Overview

[1] The parties were briefly married in 2014 and separated the same year. They had a son, N.P., who was born on October 14, 2014. Prior to the separation, the family lived in Pickering. The applicant, Vanessa Lall-Persaud (“Vanessa”) took N.P. on December 22, 2014, and moved back to Mississauga, where her family lived, without consulting the respondent, Devendra Persaud (“Devendra”). Devendra still resides in Pickering with his family. N.P. is now four years old. He lives primarily with his mother and attends kindergarten in Mississauga.

[2] The issues in this case focuses on custody and access of N.P. Devendra seeks joint custody with a parallel-parenting plan and equal access to N.P. Vanessa seeks sole custody and submits that equal access is not in N.P.’s best interests. Vanessa also seeks to impute additional income to Devendra that he makes from being a DJ and submits that the child support payments should reflect this additional income.

[3] The trial took place from December 17 to 20, 2018. At trial, it was agreed that the parties would file affidavits that would form the basis of their evidence in examination-in-chief and that they would be cross-examined on their affidavits. I heard from both parties, as well as three other witnesses, including N.P.’s daycare teacher, Ms. B. Gonsavles; N.P.’s paternal grandfather, Mr. L. Persaud; and Devendra’s cousin, R. Persaud. There were also several document books that were filed as exhibits by the parties. These books contained emails that were sent between the parties, pages from Instagram and other social media sites, financial documentation and photographs.

Issues to be Decided

[4] The following issues will be determined in this judgment:

What custody arrangements ought to be ordered for N.P.?
What is an appropriate access order?
Should I impute income to Devendra in calculating child support?
Should child support payments be decreased due to excessive access costs?
Should there be arrears with respect to child support?
What if any arrears for s. 7 expenses should be ordered?

Issue #1: What Custody Arrangements Should be Ordered for N.P.?

Position of the Parties Regarding Custody

[5] Vanessa seeks sole custody of N.P. She submits that joint custody with parallel decision-making will not work for several reasons:

a) There is a deep mistrust between the parties. She does not trust Devendra when he says he is not working as a DJ, and he does not trust her.

b) Devendra is verbally abusive and disrespectful of her.

c) Devendra’s family is disrespectful of her.

d) Devendra has threatened contempt motions, non-removal orders and police-enforcement clauses and has alleged that Vanessa has mental health issues.

e) Devendra has contacted police and the CAS and made false allegations against Vanessa.

[6] Devendra seeks joint custody with a parallel decision-making structure. He submits that he has always sought joint custody, but recognizing that there are some communication issues between the parties, he has adjusted his position and is seeking joint custody with a parallel-parenting and decision-making structure. He submits that a parallel-parenting regime is in N.P.’s best interests for the following reasons:

a) The parents have had some positive communications over the years regarding N.P.’s day-to-day needs, diet and health issues. Their difficulty is in making final decisions with respect to access, schooling and religion.

b) There are no emails or communications of the parties swearing at each other or physically threatening one another.

c) There are examples where the parties have agreed on parenting issues once information has been shared. Recently, the parties agreed on interim after-school care. They also both agreed on the school program.

d) Vanessa has made several unilateral decisions without consultation, despite court orders that require her to keep Devendra notified. He is concerned that if Vanessa is granted sole custody, she will further alienate Devendra from N.P.’s life.

e) Devendra has taken an active role in remaining informed on the decisions to be made concerning N.P.

Guiding Principles

[7] Section 16(1) of the Divorce Act, R.S.C., 1985, c. 32 (2nd Supp.), provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or another person. Section 16(4) of the Act clarifies that in making an order under s. 16, the court may grant custody and/or access to more than one person.

[8] Section 16(8) states that the sole criterion for determining custody and access issues is “the best interests of the child … as determined by reference to the condition, means, needs and other circumstances of the child.” As the Supreme Court of Canada stated in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 47, “best interests” must be determined from the perspective of the child, rather than from the parent’s perspective.

[9] Section 16(10) of the Divorce Act states that 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. The goal of maximum contact with each parent is not absolute, but should only be restricted to the extent that it conflicts with the best interests of the child.

[10] While the Divorce Act does not set out a detailed list of factors in determining the best interests of the child, the jurisprudence often refers to the criteria set out in the relevant provincial or territorial legislation. In Ontario, the relevant provision is s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), which states:

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(d) any child.

Relevant Factual Background

[11] The parties met in approximately 2004. In 2014, the parties learned that Vanessa was pregnant. The parties decided to get married. They were legally married on May 8, 2014 and had a Hindu wedding ceremony at Devendra’s parents’ home in Pickering in July 2014. The parties did not reside together until N.P. was born, as Devendra was renovating the house they lived in. The home was owned by Devendra’s parents.

[12] N.P. was born on October 14, 2014. The first week that N.P. came home from the hospital the parties stayed with Devendra’s parents. They then moved into their own home in Pickering.

[13] The parties had great difficulties adjusting to their new life. Both parties accused each other of not being a good partner.

[14] Vanessa complained about the level of involvement that Devendra’s family had in their lives, that he was not doing enough around the house and that he was spending too much time working as a DJ. She testified that Devendra did not treat her in a loving manner during their marriage. She stated that he bullied and disrespected her. She alleges that he was physically and emotionally abusive.

[15] Devendra testified that he felt under-appreciated by Vanessa and did not feel like Vanessa was doing enough around the house while she was at home with N.P. Devendra denied being verbally or physically abusive towards Vanessa. He stated that she liked to start arguments and was aggressive towards him.

[16] On December 19, 2014, the parties had a fight and Vanessa called the police. No charges were laid. Devendra and his cousin went and talked to Vanessa’s parents about the difficulties the parties were having.

[17] On December 22, 2014, Vanessa told Devendra that she was taking N.P. to her parents’ home in Mississauga for a few days. She left with N.P. and did not return. She did not tell Devendra that was her intention.

[18] Vanessa took a one-year maternity leave to be with N.P. She has been the primary caregiver of N.P. She testified that she has provided for him in every way and believes that she has the best understanding of N.P.’s best interests.

[19] Devendra has been actively involved in N.P.’s life and has continually sought greater access with N.P. Access with N.P. is a major issue of conflict between the parties.

[20] There have been several examples of conflict between the parties during the four years the parties have been separated. Most of the conflict relates to each party wanting to have maximum access to N.P. Both parties have contacted the police and the CAS about the other party. None of the complaints were found to have merit. Vanessa has serious trust issues with Devendra. While the parties have been able to communicate productively at times, the parties have had difficulties making final decisions with respect to religion, school and daycare. Despite, the conflict that has arisen over the past four years, N.P. appears to be a healthy and happy child who loves both parents. The parties have managed to prevent their issues with each other from affecting their son and his relationship with each parent. The particular issues the parties have with each other are discussed in greater detail in analyzing the issue of custody.

Analysis

[21] Traditionally, joint custody was an exceptional remedy that would be granted in circumstances were the parties demonstrated cooperation and consent: see Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 (C.A.).

[22] Joint custody requires the parties to make joint decisions regarding the child. In making the assessment of whether joint custody is appropriate, the court should consider whether there is a sufficient degree of cooperation and communication between the parents enabling a commitment to the child’s needs. For example, is there a history of day-to-day decisions made between the parties, or are there concerns that will one party will make unilateral decisions or involve the child unnecessarily in the disputes between the parties? There must be a measure of communication and cooperation for a joint custody order to work, although a standard of perfection is not required: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 11.

[23] In considering whether joint custody is appropriate, it is not enough to hope that communication will improve once the litigation is completed. A party may also not act unreasonably by impeding access and marginalizing the other parent, only to then claim sole custody on the basis of lack of cooperation and communication: Ursic v. Ursic, [2004] O.J. No. 3550 (S.C.), rev’d on other grounds (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.).

[24] In more recent years, the concept of “parallel parenting” has developed as a sub-category of joint custody. This type of parenting has been used to describe various parenting arrangements that allocate specific defined areas of decision-making authority to each parent independent of one another: Hensel v Hensel (2007), 2007 CanLII 45911 (ON SC), 46 R.F.L. (6th) 343 (Ont. S.C.), at para. 29.

[25] Parallel-parenting orders have been made by courts in situations where both parents have been involved with the child and wish to retain decision‑making rights, but the conflict between them is such that a joint custody order is not in the child’s best interests: see e.g. M.(T.J.) v. M. (P.G.) (2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. S.C.), at paras. 19-20; Cox v. Stephen (2003), 2003 CanLII 18571 (ON CA), 179 O.A.C. 45 (C.A.); Andrade v. Kennelly, 2007 ONCA 898, 46 R.F.L. (6th) 235; and Ursic (2006), at para. 26.

[26] There are many benefits to a parallel-parenting order in appropriate cases. As Chappel J. explained in K.(V.) and S.(T.), 2011 ONSC 4305, at para. 79:

There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict.

[27] The key issue in determining if a parallel-parenting order is appropriate is whether it is in the best interests of the child. It is not about parents having rights. As noted in Young, at pp. 99-100, ongoing conflict which adversely affects children is “the single factor which has consistently proven to be severely detrimental to children upon separation and divorce.”

[28] In K.(V.), at para 96, Chappel J. listed factors that have been considered in the jurisprudence when determining whether a parallel-parenting regime, rather than sole custody, is appropriate:

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting. [Footnotes omitted.]

[29] In light of the conflict between the two parties, neither party is suggesting that joint custody, where both parties ultimately decide issues together, is appropriate in this case. Devendra seeks joint custody with a parallel-parenting regime, where the parties will try to make decisions together, but if they cannot agree, one party will have final decision-making powers in relation to a particular issue. Vanessa seeks sole custody.

[30] I agree with the parties that they have not demonstrated that they have the necessary degree of cooperation and communication that is required to for a joint custody order in which both parents make all final decisions together. I am satisfied that joint custody with a parallel-parenting regime is in N.P.’s best interests. I do not find that granting Vanessa sole custody is in N.P.’s best interests. In coming to this conclusion, I have considered a number of factors, which are discussed in greater detail below.

Parenting Roles with N.P.

[31] One of the significant considerations in determining what is in the best interests of N.P. is the history of the parties’ respective parenting roles.

[32] I am satisfied that both parties are, and have been, active parents in N.P.’s life since he was born. They are both loving and caring parents. Vanessa testified that she was N.P.’s primary caregiver since he was born. She took a year of maternity leave and has been responsible for arranging N.P.’s medical and dental appointments.

[33] Vanessa submits that Devendra did not do enough around the house and was not actively involved in caring for N.P. In her affidavit, she asserted that Devendra continued to DJ and did not attend to N.P. during this period. In cross‑examination, she conceded that Devendra got up at night on occasion and fed N.P., put him to sleep, changed his diapers, and bathed him. I do not accept her evidence that Devendra was repeatedly out working as a DJ when N.P. was first born and was not an actively-involved father. Devendra provided a chart of his various DJ events. It does not list him playing in any DJ events during this period. The evidence provided by Vanessa contains one poster dated October 31, 2014, that names Devendra but does not say that he is playing, and one other poster dated November 15, 2014, that says he is a featured DJ along with 11 other DJs. Even if one accepts for the sake of argument that Devendra was a DJ at these events, the evidence only shows this occurred twice.

