COURT FILE NO.: FC-19-952 DATE: 2020/07/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YASSINE CHENTOUFI, Applicant -and- DIANE ANDREEA POPESCU, Respondent

BEFORE: D. SUMMERS J.

COUNSEL: John Summers, for the Applicant Ron Paritzky, for the Respondent

HEARD: March 10, 2020

Endorsement

Overview

[1] This is the return of the applicant father’s cross motion for access following a contested adjournment on December 17, 2019. He moves under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), for access to the children, Ryan, age 4, and Liam, age 18 months, on alternate weekends from Friday at 5:00 pm until Sunday at 6:00 pm. He also seeks to continue his current mid-week access at the respondent mother’s home.

[2] The respondent opposes the applicant’s motion. Her primary objection is to overnight access. She also brings her own motion for temporary custody under the CLRA and child support including s. 7 expenses under the Family Law Act, R.S.O. 1990, c. F.3 and the Child Support Guidelines, O. Reg. 391/97. In addition, she seeks an order imputing income to the applicant.

[3] Although the father ultimately asks for joint custody and shared parenting orders, he did not oppose the mother’s request for interim custody and primary residence, on a without prejudice basis, provided she consults and considers his opinion before making a decision. The respondent mother agreed to those terms and I make that order on consent.

[4] As I will explain, I find it is in the children’s best interest to have more meaningful parenting time with their father. I also find it to be in their best interests to implement the increase in time gradually. The details of my order are set out at the end of my reasons. I also find it appropriate, in the circumstances of this case, to order the applicant to pay child support retroactive to October 1, 2018 in the amount of $2,377 per month based on his 2018 income of $175,000, subject to credit for amounts paid. This order is without prejudice to either party seeking further adjustments at trial. In addition, once the respondent mother begins incurring daycare costs for Liam, the applicant father shall pay his proportionate after-tax share within seven days of receiving proof of the amount invoiced or paid, be it weekly or monthly. The applicant shall also maintain insurance on his life as security for child support.

[5] If the parties have not already done so, they shall exchange their 2019 income tax returns and notices of assessment. The applicant’s monthly child support payment and share of s. 7 expenses shall be adjusted accordingly. Any amounts owed by either party, shall be added to or deducted from the retroactive lump sum owing. If counsel cannot agree on the calculations or the amount of life insurance to be maintained, they may schedule a case conference before me to proceed within 60 days of the release of these reasons. Otherwise, both matters shall be considered resolved for purposes of this motion.

Background

[6] The parties lived together between 2012 and October 1, 2018. They lived in the respondent mother’s home and did not marry.

[7] Ryan was born on August 8, 2015. He is a child with autism and lives with many special needs.

[8] Liam was born on June 10, 2018. He is healthy and meeting developmental milestones.

[9] The applicant father is self-employed as a realtor. He lives and works in Quebec.

[10] The children have their primary residence with the respondent mother in Ottawa. She is employed by the RCMP as a computer scientist.

[11] At the case conference on October 8, 2019, the applicant consented to a temporary without prejudice order for child support in the amount of $2,377. This is the table amount for two children based on his 2018 income of $175,000.

[12] Currently, the applicant’s access is ad hoc. He sees the children at the respondent’s home three times per week for approximately two hours each visit.

Access

[13] The only test to be applied in matters of custody and access is the bests interests of the child. Section 24(2) of the CLRA requires that the court 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.

[14] The applicant father submits that any determination of the children’s best interests must also include consideration of the maximum contact principle. This principle, found in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), states that the child should have as much contact with each parent as is consistent with the child’s best interests and, for that purpose, the court shall take into consideration the willingness of the person seeking custody to facilitate that contact. Although not specifically stated in the CLRA, I am satisfied that the maximum contact principle is also part of the best interests’ analysis under that legislation as the court is directed to consider all the child’s needs and circumstances.

Positions of the Parties

[15] According to the applicant father, the respondent dictates his access and uses Ryan’s autism as an excuse to restrict his parenting time. In particular, he wants to have the children in his care overnight during alternate weekends. He says he was an involved parent when the family was together, that he knows how to look after the children, and that it is in their best interests to spend more time with him. He says the respondent has not provided any persuasive evidence to the contrary.

