O’Connor v. Merlo, 2020 ONSC 2531

COURT FILE NO.: FC-11-320-1 DATE: 20 20/06/19 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

RACHELLE O’CONNOR Applicant – and – GIUSEPPE MERLO Respondent

The Applicant, for herself Rebecca Rosenstock, for the Respondent

HEARD: October 7, 8, 10 and 11, 2019 WRITTEN SUBMISSIONS received October 31 and November 12, 2019

AMENDED REASONS FOR Decision

The text of the original Reasons for Decision was corrected on June 19, 2020. The description of the corrections is appended at pg. 32.

D. Summers J.

Introduction

[1] The parties, Ms. O’Connor and Mr. Merlo, are the parents of Antonino O’Connor-Merlo. He was 2½ years old when this case started. He is now 11. The dispute is primarily about the custody and access arrangements that are in his best interests.

[2] The applicant, Ms. O’Connor, brings her claims under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am. and the Family Law Act, R.S.O, 1990 c. F.3, as am. She seeks an order for sole custody, asks that Antonino have his primary residence with her and have access with the respondent father, Mr. Merlo. She also asks for orders imputing income to Mr. Merlo, awarding retroactive and ongoing child support including s.7 expenses, reinstating child support arrears, and authorizing her to obtain a passport and travel with Antonino without Mr. Merlo’s consent. Finally, she asks for a restraining order against Mr. Merlo.

[3] The respondent, Mr. Merlo, opposes the application. He seeks an order for joint custody and asks to expand his parenting time to include overnights. He does not contest primary residence nor paying child support based on his income.

[4] As I explain below, I find it is in Antonino’s best interests that Ms. O’Connor have custody and sole decision-making authority, however, she must first seek and consider Mr. Merlo’s input. Antonino’s primary residence shall remain with his mother and Mr. Merlo shall have parenting time on the first, third and fourth weekends of the month from Sunday morning at 10:00 a.m. until Monday morning when Antonino returns to school. If Monday is a statutory holiday or professional development day, Antonino shall remain with Mr. Merlo until 7:00 p.m. If there is a fifth weekend in the month, Antonino shall spend it with his mother.

[5] Since this case was heard, the world finds itself in the midst of the COVID-19 pandemic. Considering the public health directives including the potential need for a fourteen-day isolation period, I find it is in Antonino’s best interests that this schedule not take effect until Sunday, May 24, 2020. By Friday, May 22, 2020, each party shall provide the other with reasonable assurances that their household is following all COVID-19 public health directives and guidelines.

[6] Effective January 1, 2019, Mr. Merlo shall pay child support of $359 per month based on income of $40,000 and the Ontario tables for one child as well as his proportionate share of s.7 expenses.

[7] My order is set out in greater detail at the end of these reasons.

The Issues

[8] The issues to be determined are:

1. Is it in Antonino’s best interests to be in the sole custody of his mother or the joint custody of both parents?
2. What access schedule is in Antonino’s best interests?
3. Should income be imputed to Mr. Merlo, retroactively and prospectively?
4. What is the amount of ongoing child support?
5. Should Justice Sheard’s order rescinding child support arrears be set aside?
6. Should Ms. O’Connor be allowed to travel with Antonino without Mr. Merlo’s consent?
7. Should a restraining order be made against Mr. Merlo?

Background

[9] The parties lived together between October 2006 and June 2008. They separated one month before Antonino’s birth on July 6, 2008.

[10] Antonino has lived with his mother and his 16-year-old half-brother, Rayne, since birth.

[11] Ms. O’Connor is 47 years old and works for the Federal Government. She was previously employed by Fairmont Hotels.

[12] Mr. Merlo is 48 years old. His employment background is in the food and beverage business. He is currently the head chef in a local restaurant.

[13] Ms. O’Connor started this application in 2011. There have been multiple court appearances since then. Justice Labrosse’s temporary order dated June 16, 2014 is the access order in effect. It provides Mr. Merlo with parenting time during the first three weekends of the month on Saturday and Sunday from 10:00 a.m. until 4:00 p.m. No interim custody order was ever made. Justice Labrosse further ordered Mr. Merlo to pay fifty percent of Antonino’s summer camp costs upon proof of payment from Ms. O’Connor.

[14] Justice O’Bonsawin’s temporary order dated September 21, 2017 requires that Mr. Merlo pay child support of $283 per month. At the time of trial, no arrears were owing. That has not always been the case.

[15] A lack of respect for parenting time has been an issue for many years. Each party blames the other.

Custody and Decision-Making

Ms. O’Connor’s Position

[16] Ms. O’Connor submits that it is in Antonino’s best interests to maintain his primary residence with her and that she be awarded sole decision-making authority. She contends that she has been the parent responsible for Antonino’s well-being since birth and says she alone made all decisions. She says she and Mr. Merlo do not talk; they converse by text only. She submits that respectful communications are impossible.

[17] In addition to Ms. O’Connor’s testimony, the court heard from five witnesses on her behalf: her mother, Wendy O’Connor; her partner, Raymond Love; her friend, Kara Drover, and her former lawyer, Ms. Lendor. She also called Danica Djuric, a former employee of Mr. Merlo. Ms. Djuric testified to the difficulty she had collecting her pay from him. I was not assisted by her evidence. Although I found Ms. Djuric credible, her past business dealings with Mr. Merlo were irrelevant to the issues before the court.

Mr. Merlo’s Position

[18] Mr. Merlo argues that joint custody is in Antonino’s best interest. He asserts that he and Ms. O’Connor can communicate. He said they did so for several years following separation and can do so again. He contends that he was actively involved in Antonino’s life until Ms. O’Connor began excluding him in 2011. Mr. Merlo says that without joint custody, she will continue to discount his parental role, withhold information, and cut him out of the important decisions that impact Antonino’s life.

[19] Mr. Merlo did not call any other witnesses.

The Law

[20] The best interests of the child is the only test to be applied in custody and access disputes. Section 24(2) of the Children’s Law Reform Act sets out the best interest factors that the court must consider. The list is non-exhaustive.

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;

(c) the length of time the child has lived in a stable home environment;

(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.

Analysis

[21] Ms. O’Connor says she has been the parent to take responsibility for Antonino’s day-to-day needs as well as his educational, medical and psychological needs – to find and forge relationships with professionals, and to work with them to make the necessary decisions. She claims Mr. Merlo acquiesced and made no effort to participate or inform himself.

