COURT FILE NO.: FS-19-11065

DATE: 20210709

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

T.P.

Applicant

– and –

A.E.

Respondent

Self-Represented

Self-Represented

HEARD: June 21 to June 28, 2021

Papageorgiou, J.

REASONS FOR DECISION

These reasons were released to the parties on July 9, 2021, shortly after the trial, but were not published as the Applicant T.P. (the “Father”) wrote to me through the Registrar requesting that C.C., his girlfriend be anonymized in the reasons. After reviewing the case law on this issue, I requested submissions on whether the parties and all witnesses should be anonymized to protect the interests of the child who is at the centre of this dispute.

Pursuant to endorsement and Order dated September 9, 2021 I ordered that the parties and witnesses shall be referred to by initials only to protect the anonymity of the child.

These are the reasons released on July 9, 2021, as amended pursuant to my endorsement dated September 9, 2021.

Introduction

[1] The Respondent, A.E. (the “Mother”), is not an unfit mother. She is not an alcoholic. She is not a drug addict. She was never planning to abscond with her son to New York. Yet exactly two years ago, her child, A.P. (the “Child”) was taken away from her when the Applicant, T.P. (the “Father”), brought an urgent motion alleging that she was.

Prior Court Proceedings

[2] On July 9, 2019, the Father obtained a temporary order placing the Child in his care pending return of the Father’s motion on August 8, 2019. His motion was short served, described as urgent, and the Mother did not have time to file responding materials. Although she asked for an adjournment this was denied. The Court ordered that the Mother could have parenting time supervised by the Father pending return of the motion. On August 8, 2019 the July 9, 2019 Order was continued “pending further order of the court or agreement of the parties”. At that time, the motion judge also ordered a hair follicle test and that the Child remain with the Father “pending the test results” but that the Father “shall continue to coordinate reasonable access between the Respondent Mother and the child.”

[3] The Father arranged that the Mother would have supervised parenting time one day a week for approximately four hours with some telephone contact between 6:30 p.m. to 7:30 p.m. in the evenings.

[4] On October 9, 2019, the Mother’s hair follicle test returned demonstrating that she had not been using drugs or alcohol for 120 days. Therefore, she had not been using drugs or alcohol at the time of the Father’s July 9, 2019 motion. The Father did not agree to any increased or unsupervised parenting time after this hair follicle test.

[5] On October 11, 2019, the Court scheduled a long motion to address unsupervised parenting time, child support, spousal support and a parenting schedule and also asked the Office of the Children’s Lawyer (“OCL”) to provide a report.

[6] On May 9, 2020, the OCL released its report and findings recommending that the Mother obtain 50% parenting time unsupervised (the “OCL Report”). The Father did not agree to any increased or unsupervised parenting time after the OCL Report.

[7] On August 9, 2020, the Mother and Father entered into Minutes of Settlement whereby she would obtain 50% parenting time.

[8] At a subsequent Trial Management Conference in April 2021 where the Mother was unrepresented, she withdrew claims for spousal support.

Parties’ Position at Trial

[9] The Father sought the following relief:

a) That he be made the sole major decision-maker with respect to the Child;

b) That he be made the custodian of all of the Child’s legal documents;

c) That a parenting order be made whereby the Mother and Father share parenting time on a 50% basis; and

d) That child support payments be determined.

[10] The Mother says that she has been improperly vilified in this proceeding, that the steps taken by the Father have traumatized and almost bankrupted her, and that he has not been acting in the Child’s best interests. She requests that the parties share decision-making authority with respect to the Child.

[11] She wishes to assume 50% parenting time but cannot because of her financial circumstances. She also needs flexibility because of the nature of her work.

[12] For the reasons that follow, I am ordering that the Mother and Father share decision-making with respect to the Child. I am also ordering that the Father pay the Mother child support arrears in the amount of $4,878.50. Regarding parenting time, I am ordering that until September 1, 2022, the Mother will have approximately 30% parenting time according to the schedule in my Order, but that beginning September 1, 2022, the parties shall commence week about parenting. This will give the Mother the next year to work on her finances and her career now that this litigation is over. However, she may elect to assume week about parenting prior to September 1, 2022 if her financial circumstances permit. During this next year, I am ordering that the Mother shall not pay any child support on the basis of undue hardship, but that when the parties commence week about parenting in September 2022, the CSG Table amounts shall apply. Finally, I am ordering that the Mother and Father share custody of the Child’s legal documents.

The Evidence at Trial

[13] The following witnesses testified at trial: the Mother, the Father and the Father’s girlfriend, C.C.[^1]

[14] As well, there was a report from the “OCL”. The Father submitted it as an exhibit in support of his position. Section 112(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that where the OCL provides a report, it shall form part of the evidence at the hearing of the proceeding.

[15] Both the Mother and Father were unrepresented although the Father only recently became unrepresented after the Trial Management Conference in April 2021. For financial reasons, the Mother could not afford a lawyer after October 2020 and has been unrepresented ever since.

[16] I note that apart from the Father, none of the people who provided affidavits in respect of this urgent motion provided any evidence at trial. The Father attempted to file the various affidavits sworn by him and others in this proceeding related to his original motion. The Trial Management Form did not permit him to testify by affidavit. Nor did it reference his reliance upon any of these materials. I advised him that he was here and should simply give his evidence and if he wished to refer to any exhibits attached to these affidavits he could, but I would not admit the affidavits of others as they were not available to be cross-examined.

[17] There were also three affidavits which the Mother attempted to file but I did not admit these affidavits either as these witnesses were not available for cross-examination.

Chronology

[18] The Mother is a producer and writer and gets paid for script coverage and analysis, working in the film and television industry. The Father is a construction manager at Mount Sinai Hospital.

[19] The Father and the Mother began dating in February 2011. The Mother became pregnant and they married on July 13, 2013. They permanently separated on September 15, 2015 although no divorce proceedings were commenced until this action in July 2019.

[20] There is one child of the marriage, A. (the “Child”). He is now nine years old.

[21] After the Child was born in 2012, the Mother stayed home with him and stopped attending University of Toronto to raise him. While the Father strained to deny that she was the primary caregiver, it is a fact that after the Child was born and when they were together, he worked full-time apart from a three-month parental leave and she stayed home. He said that the decision to stay home was hers alone, but they were a family, and in my view, he cannot deny that this was a family decision.

[22] The Mother and Father separated in September 2015.

[23] It is undisputed that after the separation, the Mother and Father were able to resolve all issues between them amicably, without having any lawyers involved or even having a written agreement. They agreed that the Child would reside with the Mother, that the Father would pay support in the amount of $2,200 per month. The Father had parenting time every other weekend with additional parenting time as agreed upon during the week. Within a few months, the Father reduced his payment to $2,000. The Father said that he believed that $800 of this was child support and $1,200 was spousal support.

[24] Based on the evidence at trial, this was an open-ended arrangement. There was no express date for termination of spousal support benefits and no timeline imposed for the Mother to become economically self-sufficient. They essentially continued the same arrangement where the Mother would be the primary caregiver and the Father would provide economic support.

[25] This arrangement worked well. The Father was able to work full-time and increase his employment income every year.

[26] Although support payments had continued without any issue for three years, in or around June 2018, the Father brought the Mother to his accountant because he had not filed his tax returns for three years and he was concerned that she was not filing her taxes properly to ensure he could obtain necessary deductions. Nothing was resolved in terms of her refiling her taxes, and the Mother and Father went for a beer afterwards.

[27] In or around September 2018, the Father met C.C.., who he began a romantic relationship with. He says that his relationship with C.C. is a “forever” relationship.

[28] C.C. met the Child in December 2018 and they began developing a relationship. C.C. testified that she wants children. She is clearly attached to the Child.