[34] Devendra testified that for the few months that the parties resided together, he was actively involved in feeding, bathing and changing N.P. when he returned home for work, and that he did not actively DJ during this period. His devotion towards N.P. when he was born was corroborated by Devendra’s father and his cousin.

[35] It is true that Vanessa became N.P.’s primary caregiver when she left the matrimonial home and took N.P. with her. Devendra however, immediately sought to have access to N.P. Vanessa took the position that it was not appropriate for N.P. to be separated from her for more than a few hours and certainly not overnight, although Vanessa was not breastfeeding N.P. Devendra initially consented to access with N.P. on Wednesday and Thursday from 6:00 p.m. to 9:00 p.m. and every Saturday from 10:00 a.m. to 6:00 p.m.

[36] I disagree with Vanessa’s submission that Devendra was fine with the access schedule, as it suited his needs. Since the date of separation and throughout these court proceedings, Devendra has consistently sought more access to N.P., and this has been a continual issue of dispute between the parties.

[37] Vanessa agrees that Devendra loves N.P. and he has been in his life since he was born.

[38] Devendra has made continued efforts to be involved in N.P.’s life. He has attended medical appointments, when notified. When N.P. was not in his care, he made inquiries as to his health. Devendra has actively been involved in the decisions with respect to daycare, school and after-school care.

[39] Devendra resides with his parents and sister in Pickering. Vanessa suggests that the grandparents take care of N.P., not Devendra. She points out that Devendra is often working as a DJ and therefore cannot take care of N.P.

[40] I accept Devendra’s evidence that when he has N.P. is in his care, he is the primary caregiver. He bathes him, reads to him and disciplines him. He does a number of activities with N.P., including baseball and trampoline. It is also clear that N.P.’s grandparents are actively involved in N.P.’s life as well.

[41] Devendra did not dispute that he still works as a DJ, but testified that he tries to avoid scheduling events when he has N.P. Moreover, when he does have N.P. and he has a DJ event, he puts N.P. to bed and then goes to the event. His evidence on this point was corroborated by Devendra’s father. Even if Devendra does still occasionally DJ when he has N.P. I do not find that it demonstrates that Devendra is not a loving, caring and involved parent in N.P.’s life, a view which was also corroborated by Devendra’s father and cousin. The bond that exists between Devendra and his son was demonstrated in an example where N.P. did not want to go with his mother, and Devendra had to promise to visit him at school the next day to get N.P. to return to his mother peacefully. Devendra kept his promise. Vanessa agreed that this incident occurred.

[42] I can come to no other conclusion based on the evidence before me that during the parties’ relationship and after the separation, both parties, were and continue to be, active, loving and caring parents to N.P.

Relative Parenting Abilities and Ability to put N.P.’s Best Interests First

[43] I also have no concerns about either party’s ability to care for N.P. They have both demonstrated that they can provide him with food, shelter, guidance, love, support and discipline and put N.P.’s best interests first. Vanessa’s true complaint about Devendra’s ability to care for N.P. results from her belief that her parenting philosophies are better and that she alone knows what is best for N.P.

[44] Vanessa is of the view that Devendra is not as able to take proper care of N.P., as he does not regulate his sleeping behaviour, feeds him too many sweets and is the “good time father”.

[45] Vanessa submits that N.P. is often tired and irritable when he returns from his visits with Devendra. She testified that N.P.’s bedtime is 8:00 p.m. She admitted that there are times when N.P. was with her, such as when he played soccer, when N.P. would go to bed a little later.

[46] Devendra testified that he usually puts N.P. to bed at 8:00 p.m., although he admitted that at times it is later if there was a family event, and N.P. sometimes tries to negotiate with him to stay up a little later. He testified that he had some difficulties getting N.P. to nap. Based on the evidence, it appears to me that Devendra was not as diligent with respect to naptime and bedtime as Vanessa.

[47] Ms. Gonsalves was N.P.’s daycare teacher from March 27, 2017, to December 2017, and from February 2018 to June 2018. She testified that N.P. came back from school more tired after his access time with his father than when he was with his mother. I found Ms. Gonsalves to be a credible and reliable witness. She answered the questions put to her in a straightforward manner and readily agreed that there are many reasons that a child may be tired on a particular day.

[48] The difficulty I have is the weight to give to Ms. Gonsalves’ evidence with respect to Devendra’s ability to parent N.P. Ms. Gonsalves’ observations of N.P. were when he was three to four years old before he started kindergarten. He is now in kindergarten. There is no evidence before me of any issues with respect to N.P. being tired in class or that this is affecting his schooling. The evidence focused on when N.P. was younger. He is older now and no longer naps. In addition, the evidence of the parties is that N.P. gets to sleep in an hour later when he is with his father, as opposed to when he is with his mother. She has to drop N.P. off at daycare before school starts; whereas Devendra drops N.P. off at the time that school starts.

[49] The most important evidence that came from Ms. Gonsalves was that N.P. was a happy, bright, well-adjusted little boy at daycare who seemed to love both his parents.

[50] I do not find that the issues raised by Vanessa with respect to sleeping or feeding N.P. more sweets than Vanessa would like is a sufficient basis to find that Devendra is less capable than Vanessa to take care of N.P.

Evidence of Alienation by one Parent

[51] Vanessa submits that lately, Devendra has changed course and has attempted to alienate her from N.P. She testified that N.P. recently told her, “I don’t think daddy and “Age” [N.P.’s paternal grandmother] like you very much mommy”. She is worried that N.P. will be subjected to more alienating comments.

[52] I am not satisfied that there have been alienating comments made in front of N.P. for several reasons. First, the evidence regarding what N.P. said to Vanessa is self-serving and is not corroborated. Vanessa made a complaint to the CAS regarding Devendra’s alleged alienating conduct, which was dismissed.

[53] Second, while there is no dispute that Devendra has said nasty things to the mother, such as calling her a “savage”, Vanessa has not satisfied me that Devendra has said rude things about Vanessa in front of N.P. Both Devendra and his father testified that they do not say negative things about Vanessa in front of N.P. I accept their evidence on this point, as it is consistent with what is said in the recordings of the phone calls on November 25, 2018, that were introduced into evidence.

[54] On November 25, 2018, Devendra was dropping off N.P. at the Tim Horton’s. Vanessa called him and said she was running late and asked if he could drop off N.P. at her parent’s house. Devendra agreed. Unfortunately, N.P. got very upset that his mother was not there. Devendra tried to calm down N.P., as did Vanessa over the phone. Both parties recorded the conversations. Ultimately, Vanessa’s brother took N.P. into the house, crying.

[55] I do not accept Vanessa’s contention that N.P. was present when Devendra called her a “savage” in the call. Rather, it appears that once N.P. was taken by his uncle into the home, Devendra made these comments to Vanessa. They were not appropriate and did assist in any way.

[56] I am however very concerned about Vanessa alienating or creating a distance between Devendra and N.P. should sole custody be granted to her. I am of the view that a parallel-parenting arrangement would go a long way toward safeguarding Devendra’s role in N.P.’s life, which would be in N.P.’s best interests, given the strong relationship between father and son.

[57] Vanessa’s testimony made it clear that she is of the view that she alone knows what is in N.P.’s best interests and that it is not in N.P.’s best interests to have extensive access with his father. Her responses and actions also indicates that she wishes to control that access. She stated that is her view that it is not in N.P.’s best interests to spend 50 percent of his time with his father as it would be detrimental to the relationship that she has with N.P. She also said access time should be based on age and the child’s development. When asked questions about what ages she would allow increased access, she was of the view that it was not appropriate, even after he started school. She did not provide an age when she thought it would ever be appropriate for Devendra to have equal parenting time.

[58] There are also several examples where Vanessa made unilateral decisions regarding N.P. without consulting Devendra. She did this despite a court order requiring her to consult. For example, she inconsistently consulted Devendra with respect to booking doctor or dentist appointments. She often advised Devendra at the last minute of such appointments. This is reflected in Devendra’s testimony as well as some of the emails that were filed. In another example, Vanessa arranged for childcare when N.P. did not get into the after-school care program. Only then did she tell Devendra. She testified that it was on her parenting time, and she was “able to seek care as [she] saw fit.” Similarly, she booked an assessment for N.P. for Kumon, which is a tutoring service, without advising Devendra. I also find that she put N.P. into gymnastics and soccer without advising Devendra and did not provide him with information about these activities, despite his request for the information. In another example, Vanessa unilaterally decided that it was too much effort to provide daily emails to Devendra about what N.P. was doing in daycare, so she stopped providing updates.

[59] Vanessa appears willing to consult in some instances, such as selecting a daycare and school, but not willing to consult on other issues that are also important. I have grave concerns that if a parallel-parenting plan is not put in place, Devendra’s role in N.P.’s life would be drastically minimized. I do not believe that that would be in N.P’s best interests, given the close and loving bond that N.P. and his father share.

The Extent to which each Parent is Able to Place the Needs of N.P. Above their own Needs and Interests

[60] After having considered the evidence of both Vanessa and Devendra, I find that they are both able to place N.P.’s needs ahead of their own.

[61] Vanessa submits that Devendra does not put N.P.’s interest ahead of his own but rather views issues surrounding N.P. as his legal right. The same argument is made by Devendra against Vanessa. Devendra asserts that she views herself as the sole decision-maker and the person in the best position to make decisions for N.P. He says that she assumes this role without any consideration of what may be in N.P.’s best interests. I think that both parties truly do have the best interests of N.P. at heart, but on some issues they simply could not agree. Those issues included the daycare and school that N.P. would attend.

[62] In considering the parties’ ability to put N.P.’s best interests ahead of their own, I wish to comment on two incidents raised in the evidence. First, on November 25, 2018, N.P. did not want to go home because his mother was not present at the drop-off. Each party recorded the telephone conversations from that day. N.P. was crying while his mother was trying to calm him down and told him that she would be home soon. Ultimately, N.P.’s uncle took him into the home. Devendra was upset and called Vanessa “heartless” and a “savage” during the call, but N.P. was already in the home.

[63] Devendra sent Vanessa texts to see whether N.P. was okay. She did not respond. Vanessa did not return home that night. Vanessa’s family took care of N.P. and ensured that he got to school the next day. In that instance, Vanessa fairly recognized that she should not have told N.P. that she was coming home and that her actions were not in N.P.’s best interests.

[64] Second, I would like to address Vanessa’s complaint about Devendra’s cancelled vacation to the Dominican Republic, and her request that N.P. be returned to her, based on the original access schedule. I do not view Devendra’s decision to keep N.P. with him and his family for the duration of the vacation time as not in N.P.’s best interests. Devendra was on vacation, as were other family members. It is not the location of the vacation that mattered but rather the time and events that took place. Vanessa consented to the vacation, as she was satisfied that it was in N.P.’s best interests. The fact that the location of the vacation changed should not have altered that fact. If Devendra was going back to work once his vacation was cancelled, that would be a different situation, but that is not what occurred.