[16] The respondent’s opposition to the applicant having increased parenting time is focused primarily on Ryan’s special needs. She makes three central submissions: the applicant father was not an involved parent and does not know how to meet Ryan’s unique needs; that routine and consistency are critical to Ryan’s well-being; and the applicant’s lack of self-care in relation to his type 1 diabetes creates risk to the children should something happen to him while they are in his care causing an urgent need for help. The respondent says if access increases, the change must be gradual.

Best Interests

[17] Ryan was 3 years of age when the parties separated in October 2018. Liam was not quite 4 months old. The applicant father says he participated in Ryan’s care prior to separation. He said he sang to him, took him to the park and the pool, changed his diaper, fed him, did the morning daycare drop off, and attended most, if not all, of his medical appointments including speech therapy and the autism general information session at CHEO. The applicant father says he knows how to care for Ryan and asserts that he probably knows more about autism than the respondent. He says his knowledge comes from helping his mother in her daycare when he was younger. I am not persuaded. The applicant does not provide any evidence to support his contention. He does not say whether his mother ran a daycare for children with autism or other special needs nor does he say what he did to help his mother, or for how long he did it. However, that is not to say that he does not know how to care for Ryan.

[18] The respondent mother acknowledged that the applicant helped with the children from time to time prior to separation but says not to the extent he claims and calls aspects of his evidence “nonsense”. She says he went to Ryan’s medical appointments infrequently and attended only two of nine speech therapy sessions. She also points to the applicant’s failure to participate in the six-week program CHEO offered for parents to learn how to meet the needs of a child with autism and to his lack of involvement with the professionals who created Ryan’s Individual Support Plan. According to the respondent mother, the father does not understand Ryan’s unique complex of behaviours or know how to meet his needs that she describes as including: difficulties in verbal communication, persistent deficit of social communication and social interactions, difficulties related to nonverbal communication (lack of eye contact, use of gestures, inappropriate facial responses to emotions), obsessive interests (continuous repetition of the alphabet, colours, and counting), hyper reactivity to sounds and textures, behavioural rigidity (inflexible adherence to environment, routines, structures and sequences of behaviours, distress during changes in his environment – places or caregivers), and culinary peculiarities. She says Ryan always eats the same foods, in the same dish and sits in the same place at the table and will gag or throw up when trying new food. His menu consists of only a few of her special homemade recipes. She says he will only eat when she is present. Aside from this last statement, the respondent does not say which of Ryan’s needs the applicant father is unable to meet.

[19] After separation, the applicant saw the children in the mother’s home. In December, the parties agreed that the applicant would have Ryan with him every Saturday for three hours between 10:30 am when the respondent dropped him off and 1:30 pm when the applicant returned him to her. It was a time of considerable change for Ryan. The respondent says access at the applicant’s apartment did not go well and in January it reverted to her home, on consent. She describes Ryan’s behavioural changes as including anger, tears, impulsivity, aggression, and eating less. The applicant does not agree that resuming access in the mother’s home was consensual; he says he had no choice and took what he could get.

[20] Here, I note the access diary submitted by the respondent mother. Based on her entries, the applicant had Ryan at his home four times between December 8, 2018 and January 5, 2019. Contrary to the allegations the respondent now makes about Ryan’s reaction to access at the father’s home her diary makes no mention of Ryan’s behaviour in relation to access at his dad’s house, at mealtime, or otherwise. I was also struck by the entry for December 7, 2018 – the day before Ryan’s first access visit at his father’s apartment. The respondent mother states there were locks on the doors and that no security gates were needed whereas she now alleges that the applicant failed to take any steps to childproof his home or install security bars to prevent Ryan from running off. If her diary is a summary of access made when her memory was fresh, as she says it is, I conclude that Ryan’s parenting time with his dad was not as upsetting or dangerous as she now alleges.