[29] During the early part of 2019, the Mother and her then partner, I.G. were ending their relationship. The Father was aware of this and in or around February 2019 made offers to take the Child for more time on the basis that it would give the Mother a break. She declined his offers.

[30] As reported in the OCL Report referenced above, the Father says that in March, April and May 2019 he received reports from some of the Mother’s family members about her behaviour and possible alcohol or substance abuse. He continued to allow the Child to live with the Mother. He did not make any inquiries of the Mother during early 2019 (or indeed ever before bringing his July 2019 urgent motion) about whether this was in fact true or express any concerns about this to the Mother.

[31] However, the Father’s signed Form 8 said “Regrettably, within the past week, the Respondent Mother’s behaviour has escalated to the point where she will no longer even entertain the Applicant Father’s concerns in relation to parenting.” There is no evidence before me that the Father ever raised any parenting concerns with the Mother related to any issue, let alone with respect to alleged alcohol and substance abuse, but he was suggesting at that time that he had and that she was intransigent.

[32] To return to the chronology, in or around June 2019, the Child was to attend a school concert and the Father wanted to bring C.C. The Mother advised the Father that she was not comfortable with this.

[33] In a string of text messages exchanged between the parties relating to the school concert on June 19, 2019, the Mother disclosed to the Father that she had been raped. She also advised that she was pursuing counselling for both her and the Child.

[34] The Father did not make any inquiries as to what had happened, how the Mother was doing or why the Child might need counselling. The Father testified before me that the concert is when the conflict between the Mother and Father began and this concert also featured prominently in his signed Form 8.

[35] The Father reported to the OCL that what alarmed him the most was on July 1, 2019 when the Mother asked him for additional money above the $2,000 monthly support because she needed “medical” things. He told the OCL that when he asked her why, she reacted “exponentially greater” than anything before, which made him concerned for her mental state. In the Father’s signed Form 8, he states that the Mother’s request was for $100 to purchase medication for the Child which the Father felt was suspicious. What he told the OCL is not consistent with what he said in his signed Form 8.

[36] As well, he told the OCL that the Mother told him that she “wanted to move to New York with the Child, saying that [the Father] does not have custody of [the Child] so he has to agree.” This implies that she was seeking his consent, even if she thought he had to give it.

[37] The Father’s signed Form 8 is not consistent with what he told the OCL. It states that the Mother advised the Father that she had accepted a job in New York and “shouted at [the Father].that the [Father] had no say and that she would be bringing [the Child] with her to New York City and there was nothing [the Father] could do about it.” It also says, “The Applicant Father is extremely worried that any day now, the Respondent Mother will abduct [the Child] and relocate with him to New York.” The word “abduction” is used many times in the Form 8.

[38] I note that at the trial, the Father testified about the Mother’s failure to obtain a passport for the Child as part of his reasons for why he would be the better decision-maker or document custodian for the Child. As such, at the conclusion of the trial, I asked him whether the Child even had a passport when he raised the concern in court materials that the Mother was intending to flee to New York with the Child. He appeared uncomfortable and admitted that he did not think that the Child had a passport at the time as he knew the Mother would have to obtain his signature to do so. He then paused and said that he was afraid that she could get across the border with the Child in a car without a passport. However, the Mother did not have a car and could not drive in any event. (Court orders in this proceeding have required the Father to do all drop-offs and pick-ups because of this.).

[39] In my view, the Mother specifically raised the issue of her possibly relocating to New York and involved the Father in the discussion. She had never absconded before, and they had been dealing amicably with their parenting arrangement for seven years without incident. The Mother testified, and I believe her, that she never had any intention to flee nor any intention to deprive the Child of his relationship with his Father which she had always supported.

[40] Indeed, the Mother and Father had just arranged a summer holiday schedule whereby each of the Father and Mother would have 2 to 3 weeks with the Child. The Mother was about to leave on vacation on her own around the time of the Father’s motion with the Child staying with the Father. The Mother testified: “what was I going to do? Show up to your house, break in and take the child and try to run across the border without a passport?”

[41] In my view, there was no reasonable basis for the Father to have had concerns about possible abduction at the time he made this allegation in court proceedings.

[42] With respect to alleged substance abuse, the Mother testified that she is adamantly opposed to drugs and that the Father knows this. When they began their relationship, the Father was a casual drug user and she told him that if he used drugs, the relationship could not continue. I gave the Father an opportunity to give rebuttal evidence, including filing additional materials. When he gave his rebuttal evidence, he addressed many things the Mother had said, filing approximately eight new documents which had not previously been uploaded to Caselines. During his rebuttal evidence, he did not deny the Mother’s evidence about his casual drug use and that he stopped using them at the Mother’s insistence. Therefore, her evidence is uncontradicted in this regard and I believe her in any event.

[43] At the same time that the Father brought these short-served proceedings, he stopped making any support payments including the $1,200 that he believed was spousal support—although he did make two gratuitous payments to her of $450 in August and September 2019. He testified that he thought the Mother was taking advantage and should have been earning more income long ago.

[44] It is true that the Mother was approximately 32 years old at the time he cut off support. She is intelligent and certainly could be employed on a full-time basis. When they separated, I have no doubt that if the parties had addressed spousal support through court proceedings, it would have been of a limited duration and there would have been a requirement for her to become self-sufficient quickly. However, in 2015 the Father did not go to court or even try to negotiate an arrangement where spousal support would be of a limited duration, with an expectation that the Mother become economically self-sufficient. Rather, he and the Mother arranged a situation where the Mother’s economic dependence on the Father would continue based upon her being the primary caregiver.

[45] In my view, this is no different than economic dependence created when two people are living together and make the decision that one will stay home with the children. The Mother arranged her affairs in reliance on this arrangement which permitted the Father to focus on his work and steadily increase his income while the Mother cared for the Child with no increases in income. Having voluntarily created this economic dependence, the Father should not have cut off support without some reasonable notice.

[46] Doing so, at this time, gave the Father significant leverage, as well as a strategic advantage in this litigation. The Mother was flailing, emotionally distraught over the loss of her Child, serious allegations made against her and the sudden loss of $2,000 per month which she had been relying upon for the last four years.

[47] The Mother could not afford a lawyer and obtained a legal aid certificate. This lawyer quickly went over the limit and then provided some services “out of the goodness of his heart” according to the Mother. Eventually, she lost all legal representation.

The OCL Report

[48] On May 19, 2020, the OCL delivered its report (the “OCL Report”).

The Investigation

[49] The OCL Report describes the investigation which included in-person meetings with the Mother and Father on three occasions each, four in-person meetings with the Child, telephone and e-mail contact with the parties throughout, and observation visits with the parties and the Child. It also conducted interviews with the Child’s and the Mother’s physician, Dr. V., the principal at the Child’s school, the Child’s teacher, and R.A., a JFCS Protection worker. I note that the OCL interviewed the maternal grandmother and maternal grandfather who were two of the people whose affidavits were filed in support of the protection order.

[50] The OCL also reviewed significant reports, documents and letters including from Dr. V., school report cards, Toronto Police Service records, a letter from a family court support worker at the Barbra Schlifer Commemorative Clinic, Ontario Provincial Police records, a social worker from JFCS, the Father’s medical records, as well as the legal documents filed in this proceeding including materials filed on the interim motion and the Mother’s responding materials, a variety of text messages and a Facebook post.

Alleged Alcohol and Substance Abuse and Intimate Partner Violence

[51] The OCL Report set out significant information which disputes that the Mother has any ongoing problem with drug or alcohol addiction and sets out details of significant trauma which the Mother had been undergoing prior the Child’s removal from her care.

[52] In particular, the Mother had been living with I.G, who had become increasingly abusive mentally, with the abuse becoming physical in around December 2018. He ultimately raped her in April 2019.

[53] I.G. left the residence and the Mother reported that she obtained a restraining order.