[65] My point in raising these issues is that neither parent is perfect. Overall, both of these parents appear to put N.P’s interests and needs ahead of their own.

The Existence of any Form of Abuse, Including Emotional Abuse or Undermining Behaviour, Which Could Impede the Objective of Achieving a Balance of Roles and Influence through Parallel Parenting

[66] The parties’ attitude towards each other causes me the greatest concern when considering whether to order joint custody with a parallel-parenting decision-making. Having seen both parties testify and having looked at the emails they sent to each other, I am of the view that both parties have strong personalities and have acted in ways to try and bolster their own position in these proceedings.

[67] I find that Vanessa exaggerated her evidence regarding Devendra being physically abusive towards her. Vanessa referred to an incident at the home where Devendra threw a chair. She agreed in cross-examination that it was not directly at her. Devendra readily admitted that he threw the chair, not at Vanessa, but in frustration with the situation in that she never seemed to be happy with his behaviour. This occurred shortly before the parties separated.

[68] I also do not accept Vanessa’s evidence that she was choked by Devendra. I prefer the evidence of Devendra, which was that she started the fight by calling him names in front of people and that he pushed her off of him. This evidence is more consistent with his cousin’s evidence. I found the cousin’s evidence to be straightforward and presented in a careful manner that was fair and equitable to both parties in all respects. He testified that he tried to counsel the couple during their marriage. He testified that Vanessa would sometimes curse at Devendra in front of him, putting him down. Mr. Ramcharan also testified that Vanessa would sometimes bully or put Devendra down in front of other people. Devendra’s father also testified about an incident where Vanessa threw an iron at Devendra at a family wedding in front of others.

[69] I also do not accept Vanessa’s evidence that the hole in the wall in the home was the result of violence directed at her. I prefer Devendra’s evidence that the hole in the wall occurred while moving furniture. His evidence was consistent with Devendra’s father’s testimony. The family was indeed moving furniture at that point in time to assist with renovations being done at the home.

[70] I find that Vanessa was also exaggerating in testifying that she felt scared of Devendra. In her evidence, her primary concern at drop-offs and pick-ups appears to be the constant presence of Devendra’s parents, as opposed to being fearful of seeing Devendra.

[71] I also find that Vanessa is exaggerating her evidence that Devendra was essentially stalking her. Vanessa and Devendra had cameras installed at Vanessa’s parents’ home for them. Devendra admitted that he checked these cameras the day that Vanessa left and took N.P. back to her parent’s home in Mississauga on December 22, 2014. He was concerned about N.P. Given the tension between the parties at that time, he was rightfully concerned when Vanessa called him a few hours later, told him that she was not coming home and stated that she would remain in Mississauga with N.P. Vanessa called the police about this incident. Devendra was not charged.

[72] Vanessa also suggested that Devendra was having her followed, as he knew that she was taking N.P. to visit her father in the hospital. There are many ways in which Devendra could have found out about this aside from following her. First, a hospital is a public place and she could have been seen. Second, as Devendra’s father testified that he is good friends with Vanessa’s neighbours, they may have learned of that information through that route or N.P. himself could have mentioned the visits to the hospital.

[73] Vanessa also exaggerated her evidence with respect to the removal of her vehicle from Devendra’s home. Vanessa stated in her affidavit that Devendra’s father had her vehicle towed without her consent. She also stated that she had numerous difficulties obtaining her personal property. The emails filed by Devendra show that his father repeatedly asked her to remove the car over the course of more than a month. Eventually he had the car towed, as he had to remove it from the driveway to complete renovations to the property. There were also emails that demonstrated that Devendra was returning items to Vanessa months after they separated.

[74] After the parties separated, Vanessa states that Devendra was insulting to her on social media and refused to restrain his family from verbally attacking her. She filed some Facebook pages that Devendra posted that talk about mothers who seek more than 50 percent custody. Vanessa was not named in the texts and was not a Facebook friend at the time. However, I do not accept Devendra’s evidence that these texts were not in relation to Vanessa given the timing and the contents of the messages. It would have been preferable had Devendra not made such postings, as they are a clear attack on Vanessa and show his view that she was unfairly denying him access to N.P. There are also some postings and emails from Devendra’s sister which were not flattering and should not have been sent. Finally, I accept Vanessa’s evidence that there is tension between her and the mother. The cousin essentially confirmed this by explaining that Vanessa sent a letter to Devendra’s parents during their relationship that was not kind. Clearly there is not a good relationship between Vanessa and Devendra’s mother. Devendra tried to minimize this conflict as did his father. Again, this type of conflict is not helpful to anyone.

[75] Both parties have tried to undermine each other by contacting police and the CAS with respect to N.P.

[76] Vanessa contacted police when she left the home and Devendra was looking at the cameras in December 2014. Vanessa also recently contacted the CAS a month prior to the trial, asserting that Devendra and his family were trying to alienate her. This complaint was not found to have any merit.

[77] Devendra contacted police after an incident at a Tim Horton’s in October 2015. He said that Vanessa drove away from the Tim Horton’s in an unsafe manner with N.P. in the car.

[78] Devendra also contacted the CAS on January 31, 2018. He testified that N.P. told him that Vanessa and her mother were fighting. Devendra also told the CAS that he was concerned that Vanessa had mental health issues. The CAS worker interviewed N.P. She learned that when he said “fighting,” he meant yelling, and that there were no concerns about any mental health issues. This occurred at the time that the parties were having a dispute over vacation time. Vanessa testified that she felt that this call to the CAS was meant to harass her.

[79] None of the allegations to the CAS were found to have any merit. I agree with Vanessa’s submission that this is a form of harassment against each party. The CAS complaints often occurred when there was an upcoming court appearance. Both parties engaged in such behaviour. It is not helpful to anyone and is inappropriate.

Ability to Communicate with one Another

[80] It is clear that there is a great deal of tension between the parties. Both parties have fuelled the flames on different occasions. This has increased the tension between them.

[81] Vanessa testified that she does not trust Devendra. She pointed to examples where she says that Devendra lied to her about why he could not take N.P. during his access time. I find that her lack of trust, based on the three examples she provided, is not a sufficient basis to find that the parties could not work together. That is particularly the case, given that these are three examples that occurred over the course of four years. None of these are situations where Devendra did not want to see N.P. Rather they were attempts to change his access time.

[82] On the first occasion, Devendra asked to switch his access night with N.P. from a Wednesday to a Thursday, as he said he had a work training session. Vanessa learned that instead he went on a boat cruise. Devendra testified that he was at a work function that ended early and that he took clients on the boat cruise. I cannot resolve who is telling the truth. But regardless of which version is true, Devendra advised Vanessa in advance that he wanted to change the days. This was not a situation where he lied and did not want to spend time with N.P.

[83] Vanessa also testified that Devendra lied in saying that he had to work when he wanted to attend a baseball game. Devendra again stated that he in fact had worked, but when it was done he went to the game. It should be remembered that his access time with N.P. ends at 8:00 p.m. and Devendra’s baseball game was in the evening. Devendra testified that he played ball most Wednesday evenings. Given all of the circumstances, including the time of the game, I accept his evidence on this point.

[84] With respect to the Canada Day weekend, Vanessa stated that Devendra lied about his plans on Canada Day and disappointed N.P. by not seeing him on the holiday Monday. With respect to this complaint, I find that Vanessa was equally responsible for the miscommunication that occurred between her and Devendra. I find that Devendra did not try to mislead Vanessa, as demonstrated by the emails between the parties. Devendra sent an email where he agreed to let Vanessa have N.P. for the entire long weekend as they had done in the past. He asked for the same courtesy on the August long weekend. Vanessa ultimately rejected Devendra’s offer, but Devendra did not see the email until later and he was unable to return in time to see N.P.

[85] Vanessa also testified that Devendra lied about staying home with N.P. on the one New Year’s Eve that Devendra had access. Devendra testified that he was at home with N.P. and family cousins. He posted a photograph of himself with N.P. sleeping on him on New Year Eve. Devendra’s father also testified that Devendra and the family had a party at home. I am not satisfied that based on the evidence, Devendra lied about staying at home on New Year.

[86] I do not find that Devendra was regularly trying to avoid having access time with N.P. Nor do I find the three examples of where Devendra sought to change his access schedule to be a sufficient basis to have a complete lack of trust in Devendra.

[87] Vanessa also points to the fact that Devendra did not inform her that he obtained a new job in June 2017 in support of her argument that she cannot trust him. She states that he did this so as to avoid having to increase his child support payments. Devendra testified that he did not tell her, as he was worried what she would say to his employer, since she has said things in the past. There is no basis to find on this record that Devendra was trying to avoid paying the proper child support payments based on this T4 income. He has always paid child support and provided the proper documentation with respect to his full-time job.

[88] There is no dispute that there are numerous emails between the parties where they complain to each other about access and the inability to be flexible with respect to access. Devendra often sought additional access time with N.P. Vanessa often insisted on make-up time if she gave Devendra increased access. Devendra also sought to have make-up time if the access schedule was changed. This resulted in unnecessary motions in court. The same disputes arose over vacation times. Neither party seemed prepared to consent to the other taking a trip until the issue of make-up time was resolved.

[89] The parties also disagreed about N.P.’s early removal from daycare. Vanessa was of the view that N.P. should remain in daycare since they paid for it. Devendra finished work early on Fridays in the summer. He wanted to pick up N.P. right after work at 1:00 p.m. This way, he did not have to go home and then return to pick up N.P. Vanessa disagreed. She also told Devendra that if he wished to take the child out of daycare for a trip, he had to pay for the cost of the daycare before she would consent.

[90] Vanessa also submits that Devendra repeatedly threatened and has brought motions, showing an aggressive litigation approach. His submission is that he has to bring motions if he is to obtain any additional access, regardless of how little it is. I agree that there have been instances where Devendra has threatened to bring and has brought motions, relying on the courts to resolve the issue and that this is not the best way to resolve a disagreement between the parties.

[91] There were also examples of cooperation between the parties. Vanessa agreed that they have had some positive communications. There are numerous emails where the parties have shared information about their son’s daily activities and his health. While some of the emails are firm in their tone, there are no emails where the parties are swearing or threatening violence against each other.

[92] There are also examples where the parties have agreed on issues. There are many consent agreements that were made with the assistance of counsel and the courts that were included in minutes of settlement including,

a) At the initial case conference on July 17, 2015, the judge stated that she was encouraged by the parties’ willingness to work towards a resolution. The parties agreed to an interim access schedule and a drop-off and pick-up location near Vanessa’s home. The parties also agreed on the amount of child support to be paid;

b) The parties agreed on various financial documents to be provided on September 28, 2015;

c) On October 29, 2015, the case management conference indicated that counsel were making progress on various issues, including access, travel and that the primary residence of the child would be with the mother;

d) On August 19, 2016, the parties agreed to make up access time and that Vanessa could take a trip with N.P. to England;

e) On November 15, 2016, the parties resolved access issues after a motion was brought; and

f) The issue of equalization and other matters were resolved as per minutes of settlement on May 24, 2018.