[22] After separation in 2008, Ms. O’Connor moved in with her mother, Ms. Wendy O’Connor. A month later, Antonino was born and the three of them lived together for the next five years. Ms. O’Connor described her mother as a parent to Antonino during those years. She says that Mr. Merlo’s participation in Antonino’s care was intermittent at best. She said his intentions were good but his follow-through poor. Both Ms. O’Connor and her mother said Mr. Merlo was unreliable, often showed up late for access, or not at all.

[23] In 2013, Antonino was diagnosed with attention-deficit hyperactivity disorder (ADHD) and oppositional-defiant disorder (ODD). Individual education plans were created, and he attended two schools that offered behavioural intervention programs. Antonino’s diagnostic profile was updated in 2017 by Dr. David Collins, a neuropsychologist, who conducted a psychological assessment for educational purposes. Dr. Collins’ report described Antonino’s profile as consistent with specific learning disorder with severe reading impairment, moderate unspecified anxiety disorder, moderate to severe ADHD, and moderate ODD. One of the many strategies he recommended for Antonino was to maintain a well-established routine and a high degree of structure.

[24] According to Ms. O’Connor, Antonino is doing well compared to where he was in 2017, however, his behavioural and academic struggles continue. She testified that it has taken a daunting amount of time and work to get Antonino to where he is today including weekly meetings with his principal. She says the key to Antonino’s success is knowing what to expect and when. His teachers report that his social skills and emotional control have improved but his academic challenges continue. The behavioural changes noted by his school align with Ms. O’Connor’s evidence that, unlike before, Antonino now receives social invitations and enjoys play dates, birthday parties and activities with other children.

[25] Ms. O’Connor’s primary parenting concerns relate to Antonino’s behavioural and learning challenges. She contends that Mr. Merlo lacks commitment to access and is unreliable in a way that undermines Antonino’s best interests, triggers his anxiety and sparks oppositional behaviour. She says that structure and predictability are crucial to Antonino’s ability to learn, manage his emotions and succeed in life.

[26] Mr. Merlo testified that he saw Antonino every day when he was a baby. He said he was there for bathing and feeding and occasionally, stayed the night to help with Antonino’s care. He asserts that he had a high degree of involvement until 2011 when Ms. O’Connor began to withhold information and exclude him. The evidence indicates that Mr. Merlo continued to attend some of Antonino’s medical appointments and school meetings for the next few years. He says the situation worsened in 2015 and that Ms. O’Connor’s willingness to include him in Antonino’s life changes when a significant other comes into either of their lives. He testified that he remains eager to be involved. He does not say that Ms. O’Connor’s decisions have been contrary to Antonino’s best interests.

[27] Mr. Merlo’s love for Antonino is obvious. He said, “every father thinks his kid is the best” and described his son as “the joy of his life – a warm, wonderful little boy” who can be a little timid at first but gets along with everyone. Mr. Merlo said Antonino is bright, funny, curious, and generous; “he would give you the shirt off his back.” Antonino’s maternal grandmother, Ms. Wendy O’Connor, described Antonino in similar terms adding that he is athletic, he can be anxious and likes to keep tabs on everyone and know where they are.

[28] Mr. Merlo was reluctant to acknowledge Antonino’s learning challenges. He eventually said that he was aware of some educational struggles but does not believe Antonino has special needs. Mr. Merlo’s testimony in this regard is at odds with the psychological assessment and school reports. He also said that he had not experienced the disrespectful and oppositional behaviour from Antonino that Ms. O’Connor described except for one incident in the summer of 2019. Mr. Merlo did not elaborate on this episode in his testimony, however, the text messages between the parties told the story. Mr. Merlo blamed Ms. O’Connor for Antonino’s behaviour, alleging that he could only have learned such conduct and language in her household. Ms. O’Connor, in turn, blamed Mr. Merlo for Antonino’s tantrum alleging that he repeatedly disappointed Antonino and this time was the result of one too many broken promises. Based on Mr. Merlo’s texts, Antonino’s outburst was profane, aggressive, and occurred in a public setting. Almost immediately, Mr. Merlo texted Ms. O’Connor to come and get him. I accept Ms. O’Connor’s evidence that Antonino has special needs.

[29] Between them, the parties filed hundreds of pages of text messages relating to access from 2013 to 2019. The content was rarely productive or pleasant. Mr. Merlo’s texts to Ms. O’Connor usually started as inquiries into Antonino’s whereabouts – why he was not at the drop-off location, why she was withholding access, why he had not been told about a certain event or activity, or why he had been unable to reach Antonino. Ms. O’Connor’s replies, if any, were often dismissive and uninformative. Mr. Merlo would frequently react by either calling her or sending further texts. Their exchanges would deteriorate to insults, swearing, and name calling. I am satisfied that both parties contributed to this dynamic and each bears responsibility for the now longstanding refusal or inability to communicate effectively.

[30] Ms. O’Connor failed to provide Mr. Merlo with important information about Antonino. Broadly, she said she was not accustomed to discussing Antonino’s needs with Mr. Merlo. She said he was not involved and because of the insults over the years, the thought of communicating with him was difficult. More specifically, she conceded that she did not tell Mr. Merlo about Antonino changing schools. She asserted that he was never interested in Antonino’s education and reasoned that the child likely told his father anyway. Ms. O’Connor also admitted her failure to tell Mr. Merlo of Antonino’s educational assessment in 2017. The only explanation she offered was that she paid for it. There was also persuasive evidence that Ms. O’Connor waited until the very last minute to advise Mr. Merlo of Antonino’s communion despite his many attempts to obtain information. She further confirmed not providing Mr. Merlo with copies of Antonino’s hockey and soccer schedules and said that Antonino probably told his father in any event.

[31] Ms. O’Connor insists that she does not depend on Antonino to relay information to his father. In addition to her testimony above, there is significant evidence that indicates both parties put Antonino in the untenable position of message carrier. The texts between Mr. Merlo and Ms. O’Connor are replete with examples of what each told Antonino in relation to access with expectation that he would communicate it to the other. Relying on their 11-year-old son in this way was wrong. I am also satisfied that it contributed to misunderstandings and conflict that might have been avoided had they simply communicated directly. This practice must stop immediately.

[32] I find that Mr. Merlo and Ms. O’Connor have moved well past the point where they might reasonably be expected to rise above their personal animosity and communicate in a way that would allow them to make timely decisions together in Antonino’s best interests. Their pattern of discourse is toxic and too well entrenched to expect genuine change, even for Antonino’s sake. In Kaplanis v. Kaplanis, [2005] O.J. No. 275, our Court of Appeal said:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.