[54] Dr. V., who has been the Mother’s and the Child’s physician since 2014 and had seen her approximately 36 times on a regular basis – was a strong advocate for the Mother in his interviews with the OCL. He says that he has no information to suggest or support that she has ever had a substance abuse problem.

[55] With respect to alcohol use, Dr V. confirmed that at an appointment in June 2019 the Mother advised him that she had been drinking too much between December 2018 and January 2019 as a way of coping with intimate partner violence (“IPV”), which he says is not unusual. The Mother said that it was up to one bottle of wine a day, but not every day. She also reported to him that within a few weeks, her drinking was within safe levels. This is consistent with what the Mother told the OCL in her interviews.

[56] What is critical here is that the Mother self-reported to her and the Child’s doctor in June 2019 that she had been drinking during that limited period of December 2018 to January 2019, which was before the Father took any proceedings against her. Dr. V. was under a legal duty to report any concerns about the Child’s safety and he did not consider anything the Mother told him, or anything about his observations of her, that put the Child at risk. As well, given the disclosure to Dr. V. at that time, it cannot be argued that the Mother made up the IPV or the limited nature of her drinking during that time period to address the Father’s motion, which she learned of afterwards.

[57] Regarding the Father’s suspicion that the Mother delayed the hair follicle test to get clean, Dr. V. said that it would be very unusual for an alcoholic or drug addict to be able to abstain from alcohol for four months straight without treatment. Consider as well that the Mother was under unusual strain due to the removal of the Child and her sudden financial instability; what is the likelihood of an addict under the stress of this situation to stay clean through sheer will?

[58] As noted in the OCL Report, the Mother said she delayed because she could not afford the test after all support was cut off. She feared that because the Father was paying for the test, this might influence the outcome. I do not find her explanation unreasonable. It is well known that there have been significant issues with hair follicle testing where parents have lost their children because of false positives. This was a Mother who had already lost her child for reasons she could not understand, and who felt no one was listening to her. She had a sincere fear regarding the test, but not because she was using drugs or alcohol.

[59] Furthermore, having completed its investigation, the OCL recommended that the Mother be given 50% shared parenting time. It did not recommend that she be subject to any ongoing testing for alcohol or drugs. Indeed, no independent professional has ever concluded that she has had these problems or needed any treatment or monitoring. The Father must not even think there is an issue as he is prepared to agree to week about parenting without any monitoring as well as allowing the Mother to travel with the Child.

[60] In my view, even though the Mother has had some difficulty, there is no basis to conclude that she is an alcoholic or abuses substances. Although her drinking during the period December 2018 to February 2019 was not in the Child’s interests, it was time limited and there were extenuating circumstances.

[61] She stopped on her own and sought help for the IPV. The Mother is a person who has insight, recognizes issues when they occur and seeks help which is evidence of a good parent with good judgment. Most importantly, the Child is incredibly well adjusted after having been in her primary care for seven years. The OCL concluded that he was never exposed to the IPV.

[62] Dr. V. referred the Mother to Women’s College Hospital in June 2019 regarding the IPV and she met with a social worker on December 16, 2019. She also saw a counsellor from JFCS for a while.

[63] Sari Goldman, a social worker at JFCS and a registered worker in the Woman Abuse Program, confirmed that she began counselling the Mother on September 24, 2019 for the IPV and that she has been responsive in every way. She arrives on time, is participatory, and follows through on all recommendations, referrals and resource exploration.

The Mother’s Mental Health

[64] The OCL Report also indicates that the Father was concerned about the Mother’s mental health as does his Form 8. Indeed, his Form 8 makes significant allegations about her instability and mental health issues including allegations that she was “erratic”, “aggressive”, and “spiraling out of control.”

[65] The Mother self-identifies as having chronic issues with Asperger’s syndrome. This is also referenced in one of the medical notes the OCL reviewed. There was reference to one medical report dated 2011 from when the Mother was a student at U of T where a doctor had also indicated that she may have bipolar disorder or adjustment disorder. This doctor had only seen her five times, and this was with reference to her seeking an adjustment to her workload because of stress.

[66] Dr. V. indicated the Mother does not have any serious psychological issues that are not directly related to the “horrible abuse she reported” including being beaten unconscious, although he has treated her for ADHD and depression.

[67] In my view, there is no basis in the record for concluding that the Mother has any mental health issues which prevent her from having parenting time or exercising decision-making authority with respect to the Child.

The Mother’s Parenting Skills

[68] Dr. V. also reported that the Mother is an excellent mother, and he never saw any reason for concern, previously or currently, regarding her ability to care for her son. He said that she has been the Child’s primary caregiver and since 2016 she is the only parent to have brought the Child in for an appointment.

[69] Perhaps most importantly, pre-dating December 2018, prior to the dissolution of the Mother’s relationship with I.G. there was no information provided by the Father, the Child, the police, CAS or the Father’s family physician that there were any pressing issues that put the Child at risk or that his best interests were not served when the Mother had primary care. The OCL Report concluded:

“While [the Child] was living with [the Mother], [the Mother] ensured he attended school and stayed connected with friends. As well [the Child] saw Dr. V. [his doctor] when needed, provided him with the nurturance of healthy food, encouraged his creativity, and educated him on his Jewish religion and background. This bodes well for what is possible for [the Child] and the [Mother] going forward.”

The Father’s and Mother’s Strengths as Parents

[70] The OCL Report documented that both parents have some weaknesses or have made some mistakes, (although the OCL criticized the Mother more for some of her conduct after the July 2019 Order, which I will review below.).

[71] The OCL Report also documented that both parents have many strengths. They engage with the Child in an age-appropriate manner when observed playing, the Child loves them both and the Child was doing extremely well academically, socially and behaviorally. Indeed, even the swift transition to the Father’s sole custody with only limited supervised time with the Mother did not destabilize the Child—although he was initially upset and acting out which is understandable. This certainly speaks to the Father’s effective parenting after he obtained custody, but when he received the Child, the Child was already a well-adjusted boy and the Mother certainly should be credited with this based on her extensive and primary care of the Child until he was seven years old.

[72] Ultimately, the OCL Report concluded that it was in the Child’s best interests to have both parents co-parenting and working together to allow for him to see his parents getting along so he does not feel compelled to take sides.

[73] The OCL made recommendations including that the Mother’s parenting time increase gradually so that ultimately the Mother and Father would each share parenting time on a week about basis, and that they should participate in Families in Transition to assist them. It also recommended that the Father have final decision-making responsibilities because of the conflict between the Mother and Father, although he should be required to confer with the Mother on all major decisions.

[74] This week about parenting time has been suspended since April 17, 2021 as the Mother is immunocompromised and the Child had a close call at school where another child had COVID-19. She felt she did not receive sufficient health information, but she is now double vaccinated.

My Observations of the Parties During the Trial

[75] During the trial, the Mother was interruptive and was clearly upset. When questioning the Father and C.C., she often made long statements instead of asking questions. She made meritless objections which were essentially her objecting on the basis that what the witness was saying was not true and giving her side. She wept sometimes, and on one occasion left the hearing altogether.

[76] In my view, the Mother has suffered extreme trauma caused by IPV, false allegations made against her, and losing her Child and financial stability in an instant. She feels that her lawyers, the legal system and the judges she has appeared before have not heard her, and that she has been treated unfairly. It is my assessment that her interruptions and conduct during the trial were her attempt to advocate for herself and her Child. This was her last stand and she wanted to be heard.

[77] People who have endured extreme trauma, who are unrepresented, who are stressed from financial insecurity and who are in general distress, will not be able to present in the same manner as those who are not. Courts must look beyond the impacts of trauma on the witness when assessing their conduct, reliability and credibility.

