ... > > [14] The importance of maintaining meaningful relationships between children and their parents was commented on by Justice McLachlin in Young, regarding the best interest test: > >> 201 Parliament has adopted the “best interests of the child” test as the basis upon which custody and access disputes are to be resolved. Three aspects of the way Parliament has done this merit comment. >> >> 202 First, the “best interests of the child” test is the only test. The express wording of [s. 16(8) of the Divorce Act](https://laws-lois.justice.gc.ca/eng/acts/d-3.4/) requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and “rights” play no role. >> >> 203 Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and other circumstances” of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the best interests” test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. The judge’s duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do. >> >> 204 Third, [s. 16(10) of the Divorce Act](https://laws-lois.justice.gc.ca/eng/acts/d-3.4/) provides that in making an order, the court shall give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, “Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children”, in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). >> >> 205 Wood J.A. in the Court of Appeal, put the matter as follows at p. 93: >> >> It seems to me that at the very least, by enacting this subsection [[s. 16(10) of the Divorce Act](https://laws-lois.justice.gc.ca/eng/acts/d-3.4/)], Parliament intended to facilitate a meaningful, as well as a continuing, post‑divorce relationship between the children of the marriage and the access parent. >> >> Without limiting the generality of the adjective “meaningful”, such a relationship would surely include the opportunity on the part of the child to know that parent well and to enjoy the benefit of those attributes of parenthood which such person has to share. In most cases that would clearly be in the best interests of the child, and the best interests of the child, not parental rights, are the focus of the whole of [s. 16 of the Act](https://laws-lois.justice.gc.ca/eng/acts/d-3.4/). >> >> 206 I would summarize the effect of the provisions of the Divorce Act on matters of access as follows. The ultimate test in all cases is the best interests of the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child. >> >> 207 It follows from this that the proposition, put to us in argument, that the custodial parent should have the right to forbid certain types of contact between the access parent and the child, must fail. The custodial parent's wishes are not the ultimate criterion for limitations on access: see [King v. Low](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii59/1985canlii59.html), [1985] 1 S.C.R. 87, at p. 101. The only circumstance in which contact with either parent can be limited is where the contact is shown to conflict with the best interests of the child. > > [15] Also, in the decision of [Gordon v. Goertz](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii191/1996canlii191.html), [1996] 2 S.C.R. 27, [1996] 5 W.W.R. 457, Justice McLachlin commented as follows on the best interests test: > >> 20 The best interests of the child test has been characterized as “indeterminate” and more useful as legal aspiration than as legal analysis”: per Abella J.A. in [MacGyver v. Richards (1995)](https://www.canlii.org/en/on/onca/doc/1995/1995canlii8886/1995canlii8886.html), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliaments view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions ‑‑ one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents. >> >> 21 In [s. 16(9) of the Divorce Act](https://laws-lois.justice.gc.ca/eng/acts/d-3.4/), Parliament has stipulated that the judge “shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child”. This instruction is effectively incorporated into a variation proceeding by virtue of [s. 17(6) of the Divorce Act](https://laws-lois.justice.gc.ca/eng/acts/d-3.4/). Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child. >> >> 24 The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. Both [ss. 16(10) and 17(9) of the Act](https://laws-lois.justice.gc.ca/eng/acts/d-3.4/) require that “the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child.” The sections go on to say that for this purpose, the court “shall take into consideration the willingness of [the applicant] to facilitate” the child’s contact with the non‑custodial parent. The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: [Young v. Young](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii34/1993canlii34.html), [1993] 4 S.C.R. 3, at pp. 117‑18, per McLachlin J. > > [16] Given the history of supervised visits by the respondent without incident and the supportive affidavits of his mother and Lois Machnee who have observed him caring for Eden and have no concerns as to the respondent’s ability to independently care for Eden, the petitioner’s suggestion that he continue to have supervised visits is without merit. The petitioner’s concerns with respect to the potential of the respondent being under the influence of alcohol or drugs prior to or during his parenting time with Eden can be addressed by appropriate restrictions preventing him from engaging in such activity prior to or during his parenting time with Eden. > > [17] The respondent recognizes