[33] I find it is in Antonino’s best interest that Ms. O’Connor be the sole-decision maker. In the absence of persuasive evidence that the parties can communicate effectively, there is a significant risk that joint custody would increase the conflict in Antonino’s life. However, the evidence also convinces me that Ms. O’Connor will continue to exclude Mr. Merlo from important information and participation in Antonino’s life. Therefore, unless there is an emergency, Ms. O’Connor must consult with Mr. Merlo, in writing, and consider his opinion before making any significant decision relating to Antonino’s health, education, religious upbringing, general welfare and well-being, including his extracurricular activities. Thereafter, she shall advise Mr. Merlo of the final decision within 48 hours of making it.

[34] It is also incumbent on the parties to take all reasonable steps to improve their ability to communicate about Antonino. He deserves better than texting between his parents. That medium has not served him well to date. Among other drawbacks, texts are rife with potential for misunderstanding, for being socially disruptive, and for creating expectations of an immediate response, be it in the mind of the sender or the receiver. For this reason, all future communications between the parties regarding Antonino shall be in writing, via email, using the parenting application known as Our Family Wizard. The parties shall use the version that includes the tone meter.

Access Difficulties

[35] Access is riddled with conflict and has been for many years. The situation became further complicated in 2017 when Mr. Merlo lost his driver’s licence as a result of multiple unpaid fines and driving infractions, non-criminal in nature. Since then, he has relied on public transit.

Ms. O’Connor’s Position

[36] Ms. O’Connor blames Mr. Merlo for the turmoil around access. She alleges that he is irresponsible, repeatedly shows up late, does not at all, or makes last-minute changes that he expects her to accommodate. According to Ms. O’Connor, the uncertainty and disappointment causes anxiety for Antonino and triggers oppositional behaviour. She says that Mr. Merlo does not understand how his actions impact Antonino and wants him to take a parenting course. Ms. O’Connor also believes that Mr. Merlo deliberately disregards pick-up and drop-off times to create havoc for her.

[37] At the outset of trial, Ms. O’Connor sought to reduce Mr. Merlo’s access saying she hoped that fewer visits would result in compliance. However, mid-trial she submitted a second draft order proposing that the current access schedule continue with the requirement that Mr. Merlo confirm the night before by 9:00 p.m. She seeks an order that the drop-off location for access be at the Chapters store in Ottawa’s Byward Market and if Mr. Merlo is more than 20 minutes late without notice and reasonable explanation, he foregoes access. Pick-up is to be done at Chapters in the east end of the city. Ms. O’Connor’s proposal for summer access is one week in July and one week in August, day visits only, with the weeks to be chosen by June 1 each year. For Christmas, she asks that access take place before or after Christmas Day. She also says that as Antonino gets older, he has more athletic and social activities that should be accommodated.

Mr. Merlo’s Position

[38] Mr. Merlo blames Ms. O’Connor for access difficulties. He submits that she interferes with access and has, on many occasions, withheld it entirely. Mr. Merlo says Ms. O’Connor seldom follows Justice Labrosse’s access order such that he never knows whether he will see Antonino, or not. He wants an access schedule that will be honoured and that will minimize contact with Ms. O’Connor.

[39] Mr. Merlo proposes access on the first, third and fourth weekends of the month on Saturdays from 9:00 a.m. until 4:00 p.m. and from Sunday at 10:00 a.m. until Monday morning when he will drop off Antonino at school. Sunday and Monday are his days off. Otherwise, he works evenings. Mr. Merlo proposes that he pick up Antonino from Ms. O’Connor’s residence and if Antonino is returning to her residence, she is responsible for pick up from Mr. Merlo’s residence. He proposes that holidays be shared and states that he will take Antonino to his scheduled activities during his parenting time.

Analysis

[40] Ms. O’Connor admits that Antonino loves his father. She agrees that it is in his best interests to have access, if it is meaningful and can be accommodated. She also says she is amenable to Mr. Merlo bringing Antonino to his activities, if he is on time. Ms. O’Connor agreed that Antonino would be happy to have his father at his activities but says it will be harder for him to focus on breaks because he will want to see his dad rather than listening to his coach. I regard this concern as a sign of the likely importance to Antonino of having his father at his games and activities. Moreover, if Mr. Merlo attends consistently, it is reasonable to believe that with time, his presence will be less and less distracting to Antonino.

[41] Ms. O’Connor claims Mr. Merlo is irresponsible and unreliable. Her primary concern is that he does not show up when he is supposed to, and Antonino suffers the consequences. She repeats that he thrives on knowing what to expect and says that as he gets older, it is even harder on him when his father does not show up or attempts a last-minute change. She says his anxiety spikes, he screams and swears, then remorse sets in. She worries that Antonino is growing up with the scars of disappointment. Ms. O’Connor’s partner, Raymond Love, testified that he helps with access pick up and drop off from time to time and claims that Mr. Merlo is always late. Ms. O’Connor and her mother both say that Antonino will no longer leave the house until he knows his father has arrived, or will soon arrive, at their meeting point.

[42] Mr. Merlo admits that he has been late, on occasion. He says sometimes the bus is behind schedule and if so, he texts Antonino to let him know. He claims that he has also waited on Ms. O’Connor, many times. Mr. Merlo testified that he never knows when he will see Antonino. There have been occasions when access has not been confirmed and Antonino has contacted him at the last minute to say that he is available to meet, but Mr. Merlo cannot get there at the stated time. He also says there have been many times when he learned at the last minute that Ms. O’Connor had planned something else for Antonino during his parenting time such as a play date, or a trip to Tremblant. He says it has been hard for him to plan activities for Antonino so mostly they go to museums, movies, the park, the mall, or they have brunch somewhere. Mr. Merlo testified that he and Antonino have a close relationship. He says Antonino is excited to see him, grabs his hand as they walk and does not let go.

[43] Mr. Merlo agrees that Antonino can be anxious around changes in the access schedule. He claims it is because the child worries that his mother will be angry. According to Mr. Merlo, it was he and Antonino who came up with the strategy that Antonino not leave his mother’s house for access until they texted each other to confirm their meeting place and time. He says that is how they decided to mitigate the stress and uncertainty around access.

[44] Not only do the text messages between the parties illustrate their inability to communicate, they also lay bare the conflict that surrounds access. There are dozens and dozens of messages from Mr. Merlo to Ms. O’Connor asking to see or speak to Antonino, pointing out that it is his parenting time. Although Ms. O’Connor denies it, the evidence indicates that there have been long periods without access. As recently as the winter of 2019, there is evidence that Ms. O’Connor withheld access for approximately two months. The summer of 2019 was also problematic when it appears that weeks went by without access. I am further satisfied that Antonino has been denied the opportunity to share special days and events with his father over the years such as Christmas and birthdays, including the celebrations for paternal relatives, young and old. More than once, when asking to exercise his access, Mr. Merlo was told, “call my lawyer.” On other occasions, Ms. O’Connor replied calling him irresponsible, a liar, and a deadbeat who does not pay his child support. Mr. Merlo also engaged in name calling and profanity that was extreme at times.