[78] I noticed when the Mother was testifying in-chief that she appeared to be reading. I asked her about this, and she said that because of her Asperger’s/being on the spectrum, she finds it difficult to have her thoughts organized without the use of notes. I directed her to the Trial Management Order that said that witnesses could not use notes unless permitted by the trial judge. She asked that she be permitted to use notes. I asked the Father for his position, he did not object and I allowed this with the proviso that she would have to provide a copy of her notes to the Father to be marked as an exhibit for identification. When she was given the floor to tell her story using this accommodation, and no longer had to listen to what she thought were lies, she was compelling and credible. She did not merely read from her statement. She referenced it and then elaborated, and I noted this for the record several times.

[79] She began her testimony in-chief by saying “I’m just going to go ahead and try my best to speak through this, although I am letting you know it’s very difficult.”

[80] She described the beginning her of relationship with the Father when she responded to an ad for a roommate. The apartment was in a state of disrepair. Once they became a couple, she began organizing his living space, grocery shopped, cooked to provide nutritious meals on a daily basis and did his laundry so he could attend work looking like a professional. She began shopping for his clothes. While doing this she maintained two jobs and attended university.

[81] They began discussing a future together and getting married. They secured a condominium. She did all the packing and organized their new home. They began trying to have a child and agreed that she would be a homemaker. (As noted above, while the Father baldly denies this agreement, it is a fact that this is what they did, and this must have been a family decision.). When she met the Father, he was earning approximately $40,000 per year and she feels that through her assistance he was able to obtain better employment opportunities. His income steadily increased.

[82] After the Child was born, the Father took three months leave but she was the primary caregiver. He would work during the day. She would serve him dinner when he returned, and then he would assist with bedtime by lying down with the Child. Their relationship ended when he had an affair, and she discovered nude photos on his computer of another woman who he eventually left her for.

[83] She was the primary contact with the Child’s school. She made every effort to keep the Father informed of the Child’s progress including sending him pictures and other details often. She attended most medical appointments for the Child. She organized all his birthday parties and ensured that the Father participated, inviting both sets of grandparents.

[84] While married, she never had her own bank account and initially did not have a bank card, although eventually the Father gave her one. She deposited any monies she made into this bank account and he controlled all finances.

[85] When the Father left the relationship, he initiated discussions about financial matters which resulted in the support agreement, and they sold their condominium. Unfortunately, although they exchanged drafts, they never entered into a formal agreement and indeed divorce proceedings were not commenced until July 2019 even though they separated in 2015. The Mother continued to be the primary caregiver and provided the Father with access including daily phone calls.

[86] When it was time for the Father’s weekend parenting time, she would leave the apartment, the Father would stay at her apartment, and she would spend the weekend at a friend’s home. She facilitated visits with his parents and “loves” the Child’s paternal grandmother very much.

[87] She says that after their separation they discussed the fact that the Father has dual citizenship and that the Mother has better prospects for employment in Los Angeles or New York and that the family unit could move even if separated. She recommended that the Father take time off and take a break so she could pursue career opportunities in New York. That is how amicable their relationship was.

[88] She described how she was blindsided by the July 2019 motion and traumatized by the Father’s supervised access which his girlfriend attended. Until the August 2020 Minutes of Settlement, the Father only gave her approximately 4 hours of supervised parenting time on one day during the weekend and some telephone contact.

[89] She says that the Father used the access visits to try to pressure her into signing tax documents to allow him to refile his taxes. The Mother described how after the Father notified the school of the July 2019 Order, she felt shame and teachers began not responding to her requests for information.

[90] She talked about how hard this case has been on her, emphasizing that the Father’s decisions have not been in the Child’s best interests.

[91] As well, the Mother described being cut out of the Child’s life after the July 2019 Order including not being permitted to participate in planning his birthday, not being allowed to wish him happy birthday on the morning of his birthday as she had done since he was born, and the Father’s failure to respond when she was trying her best to protect the Child from COVID-19 because of her concerns that the Father worked at Mount Sinai Hospital.

[92] Because she had such difficulty uploading materials (which I believe is due to severe trauma, being unrepresented as well as her ADHD and Asperger’s), as part of her evidence she read from e-mails between her and the Father. The Father did not dispute the authenticity of these communications or most of what she said, even though I gave him an opportunity to give rebuttal evidence and file additional materials if he wished.

[93] On March XX, 2020, the Mother sent the Father the following e-mail: “Can. You let [the Child] listen to the above before school? I tried calling at 7:00 of [sic] his birthday. Can you also let me know what the coronavirus status and strategy is in your household. I am a little bit confused regarding why his birthday was cancelled.” The next day the Father responded as follows: “I will ensure [the Child] hears the messages tonight. His birthday party is cancelled to limit exposure to environmentals and reduce risk. [The Child] is asked to wash his hands frequently and must wash prior to eating or touching his face.” She followed up saying: “I hope [the Child] heard my messages this morning. Please have [the Child] give me—or [the Child] phone me before he goes to sleep. I want to have a conversation with him on his birthday.”

[94] In or around March 2020, she sent the Father a text offering to assist the Child with digital learning in March 2020, which the Father refused:

Can we schedule 15 to 20 minutes of Raz-Kids [an app from school, like I believe it’s a math app] after lunch while [the Child] is out of school? I can do so as requested by his teacher via FaceTime or phone call. Can you schedule this?

Can you schedule this so that I can do what Ms. Laura asked and assist [the Child] while he’s working on Raz-Kids.

[95] In or around that time, she also asked the Father to move the telephone access times from 6:30 to 7:30 p.m. to after the lunch hour because in the evening the Child was exhausted by playing video games and being on the computer all day for school. She wanted to give him hands-on time to do story time, gym time and different sensory activities when he was not tired. As well, the Child’s dinner time was during that time which interfered with her telephone calls.

[96] The Father’s curt response was:

Please maintain call time between 7 pm and 8 pm. [The Child] used Raz-Kids throughout each day to suit Ms. L.s instruction. Regarding weekend access, please be prepared to pick [the Child] up at the building at 1:00 p.m. and drop [the Child] off at the building each Sunday with your aunt.

[97] In or around April 2020, she wrote:

Hello T.P. As of right now, [the Child] is off of school until April 2nd, due to COVID-19. It is in the best interests that we, as his parents, develop a schedule to make sure that he is in a safe and healthy environment during the time he’s not at school. We should also make tentative agreements in case the school extends the closure due to COVID-19. I’m assuming you are taking time off from work to spend with [the Child] during the scheduled spring break. If during that time you get called into work, I will take [the Child]. My aunt is here with Me. When you return to work am willing to work with you to make arrangements that are convenient and will ensure that [the Child] enjoys his time off from school. [The Child] is the priority here. He is our son.

[98] The Father’s response was:

I have made a plan with my employer to ensure that there is no disruption in my ability to care for [the Child] over the coming weeks ahead. My employer is very flexible around scheduling, including working from home. Also, [C.C.] has made a plan with her employer for additional coverage if and when needed. [The Child] and I will remain safe and well cared-for throughout these extraordinary circumstances with this plan. It will maintain routines established over past months, which will keep uncertainty or stress as a minimum for [the Child] as to where he will reside. We do share a son together and he needs us to be able to communicate in a way which is respectful to each other, while recognizing the focus remains primarily on his for him. I would like our communication to be consistent with this, including when [C.C.] is mentioned involved and ensure that we’re communicating only what is necessary and essential for [the Child’s] benefit.

[99] Let me just point out that these are remarkably amicable communications from the Mother during the height of this dispute and not at all consistent with the Father’s position regarding the improper manner in which he says the Mother communicates ordinarily.

[100] As well, these communications demonstrate that in the middle of the pandemic, after the Mother’s negative hair follicle test (and later also after the OCL released its report in May,) the Father was not prepared to allow the Mother to assist when the Toronto schools closed down with childcare or tutoring, ostensibly when the Mother was sitting at home doing nothing. Instead the Father was looking to assistance from his employer and his girlfriend.

[101] His conduct in this regard was unreasonable, not in accordance with the Court Orders and not in the best interests of the Child.