that his parenting time with Eden should be gradually increased over a period of time to allow Eden to adjust to the same. However, the respondent seeks an order providing that the parties have joint custody of Eden leading eventually to a shared parenting arrangement. As noted, to date Eden has been primarily cared for by the petitioner and the respondent’s access to Eden has been limited to bi-weekly supervised visits of one hour. On the basis of the affidavit evidence before me I am also satisfied that it is not appropriate to order interim joint custody. > > [19] The parties need to put this conflict behind them. They need to maturely and responsibly cooperate with one another towards addressing Eden’s needs, which includes fostering and maintaining a relationship between Eden and each of them, in Eden’s best interests. A future judge of this Court may assess the extent to which the parties have fostered such a relationship in making a final determination on issues of custody and access having regard to [ss. 8(b) and 9(1)(b) of The Children’s Law Act, 1997](https://www.canlii.org/en/sk/laws/stat/ss-1997-c-c-8.2/latest/ss-1997-c-c-8.2.html). I am not able to make such a finding on the affidavit evidence before me. [43] There is little left to be said. Ms. Catizzone’s subjective wants are of little consequence in assessing the best interests of the child. Supervised access has lasted for more than long enough and is now interfering with the child’s entitlement to develop and maintain a meaningful relationship with her father. Mr. Cowell has demonstrated patience and resolve in meeting Ms. Catizzone’s conditions and then bringing this proceeding to try to enhance his relationship with his daughter. There is no evidence justifying further supervision of Mr. Cowell’s access. Ms. Catizzone has not proven any of her three concerns exist in any event. There is no evidence that Mr. Cowell’s anger prevents him from properly parenting their child. There is no evidence that Mr. Cowell is not truthful in his dealings and communications with respect to the child. He will now be given the chance to be a constant presence in her life. [44] I also agree with Justice Penny in [Sheikh v. Shahid, 2012 ONSC 1793](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc1793/2012onsc1793.html) that circumstances in this case, like Sheikh, call for the travel to be shared more equitably. The Cowells have a large country property in Mountain, Ontario. It can only benefit the child to see it and meet her other family there. While making a child travel fair distances is not optimal, it will only be happening once every six weeks at the beginning. [45] I also agree with Mr. Meiklejohn and Ms. Layne that circumstances call for incremental transition. It will be important for Mr. Cowell to continue to show his commitment to his daughter by making the payments contemplated by this order and by attending to more access visits in Toronto so as to enable growth towards access in Ottawa. I do not view it as appropriate for access in Ottawa to begin until Mr. Cowell is able to exercise overnight access. It is hardly worth the trip if the child only sees Mr. Cowell for a few hours Saturday afternoon and a few hours early Sunday morning. Perhaps the first time that the child is taken to Ottawa should be an exception as proposed by Ms. Layne just to let the child familiarize herself with the surroundings with her mother nearby before starting overnight visits there. [46] Therefore, on September 10, 11, 24, and 25, 2016, Mr. Cowell will have unsupervised access to the child in Toronto; Saturdays between 1:00 p.m. and 7:00 p.m. and Sundays between 9:00 a.m. and 1:00 p.m. [47] On October 8, Mr. Cowell will pick up the child at 1:00 p.m. for an overnight visit in Toronto to end at 1:00 p.m. on October 9, 2016. The same times will apply on October 22 and 23, 2016. [48] If Mr. Cowell wishes, one or both of his parents may attend with him for any of the September and October visits. [49] Commencing November 5, 2016, unsupervised access will take place over a rotating 12 week period as follows: a. In weeks 1, 3, 7, and 9 access will take place in Toronto on Saturday between 11:00 a.m. and 7:00 p.m. On one week’s notice, Mr. Cowell may, at his sole option, convert each of these visits to an overnight in Toronto in which case he shall return the child to her mother on the Sunday by noon. b. In weeks 5 and 11 access shall take place at Mr. Cowell’s residence. On the first week 5 only, Ms. Catizzone or someone on her behalf will drop the child off at Mr. Cowell’s residence on the Saturday by 1:00 p.m. pick her up at 7:00 p.m. On the next day, the first week 5 Sunday, Ms. Catizzone or her delegate will drop the child off at Mr. Cowell’s residence at 9:00 a.m. and pick her up at 1:00 p.m. On all subsequent week 5s and on all week 11s, Ms. Catizzone or someone on her behalf will drop the child off at Mr. Cowell’s residence at 1:00 pm. on the Saturday and pick her up the next day, Sunday, at 1:00 p.m. [50] If the parties wish to agree to changes to the schedule they may do so on mutual consent in writing. ## Vital Statistics Act [51] Finally, the father wishes to be named as the father of the child in the government registry. He is not asking to change the child’s name. Nor would a change of name be available in these circumstances. [R.K. v. M.S.](https://www.canlii.org/en/on/onca/doc/2002/2002canlii44989/2002canlii44989.html). I