[93] The parties have also come to some agreements on their own, without the assistance of the courts. For example, the parties agreed on an after-school program, once Vanessa shared the information with Devendra. The parties agreed that N.P. should be able to choose his own religion when he is old enough to do so and that they should both introduce their religions to N.P. More recently, they agreed to switch their agreement regarding Halloween in 2018.

[94] I recognize that the parties had difficulty in agreeing on a daycare, which was ultimately settled by the court. I also recognize that a motion had to be brought with respect to what school to register N.P. in. Vanessa wanted N.P. to attend a Catholic daycare in Mississauga, which taught Christian biblical stories and Christian prayers. Devendra is Hindu. Vanessa’s choice of daycare was also significantly more expensive than the other daycare providers that Devendra proposed. Ultimately, Devendra deferred to Vanessa’s choice of daycare with the agreement that he would pay 50 percent of the most expensive daycare on his list. It took two months to settle the issue of the daycare.

[95] Vanessa also wanted to register N.P. in a Catholic school. Initially, Devendra deferred to her decision but then changed his position, stating that N.P. should attend a public school in the same neighbourhood as the Catholic school. He did not want N.P. to participate in the Catholic sacraments. Ultimately, the court determined that it was in N.P.’s best interests to attend the Catholic school, as most of his friends from daycare were attending that school.

[96] While it would be preferable if the parties could have agreed on the preschool daycare and school, I recognize the added complexity in coming to an agreement arises from the parties’ different religious backgrounds. That helps to explain why they had difficulty in resolving these issues.

[97] In considering whether the parties can communicate, the question to be asked is whether the existence of conflict and strife is such that the conflict is impacting or likely to impact N.P.’s well-being. I am happy to say that does not appear to be the case, despite the tension that currently exists between the parties. The evidence of Ms. Gonsavles was that N.P. is a very well-adjusted child who seems to love both his mother and father, and they both love him very much. Her evidence weighs heavily in favour of a joint parallel-parenting regime. It demonstrates that even though the parties may have some difficulties communicating and agreeing on certain issues, those tensions have not adversely impacted N.P. in any way.

[98] Devendra’s father’s and cousin’s evidence also corroborated Ms. Gonsalves’ evidence that N.P. appears to be a happy, well-adjusted child. I do not believe that the parties dispute this.

Other relevant factors under s. 24(2) of the CLRA

Relationship Between N.P. and Family Members

[99] In considering the best interests of N.P., I will also consider other factors set out in s. 24(2) of the CLRA. The evidence demonstrates that both parents have love, affection and emotional ties with N.P. N.P. also has the love and affection of other members of both parties’ families. N.P. spends time with Devendra’s family, as he lives with his parents and sister. Vanessa agrees that N.P. loves his grandparents. N.P. also spends time with Vanessa’s mother and brother, as N.P. and his mother live with her family. Both home environments appear to be stable and permanent. N.P. has his own room in both houses and has the ongoing care and support of the extended members of the family who reside in each house.

Views of N.P.

[100] N.P. is too young to express his views and preferences. The information from Devendra that N.P. says he wants to spend more time with his father is hearsay and is not admissible for the truth of its contents. Nonetheless, it is apparent from the evidence of Ms. Gonsalves, Devendra’s father and cousin that N.P. enjoys spending time with both parents and his extended family.

Stability

[101] N.P. has resided primarily with his mother and her family since his birth. He attended daycare in Mississauga and now attends school there. As N.P. has gotten older, he has spent more time with his father, but his primary residence has always been in Mississauga.

Ability of Parties to Provide Guidance

[102] I am satisfied that both parents have the ability and are willing to provide N.P. with the guidance and educational needs that he requires, as well as the necessaries of life. Both parents testified about how they have cared for N.P. since he was born. They also testified about the activities that they engage in with N.P. to promote his education, including reading books and practising his letters.

[103] I do not view the disagreement about where N.P. was to attend school demonstrates a lack of willingness by Devendra to provide N.P. with guidance regarding his education. There was a concern about the religious aspect of his education that was not easily resolved, given the parties disparate religious beliefs.

Conclusion Regarding Custody

[104] The parties in this case have focussed extensively on the negatives in this family situation: the mistrust, bitterness, the allegations, the involvement of police and the CAS. Despite all of this, there is a very well-adjusted, well-loved little boy who loves both of his parents and appears to want both of his parents and their extended families in his life. The evidence clearly establishes that it is the love of both parents and their families that have contributed to N.P.’s healthy and happy development. It is against this backdrop that I have concluded that N.P.’s best interests require a custodial regime that ensures both parents’ active involvement in N.P.’s life.

[105] After having considered all of the evidence and factors outlined above, I find that a joint-custody order with parallel decision-making is in N.P.’s best interests. This order requires the parties consult with respect to all decisions involving N.P., but provides that if there is not an agreement Vanessa will make final decision with respect to educational matters and Devendra will make the final decision with respect to medical decisions. With respect to extra-curricular activities, the parties will continue to arrange for activities when they have access or with the agreement of the party, but they must advise the other party of the activity and its schedule. The terms of the joint custody with parallel decision-making are set out in greater detail in the order part of my reasons.

[106] Joint custody with parallel-parenting decision making responsibilities ensures that Devendra has meaningful involvement in N.P.’s life, which would be in N.P.’s best interest. At the same time, it also recognizes the difficulties that the parties have in coming to final decisions together. As noted in K.(V.), at para. 79, delineating clear areas for decision-making has the potential, in appropriate cases, to disengage the parties and reduce parental conflict.

[107] Based on the ongoing difficulties the parents have in communicating and resolving matters effectively, a joint-custody order that requires the parties to make final decisions together would not be in N.P.’s best interests. The parties have a lack of trust in each other and the hostility between the parties makes such an agreement unworkable, particularly as both parties have made unfounded allegations to the police and the CAS about the other party.

[108] I am also of the view that granting sole custody to Vanessa is not in N.P.’s best interests. I have grave concerns that if Vanessa is granted sole custody, she will further alienate Devendra and not respect his role in N.P.’s life. I do not believe an order for sole custody would be in N.P.’s best interests.

[109] I recognize that there have been many difficulties with the parties’ communications and inappropriate allegations levied against each party, but there have also been positive instances where the parties have been able to communicate effectively. They have agreed on many different issues. As such, I am satisfied that there is a reasonable measure of communication and cooperation in place that is achievable in the future so that the best interests of the child can be ensured on an ongoing basis: see Fraser v. Fraser, 2016 ONSC 4720, at para. 38.

[10] Importantly, the parties have been able to shield any conflict that they have with each other away from N.P. and have put N.P.’s needs first. Despite the allegations, I do not find that there is any evidence of disparaging comments being made about the other party in front of N.P. Based on the evidence, N.P. is doing very well and has a close relationship with both parents. There does not appear to be any adverse impact on N.P. resulting from his parents’ conflict. The implementation of a parallel-parenting plan should result in minimizing any ongoing conflict, as the responsibilities of the parents will be clear and delineated and it will allow both parents to be meaningfully involved in N.P.’s life.

[111] I have also considered the fact that there is the possibility that there may be a spill-over effect between the division of responsibilities. I have considered the degree to which the parents have agreed and disagreed in the past. I am satisfied that the concern of any spill-over effect does not provide a sufficient reason to decline to utilize joint custody with parallel-decision making.

[112] I have also considered the parties’ ability to navigate scheduling conflicts. There have not been any concerns to date with scheduling of activities. In addition, Devendra’s evidence was that he would agree to activities in Mississauga. I have also considered the distance between the parties. While the parties do not reside in the same neighbourhood, Devendra works nearby and is therefore present during the week, which lessens the concern that distance may create in delineating parental responsibilities.

[113] With respect to religion, the parties are in agreement that each party may introduce and teach N.P. their own religious beliefs, and N.P. will be able to choose which religion he wishes to pursue when he is twelve years old or when he is capable of deciding his own religious beliefs. Neither parent should be permitted to dissuade N.P. from exploring the parties’ religions.

[114] In that respect, I find that N.P. should be able to participate in communion and be baptised at his current school. Vanessa testified that baptism, takes place in grade two. Devendra is of the view that baptism and communion are the path to Christ. However, N.P. would not be choosing that path until he chooses to be confirmed with the church, which, as explained by Vanessa, is when you chose to be a Catholic. This decision is made in approximately grade seven.

[115] Devendra testified that Hinduism does not have the equivalent of baptism and communion, but does have the Janeu ceremony. Devendra explained that this ceremony is similar to confirmation as it is a commitment to the Hindu faith and also occurs around grade seven.

[116] I do not think that it is in N.P.’s best interests to deny him the opportunity to participate in communion and be baptised with his classmates prior to him deciding whether to be confirmed and become a Catholic. Devendra argued that N.P. can still participate in communion as he can be blessed at communion, as opposed to partaking in the sacraments. I do not believe that this allows him to fully explore the Catholic religion to determine if he wishes to be confirmed. I therefore order that N.P. be permitted to participate in communion and be baptised if he so wishes.

Issue #2: What Access Schedule Should be Ordered?

Guiding Principles

[117] Turning now to the issue of access, in Young, McLachlin J. (as she then was) discussed the maximum contact principle. As she noted, at pp. 117-8, “the judge should ensure that this contact is maximized” but “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.” Contact with both parents is the right of the child, not the parents.

[118] The factors determining access are the same as those set out with respect to custody in s. 16(8) of the Divorce Act and s. 24 of the CLRA, so I will not repeat them again. Similarly, I have already addressed the relevant facts and need not repeat them.

Position of the Parties

[119] Vanessa’s position with respect to access is that she has been N.P.’s primary caregiver since birth, and that since Devendra has chosen to stay in Pickering, the status quo is that he is the access parent. In her words, there is no reason to fix something that is not broken. She also submits that:

a) The increased driving proposed by Devendra to and from Pickering is not in N.P.’s best interests.

b) Devendra will not be present for much of the access periods, as he has not cut back on his DJ activities. Rather, his parents will take care of N.P. when he has access.

c) The consistency and undivided commitment that N.P. receives from her would be compromised if Devendra had equal access.

[120] With respect to access, Devendra seeks access to N.P. on an equal basis using a 2/2/3 schedule. He submits that Vanessa will not expand access as N.P. gets older. He submits that this increased access is in N.P.’s best interest for the following reasons:

a) He has been a loving and caring father to N.P. and has been in his life since he was born. He is an involved parent who takes care of his son. He has provided him with a loving and stable environment.

b) N.P. has indicated that he wishes to spend more time with his father and his grandparents.

c) Devendra is the primary caregiver of N.P. when he has access. They play games together, practise letters and he bathes and feeds him.

d) Vanessa is not flexible in granting Devendra more access where it is appropriate and in N.P.’s best interests.

e) The drive to and from Mississauga is in N.P.’s best interests in order to facilitate access with his father. They play games in the car, look at airplanes and N.P. will sometimes nap.

Analysis

[121] I do not accept Vanessa’s argument that maintaining the status quo should be the determinative factor in this case. Devendra has always attempted to be involved in his son’s life and sought increased access. Any access orders he has consented to were on a temporary and without-prejudice basis. The determinative factor in this case is what is in the best interests of N.P.