[102] It is difficult to reconcile the Father’s presentation at trial with the chronology above which demonstrates a significant amount of thoughtlessness at a minimum. He presents as organized, emotionally controlled, well-prepared, and calm. His materials were excellent. He easily uploaded new materials onto Caselines when required during the trial and even did legal research. But he is not laboring under the same hardship as the Mother.

[103] What I have found particularly relevant in this case is not the manner in which the witnesses testified as much as the chronology, contemporaneous communications and documents. What people actually do is often more revealing than the way they talk about it long afterwards.

[104] Taking all the relevant circumstances into account, including the Mother’s behaviour at trial, I found the Mother to be truthful. Much of what she said was supported by contemporaneous documents/communications and her evidence is remarkably consistent with other pieces of evidence, e.g. from Dr. V., and the counsellor for JFCS. What she says hangs together very well. Further, she corrected herself when she misspoke and conceded things that she had said which were inaccurate. For example, in-chief, she said the Father never provided her with the details of the sale of their condominium (five years ago) but when presented with evidence that he did, she agreed. Although she did not comply with all disclosure orders, she testified that she did the best she could. I believe her.

[105] I have concerns about the Father’s credibility and reliability for reasons including:

a) He had difficulty conceding obvious facts like that the Mother had been the primary caregiver.

b) He brought his urgent motion alleging the Mother intended to abscond with the Child to New York when he knew the Child did not have a passport, the Mother does not drive or own a car, and under circumstances where the Mother and he had just negotiated summer vacation plans where the Child would be in his care for two to three weeks around the time his motion. As the Father admitted in his July 30 2019 affidavit (which was after he had already obtained the custody order before the Mother could file responding materials) the Child was already with him on July 5, 2019 when he issued his Notice of Motion. (The Father included this affidavit in his Trial Record for some reason.) There was opportunity to seek the Mother’s side and even to give her an opportunity to respond to his motion. The way the Father brought his proceeding was a strategic litigation decision which combined serious allegations of drug and alcohol abuse, mental health issues and potential abduction which was sure to make a Court take action. Once the Order was made, the status quo was preserved.

c) There are material differences between what he told the OCL and what he stated in his signed Form 8 Application. Indeed, the allegations about the Mother in his signed Form 8 are very extreme compared to what he told the OCL. At trial, the Father did not even say, let alone try, to prove the bulk of these allegations.

d) He breached Court Orders by failing to provide the Mother with reasonable parenting time after the hair follicle test results and in particular after the OCL Report. Indeed, even after the OCL Report, he was not prepared to allow the Mother unsupervised parenting time for three months until the parties attended at a case conference in August 2020. The Court Orders did not give him absolute discretion. He was required to act reasonably. His explanation at trial that he was just following the Court Orders is not credible, particularly since he was represented by counsel for most of this proceeding and certainly when these reports were available. In my view, the Mother’s breaches of Court Orders for disclosure in her circumstances pales in comparison to the Father’s failures given his.

e) As well, it appears to me that the Father does not take any responsibility for what has happened in this case. He feels that he is perfectly justified in everything he has done and that the fault lies entirely with the Mother. In my view, this interpretation is flawed. He bears significant responsibility for the conflict that has ensued.

[106] As such, where there are factual disputes not resolved by contemporaneous documents/ communications, I prefer the Mother’s evidence.

Changes to the Divorce Act and the Children’s Law Reform Act

[107] On March 1, 2021 amendments to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) occurred. Language in the CLRA was modernized. Terminology related to child custody and access has been replaced with terminology relating to parenting. Custody has become decision-making responsibility for significant decisions about a child’s well-being with respect to health, education, culture, language, religion and spirituality and significant extracurricular activities. Access became parenting time. These changes are aligned with changes made to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), that also came into force on March 1, 2021.

Decision-Making Responsibility

[108] The Father seeks sole decision-making responsibility for material decisions concerning the Child. The Mother does not seek to cut the Father out. She seeks an Order that they have joint decision-making responsibility.

[109] Section 16.3 of the Divorce Act provides as follows:

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

The Kinds of Decisions the Father Seeks to Control

[110] The Father wants control over the decisions that relate to education, religion, medical, extra-curricular and mobility. Both the Father and the Mother agree that there are no imminent decisions required to be made in any of these areas. The Mother argues that he is attempting to exert control.

[111] Regarding mobility, given that the Father is prepared to accept a work about parenting schedule, any major changes to mobility which would disrupt parenting time would have to be addressed through agreement or court order in any event. Regarding minor changes which could impact on pick-ups and drop-offs, both parents said that they would be content with an order that they reside within 25km of the Child’s school and that in the event either parent proposed a greater move, there should be consultation and agreement. I asked him, “if you wanted to move to British Columbia, you feel that that should be your sole decision to make?” and he said that yes, he felt that it should be. This is surprising given the fact that he brought urgent proceedings partially based on his belief that the Mother might take the Child to New York—even when the Child did not have a passport.

[112] With respect to medical issues, there is nothing currently pressing. I note as well that the Child’s medical care was in the hands of the Mother for the first seven years without any incident. The Child’s physician said that she properly attended to his medical needs.

[113] Further, with respect to religion, the Mother has been, and has the continuing wish to expose the Child to his rich Jewish heritage. The Father is not very religious. It seems odd that in such circumstances the Father would seek control over decisions regarding religion.

[114] Further, with respect to education, the Child is now in grade three and both parties agree that he should stay at his current school until the end of grade six. Neither says there are any imminent issues regarding education. The Child is an exceptional student. I note that the Father does not live close to the Child’s school, but the Mother does, and the Father discussed possibly changing the Child’s school when he could not afford to purchase a house near the school. One of his concerns regarding education decisions is that the Mother expressed wanting to send the Child to a Jewish day school. He said:

I believe just leading up to this, [the Mother] was also suggesting or asking for an opinion on moving [the Child’s] school to—to a Jewish school. I hadn’t heard any follow up on that, but I—I think it’s—there’s—the concern is the location, and decisions about that, it might be north—north or midtown Toronto location. It would change his routines for everybody.

[115] The Father’s concern in this respect appears to be his own convenience.

[116] The Father is seeking control over decisions which are not imminent and where most issues are already settled. The Mother argues that he is seeking control.

The Reasons Why the Father Believes He Should Be the Sole Decision Maker

[117] The OCL Report documented that the Father wanted full custody out of concern for the Mother’s decision-making based on her recent emotional instability. The Report stated that he “believes [the Mother] needs time to work through that and for him to feel like she has a more stable foundation.”

[118] Now that the OCL has found no issues with her stability, he based his argument on two points. First, his judgment is better. Second, the conflict between the parties would make it impossible to come to any agreement regarding the Child’s best interests.

The Mother’s and Father’s Judgment

[119] Both the Mother and Father have made mistakes and exercised some poor judgment.

[120] The OCL Report documents that after the Father brought this proceeding, the Mother disparaged the Father in front of the Child and improperly involved the Child in discussions regarding this litigation. She asked the Child who he wanted to live with (although she says this was in response to the Child’s questions and confusion over what was happening). She told him that if he lived with her, he would not have to go to daycare. She asked him about his meeting with the OCL and tape-recorded him on one occasion to send the OCL evidence. She participated in a Facebook campaign started by someone else to assist her with funding this litigation where a picture of her and the Child were posted. The post was made by someone else, but she endorsed it. All of these actions were not in the best interests of the Child.

[121] The Father has also exercised poor judgment by failing to make any inquiries of the Mother when he received reports of possible drug or alcohol abuse, by failing to make any inquiries after the Mother had told him she had been raped and that she and the Child needed counselling, by bringing C.C. to the Mother’s supervised visits which inflamed tensions which the OCL agrees was improper, by failing to attend the JFCS Families in Transition as he agreed in the August 2020 Minutes of Settlement, by insisting that the Mother’s parenting time be supervised by him until February 2020, and most critically, by failing to modify the Mother’s parenting time after the hair follicle test and later after the OCL Report. These actions were not in the best interests of the Child.