cannot imagine however, how registering Mr. Cowell as the child’s father on the government’s official records cannot be in the child’s best interests. Doing so gives proper, formal recognition to the child’s relationship to her father and his family. Nothing will change on the face of the child’s birth certificate. Rather, the relationship between daughter and father that is not in doubt will be formally recorded by the government. Ms. Catizzone says repeatedly that she wishes to encourage this relationship and she wishes it to grow and flourish. Her petty conduct on this issue undermines the sincerity of those pleas. Mr. Cowell submitted a paternity test to prove his parentage. However, his paternity was never in doubt in this proceeding. Ms. Catizzone plainly admits that Mr. Cowell is their child’s father. I therefore declare Mr. Cowell to be the father of the child on the admitted evidence before the court. This declaration entitles Mr. Cowell to register his paternity under the [Vital Statistics Act](https://www.ontario.ca/laws/statute/90v04) without the consent of Ms. Catizzone. Were that not an available outcome, I would have made an order dispensing with Ms. Catizzone’s consent to registration or exercised my discretion to require her signature as a term of the relief otherwise granted in her favour in this order. ## Costs [52] Mr. Cowell may submit cost submissions of no more than three pages by Friday September 2, 2016. Ms. Catizzone may submit no more than three pages of submissions by September 16, 2016. Both sides shall submit Costs Outlines and any offers to settle on which they rely. All of the foregoing shall be sent as attachments to an email to my Assistant in searchable pdf format. ## Result [53] Counsel are to take the holdings in these Reasons and run Divorcemate calculations accordingly. The resulting numbers should be inserted in the formal order. The child’s name should also be used in the order in the usual form. I have declined to name her in this decision to preserve her anonymity as best as possible or at least to try to prevent this decision from popping up too readily when people Google the child in years to come. [54] Order to go that: a. the parties’ Line 150 incomes set out in the taxation year 2014 NOAs are to be used to calculate Mr. Cowell’s 2014 child support including s. 7 expense sharing percentages; b. the parties’ Line 150 incomes set out in the taxation year 2015 NOAs are to be used to calculate Mr. Cowell’s 2015 child support including s. 7 expense sharing percentages; c. Mr. Cowell shall continue to pay child support to Ms. Catizzone on the first of each month. For 2016, the quantum of monthly child support is to be calculated based on an annualized income for Mr. Cowell of $82,360.72. d. If, in 2017, Mr. Cowell’s NOA for taxation year 2016 discloses that Mr. Cowell’s Line 150 income was higher than $82,360.72, Mr. Cowell shall pay the difference between the amounts of child support and s. 7 expenses that he paid for 2016 as compared to what he should have paid had his Line 150 income been known throughout the year. If he paid more than he would have paid had his Line 150 income been used throughout 2016, Ms. Catizzone shall repay the difference. In either case the adjustment payment shall be made by June 30, 2017. e. The parties are required to file their 2016 and future income tax returns on time and are required to disclose to each other their NOA’s forthwith upon receipt. Each NOA will be used to adjust the prior year’s child support and s. 7 expense payments either up or down accordingly with the resulting adjusting payment to be made by the party who owes the adjustment by no later than June 30 of the year in which the NOA for the prior year is received. f. In addition, support obligations for each new year shall automatically continue at the rate being paid as at the end of the prior year until NOAs are exchanged in respect of the prior year. Then the current year’s support and s. 7 expense sharing percentages shall be adjusted to reflect the Line 150 incomes in the NOAs and the party that owes the other any amount for the current year to date shall make such payment by June 30 of the year as well. g. Ms. Catizzone’s motion to recognize child care expenses allegedly incurred to her parents is dismissed. h. Ms. Catizzone’s motion to require Mr. Cowell to pay a portion of the child care expenses paid to her sister-in-law and for full time daycare while she was working part time under s. 7 of the CSG is allowed. The parties’ shares of these respective expenses are to be determined based on their Line 150 incomes set out in their NOAs for the taxation years in which the expenses were incurred. The sharing is to be calculated net of the tax benefits received by Ms. Catizzone. Mr. Cowell is to be given credit for sums previously paid towards s. 7 expenses. i. Mr. Cowell shall have unsupervised access to the child in accordance with the schedule set out in paras. 46 to 50 above. j. This Court declares that Mr. Cowell is the father of the child. --- **F.L. Myers J.** **Released:** August 22, 2016 --- **COURT FILE NO.:** FS-15-20295 **DATE:** 20160822 **ONTARIO SUPERIOR COURT OF JUSTICE** **BETWEEN:** Margot Catizzone Applicant – and – Evan Cowell Respondent **REASONS FOR JUDGMENT** **F. L. Myers, J.** **Released:** August 22, 2016