[122] I have considered the factors set out in s. 24 of the CLRA and much of the analysis in relation to those factors is set out in greater detail above in considering the issue of custody. I adopt my findings when considering the issue of access.

[123] By way of summary, I have no concerns that both parents are able to capably parent N.P. Neither party truly disputed that the other parent was incapable of parenting. The biggest complaint made by Vanessa was that Devendra was not ensuring that N.P. received sufficient sleep when he was with his father and that he was irritable when he returned from his visits. She also submitted that Devendra lets N.P. eat too many sugary foods. She adds that Devendra was the “fun time guy” and therefore did not provide sufficient discipline and guidance. There is no evidence before me from his kindergarten teachers that there is any issue with him being tired at school. In addition, I note that when N.P. is with his father, he gets to sleep in an hour later as his father drops him off at school; as opposed to Vanessa, who drops off N.P. at daycare much earlier.

[124] For the reasons I discussed in considering the issue of custody, I am satisfied that both parents have love, affection and emotional ties with N.P. N.P. also has the love and affection of both extended families that he resides with. Both home environments appear to be stable. I have also found that both parents are able to provide N.P. with the necessary guidance, education and necessaries of life.

[125] I do not accept Vanessa’s argument that Devendra will not spend sufficient time with N.P. if he is granted more access, as he will be too busy DJing. I heard evidence from Devendra on this issue. In his testimony, it was clear how much he loves and cares for his son, and he wants to spend more time with him. That is what has caused the most conflict between the parties: Devendra wanting to spend more time with N.P. I accept Devendra’s evidence that he tries not to DJ when he has N.P. in his care. If he has a DJ event, he puts N.P. to bed before he leaves. There is no merit to Vanessa’s submission that Devendra will not be the primary care provider for N.P. and will simply let his parents take care of him all the time.

[126] My primary concern with access in this case is the commute that N.P. will have to make on a regular basis if equal access is ordered. If Devendra and his family lived closer to Vanessa and N.P.’s school, I would have been prepared to grant the 2/2/3 access schedule proposed. However, that is not the situation. I am increasing access in a manner that I find is in N.P.’s best interests.

[127] In considering the issue of access, I am not prepared to assume that Devendra will move to Mississauga as he suggests. I cannot assess what is in N.P.’s best interest in a factual vacuum. There is no evidence of where he would live. In addition, I cannot assess if it would be in N.P.’s best interest to reside alone with his father when the current arrangement – which is working well – includes N.P. residing with an extended family. This extended family forms part of the loving and caring environment that N.P. currently experiences with Devendra. How that experience would be for N.P. without the presence of his grandparents is unknown.

[128] Given the situation as it exists, my primary concern with access rests with the commute that Devendra wishes to impose on a four to five year-old. I do not think that it is in N.P.’s best interests to be commuting from Pickering to Mississauga to attend school on a daily basis. The distance between Devendra’s home and N.P.’s school is 64 km on the 401 and 88 km on the 407. Devendra will often take the 407, as it is faster. I find that Devendra and his father tried to minimize the amount of time the drive took, saying it takes around 35 to 40 minutes. Applying some general math, if one traveled at 100 km an hour, the entire trip would be a 40 to 50 minute commute one way to travel from Devendra’s home to N.P.’s school. That does not take into account that the entire drive is not on the highway, where speed-limits are reduced, nor does it account for bad traffic or bad weather.

[129] Under the current access arrangement, N.P. is driven to and from Mississauga four times in the two-week cycle. Under the 2/2/3 split proposed by Devendra, N.P. would be commuting to and from Mississauga ten times in a two‑week cycle.

[130] Counsel for Devendra submitted that many children take trips on a school bus that may be lengthy. There is no evidence before me regarding what length of bus ride an average four-to-five-year-old takes to school. I must also consider that the commute that Devendra proposes is significantly longer than the commute to school N.P. has when he resides with his mother, as she resides very close to the school.

[131] I have also considered Devendra’s submission that the length of the commute must be weighed against the fact that when N.P. is with his father, he gets to sleep in until 7:00 a.m. and is driven directly to school. In contrast, when he is with his mother, N.P. has to get up at 6:00 or 6:30 a.m. He is dropped off at school much earlier. I do not find that this factor is significant enough to warrant the lengthy commute that N.P. would have to take if equal access were granted.

[132] I am satisfied that it is in N.P.’s best interests to increase the amount of time he has with his father, while at the same time trying to minimize the commute that N.P. will have to take when he is with his father.

[133] I am also of the view that drop-offs and pickups would go more smoothly if they took place at school, as opposed to the Tim Horton’s, as there would be less direct contact between the parties.

[134] I am therefore granting Devendra access with N.P. every other weekend from Friday afternoon at the end of the school day until drop-off at school on Monday mornings. If there is a school holiday on a Friday or a Monday when Devendra has an access weekend, then the pick-up and drop-off date will be extended by one day for Devendra.

[135] Devendra will continue to have access to N.P. every Tuesday from after school until 8:00 p.m. N.P. is NOT to be taken back to Pickering on these days. Devendra indicated that these days were difficult since they could not go home, and therefore argued that N.P. should stay overnight. I am not prepared to grant further overnight access, as it means more commuting for N.P., which I do not view as being in his best interests. I do not accept Vanessa’s submission that Devendra wanted to give up his access on Tuesday; rather, it was Devendra’s preference that access on Tuesdays be overnight.

[136] Devendra requested that each party have two non-consecutive weeks of vacation with N.P. in the summer. Vanessa’s draft order does not address summer holidays, but rather states that the parties shall have further and other access as may be agreed. It is my view that in the interest of certainty, it is better to delineate the summer holidays. Each party will be entitled to take two non‑consecutive week vacations with N.P. I considered the possibility of having a 2/2/3 split in the summer months, but given that the parties will each have two weeks in the summer, I believe putting in a 2/2/3 split for a week here and there in the summer months is not in N.P.’s best interests.

[137] With respect to the winter holiday and March break, the parties are in agreement that the holidays should be shared equally. With respect to Mother’s day and Father’s day, the parties’ proposals are similar and I will address the nuances with respect to access for these holidays in the order at the end of my decision.

Issue #3: Should I Impute Income to Devendra?

Position of the Parties

[138] Vanessa submits that Devendra is making more money than he claims in his tax returns in DJing. She argues that I should impute an additional $50,000 per year to his income.

[139] Devendra submits that he has accurately declared the money he makes from DJing on his tax returns and therefore his income for the purpose of calculating child support is accurately reflected in his tax returns.

Guiding Principles

[140] In considering the proper amount of child support, it is critical to determine the income of both parties.

[141] Section 15 to 20 of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), are the starting point for the calculation of income for the purposes of child support. The goal is to ascertain current income. Where a party’s income from the prior year is not predictive of what they are likely to earn in the upcoming year, the court should determine the party’s income for the upcoming twelve months after the date on which child support payments will commence.

[142] Section 19 of the Guidelines permits the court to impute income that the court thinks is appropriate in the circumstances, including where,

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

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

(g) the spouse unreasonably deducts expenses from income[.]

[143] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is under-reporting their income: see Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 28.

[144] Where a party fails to provide full financial disclosure relating to income, the court is entitled to draw an adverse inference and to impute income to that party: see e.g. Pustai v. Pustai, 2018 ONCA 785, at para. 38.

[145] Determining the amount of income to impute to a party is a matter of discretion for the trial judge. The only limitation on the discretion of the court is that there must be some basis in the evidence for the amount that the court has chosen to impute: see Korwin v. Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1.

Relevant Factual Background

[146] The parties entered into an interim, without-prejudice consent order regarding child support in 2015. Devendra agreed to pay $505 per month for N.P. based on the income reported in his tax returns.

[147] Devendra’s Notice of Assessment lists his income as follows:

2015: $58,897

2016: $61,274

2017: $60,370

2018: $62,407.80

[148] Devendra does not dispute that he owes arrears of $4,089.78 as a result of his income increasing over the past four years. He offered to pay this amount. He does dispute that he makes an additional $50,000 per year DJing, as claimed by Vanessa.

[149] Vanessa states that she knows Devendra’s DJ income, as she used to attend with him at his DJ events. He is known as DJspinz. She submits that he makes more than $200 to $300 dollars per event. She also states that he is generating income from other events, such as advance ticket sales to his DJ events. He also makes money from CDs he created, and she submits that he is sponsored by a clothing line.

[150] In support of her argument that Devendra makes significant money as a DJ, Vanessa points to the fact that Devendra has worked as a DJ in Dallas, Akron, Montreal, Orlando and South Florida. I note that in the chart Devendra provided, he has worked as a DJ in Florida after N.P. was born.

[151] Vanessa filed numerous social media postings to support her argument that Devendra has more DJ events than he has indicated and that the events are highly sophisticated. She believes that Devendra hired an assistant named Jamie.

[152] Vanessa disputes Devendra’s assertion that he works for Anthony Ramcharan. She submits that Devendra did not provide a price list for his services when she asked, but eventually provided a price list that states he works for Anthony Ramcharan of Paradise2demax.com.

[153] Vanessa states that Devendra has not been truthful in his chart of DJ events. She states that this is demonstrated by his social media site that says he had six weddings in just two days. She also submits that he conducts an annual birthday bash and attends an annual boat cruise function each year.

[154] In support of her argument that Devendra is making more money DJing than he claims, Vanessa points to the numerous unexplained e-transfers and deposits into Devendra’s bank account, as well as several cash payments on his VISA.

[155] In addition, Vanessa submits that Devendra is living a lifestyle beyond the standard that his salary would be able to support. She notes that he uses the 407 regularly and takes regular personal vacations outside of Canada.

[156] Vanessa also points to the fact that there are no foreign currency exchanges in the bank documents provided, despite the fact that Devendra has gone on several international vacations.

[157] Vanessa also argued that the legal costs incurred in this matter suggest that Devendra makes more money than he claims. Vanessa disputes Devendra’s assertion that his parents loaned him $100,000 to pay for legal expenses, claiming that Devendra has been using his DJ money to pay for legal fees.

[158] Vanessa’s income for the past four years is as follows:

2015: $41,919

2016: $49,543

2017: $49,975.13

2018: $49,877.10 (projected)

[159] Devendra testified that DJing is a hobby and something he has done since he was a teenager. He stated that when N.P. was born, he rarely DJed, but now that he doesn’t have N.P. all the time, he does some DJing. He testified that he could not make enough money to make it a worthwhile full-time job, which is why he works as a project coordinator.

[160] Devendra testified that he started as a DJ for Mr. Ramcharan, who owns Paradise2demax, in 2004. He began to work for him as a subcontractor and became his lead DJ. He stated that he represents the Paradise2demax brand and appears on posters even if he will not be at the DJ event. His evidence is that he makes between $150 to $300 per DJ event. He also stated that he often does events for free, such as birthday parties for friends and weddings. Many of these events were the ones in the U.S. that Vanessa referred to.