[122] While there are extenuating circumstances in respect of the Mother’s conduct, some of the Father’s conduct is more difficult to understand.

[123] While obviously allegations of alcohol and drug abuse are extremely serious and should be taken very seriously by any parent, the chronology suggests that the Father may have had other underlying motivations which contributed to his bringing the July motion. Whatever he was told in mid 2019 about the Mother’s alleged drinking and drug abuse (which was based largely on what they saw during Christmas holidays in 2018), did not cause the Father enough concern to even ask the Mother a question about it. He continued to allow the Child to live with the Mother. It makes sense that he would not have been concerned as he would have been seeing the Mother regularly at drop-offs and pickups. By the time her family said anything to him in March 2019, she had already stopped drinking in excess on her own which she told Dr. V. was by February 2019.

[124] It was not until the Mother prevented C.C. from attending the concert and asked him for an additional $100 that he brought his urgent motion. In my view, these were the triggering events. He had been concerned for awhile about his parenting time wishes not being taken into account sufficiently, and he was resentful of the support that he had been paying the Mother who he felt was taking advantage. Although he did not request this before me, I note that the Father’s initial signed Form 8 made around the time of the July 2019 urgent motion specifically requested that the Mother repay support that he had her paid over the years. This was a big concern of his at the time.

[125] His July 2019 motion killed two birds with one stone. He gained custody of the Child (therefore more parenting time) and ended his financial obligations in one fell swoop. While I do not think he deliberately intended to harm the Mother, or mislead the court, in my view the allegations made by the Mother’s family gave him the opportunity to seize control at a time when he was upset with the Mother for other reasons. He was in a relationship with another woman who was getting close to the Child, who wanted to assist with childcare in the future. In such circumstances, there was no motivation to seek the Mother’s side or verify the allegations further.

[126] Had he asked the Mother about her family’s concerns, the conflict that ensued could have been avoided. As I said above, I find it incredulous that he could take the position that what they said in mid 2019 caused him serious concerns when he did not even ask the Mother anything about it. Frankly, that he continued to deny the Mother unsupervised or increased parenting time after the hair follicle test and the OCL Report suggests that his professed concern about alleged alcohol and drug addiction was not the driving force behind his initial motion. Indeed, his initial signed Form 8 demonstrates that what he was ultimately seeking was primary care of the Child with some more limited ability for the Mother to see the Child, but not on a shared basis. Paragraph 12 says:

“As the Applicant Father recognizes the importance of the child having a relationship with his mother, if he was given sole custody and primary residence of the child, he would make his best efforts to foster and facilitate the relationship.”

[127] If the Father was able to successfully achieve this arrangement through this proceeding, he would have ended all of his child support obligations in the future. I am inferring that he delayed in implementing the OCL recommendations because he was very unhappy with the OCL Report’s recommendation for shared parenting which would again result in his paying child support because of the Mother and Father’s income differential.

[128] The Mother has been an effective decision maker for the Child for many years. She had a traumatic relationship with I.G. but that is over, and she has received help. She communicated fully with the Father during the first seven years. Even though she interrupted often, I found her extremely respectful, resilient, intelligent, articulate and knowledgeable about children and pressing societal issues which she wants to ensure the Child grows up understanding. Even when she became visibly upset, she quickly collected herself. Even though she had undergone significant trauma, I did not find her unstable or weak. Indeed, I found her to be very strong, particularly given what she has been through. She will be a fierce advocate for the Child if he ever needs one.

[129] Apart from his decisions related to this litigation matter, the Father has also been an effective decision maker for the Child in many ways given how well the Child has done in his care. In that regard, he outlined that he buys the Child clothes, sends him to summer camp and has sought activities for the Child to do during the lockdown. The Child’s report cards for the last two years show that he is doing very well. He says he tried to learn about what children need on a day-to-day basis. He is clearly well organized and capable.

[130] In my view, the Mother and Father both have much to offer in terms of decision-making and it is in the Child’s best interest that they share this responsibility, but for the issue of their conflict.

Conflict

[131] Courts have repeatedly said that joint custody (when that terminology was used) requires “a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own differences behind those of the child’s best interests”: Giri v. Wentages, 2009 ONCA 606, at para. 10; see also Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 (C.A.).

[132] In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at paras. 11-12, the Court of Appeal stated:

[11] 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. […]

[12] Insofar as the ability of the parties to set aside their personal differences and work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration.

[133] In L.B. v. P.E., 2021 ONCJ 114, at paras. 95-97, the Court summarized the additional applicable case law as follows:

[95] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.

[96] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).

[97] Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child's interests. Jama v. Mohamed, 2015 ONCJ 619.

[98] In S.S. v. S.K., 2013 ONCJ 432, this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents' conflict;

b) more or less likely to expose the child to parental conflict; and,

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[134] Given his testimony, and the nature of this dispute, I would have expected to see many examples of improper communications from the Mother.

[135] However, the Father provided only one undated string of text messages which appears to be from the night before the Child’s first day of school either in September 2019 or 2020. In these texts, the Mother pleads with the Father to: 1) tell her who is providing daycare when he is not available; 2) allow her to see the Child on his first day of school at the school drop-off; and 3) allow her to speak to the Child the night before the first day of school. The Father does not respond for the most part, apart from curt responses which only occur periodically after many texts from her.

[136] Accordingly, her texts become increasingly upset. She says things like “I’m fighting for my life and for my son” and “The irony of this situation is beyond obnoxious. I ask little of you. Just please have [the Child] call” and “Keep fighting me and this will continue to be used against you. You cannot keep me from mothering a child I’ve mothered since before he was born” and “Get bent. Seriously. It’s at the point that I will publicly call you out for this and will not stop fighting until you stop and put [the Child] first. What you’re doing is so wrong that I cannot say anything more” and “This shouldn’t be a battle. I’ve always tried to be your friend. You took advantage of my vulnerability and expected that I wouldn’t fight back.”

[137] First, I can understand the Mother’s frustration. Second, I did not find her communications that bad given the circumstances. Finally, this is only one exchange from one day—hardly enough to strip a mother of her parental rights. Furthermore, as noted above, the Mother provided evidence of significant cordial communications from her to the Father in 2020 even when he was being unreasonable about her parenting time.

[138] There are also several examples of communications in the period immediately preceding the Father’s July urgent motion which are extremely cordial and normal:

January 27, 2019

Father: Ok! Can you let me know if I can help?

Mother: Do you have a printer

Father: At work I do

Mother: If I send you the form could you print and sign your side? Then return to me, I’ll get the photos and then take it in? They do photos at shoppers next door. You’ll need a notary letter to take him over—I think that’s 100. But the passport itself is less than an adult passport—50 or something I think unless you need it rushed and have proof of travel.

Father: Ok I’ll get notary letter details and can send passport $

Mother: I’ll cover the passport fee it’s cool. You just get the letter.

May 24, 2019

Mother: For sure. Yes will steer clear of the building. Thinking maybe in nancy’s building. We’ll see.

Father: Ok, just sent a link also

Mother: Awesome thanks. What time are you coming tonight?

Father: I’m hoping to be there around 430-5

Mother: Hey so I have to be downtown at Dundas and University at 4. Shouldn’t take more than an hour but. Maybe we can meet downtown or something? Or we do a slightly later drop off? I still have a couple of errands to run after and will likely be a little shaken. Just putting it all on the table. Okay so meeting was pushed up okay to drop [the Child] around 6.

June 19, 2019

Mother: K. Thanks. June 20th he has a concert, repeat heads up. No pressure.