[45] One instance of Ms. O’Connor’s disregard for access was particularly telling. She left Ottawa with Antonino to spend March Break at Tremblant without advising or consulting Mr. Merlo. Her actions impacted two access weekends. Mr. Merlo was told Antonino would be back the following Sunday if he wanted to see him. That morning, Ms. O’Connor said to expect them back in town around 1:00 p.m. When they did not arrive, Mr. Merlo sent further texts but did not receive a reply. Sometime that evening, Ms. O’Connor messaged to say that they had just arrived at the house as she decided to stop enroute to buy new sneakers for Antonino.

[46] Although I am satisfied that Mr. Merlo has not always been reliable and available to Antonino, I also find that Ms. O’Connor has withheld access or changed the schedule when it was convenient for her to do so. Each party’s behaviour indicates a high level of disrespect for the other as a parent, for Antonino’s best interests, and for court orders. With a view to ensuring compliance with the access schedule going forward, I will remain seized for the next eighteen months to deal with access breaches only.

[47] I am also satisfied that occasionally, Ms. O’Connor has wrongly conflated access issues with Mr. Merlo’s failure to pay child support and has let that interfere with her obligation to facilitate access. This perspective was also evident in her partner’s testimony. Mr. Love asserted that a child should be encouraged to see his father if he is a role model, pays support, shows up on time, “does quality stuff with the child, doesn’t bad mouth the mother, and doesn’t bad mouth me.” Mr. Love testified that Mr. Merlo’s failure to arrive for access on time frustrates him to no end and creates tension between he and Ms. O’Connor. He also referred to the stress caused by the constant texts from Mr. Merlo to Ms. O’Connor saying no one should have to put up with that harassment. He said he cannot accept the way Mr. Merlo conducts himself and wants nothing to do with him. He claims that he tries to stay out of the dispute between the parties, however, the evidence suggests otherwise. Mr. Merlo produced many text messages between he and Mr. Love. Overall, their communications were aggressive, accusatory and inappropriate. Mr. Merlo is Antonino’s father and Mr. Love is a significant person in Antonino’s life. For Antonino’s sake, all the adults in his life must put aside their personal feelings, treat each other with respect, and minimize the stress and conflict around access.

[48] Aside from overnight access being a change from status quo, Ms. O’Connor’s reason for opposing it was not clear. She did not always argue against it. Master MacLeod’s (now Justice MacLeod) temporary order dated January 11, 2012 provided Mr. Merlo with alternate weekend access from Friday after daycare until Sunday evening as well as mid-week overnight access the following week when Antonino was just 3 years old. His order was made on consent.

[49] There is no evidence that Mr. Merlo is unable to care for Antonino. Nor is there evidence to suggest that it is in Antonino’s best interest to have daytime access only. Why access changed from alternate weekends to six hours on Saturdays and Sundays in 2014 was not well explained. Based on the evidence, the change appears to coincide with the downturn and closure of Mr. Merlo’s business and loss of income.

[50] Mr. Merlo testified that he currently lives alone in a spacious one-bedroom condo with a pull-out sofa and says he will move to a larger space if he knows he will have overnight access with Antonino. He agrees that Antonino’s activities are important and says he can and will ensure attendance, whether by bus or by car, provided he has adequate notice of time and place. This can be addressed by ensuring that Mr. Merlo is provided with copies of all activity schedules.

[51] Ms. O’Connor has not persuaded me that it would be in Antonino’s best interests to continue the parenting schedule as it presently exists. That timetable was put in place when Antonino was 6 years old. He is now 11. His developmental needs and abilities have changed. I find it is in Antonino’s best interests to have more meaningful periods of time with his father that includes overnight access. Therefore, on the first, third and fourth weekends every month, Mr. Merlo shall have Antonino in his care from Sunday at 10:00 a.m. until Monday morning when he returns to school. If Monday is a statutory holiday or a professional development day, access shall be extended to Monday at 7:00 p.m. This schedule maximizes contact between Antonino and his father in a way that considers Mr. Merlo’s work week and minimizes contact between the parties. It also allows Mr. Merlo to plan activities for Antonino and provides Antonino with weekend time with his mother as well as his friends. Mr. Merlo was optimistic that his driver’s licence would soon be reinstated despite the large amount owing in unpaid fines. If he does not regain his licence and has overnight access, he says Antonino’s school is a ten-minute car ride and he will take him by cab.

[52] I am satisfied that this regular parenting schedule will meet Antonino’s need for predictability and routine provided the parties comply, as they are required to do. Occasionally, the need for a change will arise but that should be the exception, not the rule, and absent an emergency, a minimum of 12 hours’ notice should be provided. More importantly, both parties must strive to bring their best judgment to bear and view any request for change through the lens of Antonino’s best interests rather than the animosity that currently defines their relationship. It is also my view that Ms. O’Connor and Mr. Merlo could both benefit from a course about parenting in high conflict situations to better understand how to break their pattern of behaviour and the risks to Antonino if they continue as they have in the past.

[53] Ms. O’Connor argues that Antonino should not know the access schedule. I disagree and find that argument at odds with the emphasis she placed on consistency and routine. How can Antonino know what to expect and from whom, if he does not know the schedule? Each party shall provide Antonino with a calendar in their respective homes blocking out the access schedule. It falls to both parties to ensure the schedule is followed and that Antonino is not disappointed.

[54] Mr. Merlo denies Ms. O’Connor’s allegation that he had Antonino in the car and drove while his licence was under suspension. Considering Mr. Merlo’s evidence around unpaid fines and his explanation regarding past suspensions, I find it reasonable for Ms. O’Connor to be concerned about the possibility. Therefore, Mr. Merlo shall provide Ms. O’Connor with a photocopy of his driver’s licence, front and back. This information will allow her to determine the status of his driver’s licence by using the Ministry website.

[55] When Antonino was much younger, he saw his father on Christmas and other special days. Ms. O’Connor submits that it would be difficult and anxiety provoking for Antonino to now be separated from his brother on Christmas. However, in my view, it is also important that Antonino have the chance to see his father on Christmas Day. Sharing the period from December 24 to December 26 allows Antonino to spend time with his father as well as his mother and brother.