[161] Devendra stated that he made no revenue from his CDs, but rather the purpose was to promote himself to get more work. He denies that Jamie is his assistant. Rather, he states that Jamie is another employee who he works with. Devendra testified that he will arrive late at DJ events if he is taking care of N.P., so Jamie will cover for him until he arrives.

[162] Devendra does not dispute that he gets paid in cash. He testified that most of the cash is put back into his equipment for DJing. He maintains that his true DJ income is as reported on his tax returns. He provides the documentation to his accountant, who determines the amount to claim on his tax returns. Devendra claimed the following income from DJing in his tax returns:

2014: $2,500 gross, $294 net

2015: $2,500 gross, $432.64 net

2016: $2,125 gross, $470 net

2017: $2,850 gross, $550 net

[163] Devendra states that the West Indian DJ market is cost effective such that prices charged are not that high. He testified that he has not tried to break into more lucrative DJ markets.

[164] With respect to his bank accounts, Devendra submits that the CIBC account is a joint account with his mother. It contains his main deposits. He uses it to deposit money his parents give him, for baseball fees that he collects for his team, and the buying and selling of his DJ equipment on Kijiji. He states that on occasion, a customer at a wedding or event has e-transferred him money instead of Mr. Ramcharan, and he takes his percentage and pays the vendors.

[165] Devendra denies that he lives a lavish lifestyle. He resides with his parents and they pay for the family vacations. His father testified to this. He also stated that he owes his parent $100,000 that he borrowed to pay for legal fees incurred in this case. His father also testified that they have loaned him money.

[166] Mr. Ramcharan, the owner of the Paradise2demax brand, also testified. He has known Devendra and Vanessa since 2000. Mr. Ramcharan has three DJs working for him, including Devendra and Jamie. Mr. Ramcharan runs his father’s restaurant and operates the DJ business on the side. It is a cash business and he reluctantly admitted that he has not filed tax returns for this business.

[167] Mr. Ramcharan created the price list of the services the company offers. He stated that the price depends on what the parties want. He arranges for lighting, sound and payment to sub-contractors. A wedding event costs around $500 to $600, and the DJ gets paid around $200. The range of pay for the DJ is between $150 to $300 as he has to pay the vendors for lighting and other items. The DJ brings all of his own equipment. He stated that he never charges $2,000 to $3,000 a wedding. He testified that none of his DJs make $50,000 a year.

[168] Mr. Ramcharan testified that the DJs will often do favours for other DJs, such as playing at their birthday parties, and that they get favours in return.

[169] With respect to Devendra’s involvement in the CD, Mr. Ramcharan testified that the CD was a promotional endeavour and that he did not get paid. It was done to get his name out there and to get more business. Mr. Ramcharan also testified that Devendra decreased the amount of DJ work he was doing once N.P. was born. Mr. Ramcharan stated that when Devendra DJs events, he comes later in the evening and often works with Jamie.

Analysis

[170] For the reasons set out below, I find that Vanessa has not proven on the balance of probabilities that Devendra is making $50,000 that he is not claiming as income. I do, however, find that Vanessa has proven on the balance of probabilities that Devendra is making $11,000 from DJing, whereas he has claimed on his tax returns that he earns approximately $2500. The undeclared income must be grossed up and added as income to determine the proper amount of child support that should be paid in arrears and moving forward. My reasons for my decision are set out below.

[171] I do not accept Vanessa’s submission that Devendra is as busy in his DJing as she claims but that he has DJed more than he claims. Devendra testified and provided a chart that states he worked the following number of events over the years:

2014: 25 events

2015: 36 events

2016: 38 events

2017: 36 events

2018: unknown

[172] Vanessa also provided a chart with respect to events that she says that Devendra has worked at. She filed social media postings to support her position. Some of these postings were not dated making it difficult to say when they made. I also do not find that the media posting that says that Paradise2demax was involved in six weddings in two days supports the inference that Devendra did all of those weddings. The reasonable inference from that posting is that Paradise2demax was involved in six weddings that weekend, not just Devendra.

[173] I prepared my own chart comparing the parties’ claims as to when Devendra was working at a DJ event. It is attached to this decision as Appendix A. Many of the fliers for events correspond to the dates that Devendra said he was DJing.

[174] However, Vanessa provided some fliers to support her submission that Devendra had DJ events that were not listed in his chart. Devendra testified that just because his name is on a flier, this does not mean that he would attend the event. Mr. Ramcharan also testified to this effect. I have difficulty accepting this explanation.

[175] Many of the events that Devendra testified he attended stated “music by” DJspinz. There were fliers that used this same wording, yet Devendra does not have these events listed on his chart. I find it difficult to believe that a flier would be sent out proclaiming “music by” a particular DJ if that DJ was not going to attend. In contrast, there were other fliers where DJspinz name is on the flier but there is no indication that there is “music by” DJspinz or “featuring” DJspinz. In those situations I am prepared to find that he may not have performed at those events.

[176] Similarly, there are other fliers where he is “named”. Some of these fliers correspond to events that Devendra said he played at. Given the choice of wording used in the flier, reviewing other fliers and based on the evidence of Devendra’s evidence I am prepared to find that he attended those events as well. Based on my review of the evidence, I am satisfied that Devendra had seven additional DJ events in 2015, four additional events in 2016 and no additional events in 2017.

[177] I also note that after a review of all of the evidence, including the social media postings, there is no evidence to establish that Jamie works for Devendra as Vanessa claims. I also note that many of the flies state “music by” many DJs. The reasonable inference is that more than one DJ plays at an event.

[178] The bigger difficulty in this case is determining what income Devendra made at DJ events.

[179] Vanessa has not provided any independent evidence with respect to what DJs generally earn from playing events, and particularly DJs in the West Indian market. She asserts that she knows from their time as a couple that he can earn $3,000 per event. I place very little weight on this statement, as it is self‑serving and not supported by any other evidence.

[180] Vanessa submits that I should draw an adverse inference from the fact that Devendra did not provide a customer list, their contact information and employment contracts. l am not prepared to do so given the facts of this case. Devendra provided all of his tax returns. He also provided all of his banking statements and credit card statements for the relevant years. He provided his telephone receipts and other receipts related to the expenses he has claimed with respect to his DJing. There was no evidence presented that demonstrates that Devendra owns Paradise2demax. The evidence of Devendra and Mr. Ramcharan is that it is his business. Devendra is therefore not in possession of the documents that she requested. There is no evidence that a request was made to Mr. Ramcharan to provide any of these documents.

[181] Vanessa also requested particulars of how Devendra was paying his legal fees. For example, she wanted to know when amounts were paid and what was paid. I do not think it is appropriate to require particulars of how the Devendra has been paying his legal fees. The amount of legal fees he is paying is privileged. In any event, I am of the view that I have sufficient documentation from Devendra with respect to monies that he has received to make a determination about whether income should be imputed to Devendra.

[182] I accept Devendra’s evidence that he loves working as a DJ and that he cannot make the same amount of money that he can make as a project coordinator, which is why he has kept this job and does his DJ activities on the side. I find that his evidence on this point was also supported by the evidence of Mr. Ramcharan, as he testified that he owns Pardies2demax but that he also runs two restaurants for his father. It does not appear that either Devendra or Mr. Ramcharan make enough money at Pardies2demax for this to be sufficient full‑time employment.

[183] I also do not think that the fact that the Devendra has gone on family trips is indicative of him having hidden income. Devendra’s father testified that he pays for the family vacations. Moreover, these vacations were not to exotic or overly expensive locations.

[184] While I do not find that Devendra is making an additional $50,000 as a DJ as suggested by Vanessa, I do find that he is making more than the approximately $2,500 a year he claims on his tax returns as DJ income. I realize that he says he often DJs as a favour and does not get paid, but I simply do not accept his evidence that he only makes $2,500 a year as a DJ. I say this for several reasons that I have considered cumulatively.

[185] First, I did not find the evidence of Mr. Ramcharan overly persuasive with respect to how much money Devendra earns from DJing. I am prepared to accept that Devendra works for Mr. Ramcharan: Mr. Ramcharan did not waiver on his evidence that he owned the company and Devendra worked for him. Mr. Ramcharan organizes the events, including lighting and DJs. What was clear from Mr. Ramcharan’s evidence is that this is a cash business. He does not declare the income from this business on his tax returns. It is also clear that Devendra is his top DJ.

[186] The evidence from Devendra is that he makes $200 to $250 per event. Mr. Ramcharan testified that Devendra makes between $150 to $300 per event. Devendra prepared and filed with the court a chart of the DJ events he says he did over the years. Assuming that Devendra earned $250 to $300 per event, then his income as a DJ, form the events he said he did would be as follows:

2014: 25 events: $6,250 at $250 and $7,500 at $300

2015: 36 events: $9,000 at $250 and $10,800 at $300 (based on the added 7 events the amount would be between $10,750 and $12,900)

2016: 38 events: $9,500 at $250 and $11,400 at $300 (based on the added 4 events the amount would be between $10,500 and $12,600)

2017: 36 events: $9,000 at $250 and $10,800 at $300

[187] Devendra stated that he often DJs for free and this is reflected in his chart. I do not accept that he would DJ for free between half to two thirds of the time, as would have to be the case based on the amount of income he declared he made as a DJ on his tax returns. The amounts were approximately $2,500 a year. Doing a few events a year for free, such as birthday parties for a friend, I can accept, but I do not accept that he would as many free events a year as he claims.

[188] The most compelling evidence in support of the fact that Devendra is making more income than he claims comes from his bank accounts and credit card statements. Devendra testified that he and his mother share the same bank account and that she makes deposits into and out of that account. Even accepting that his mother does some banking in this account that is not a satisfactory answer with respect to the amount and volume of unexplained cash transfers into the account. There are numerous cash deposits and no indication as to what they were for. There are also numerous e-transfers into the account without explanation. Devendra stated in his affidavit that he sometimes took deposits for Mr. Ramcharan. The difficulty with this answer is that there are numerous e-transfers, it was much more of a regular occurrence than Devendra admitted. The reasonable inference from him accepting payments from clients is that the e-transfers are payments for his services.

[189] There are a significant amount of unexplained transfers into and out of the joint account, which I have calculated as follows:

2014: $9,539.39

2015: $7,960

2016: $12,815

2017: $19,260

[190] Counsel for Vanessa provided calculations orally in court and that were written on the bank statements related to unexplained cash transactions that are slightly different from mine. He states that there are unexplained deposits as follows:

2014: $10,789.39

2015: 12,390

2016: $20,865

2017: $19,260

[191] The 2016 income includes an $8,000 deposit that immediately went in and out of the account. As it does not follow the pattern of deposits and withdrawals in other years, I do not feel it is appropriate to include it as income.

[192] Although the math is slightly different as between my calculations and that of Vanessa’s, the point remains the same: there is a significant amount of unexplained income in Devendra’s joint bank account.

[193] Devendra’s father testified that he gives his son approximately $1,000 at Christmas and $1,000 at his birthday, but that amount varies. I note that there were no deposits in those exact amounts for January or December in the bank account statements. I do accept that there is money from his baseball team that goes in and out of the account of approximately $3,000 per year based on a review of the bank account statements.