[21] Although the applicant has had limited time with the children since separation, I find that he has been more engaged than the respondent mother would have the court believe. Many of the entries in her diary portray the applicant as a parent who shows up late, leaves early, and spends a good deal of time in between on his phone or outside on a smoke break. In response to this evidence, the applicant father produced many date and time stamped photos cross-referenced to specific dates in her diary. The pictures reveal the applicant’s presence in her home with the children often well before and/or well after the times reported by the respondent. Despite having relied on the time entries to depict the applicant in a less than favourable light, she later said that some of the entries were added after the fact and might be inaccurate. I also note that many of the pictures reveal warm, loving moments between the children and their father.

[22] Overall, I do not find the respondent’s evidence credible with respect to the quality and duration of the applicant father’s access nor am I persuaded that he is unable to meet the children’s needs.

[23] According to the respondent, the applicant has an unhealthy diet and lifestyle for a person with type 1 diabetes. She says she worries about the children being alone with him as they are too young to call for help should it be needed. She alleges her concern is based on past experience but could not point to specific examples except that sometimes the applicant arrived for access tired and would ask for a candy. The respondent also expresses concern that the applicant smokes inside the house. The applicant says only that he smokes outside and submits that being diabetic should not preclude a parent from caring for his children. Here, I note that the evidence indicates that both parents smoke and find it is in the best interests of the children that neither of them smoke inside their homes.

[24] Neither parent directed much evidence to Liam except to say that he is a healthy 18-month-old-child. The respondent does not express the same degree of concern for the applicant’s ability to care for Liam as she does for Ryan but still worries about exposure to cigarette smoke inside the father’s home and the potential risk considering their young ages and inability to call for help should the applicant father need emergency care. The applicant wants to spend time with both children and proposed one schedule for both children. The respondent mother conceded that Liam’s access schedule need not be inextricably tied to Ryan’s. There was no evidence as to what extent the boys’ comfort and well-being may be dependent on being together.

[25] I am not persuaded that Ryan’s time in his father’s care outside the mother’s home was as difficult for him as she alleges. I also find that Liam is old enough to start spending longer periods of time away from his mother as his primary caregiver and gradually move toward overnight parenting time with his father. That is not to say that change will come without challenges for either child nor that consistency and routine are unimportant to their well-being. Ryan’s needs may be more complex and profound, than Liam’s, however, I am satisfied both parents are loving, capable caregivers who can meet the needs of their children, particularly if there is less conflict and more cooperation to create some continuity of care and routine between their two households. Meaningful communication about the boys’ needs, behaviours, likes and dislikes, will be key. I find this is likely best achieved through timely written communications that coincide with the end of each person’s parenting time to ensure the receiving parent has current information about events or concerns since they last saw the children. This communication should happen via My Family Wizard.

[26] Based on the record before me and considering the factors under s. 24(2) of the CLRA and maximum contact principle, I find it is in the children’s best interests to have more meaningful parenting time with their father. Weekend access in his home shall start gradually and mid-week access in the mother’s home shall continue pending trial or variation. When full weekend access begins, the mid-week visits shall drop from three to two.

[27] The changes to the parenting schedule shall be implemented gradually, over time, starting with longer day visits and moving to one overnight weekend stay and then two. My order below includes a timetable, however, I encourage the parties to consider and be guided by the way each child adjusts and and, if needed, to seek the advice of Ryan’s professional service providers together. Finally, I also encourage the parties to share with one another any strategies or techniques learned that contribute to Ryan’s comfort. As a first step in this direction, the respondent mother shall provide the father with copies of the recipes for Ryan’s favourite foods to ease any mealtime challenges that may arise. She says that Ryan will not eat unless she is nearby, however, I note that he has eaten lunch elsewhere since January 2020 when she returned to work, albeit she prepared his food.

[28] I am confident that the parties can work together as parents in the best interests of their children. If they are unable to do so, I will remain seized of interim access issues only.

Child Support

Imputing Income

[29] At the outset of the motion, the respondent mother sought to file a further affidavit and a large binder of financial disclosure over the bench in support of her request to impute income. The applicant objected. He received the material just the day before leaving him with no realistic opportunity to respond. Considerable argument followed in relation to the timing of the respondent’s cross motion and the volume of last-minute material she sought to introduce. The applicant urged the court to adjourn what was now the respondent’s cross motion on financial issues brought in early March 2020, to his cross motion for access brought in December 2019.