Father: Ok. What time is the concert at? I’ll definitely come, I’ll ask [C.C.] to come, not sure if she will be able too but I’ll check. I don’t want anyone to feel uncomfortable, but I think it’s an important school event and trying to keep in mind showing positive support for [A.P.].

Mother: Not comfortable.

Father: It’s hard for me to exclude her from stuff like this…if we have to sit apart, then maybe that’s the solution.

Mother: He’s changing schools anyway, he hates these events, so the decision is: we’re not doing it if those are the terms. I’d rather take him alone if at all.

Father: Ok, Let me figure it out…on my end. I think he should attend his school event and maybe I’ll miss it.

Mother: Probably for the best. I can videotape it. It’s in his best interest for both of You to not be there. Transitions & new person & trust issues. He shouldn’t see her until he and I work on his counselling. Honestly, I’d rather a professional consult. Given that I’ve been in serious appointments non stop for rape, I’m sorry, I would rather not bring [the Child] than have to see [C.C.]. So if you want to interfere with his schooling, keep going. Otherwise: do not attend. We have been going through more than you clearly are able to see and your insensitivity in this instance is revolting. You know me. I don’t so no unless I’m serious. Honestly, I’d rather keep him home/I have pneumonia potentially and I have multiple appointments to attend for he and I tomorrow. So just forget it.

[139] It could be argued that the Mother was being unreasonable and not acting in the child’s best interests in the June 2019 text by insisting that the girlfriend not attend the concert or neither would the Child. However, the text messaging suggests this is because she was actively seeking counselling for herself and the Child and did not want to have a new person involved until they had completed counselling. And note that even this June 2019 exchange over the concert, which the Father testified was when the conflict began, does not support a conclusion of severe conflict in any event.

[140] The Father also says that the way that the Mother has conducted herself during the trial and the things that she has said is one of the reasons why he does not want to deal with her. These are the kinds of things that the Mother said at trial:

I am asking for him to come back to normal, to read through those text messages and see how we used to interact before this campaign became a thing. To go through self-scrutiny and to seek help and to really seek therapy, to take advantage of the opportunities that you have to grow as a human being, because what has happened here over the last two years should be absolutely unacceptable.

And I ask that you check yourself before you think if a child deserves to be—if the decisions of your child’s life deserve to be made by someone who would do that to their child’s mother, to their own child without—while sitting there like, what—what did I do wrong. I don’t believe that that is fair and I believe there is something inherently wrong with this situation. And [Father], I ask you, with all due respect, that you appreciate that, that you listen to it, and if that—if that falls on deaf ears, if I am throwing spaghetti at a wall hoping that one thing sticks, I hope that you become a better parent for our child….I do not want to put anyone through what you’ve done to me.

…And it’s very—it’s been very difficult these last few days to look at you and listen to you. I don’t know if you understand the trauma impact of having to face an abuser, because you don’t qualify yourself as—or quantify yourself as an abuser, but I am telling you that other people do. And this has been very difficult and I hope that you can respect when you say that my tone at times seems harsh. It is because you have robbed me of years of my life and you have put—and if your child is emotionally well-developed, well, who did the work and who brought him to therapy in the aftermath? I ask you that question.

[141] I can appreciate the Father’s discomfort in hearing some of the things that she says, but that does not mean those things are untrue, disrespectful or inappropriate.

[142] As well, Father testified that he is concerned about unilateral decisions that the Mother may bring forward. As noted above, he said that there is a history since they separated of the Mother not agreeing to the parenting schedule he wanted, and the Mother speaking over him so he cannot get his thoughts out, but he did not have the resources before to find counsel and litigate this issue.

[143] In my view, this is the crux of the issue. The Mother is very strong. The Father has been unsuccessful in the past in voicing his views and so he wants the final say. It is not that the parties cannot communicate, it is that the Father does not want to.

[144] Although there has been conflict between the Mother and Father, in my view, it is premature to determine that they are unable to make joint decisions for the following reasons:

a) On August 14, 2020, the parties reached a temporary without prejudice agreement on parenting based upon the OCL recommendations. Therefore, they have already been able to agree.

b) Although there is currently conflict between the parties, this conflict arises out of this proceeding.

c) The OCL Report documents that the Father confirmed that for four years after their separation they were able to co-parent and discuss things regularly.

d) Based upon the communications provided to me at trial, and referenced in the Mother’s testimony, the parties were able to communicate properly even after the Father brought his motion even if there have been some issues.

e) As well, although the Father says that there is no possibility of reconciling their conflict, the Father has not even seriously pursued counselling yet. The Father only just registered in the Families in Transition course recommended by the OCL and there have been no sessions as yet.

f) As soon as the Mother’s parenting time began increasing, there were no significant instances of conflict as admitted by the Father. In my view, all the conflict arose out of the motion, the Orders made and the Father’s conduct with respect to her parenting time.

g) As upset as the Mother is with the Father, she repeatedly said he was a good or “exemplary” Father and that the Child “cherished” his time with the Father whose work with the Child was “fantastic”.

h) I specifically asked them both at the end of the proceeding about whether they would like to co-operate. The Mother says that she will be able to put her differences aside and communicate respectfully. The Father said:

That would be something I would like to communicate in a professional way, but also respecting that we’re only communicating for our child’s best interests, and a lot of times other things have pulled into it, and again if—if we can focus on the child’s best interests and communicate effectively, yes, I would very much like that.

i) At the conclusion to the trial, I also reviewed certain aspects of the parenting order which I was being asked to make and they agreed on many things.

[145] Major parenting decisions are unlikely to be required for some time. Over time the pain of this proceeding will fade and having seen both of these people, I believe that they will be able to communicate and co-operate in the Child’s best interests. It might not be easy, and they might not like it all the time, but it is in the best interests of the Child, who they cherish.

[146] I note that my decision is not in accordance with the recommendations of the OCL which recommended that the Father have sole decision-making power, but as noted by the Court of Appeal in Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721, at para. 20, the trial judge does not have to accept the findings or recommendations of the OCL. My concerns with the OCL Report in this regard is that they have wholly missed the chronology of events which demonstrates that the Father has responsibility for much of what has occurred. It also was not in a position to consider some of the communications described above which demonstrate that the Mother had been communicating respectfully since the OCL delivered its report. In my view, the OCL focused too heavily on examples of the Mother’s conduct when she was in the midst of dealing with the IPV and immediately after the July 2019 Order which blindsided her.

[147] I note as well that had I found that there was conflict that would make it impossible for the parties to co-operate henceforth, I would have granted sole decision-making authority to the Mother, not the Father. The Mother’s problematic decisions/conduct have resulted from her reacting to difficult and traumatic circumstances. The Father’s decisions and conduct have been deliberate, from a place of power and are less understandable for the reasons I have outlined. As well, many of the Father’s decisions and conduct have been driven, at least in part, by self-interest. I have seen no evidence of this in the Mother. Finally, the Mother is prepared to co-operate while the Father is not. All of these things would make her the preferred decision maker.

[148] I caution the parties that if this matter returns to the Court because of their failure to communicate or continuing conflict, it is very likely that one of them will lose their ability to participate in making joint decisions regarding the Child.

Parenting time

[149] The best interests of the child are paramount, and the Divorce Act solidifies that any parenting order or contact order must be determined based only on an analysis of the child’s best interests: Divorce Act, s. 16(1).

[150] The Divorce Act also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: Divorce Act, s. 16(6). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.

[151] While there is no presumption of equal parenting time, the maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interests of the child: Divorce Act, s. 16(6); Bembenek v. Bembenek, 2019 ONSC 4050; Kirichenko v. Kirichenko, 2021 ONSC 2833.

[152] As set out in Ferreira v. Ferreira, 2015 ONSC 3602, at paras. 31-32:

[31] The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 387. The party who seeks to reduce normal parenting time is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946.