Antonino’s Views and Preferences

[56] Regrettably, the Office of the Children’s Lawyer was not involved in this file. At 11 years of age, independent evidence of Antonino’s views and preferences would have assisted the court. I was, however, provided with many pages of text messages between Antonino and Mr. Merlo. The messages reveal much love and affection. They also indicate that Antonino looks forward to seeing his dad and experiences considerable anger and frustration when he perceives his mother is interfering.

Should income be imputed to Mr. Merlo?

[57] For purposes of child support, Ms. O’Connor seeks to impute income to Mr. Merlo retroactive to separation. She submits that he mismanaged his business, made poor choices, and did not work to his abilities over the years. She also argues that his income does not correspond to his lifestyle. She did not say how much income should be imputed to Mr. Merlo in any given year.

[58] Mr. Merlo opposes this relief. He provided his income tax information for the years 2012 to 2018 and points to his line 150 income as well as his consent over the years to base support on imputed income of $30,000.

The Law

[59] The jurisdiction to impute income is found in s. 19 of the Child Support Guidelines, O. Reg. 391/97, as amended. Subsection 19(1) (a) is a discretionary provision. It allows the court to impute income where a spouse is intentionally under-employed or unemployed unless that employment status is required by the needs of a child in that spouse’s care or the reasonable educational or health needs of the spouse. The amount of income that the court can impute is the amount considered appropriate in the circumstances.

[60] The Ontario Court of Appeal decision in Drygala v. Pauli, is the leading case on imputing income under that section. There, the court set out three questions to be answered. The first is whether the spouse is intentionally underemployed or unemployed. The onus of proof at this stage rests with the spouse making the claim. To make the determination, the court must consider whether the spouse’s employment status is voluntary and reasonable. Intentionally means voluntary, choosing to earn less than one is capable of earning. A finding of bad faith is not necessary. If the answer to the first question is no, the inquiry ends there.

[61] If the answer to the first question is yes, the second question is whether the payor spouse’s employment status is required by his or her reasonable education or health needs, or by the needs of a child in that spouse’s care. At this stage, the onus of proof shifts to the unemployed or under-employed spouse. If none of the exceptions apply, the court moves to the third question and decides whether to impute income, and if so, in what amount. This step is a discretionary exercise that must be grounded in the evidence and based on what is reasonable in the circumstances. The factors to be considered include age, education, experience, skills and health of the parent.

Analysis

[62] For the years between 2012 and 2018, Mr. Merlo’s line 150 income is set out below:

2012 $13,593 (net business income before tax) 2013 $7,387 (net business income before tax) 2014 $6,700 (net business income before tax) 2015 $0.00 2016 $8,607 (social assistance) 2017 $8,105 (social assistance) 2018 $12,220 (social assistance + employment income)

[63] Mr. Merlo was 37 years old and already trained as a chef when Antonino was born. Once he became a father, he was obliged to earn income commensurate with his abilities and pay child support accordingly. But for Mr. Merlo’s statement that both he and Ms. O’Connor were in the restaurant business when Antonino was a baby, there is no evidence to establish that he was under-employed between 2008 and 2011. Between 2012 and 2014, Mr. Merlo’s income was earned running his own restaurant until it failed. Considering his employment skills in relation to meagre earnings, it was unreasonable for him to persist with that venture rather than look for employment elsewhere, whether as a chef, or a server, or a position in an unrelated field. Consequently, I find that Mr. Merlo was voluntarily under-employed during those years.

[64] Mr. Merlo testified to further failed business ventures between 2014 and 2018. Although he said that he also looked for work, he did not reference the number of applications submitted, the nature of the positions he applied for, any interviews he may have had, or responses received from potential employers. For the reasons stated above in relation to Mr. Merlo’s income between 2014 and 2018 and his obvious employment skills, I am satisfied that he was intentionally unemployed. He found his current position in late 2018.

[65] Mr. Merlo did not provide any evidence to explain his under-employment from 2012 to 2014 but offered two explanations for his subsequent unemployment. He said he cared for his terminally ill father from the fall of 2014 until December 2015 when he passed away. This, however, is not a satisfactory reason for unemployment under s.19(1)(a) of the Guidelines. Mr. Merlo then said there was a long period of time when he suffered extreme bouts of vertigo that interfered with his ability to work but did not provide any medical evidence of this diagnosis. I am unable to find that Mr. Merlo’s ability to work was hampered by a medical condition.

[66] Having found no acceptable reason for Mr. Merlo’s voluntary underemployment and unemployment, the third question I must decide is whether to impute income and if so, what amount is reasonable in the circumstances. The only evidence that Ms. O’Connor provided related to her contention that Mr. Merlo’s lifestyle did not correspond with his income. In this regard, she filed hundreds of pages of his bank statements for the period between 2013 and 2019 but did not offer any analysis of the entries to support her position. Nor was there evidence of the amount that Mr. Merlo might reasonably have been expected to earn other than the $30,000 amount that was ordered on consent starting in 2012. I find no evidentiary basis to impute income to Mr. Merlo beyond that amount.

[67] With respect to 2019, Mr. Merlo testified that his monthly income fluctuated between $3,500 and $3,700 ($42,000 and $44,000 annually). His April 2019 financial statement indicated earnings of $38,400 annually. His October 2019 financial statement showed that his annual rate of pay had increased to $42,000. Based on the whole of this evidence, I fix his 2019 annual income at $40,000.

Ongoing Child Support

[68] Mr. Merlo currently pays child support of $283 per month under Justice O’Bonsawin’s order dated September 21, 2017. Despite a chronic history of arrears, his payments were up to date at the time of trial. Based on his 2019 income at $40,000, I order that Mr. Merlo pay child support of $359 per month effective January 1, 2019.

[69] Ms. O’Connor also seeks an order that Mr. Merlo pay his proportionate share of Antonino’s s.7 expenses. She provided evidence that, in addition to attending summer camps, Antonino plays hockey and soccer. In 2019, the cost of those activities totaled $3,050. Based on Mr. Merlo’s income of $40,000 and her 2018 income of $46,885, his proportionate share of s.7 expenses for 2019 is 46%. As a result, he shall pay an additional $117 per month for the period between January 1 and December 31, 2019. Commencing January 1, 2020, Mr. Merlo shall pay his proportionate share of Antonino’s s.7 expenses within 14 days of receiving a copy of the invoice from Ms. O’Connor and proof of payment. Starting May 15, 2020, Mr. Merlo shall not be expected to pay his proportionate share unless he consents to the expense, in advance. His consent is not to be unreasonably withheld.

[70] I reserve the right to adjust the amounts above upon receipt of each party’s 2019 income tax return and notice of assessment. Mr. Merlo and Ms. O’Connor shall supply copies to the court and each other as soon as the documents become available.