[30] Counsel were reminded that the matter had been scheduled for 50 minutes, the materials before the court on the parenting issues alone already exceeded four hundred pages. Moreover, the docket was full. In the end, counsel for the respondent mother agreed to restrict his submissions on retroactive support to the applicant’s 2018, line 150 income of $175,000, without prejudice to his right to argue imputed income at another time.

[31] In addition to the oral reasons given for declining argument on the respondent’s request to impute income on an interim motion, I include the following:

• Her evidence did not indicate the amount she sought to impute although her counsel advised that he had prepared SupportMate calculations based on additional amounts of $10,000, $20,000 and $30,000.
• The respondent invited the court to determine the applicant’s self-employment income by adding up the deposits shown on his bank statements and considering his business expenses shown on his 2018 income tax return. She did not say what expenses she was questioning or to what extent. There was no information with respect to the applicant’s QST obligations as a self-employed realtor in Quebec or to what extent the tax amounts may have formed part of the payments deposited to his account for subsequent remittance to the government.
• The respondent alleged that the applicant had an arrangement with his real estate brokerage to receive some portion of his income in cash. She did not point to any evidence to support that allegation.

[32] I do not agree that imputing income in these circumstances is as linear as the respondent proposed.

Section 7 Expenses

[33] The respondent seeks to fix the applicant’s contribution to Liam’s proposed daycare costs at $800 per month. This amount is based on a letter from the daycare dated October 2019 indicating they operate 239 days a year and would charge $87.22 daily for a child of Liam’s age. The annual cost used in the respondent’s SupportMate calculation was $21,060. The calculation appears based on Liam’s attendance every day except for the Christmas period when the center is closed. Put another way, the calculation does not consider time away for illness, vacation with either parent, or any other reason.

[34] Moreover, the respondent confirmed that she had yet to incur any significant s. 7 expense for either child. Liam had not started daycare and Ryan’s costs are currently covered by grants. The respondent did not say how she has managed Liam’s daycare needs since January 2020 when she returned to work.

[35] The applicant acknowledged his obligation to pay his proportionate share of after-tax daycare costs but said the amount should not be fixed. I accept his submission that he should pay when the costs are incurred, and the actual amount is known. I, therefore, order that the applicant pay 63% of the daycare costs based on his 2018 income of $175,000 and the respondent shall pay 37% based on her current 2020 income of $103,755. The cost to be shared shall be calculated based on the tax credits and deductions available to the respondent. She shall advise the applicant when Liam is registered in daycare and provide him with copies of either the invoices or receipts each week or month. The applicant shall remit payment to the respondent of his proportionate share within 7 days thereafter.

Retroactive Child Support

[36] The respondent seeks child support retroactive to the date of separation on October 1, 2018. She says the applicant paid support in varying amounts and only sporadically until the case conference in October 2019 when he agreed to pay $2,377 per month based on his 2018 income of $175,000. She totals the amount paid during the intervening twelve months at $11,700 whereas he should have paid $28,524 ($2,377 x 12) based on his acknowledged income.

[37] The applicant opposed the request for retroactive support. He submitted adjustments were needed for expenses paid and that the issue was more appropriately determined at trial. Considering the applicant’s income, the absence of any evidence regarding expenses paid, his decision to enter a car lease in January 2019 at a monthly cost of $1,379 while making inadequate child support payments, and the respondent mother’s reduced income of $85,448 in 2018, and $51,389 in 2019, I find it appropriate to order retroactive support. The law is clear that both parents have an obligation to support their children in accordance with their means. The applicant father had the means and did not pay for a period of twelve months when the respondent was supporting the children on a much-reduced income. I see no reason to delay payment but make the order without prejudice to either party seeking further adjustment at trial.

Life Insurance

[38] The respondent mother’s Notice of Motion seeks an order for life insurance as security for child support but did not say how much. Neither party made any submissions on the issue. The applicant’s financial statement indicates only that he has life insurance with Great West Life and the children are his beneficiaries. He does not state the face value of his coverage. I make an order that the applicant provide security for his child support obligations in the form of life insurance and designate the respondent as the beneficiary in trust for the children.