[194] Moreover, when looking at his credit card statement, it is clear that there are cash payments that are not explained.

[195] While it is difficult to determine the appropriate amount of income to impute given the evidence before me, I am of the view Devendra made $11,000 per year DJing commencing in 2015. A portion of this income was not declared on his tax returns. This takes into account the fact that I found that Devendra has underreported the number events he has done in the past, although I accept that he Dj’s a few free events yearly. He is also the top DJ in the company. Most importantly this amount reflects the consistent amount of unexplained deposits made into Devendra’s joint account from which one can reasonably infer he made from his DJ events.

[196] The amount of income that was not declared must be grossed up to reflect the fact that Devendra was earning cash income and not reporting it to Revenue Canada. As explained by Sherr J. in Richardson v. Richardson, 2013 ONCJ 599, at para. 60, this is done to ensure consistency of treatment that will be grossed up, as he did not pay tax on this amount.

Issue #4: Should Child Support be Decreased due to Excessive Travel Costs?

[197] Devendra submits that the amount of child support ordered should be decreased to reflect the excessive access costs he has paid, primarily the 407 bill and gas that he has incurred for the past four years.

[198] Section 10 of the Guidelines states that:

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

[199] Devendra spends anywhere from $110 to over $500 per month on highway tolls based on his 407 bills that were filed with the court. It appears that the cost of driving on the 407 from Brock Road to Hurontario Street is approximately $30 a trip depending on the time of day. As a result, based on four trips every two weeks, plus the Tuesday evening visit, Devendra would be paying approximately $360 per month if he takes the 407 each time to have access to his son. However, that does not appear to be the case based on a review of the 407 records that were filed at trial. He often seems to get off the 407 at the 400, which lessens the costs. This does not include the cost of gas.

[200] In his application, Devendra asks that the drop-off location be at a location that is between the parties’ homes. Given that most of the access will take place at school, it is my view that it is preferable that the current location of the Tim Horton’s in Mississauga be used for the occasions where the school is not the drop-off or pick-up location. However, I am going to reduce the child support that is owing by $200 per month to reflect the high expenses that Devendra incurs in exercising access to N.P.

Issue #5: Should there be Arrears for Child Support?

[201] Vanessa seeks arrears for child support payments from January 1, 2015. Devendra does not dispute that he owes arrears based on the income set out in his tax returns. The issue to be determined is whether Devendra should pay retroactive child support based on the imputed income.

[202] In D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. the Supreme Court of Canada held that courts have jurisdiction to award retroactive child support and should do so in appropriate cases.

[203] In determining claims for retroactive child support, the court must consider whether the legal status for the support obligation is a court order, an agreement or neither. In this case it was an interim child support order based on the agreement of the parties.

[204] In D.B.S., the court held that I must consider the child’s age; the delay; blameworthy conduct, hardship for the child and hardship for the payor. In addition, the Court established the following principles:

a) The obligation to pay child support arises automatically upon birth;

b) Child support is the right of the child;

c) The specific amount of child support owed will vary based upon the income of the payor parent;

d) As income levels increase or decrease, so too will the parents’ contributions to payment for the child’s needs, just as they would if the family had remained together;

e) Under the Guidelines, the underlying theory is that the support obligation itself should fluctuate with the payor’s parent’s income;

f) When a parent’s income increases and the payor parent does not increase the amount of support the parent pays, it is the child who loses;

g) The ultimate goal is to ensure that the child benefits from the support he or she is owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated;

h) Retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional cases;

i) Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payer parent effective notice of the intention to seek an increase in support payments;

j) Courts must be open to ordering retroactive support where fairness to a child dictates it, but should also be mindful of the certainty that fairness to the payor parent also demand it. It is also after a detailed examination of the facts in the particular case that the appropriateness of a retroactive award can be evaluated.

[205] In this case, there is no concern that N.P. is entitled to child support. There was also no delay in seeking child support. The parties entered into an interim agreement for Devendra to pay interim child support. Vanessa satisfied the court that Devendra was not fully disclosing his income from the date of separation as he was not disclosing all of the income that he was making from DJing. In considering the conduct of the parties, Devendra should not benefit from his underreporting of his income. This money is for the benefit of N.P.

[206] Given my finding that income should be imputed to Devendra, arrears based on the imputed income should be applied to January 1, 2015. The arrears should be adjusted to reflect the $200 per month decrease that Devendra should receive as a result of the high expenses Devendra has occurred in exercising access since January 1, 2015.

[207] As this issue was not fully canvassed at trial, the parties are permitted to file two pages of written submissions, double-spaced. These submissions shall address the appropriate amount of arrears for 2015 to the date of this decision, based on the new imputed income and how it should be paid. In addition, submissions may be made with respect to what the amount of child support should be moving forward. Counsel for Vanessa will provide her written submissions within twenty days of the release of this decision, and then counsel for Devendra may provide a response within fifteen days. Counsel for Vanessa may then file a one-page reply, double-spaced within five days. In addition, the parties may file any DivorceMate calculations they wish.

Issue #6: What, if any, Arrears for s. 7 Expenses Should be Ordered?

[208] Vanessa seeks arrears pursuant to s. 7 of the Guidelines for the daycare costs at Angelic Treasures from October 2015 to August 2018 and for N.P.’s before-and after-school program (“PLASP”) from September 2018 to present.

[209] I have no difficulty finding that the PLASP childcare costs are a legitimate s. 7 expense that should be paid by the parents on a percentage basis that reflects their income, including Devendra’s imputed income.

[210] I do however, disagree that Vanessa should be entitled to arrears for daycare costs at Angelic Treasures. She wanted N.P. to attend this daycare. It was significantly more costly than the other daycares put forward. It was agreed on a temporary and without-prejudice basis that Devendra would pay one half of the amount of the most expensive daycare on his list. There is no evidence before me that the daycare Vanessa chose was substantially better or in the best interests of N.P.; rather, it was her desire that he attend a Christian daycare that drove the decision. Therefore variation with respect to those daycare costs is not ordered.

Issue #7: Granting the Divorce

[211] At the end of the trial, the parties filed documentation in support of the divorce. The parties seek an order for divorce as part of the trial. I am prepared to accept the late filing of the documentation in the circumstances. Having reviewed the documentation filed, I am satisfied that the parties have met the requirements in the Divorce Act for a divorce. The order for a divorce is therefore also granted.

Final Order

[212] Below are the terms of the Order:

Divorce

The divorce order is granted.

Custody

On a final basis, the parties shall have joint custody of N.P., born October 14, 2014 (“N.P.”). The party having the child in their care shall make the daily decisions related to the welfare of the child. Major decisions regarding education, religion and medical care shall be made as follows:

A) Education: the parties shall endeavor to decide which school N.P. attends together; however, after they have discussed the issue and consulted with teachers and applicable authorities and cannot come to a decision, Vanessa shall have final decision-making authority. Vanessa shall not be permitted to enroll N.P. in a school that is more than 70 km away from Devendra’s residence without his prior written consent. The discussions between the parties are to be email communications.

B) Medical: For medical decisions that require informed decision‑making, the parties shall endeavor to decide the form of treatment together and in consultation with medical professionals. If they cannot come to an agreement, Devendra shall have final decision‑making authority. Vanessa shall provide Devendra with the names and contact information for all medical professionals, including doctors, dentists and therapists that have treated N.P. no later than seven days after the date of this order. The discussions between the parties are to be email communications.

In the event that the child requires immediate medical or health care while in Vanessa’s care, she shall take all reasonable steps to contact Devendra so that he may exercise his rights under the parenting regime. If Vanessa is unable to reach Devendra and the opinion of the attending healthcare professional is that the situation is urgent and the time to contact Devendra would put the child at risk, Vanessa may make the decision.

C) Religion: Each party may introduce and teach N.P. their own religious beliefs and practises, provided that they do not discredit or dissuade the other parent’s religious beliefs or practises. When N.P. is 12 years old or when he is capable of deciding his own religious beliefs (whichever occurs earlier), the parties shall support him in the decision he makes. Until that time, neither party shall permit N.P. to participate in confirmation or Janeu. N.P. is permitted to participate in communion and may be baptised, should he wish.

The parties shall each have access to medical information, school records and information generally relating to N.P. without requiring the other party’s consent.
The parties are to be advised in email of any medical, dental or other appointments, including school appointments that are scheduled for N.P. In the event of an urgent appointment where a party cannot reach the other party, they shall advise the other party immediately after the making or attendance at the appointment and advise the other party of N.P.’s general well-being.
Both parties shall advise the other party if they intend to enrol N.P. in any extra-curricular activities in advance of the activity commencing. Neither party shall schedule any program or activity for N.P. that falls on the other party’s time without the consent of the other party. Both parties shall provide the other parent with the location, dates and times of the extra-curricular activity that they have enrolled N.P. in by no later than two weeks prior to the start date.
Both Vanessa and Devendra shall be named as emergency contacts with the child’s school or with any other organization involved with the child.
N.P. shall reside with the parties based upon the parenting schedule.
Subject to the provisions outlined above, Vanessa and Devendra shall have the right to make daily decisions respecting N.P. while he is in their care.

Access

On a final basis, commencing on the date of this Order, Devendra shall have parenting time with N.P. as follows:

Week one

a. Tuesday from 4:00 p.m. until 8:00 p.m. All visits are to be local in Mississauga, NOT in Pickering.

b. Friday pick up at daycare/school at 4:00 p.m. until Monday drop off at daycare/school at 8:50 a.m.

Week 2

a. Tuesday from 4:00 p.m. until 8:00 p.m. All visits are to be local in Mississauga, NOT in Pickering.

b. Thursday from pick up at daycare/school at 4:00 p.m. until Friday drop off at daycare/school at 8:50 a.m.

If it is a long weekend or a school holiday, Devendra’s access shall be extended to include the Friday or the Monday, with pick up on Thursday night or drop off on Tuesday morning;
On a final basis, additional parenting time separate from and in addition to the regular parenting time as follows:

a. Christmas/New Year’s Eve: The parties shall share the Christmas break equally. In even-numbered years, Vanessa shall have the first half of Christmas break and from Christmas Eve at 12:00 p.m. to Christmas day at 12:00 p.m., and Devendra shall have the second half of Christmas break and from Christmas day at 12:00 p.m. to Boxing Day at 5:00 p.m. In even‑numbered years, Vanessa shall have parenting time from New Year’s Eve from 12:00 p.m. until 12:00 p.m. on New Year’s Day. In odd-numbered years, the schedule will be reversed and Devendra will adopt Vanessa’s even-numbered year’s schedule.

b. Father’s Day: Devendra shall have parenting time with N.P. from Sunday at 10:00 a.m. until Monday drop off at daycare/school at 8:50 a.m.

c. Mother’s Day: Vanessa shall have parenting time with N.P. from Sunday at 10:00 a.m. until Monday drop off at daycare/school at 8:50 a.m.

d. March Break: In even-numbered years, Devendra shall have parenting time with N.P. for March break from Sunday proceeding the break at 5:00 p.m. to the Sunday following the break at 5:00 p.m. In odd-numbered years, Vanessa shall have parenting time with N.P. for March break on the same schedule.

e. Summer Holidays: The parties shall each have two non‑consecutive weeks of parenting time in the summer. Devendra shall have first choice of these weeks in even‑numbered years, and Vanessa shall have first choice of these weeks in odd‑numbered years. If the party has first choice, they shall advise the other by no later than May 1, and the other party shall respond with their choice by no later than May 15.

f. N.P.’s Birthday: N.P.’s birthday shall be shared equally by the parties, to be agreed upon by the parties.

g. Parties’ birthdays: Each party shall have the child on that party’s birthday from 10:00 a.m. until 8:00 p.m. if the birthday falls on a weekend, or from after school (4:00 p.m.) until 8:00 p.m. if the birthday falls on a weekday.

h. Religious occasions: Vanessa and Devendra shall use their best efforts to arrange for Devendra to have additional time with the child on major officially-recognized Hindu religious holidays, and for Vanessa to have time with the child on major officially‑recognized Catholic holidays.

i. The parties shall have such further and other access as may be agreed upon between the parties.