Should child support be awarded retroactive to the date of separation?

[71] Ms. O’Connor seeks child support retroactive to the date of separation. The leading case on this issue is D.B.S v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 SCR 231. Although DBS, as it is commonly known, was decided under s. 15.1 of the Divorce Act, it is equally applicable to retroactive child support claims under the Family Law Act.

[72] DBS requires that the court consider two guiding principles and four factors when deciding whether to exercise its discretion to award retroactive support. The first principle is that both parents have an obligation to ensure proper support is paid for the child’s benefit at the time it is due. The second principle requires that the court balance the support payor’s interest in the certainty of the status quo with the need for fairness and flexibility. The factors to be considered are whether the recipient parent supplied a reasonable excuse for his/her delay in seeking support, the conduct of the payor parent, the circumstances of the child, and the potential hardship to the payor of a retroactive award.

[73] The evidence from both parties is that Mr. Merlo did contribute to Antonino’s support between his birth in 2008 and January 2012 when the first support order was made. Neither party led evidence to establish how much was paid voluntarily or how much should have been paid during this time. Mr. Merlo also said that he made many purchases for Antonino and gave Ms. O’Connor additional funds when asked. Ms. O’Connor acknowledged receiving some support but said payments were inconsistent and came in “dribs and drabs”. There is no evidence that Ms. O’Connor put Mr. Merlo on notice that she was dissatisfied with their casual support arrangement prior to starting her application in 2011. Nor is there evidence that Mr. Merlo preferred his own interests during that period over contributing to Antonino’s support. Consequently, I am not persuaded that it would be a proper exercise of my discretion to order retroactive child support for the period between 2008 and 2011 and decline to make that order.

[74] Between 2012 and trial, three orders for monthly child support were made, on consent, and based on imputed income of $30,000. On June 16, 2014, Justice Labrosse ordered Mr. Merlo to pay 50% of Antonino’s summer camp costs within 14 days of receiving proof of payment. Ms. O’Connor admitted that she did not provide receipts to Mr. Merlo for camp expenses or any other s.7 costs that she incurred over the years. Nor, with the exception of 2019, did she present evidence at trial of amounts that she paid or state the amount that she believed she was owed. I also observe that the texts messages exchanged between the parties confirm at least two occasions when Mr. Merlo sought to pay hockey and dental expenses, and Ms. O’Connor did not respond. The evidence provided does not support a retroactive award.

Should Justice Sheard’s order rescinding child support arrears be set aside?

[75] Ms. O’Connor seeks to set aside Justice Sheard’s order dated March 21, 2017 that varied child support to $0.00 and rescinded child support arrears effective August 1, 2014. Ms. O’Connor was not present in court that day, nor had she filed responding materials. She says she did not receive Mr. Merlo’s materials until the day after the motion when they arrived in the mail and says service was improper. In addition, Ms. O’Connor points to the history of the litigation and submits that it was unlike her not to attend court.

[76] Mr. Merlo says that he served Ms. O’Connor in accordance with the Family Law Rules and also sent a copy of the materials to her former solicitor as a precaution.

The Law

[77] The Ontario Court of Appeal in Gray v. Gray, 2017 ONCA 100, held that the jurisdiction to change an order under Rule 25(19) of the Family Law Rules, Ont. Reg. 114/99 includes the jurisdiction to set it aside. The rule states that the court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

Analysis

[78] Mr. Merlo’s affidavit of service indicates that he served Ms. O’Connor by mail on February 14, 2017. She says she did not receive the package until March 22, 2014 and alleged that Mr. Merlo altered his affidavit of service despite the Canada Post envelope in her possession that was date stamped the 14 th . There was no credible evidence to support Ms. O’Connor’s allegation that Mr. Merlo falsified his affidavit.

[79] According to Mr. Merlo, he also provided a copy of his motion materials to Ms. O’Connor’s former lawyer, Ms. Lendor, by fax, on February 21, 2017. Ms. Lendor testified that she did not receive the documents but agreed that the transmission report confirmed delivery to her fax number. She also said that to her knowledge, her fax machine was working properly that day. She was unable to offer a reasonable explanation why she did not receive the documents. I note, however, that Mr. Merlo’s evidence did not include a copy of the fax cover sheet indicating the documents that were faxed on February 21, 2014 and also observe that the transmission report confirms delivery of 10 pages whereas the motion material entered into evidence consisted of 35 pages. No explanation was offered around this discrepancy. As a result, I cannot conclude, on the balance of probabilities, that the fax received in Ms. Lendor’s office that day was Mr. Merlo’s motion material.

[80] Nevertheless, I am satisfied that Mr. Merlo served Ms. O’Connor properly in accordance with the Family Law Rules but I also accept Ms. O’Connor’s testimony that she did not receive the materials until the day after the motion was heard. As a result, I find that she was unable to be present in court that day and rule 25(19)(e) applies. Considering the history of this case, I also find it improbable that Ms. O’Connor would deliberately ignore Mr. Merlo’s motion to rescind arrears and vary child support to $0.00, had it come to her attention in advance, only to bring the matter back into court within weeks for permission to proceed with a motion to set aside the order.

[81] In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 at paras. 47 to 51, our Court of Appeal stated that, “the court’s ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order.” Making that determination requires the court to consider certain factors in the exercise of its discretion to set aside the judgment, or not. The factors are not rigid rules nor is it necessary to be satisfied on all points. To reach a just outcome, what is required is a contextual analysis that considers the particular circumstances of each case. The considerations are:

1. Whether the responding party moved promptly after learning of the default judgment;

2. Whether the responding party has a plausible excuse or explanation for the failure to respond and comply with the Rules;

3. Whether the facts establish that the responding party has an arguable case on the merits;

4. What is the potential prejudice to the responding party if the default order is not set aside and what is the potential prejudice to the moving party if the order is set aside;

5. What is the effect of the order made by the court on the overall integrity of the administration of justice?

I turn now to consider each of these factors.

Did Ms. O’Connor move promptly after learning of Justice Sheard’s order and provide a plausible excuse or explanation for the failure to respond?

[82] When Ms. O’Connor learned of Mr. Merlo’s motion on March 21, 2017, she acted promptly, re-hired Ms. Lendor, and brought the matter into procedural motions court on April 11, 2017 for leave to proceed before a case conference on the issue of setting aside Justice Sheard’s order. Master Champagne (now Justice Champagne) granted leave and a date was provided. Ms. O’Connor, however, did not proceed with her motion and did not raise the issue of Justice Sheard’s order again until the settlement conference in May 2018 when Justice Shelston ordered it reserved to the trial judge. Neither Ms. O’Connor nor Ms. Lendor offered a plausible explanation for not proceeding with the motion in a timely way after leave was granted.