My Order

On Consent

1. The respondent mother shall have sole custody and the children shall continue to have their primary residence with her, on a temporary without prejudice basis.
2. The respondent shall not make any major decision for the children without consulting the applicant, in advance, and giving due consideration to his opinion.

Not on Consent

3. Commencing Saturday August 5, 2020 and on alternate weekends thereafter, the applicant shall have the children in his care as follows: (i) For the first four access weekends, the applicant father shall have the children in his care at his residence or elsewhere on Saturday from 10:00 am until 6:00 pm and shall see the children three evenings per week at the respondent mother’s home, as agreed; (ii) Commencing September 26, 2020, the applicant father shall have the children in his care on Saturday from 10:00 am until 6:00 pm and Sunday from 10:00 am until 6:00 pm. He shall see the children three evenings per week at the respondent mother’s home, as agreed, in the week preceding his non-access weekend and two evenings per week in the week preceding his access weekend; (iii) Commencing November 21, 2020, the applicant father shall have the children in his care for alternate weekends from Saturday at 10:00 am until Sunday at 6:00 pm. He shall see the children three evenings per week at the respondent mother’s home, as agreed, in the week preceding his non-access weekend and two evenings per week in the week preceding his access weekend; (iv) Commencing Friday, January 29, 2021 the applicant shall have the children in his care for alternate weekends from Friday at 5:00 pm until 6:00 pm on Sunday. He shall see the children three evenings per week at the respondent mother’s home, as agreed, in the week preceding his non-access weekend and two evenings per week in the week preceding his access weekend; (v) On weekends when the children are in the applicant father’s care, he shall ensure that the children have had their evening meal before returning them to their mother; (vi) Upon the release of these reasons, the respondent shall provide the applicant with the recipes for Ryan’s favourite foods.

4. Neither parent shall smoke inside their home.

5. I shall remain seized of interim access issues pending trial.

6. Effective October 1, 2018, the applicant shall pay child support of $2,377 per month, subject to credit for amounts paid.

7. The applicant shall pay his proportionate share of Liam’s day care costs each month after adjusting for the respondent’s tax credits and deductions. Payment shall be made to the respondent within seven days of her providing the applicant with a copy of the invoice or receipt, be it weekly or monthly.

8. The applicant shall maintain life insurance as security for his child support obligation in the event of his premature death while he is still obliged to pay child support and designate the respondent as the beneficiary of the proceeds to be held in trust for the benefit of the children, if the terms of his policy or plan permit. If not, he shall designate the respondent mother as the beneficiary of the coverage. Within 30 days of the release of these reasons, the applicant shall provide the respondent with proof that the policy or plan of insurance is in force and that the beneficiary designation has been made. The coverage and beneficiary designations shall be maintained pending final disposition or variation in the event of a material change in circumstances.

9. The parties shall use the software application known as My Family Wizard to keep each other informed, in writing, of day to day parenting issues and concerns before the children are returned to his or her care.

10. The respondent shall keep the applicant informed of the date, time and location of the children’s health care and education related appointments should he wish to attend or obtain information about them directly. If her consent is required for this purpose, it shall be provided forthwith, in writing.

11. The parties shall exchange their 2019 income tax returns and notices of assessment. The applicant’s monthly child support payment and share of s. 7 expenses shall be adjusted accordingly. Any amounts owed by either party, shall be added to or deducted from the retroactive lump sum owing. If counsel cannot agree on the calculations, they may schedule a case conference before me to proceed within 60 days of the release of these reasons. Otherwise, both matters shall be considered resolved.

12. If the parties are unable to resolve the issue of costs, the applicant shall deliver his submissions to the respondent and the court within 15 days. The respondent shall have 15 days thereafter to deliver her submissions. Exclusive of Bills of Costs and Offers to Settle, each party’s submissions shall not exceed 2 pages, double spaced using 12 pt. font. The applicant shall have a 5 day right of reply not to exceed one page on the same terms. Any reference to the Family Law Rules or case law shall be provided by hyperlink only.

Justice D. Summers Date: July 28, 2020