Pick up and Drop off: If pick up and/or drop off does not occur at N.P.’s school or daycare, Devendra shall pick up and drop off N.P. at the Tim Horton’s in Mississauga (30 Eglinton Ave West), unless the parties agree otherwise.
Neither parent shall speak disparagingly about the other parent in the presence of N.P.

Documents

Vanessa shall be permitted to apply for and keep the identity documents for the child, including passports and social insurance cards. Vanessa shall provide that documentation to Devendra as needed. Devendra shall maintain N.P.’s health card and provide it to Vanessa as needed. Copies of the documentation shall be provided to each party.

Child Support

A final order with respect to child support has not yet been made.

Section 7 expenses

There are no arrears owed by either party for s. 7 expenses, relating to the Angelic Treasures. Devendra will pay arrears with respect to the PLASP childcare which commenced on September 1, 2018 proportional to the parties incomes in 2018, which is yet to be determined.
Commencing immediately, the parties shall pay for the child’s s. 7 expenses, including medical expenses, that are not covered by the parties’ health insurance plans, and daycare in proportion to their respective 2018 incomes, which is yet to be determined.
Each party is responsible for the costs of the extra-curricular activities that they decide to enroll N.P. in, unless otherwise agreed upon by the parties in writing.

Conclusion

[213] As noted above, the parties are entitled to make further submissions with respect to the amounts of arrears to be paid with respect to child support and the amount of child support to be paid moving forward based on the income imputed to Devendra. Upon receipt of those submissions, I will make a final determination with respect to child-support issues.

[214] At that point, I will provide further guidance in relation to the cost submissions that the parties may wish to make if they cannot agree on the issue of costs.

Dennison J.

Released: June 11, 2019

Appendix “A”

2015

Devendra’s listed event

Paid

Social media postings provided by Vanessa

Comments

Jan 3

My birthday party

Jan 17

My birthday

-$600

Birthday Bash “music by”

Jan 24

Annual Anniversary Party

$150

Kuch Kuch Baby “music by”

Feb 7

Birthday basement “music by”

Not on Devendra’s chart (1)

Feb 12

Family Day long Weekend “music by”

Not on Devendra’s chart (2)

Feb. 14

Valentines

$150

Feb 15

Charity Dance

$100

March 6

90’s Back “featuring”

Not on Devendra’s chart (3)

March 7

Carribean Spice “music by”

Not on Devendra’s chart. He says he was at a church event.(4)

March 7

Church event

March 27

Colleague birthday

Pieces & Aries birthday Bash (named)

April 2

The return of Glow(named)

Not on Devendra’s chart. (5)

April 3

Concert event

$300

Easter long weekend “music by”

April 4

West Indian fever “music by”

Not on Devendra’s chart. He says he did a wedding (6)

April 4

Wedding

$200

April 11

Friends’ birthday

Aires Bash “music by”

April 18

Cricket sports club

$150

May 23

Competition Event

$150

Clash of Generations (named)

May 30

Wedding

$200

June 12

Boat Party

Boat ride “music by”

June 13

Friend’s birthday

$150

Gemini Gala “music by”

June 18

King of Mix “music by”

Not on Devendra’s chart (7)

June 19

DJ Birthday

June 20

Family Friend’s wedding

$150 plus watch

June 27

Wedding

$200

July 25

Wedding

Aug 1

Concert Event

Aug 2

Outdoor Festival

160

Aug 3

Boat Cruise

100

Aug 14 & 15

Friend wedding (gift)

-200

Aug 30

Wedding

$300

Sept 4 & 5

Friends’ wedding

Sept 26

Wedding

$200

Oct 10

Birthday party

$100

Caribbean Libra Addition, “music by”

Nov 21

Club Event

$150

Instyle & Enjoy “music by”

Nov 25

Vacation

Dec 20

Toy Drive

Dec 26

Concert

$100

Chutney on Demand

Dec 31

Club Event

NY eve party “also”

2016

Devendra’s Listed event

Paid

Social media postings provided by Vanessa

Comments

Jan 2

Club party didn’t show

The Onsie affair “music by “

Jan 16

My bday party

$200

Celebrating birthday

Jan 23

Club party

$150

Jan 30

Saturday Night special “music by”

Not on Devendra’s chart (1)

Feb 4

Love & Affection “music by”

Not on Devendra’s chart (2)

Feb 6

Club Party (DJ bday)

Feb 13

Valentines

$100

Feb 14

Valentines

Feb 20

Club party

$100

Back in time (named)

Feb 27

Club party

$100

Mar 12

Club event

Mar 19

Club Event

Ladies Choice “entertainment by”

April 2

Fund raiser dance

April 9

Friend Bday

April 16

Wedding

$200

May 14

Club event

Soca 2 go “music by”

May 28

Wedding

$200

June 4

Wedding

$200

Claireport Place Banquet Center (photograph on social djspinzp2dm’s account)

June 18

Club event

June 24

Club event

June 25

Wedding

$200

June 29

Wedding (“just showing you what we do best, no event too big or small)

No indication that he played at this event.

July 2

Coworker wedding

$200

July 16

Club event

July 23

Friend wedding

(social media posting that suggests he is there but is not dated)

July 28

Boat party

$150

July 29

Boat party (didn’t show up)

Wicked “music by”

July 30

Carnival fusion “music by “

July 31

Wedding

$200

(social media photo that suggests he is there)

Aug 6

Friend’s cousin’s wedding

$200

Social media post

Aug 12

Friend cousin’s wedding

$200

Aug 19

Leo Bashment “along side”

Aug 20

Guest at wedding

Aug 26

Spoat on ah boat “music

Not on Devendra’s chart. (3)

Aug 31

Playing hookey “music by”

Not on Devendra’s chart. (4)

Sept 4

Friend’s wedding

$200

Sept 10

Club event

Sept 17

Friend sister wedding

$200

Oct 9

Club event

Oct 28 & 29

Friend’s wedding

$300

Social media post

Nov 5

Club event

$100

Nov 12

Charity dance

Dec 3

Club event

Bollywood Vibes

Dec 18

Toy Drive concert

Dec 26

Concert

$150

West Indian fever “music by”

2017

Devendra’s listed event

Paid

Social media postings provided by Vanessa

Comments

Jan 14

My Bday

-1500

Birthday/ Cd release

Jan 21

Sister 30th

-$500

Feb 4

Valentines

Feb 11

Valentines

$100

Feb 25

Club

$100

Bring it back (named)

Mar 12

Cousin Bday

March 25

Fundraser dance

April 1

Club event

April 8

Friend’s bday

April 22

Wedding

$200

(social media post but no year)

April 29

Club event

May 21

Club event

$100

May 28

Wedding

$200

(social media post but no year)

June 17

Friend’s Bday club event

$100

Geminis “music by”

June 25

Wedding

$200

(social media post but no year)

July 1

Florida

July 15

Friend Wedding

$200

(social media post but no year)

July 28

Wedding

$200

July 29

Boat party

$100

Aug 3

Boat ride concert

$150

Aug 4

Boat party

$150

Carnival Boatride (named)

Aug 5

Club event

Aug 6

Friend wedding

$200

Aug 13

Wedding

$200

(social media post but no year)

Aug 19

Wedding

$200

(social media post but no year)

Sept 23

Friend’s wedding (attended as holiday was cancelled hurricane)

Sept 30

Friend’s wedding

$200

Oct 7

Instyle “hosted by”

Not on Devendra’s chart. No indication he played this event

Oct 7

Friend’s brother’s wedding

$200

(social media post no year)

Oct 8

Wedding

$200

Oct 14

Sister best friend wedding

Nov 4

Club event

Nov 18

Charity dance

$150

Dec 2

Banquet hall (barter)

Bollywood Vibes “music by”

Dec 15

Club event

Dec 16

Club event

Dancy Baby representing Toronto

Dec 31

NYE

Not on Devendra’s chart. No indication he played this event

2018

Devendra’s listed event

Paid

Social media postings provided by Vanessa

Comments

Jan 27

Capricon& aquarius his birthday

Devendra provided no chart for 2018

Feb 14

Valentines “music by”

March 9

Fever “featuring”

March10

East coast Cricket club (not named)

March 10

Milestones “featuring”

March 16

Fight vs Lightning (named)

March 17

Just a Taste (named)

April 7

Florida CSI fusion

April 28

Bollywood “featuring”

No Dates

Devendra’s listed event

Paid

Social media postings provided by Vanessa

Comments

March 15

When Pout was nice “music by

March 22

Premium “musically orchestrated by”

March 28

Strictly vibes “music by”

Jan 14

The weeding crasher

April 20

Faded Fridays “special guests”

Overview

Issues to be Decided

Issue #1: What Custody Arrangements Should be Ordered for N.P.?

Position of the Parties Regarding Custody

Guiding Principles

Relevant Factual Background

Analysis

Parenting Roles with N.P.

Relative Parenting Abilities and Ability to put N.P.’s Best Interests First

Evidence of Alienation by one Parent

The Extent to which each Parent is Able to Place the Needs of N.P. Above their own Needs and Interests

The Existence of any Form of Abuse, Including Emotional Abuse or Undermining Behaviour, Which Could Impede the Objective of Achieving a Balance of Roles and Influence through Parallel Parenting

Ability to Communicate with one Another

Other relevant factors under s. 24(2) of the CLRA

Relationship Between N.P. and Family Members

Views of N.P.

Stability

Ability of Parties to Provide Guidance

Conclusion Regarding Custody

Issue #2: What Access Schedule Should be Ordered?

Guiding Principles

Position of the Parties

Analysis

Issue #3: Should I Impute Income to Devendra?

Position of the Parties

Guiding Principles

Relevant Factual Background

Analysis

Issue #4: Should Child Support be Decreased due to Excessive Travel Costs?

Issue #5: Should there be Arrears for Child Support?

Issue #6: What, if any, Arrears for s. 7 Expenses Should be Ordered?

Issue #7: Granting the Divorce

Final Order

Divorce

Custody

Access

Documents

Child Support

Section 7 expenses

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 3