Did Ms. O’Connor have an arguable case on the merits?

[83] During the time that arrears accumulated, Mr. Merlo’s income fell below the minimum amount upon which support was payable under the Child Support Guidelines. It was on this basis that Justice Sheard rescinded the arrears and varied support to $0.00. Ms. O’Connor’s countervailing argument is to seek to impute income on grounds of intentional unemployment or underemployment. My findings above confirm the merit of her case on this point.

What is the potential prejudice to Ms. O’Connor if the default order is not set aside vs. the potential prejudice to Mr. Merlo if the order is set aside?

[84] The effect of Justice Sheard’s order was to cancel child support arrears of approximately $11,500. In addition, the variation of support to $0.00 resulted in foregone support of $1,698. If the order is not set aside, the potential prejudice to Ms. O’Connor is self-evident. The prejudice to Mr. Merlo is the return of debt that he thought had been erased and thus, the corresponding loss of certainty in the conduct of his financial affairs.

What is the effect of the order made by the court on the overall integrity of the administration of justice?

[85] Considering the whole of the evidence, I am satisfied that setting aside Justice Sheard’s order is the only just result. In this regard, I specifically consider the legal and moral imperative that both parents provide financial support for their child in accordance with their abilities and my conclusion above that Mr. Merlo was under-employed and unemployed and that his consent to imputed income of $30,000, should stand.

Passport and International Travel

[86] Ms. O’Connor asks that she be allowed to obtain a passport for Antonino and travel with him without Mr. Merlo’s consent. She says she wants the right to travel with Antonino when the opportunity arises. She spoke about hockey tournaments in the U.S., as one example, however, there was no evidence of Mr. Merlo’s failure to cooperate in relation to travel. I decline to make the order sought.

Restraining Order

[87] Ms. O’Connor seeks a restraining order against Mr. Merlo. She obtained permission on January 31, 2014 to amend her pleadings to seek this relief. She did not do so, nor does it appear that she raised the issue again until trial. Nevertheless, I consider her request on the merits.

[88] Section 46 of the Family Law Act provides the court with jurisdiction to restrain a former spouse from contacting the moving party if he or she has reasonable grounds to fear for their own safety or for the safety of any child in their lawful custody. The courts have interpreted this section to include fear that is entirely subjective so long as it is reasonable and legitimate. It includes fear for psychological safety as well as physical safety. See Zhao v. Yang, 2015 ONCJ 408.

[89] Ms. O’Connor testified to receiving threats from Mr. Merlo, prior to separation, that if she ever left him, she would wear “concrete boots and swim with the fish”. Ms. Wendy O’Connor and Kara Drover both said they heard Mr. Merlo say these words. According to Wendy O’Connor she could hear him yelling it through the phone. Kara Drover’s evidence on this point lacked context and left the impression that it has been rehearsed insofar as she provided the answer using exactly the phrase used by Ms. O’Connor before the question was complete. As a result, I attach no weight to Ms. Drover’s evidence on this issue. Ms. O’Connor also testified to her participation in a Violence Against Women program between 2010 and 2012 but acknowledged that her current concern was Mr. Merlo’s repeated texts and phone calls. She said they represent “a big part of her request” for a restraining order. She says she only wants email communications with him. She does not say that she is afraid of Mr. Merlo or that she fears for her safety. For his part, Mr. Merlo says he has no interest in communicating with Ms. O’Connor for any reason other than Antonino and says he only calls when trying to contact Antonino.

[90] I decline Ms. O’Connor’s request for a restraining order. She has not say that she currently fears for her safety. Her evidence of threats pre-dates 2008 when she and Mr. Merlo separated. Her failure to take any steps toward obtaining a restraining order since then, underscores my conclusion that she has no reasonable fear. However, I am satisfied that the volume of texts received from Mr. Merlo is inappropriate and must stop.

My Order

[91] For the reasons given, I make the following order:

1. Ms. O’Connor shall have sole custody of the child, Antonino O’Connor-Merlo, born July 6, 2008. His primary residence shall be with her.
2. Unless there is a medical emergency, all major decisions for Antonino shall be made by Ms. O’Connor in consultation with Mr. Merlo. She shall seek and consider his opinion, in advance, in writing. Ms. O’Connor shall tell Mr. Merlo of her final decision within 48 hours of making it.
3. Effective immediately, all communications between the parties shall be by email using Our Family Wizard software that includes the tone meter. The parties shall communicate directly with each other and not through Antonino. All communications shall be brief, courteous, informative and responsive.
4. Commencing Sunday, May 24, 2020, Mr. Merlo shall have parenting time with Antonino during the first, third and fourth weekends of the month as set out below. By noon on May 21, 2020, each party shall provide the other with reasonable assurances that their household is following all COVID 19 public health directives and guidelines. a) Weekend # 1 – Sunday at 10:00 a.m. until Monday morning when school starts. If Monday is a school holiday or professional development day, parenting time shall be extended to 7:00 p.m.; b) Weekend # 3 – Sunday from 10:00 a.m. until Monday morning when school starts. If Monday is a school holiday or professional development day, parenting time shall be extended to Monday at 7:00 p.m.; c) Weekend #4 – Sunday at 10:00 a.m. until Monday morning when school starts. If Monday is a school holiday or professional development day, parenting time is extended to 7:00 p.m.; and d) In those months with five weekends, Antonino shall spend the fifth weekend with his mother.
5. Mr. Merlo shall pick up Antonino from Ms. O’Connor’s residence for his parenting time. Ms. O’Connor shall pick up Antonino from Mr. Merlo’s residence at the end of his parenting time on those days when Antonino is not going directly to school. If Antonino has an activity scheduled during Mr. Merlo’s parenting time, Ms. O’Connor shall ensure the equipment or clothing needed for the activity is available to Mr. Merlo when he picks up Antonino. Mr. Merlo shall ensure that the equipment and/or clothing is returned to Ms. O’Connor promptly after his parenting time has ended.
6. Ms. O’Connor shall not register Antonino for activities during Mr. Merlo’s parenting time, unless she has consulted with him first and there is no other option for the activity. Mr. Merlo shall be responsible to take Antonino to his extra-curricular activities during his parenting time and he shall be responsible for transportation costs.
7. Commencing in July 2020, each parent shall have two weeks of summer vacation with Antonino. The weeks may be exercised separately or consecutively. In even numbered years, Mr. Merlo shall have first choice of his summer vacation time with Antonino. In odd numbered years, Ms. O’Connor shall have first choice. Before May 15 th each year, the parent with first choice shall provide the other with notice, in writing, of his or her chosen vacation weeks.
8. In even numbered years, Ms. O’Connor shall have Antonino in her care from December 24 at noon until December 25 at 2:00 p.m. Mr. Merlo shall then have Antonino in his care from December 25 at 2:00 p.m. until December 26 at 7:00 p.m. In odd numbered years, Mr. Merlo shall have Antonino in his care from December 24 at noon until December 25 at 2:00 p.m. Ms. O’Connor shall then have Antonino in her care from December 25 at 2:00 p.m. until December 26 at 7:00 p.m.
9. Subject to paragraph 8 above, the balance of the two-week school Christmas break shall be shared equally by the parties beginning in 2020. The break is defined as starting at 9:00 a.m. on the day following the last day of school and ending at 6:00 p.m. on the day immediately preceding the day that Antonino returns to school. Mr. Merlo shall have Antonino in his care for the first half of the Christmas break in even numbered years and Ms. O’Connor shall have Antonino in her care for the second half. In odd numbered years, Ms. O’Connor shall have Antonino in her care for the first half of the break and Mr. Merlo shall have Antonino in his care for the second half of the break.
10. If Mr. Merlo is available to care for Antonino during March Break including overnights, he shall have Antonino in his care in even numbered years and Ms. O’Connor shall have Antonino in her care in odd numbered years. Mr. Merlo shall advise Ms. O’Connor, in writing, by January 15 th in each year if he intends to exercise his parenting time during March Break. If he does not confirm by that date, Antonino shall spend March Break with Ms. O’Connor. March Break is defined as starting at 9:00 a.m. Saturday morning following the last day of school and ending at 6:00 p.m. on Sunday before school resumes.
11. Mother’s Day shall be spent with Ms. O’Connor and Father’s Day shall be spent with Mr. Merlo regardless of who is caring for the child that weekend. Access if needed on those days shall be from Sunday at 10:00 a.m. until 6:00 p.m.
12. Unless otherwise stated, the holiday and special dates schedule overrides the regular weekend access schedule.
13. Both parties shall display a monthly calendar in their homes for Antonino’s benefit that sets out his access schedule.
14. Both parties shall be entitled to attend all extra-curricular activities, school events or meetings pertaining to the child, regardless of the parenting schedule.
15. Within 14 days from the release of these reasons, Ms. O’Connor shall provide Mr. Merlo with a list of all third-party professionals involved with Antonino and update the list within 24 hours of any change. The list shall include all contact information. Within 14 days, she shall advise all third parties that Mr. Merlo is to be listed in their records as Antonino’s father and a contact person. She shall then provide Mr. Merlo with proof that this has been done. Third parties include Antonino’s school and all service providers such as doctors, dentists, therapists, activity organizers, team managers and coaches. Mr. Merlo is entitled to receive all relevant information about Antonino’s care, education, activity schedules and general welfare, from the service provider directly. If requested by a third party, Ms. O’Connor shall immediately sign the necessary consents to ensure that Mr. Merlo has full access to information.
16. Neither Ms. O’Connor nor Mr. Merlo shall disparage the other or allow third parties to disparage the other parent in any manner that may be witnessed or heard by Antonino, or otherwise come to his attention.
17. Each party shall be entitled to telephone, text, and/or FaceTime access with Antonino on Tuesdays and Thursdays at 7:00 p.m. when he is in the care of the other parent. The conversation shall not exceed 15 minutes. Antonino may contact the non-residential parent when he wishes.
18. I will remain seized of this matter for eighteen months (18) to deal with access breaches only.
19. Effective January 1, 2019 and on the first day of each subsequent month, Mr. Merlo shall pay child support to Ms. O’Connor for Antonino O’Connor-Merlo, born July 6, 2008, in the amount of $359 based on annual income of $40,000.
20. Effective January 1, 2019 until December 31, 2019, Mr. Merlo shall pay $117 per month as his proportionate share of Antonino’s s. 7 expenses in 2019.
21. I reserve the right to adjust the child support amounts above upon receipt of each party’s 2019 income tax return and notice of assessment. Mr. Merlo and Ms. O’Connor shall provide copies to the court and each other as soon as the documents become available.
22. Effective January 1, 2020, the parties shall share all special and extraordinary expenses for Antonino under s. 7 of the Child Support Guidelines in proportion to their incomes. Neither party shall incur an expense to which the other party is expected to contribute without first obtaining his or her consent, which shall not be unreasonably withheld. The party incurring the expense shall provide the other with the receipt for the incurred expense within 7 days. The other party shall provide reimbursement to the other for his/her share of the expense within 14 days thereafter.
23. By June 15 th every year, the parties shall exchange complete copies of their income tax returns and notices of assessment for the previous calendar year. Any adjustment needed to ensure that child support has been paid in accordance with the Child Support Guidelines for the income tax year in question shall be calculated by June 30 th . Any amount owing, or reimbursement required shall be satisfied in full by making equal adjustments to child support over the next six months commencing July 1 st .
24. Each party shall provide the other with all documentation needed for travel with the child. The parent travelling with the child shall provide the other with the itinerary including all flight and contact information, a minimum of 14 days prior to departure.
25. Ms. O’Connor’s claim for a restraining order is dismissed.
26. I encourage the parties to agree on costs. If they are unable to do so, Ms. O’Connor shall provide her costs submissions within 20 days. Mr. Merlo shall have 20 days thereafter to provide his submissions. Ms. O’Connor shall have a further 5 day right of reply. Submissions shall not exceed 5 pages exclusive of Offers to Settle and Bills of Costs and shall be double spaced using 12 pt. font. Reply submissions shall be limited to 2 pages.

Justice D. Summers

Released: June 19, 2020

APPENDIX

[91] On page 25, para. 91, subparagraph 1 of the Order, the incorrect birthdate was stated for Antonio O’Connor-Merlo. The birthdate for Antonio has been changed from July 8, 2008 to the correct date of July 6, 2008.

[91] On page 30, para. 91, subparagraph 19 of the Order, the incorrect birthdate was stated for Antonio O’Connor-Merlo. The birthdate for Antonio has been changed from July 8, 2008 to the correct date of July 6, 2008.

COURT FILE NO.: FC-11-320-1 DATE: 2020/06/19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RACHELLE O’CONNOR Applicant - and - GIUSEPPE MERLO Respondent amended REASONS FOR decision Madam Justice D. Summers

Released: June 19, 2020