[32] A child's relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children's physical or mental well-being: see Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont.Ct. (Gen. Div.), Divorce Act, s. 16.

[153] However, above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being which is particularly significant in cases of family violence: Pereira, at para. 13; Divorce Act, s. 16(2).

[154] Other relevant considerations contained in the Divorce Act include:

i) the child’s needs given the child’s age and stage of development, such as the child’s need for stability: s. 16(3)(a);

ii) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life: s. 16(3)(b);

iii) child’s relationship with the other spouse: s. 16(3)(c);

iv) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained: s. 16(3)(e);

v) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child and also cooperate and communicate with the other parent: s. 16(3)(h);

vi) any family violence: s. 16(3)(i);

vii) any civil or criminal proceeding, order, condition or measure relevant to the safety, security and well-being of the child: s. 16(3)(k);

viii) the court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate: s. 16.1(5);

ix) the court may require that parenting time or the transfer of the child from one person to another be supervised: s.16.1(8).

[155] In this case, the Child is now nine years old. He lived primarily with his Mother for the first seven years and then solely with the Father from June 2019 to August 2020 after which the Mother’s parenting time was stepped up to 50% in accordance with the OCL Report recommendations. There were no issues with the work about parenting time until the Mother’s concerns about COVID-19 above. The Child is well adjusted and is doing well in school. The Child loves both parents and has a good relationship with both of them but does not want to choose between them. The OCL has recommended a week about parenting arrangement. The Father proposes the same.

[156] A complication of this is that the Mother says that at present because of this litigation, and what has happened over the last two years, she is financially destroyed. She has been unable to seek better employment because of her preoccupation with this case. She says that at this point she is not able to take the Child on a week about basis for financial reasons. She does not even have enough money to stock the pantry or buy the Child clothes. Her annual income is approximately $31,000 compared to expenses in the approximate amount of $52,000. Although she has downsized her accommodation, she wants to stay in her current location because of its proximity to the Child’s school.

[157] I will be making a retroactive child support order which will provide the Mother a fund to get things ready for the Child. It is my expectation that for the foreseeable future, the Mother’s parenting time can begin. The Mother said she thought that it should be stepped up over time for the Child’s stability (which frankly demonstrates how much she wants to act in the Child’s best interests and not just her own).

[158] As well, because she works in film, she has to travel at times and as such she requires flexibility. Week about parenting during this summer would be particularly problematic as she begins rebuilding her career and financial circumstances.

[159] This is going to require co-ordination between the parties. Unfortunately, she did not have any specific proposal other than some provision for changing her parenting time if necessary and by notification to the Father.

[160] Given her circumstances, I am not commencing her week about parenting time immediately. Rather, I will be making an order whereby she have parenting time every other weekend from Fridays to Sundays and every other Tuesday to Thursday with timing dependent on whether the Child is in school.

[161] Commencing September 1, 2022, the Mother’s parenting time on a week about basis will commence. This will afford the Mother the opportunity during this next year to work on her finances and further heal from the trauma she has endured.

[162] As well, if the Mother’s circumstances improve before September 1, 2022 and she wishes to resume week about parenting, she may do so by giving the Father 30 days written notice.

[163] Regarding holidays, the parties reviewed with me various holidays that they would like to spend with the Child. I am making the Order in line with their requests so that they each have the same number of holidays.

[164] Regarding the Child’s birthday, I am ordering that the parties each have parenting time with the Child on his birthday, March XX on alternate years.

[165] The parties agreed that any requests for alterations to the parenting time schedule for weddings or other events should be made in writing and that the other parent is not to unreasonably withhold consent. I have provided that this notice be given 14 days in advance.

[166] Regarding travel, both parties said they wanted the ability to travel with the Child for up to 14 days and that this could be dealt with through notice to the other parent, again with a requirement that the other parent not withhold consent unreasonably and that they provide the details of accommodation as well as the itinerary. I am making this Order.

[167] Regarding drop-offs and pick-ups, the Father has access to a car and the Mother does not. There have been previous orders where the Father is required to do all drop-offs and pick-ups. The Mother says that she must take transit to the Father’s residence and that this is difficult for her given her being immunocompromised. Consistent with other aspects of this decision, it is important for the Mother to have time to work on her finances. Given that COVID-19 is still a problem, I am ordering that until September 1, 2022, the Father continue to provide all drop-offs and pick-ups.

[168] Because of her financial circumstances, I am also ordering that the Father purchase all the Child’s clothing and necessities for the next year and that when he sends the Child to the Mother’s, he ensures the Child has adequate clothing and necessities.

[169] There may need to be changes to this parenting plan once the Mother has more information on the kind of accommodation, she requires in light of new work opportunities. If that is the case, then if the parties cannot agree, they may bring a motion for change.

[170] I note that the Mother feels strongly that her mobility has been limited by having to stay in Canada when her career requires her to travel. She argues for parenting time to be assessed on an annual basis such that overall, each parent would have 50% of the time but it would be flexible. She did not provide me with enough information on what she proposes. Again, if she ultimately has a plan because of changed employment circumstances, she may bring a motion to change.

Child Support

[171] Child support is governed by the Federal Child Support Guidelines, SOR/97-175 (“CSG”).

[172] Section 3 of the CSG reads as follows:

Presumptive rule

3(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is

(a) The amount set out in the applicable Table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) The amount, if any, determined under section 7.

[173] The Mother testified and I accept that in 2020 she earned $31,723. In 2020, the Father earned $131,427. I note that the Mother did not provide a Notice of Assessment for 2020 but only a draft tax return which she said she has just filed.

[174] The Father submitted a letter from the Mother’s employer which stated that she earned $36,000 in 2019.

[175] The Father asks that I impute income to the Mother in the amount of $36,000 as she should be working full time and has the ability to earn at least $36,000.

[176] Section 19(1) of the CSG empowers the court to impute income to a spouse as it considers appropriate in the circumstances:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

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

(e) the spouse’s property is not reasonably utilized to generate income;

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

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[177] As noted above, the Father says that the Mother should have been working full-time shortly after their break-up and that she has been taking advantage of him all these years. As I explained above, the parties entered into a mutual agreement regarding financial support. There is no evidence it was specified to be time limited or that the Father told the Mother that she should seek additional income. They arranged their affairs so that the Mother would be the primary caregiver with the Father working full time. He was able to steadily increase his income with this arrangement in part because of the Mother’s contribution to childcare. He then unfairly and without notice catapulted the Mother into financial ruin at a time when she needed money to hire a lawyer because of proceedings he brought. She has been under a tremendous strain, fighting allegations proven false and any suggestion that she should have income imputed to her is not warranted. She has done the best she can in difficult circumstances.

[178] As such, I am not imputing income to her but rather accepting the income figure that she testified to at trial for 2020 which is $31,723.

[179] Pursuant to the CSG, the Father’s Child Support Table Amount is $1,157 per month and the Mother’s is $270 per month. Therefore, the set-off amount which the Father must pay to the Mother is $887, if they shared parenting on a 50% basis.

[180] Given that I am not making a shared parenting order for the next year, the Mother would have to pay the Father $270 per month in child support.

[181] Section 10 of the CSG provides:

Undue hardship

10. (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

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

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

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

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

[182] In my view, making a child support order at this time against the Mother would constitute undue hardship for the reasons set out above. She is in dire financial circumstances because of the events of the last two years which I have described above which include the Father cutting off support she had relied upon for years right after she had been raped and just when she needed the money to defend this lawsuit. The extreme allegations made against the Mother have gone to the core of her identity as a primary caregiver. She has been preoccupied and unable to improve her financial situation. The Mother has had to take out loans, sacrifice her credit and livelihood and accept charity from friends and family to keep the Child’s home in the same school district and building he has known for years.

[183] The OCL has recommended that it is in the best interests of the Child that the Mother have week about parenting, but she cannot afford to take the Child on that basis and needs time to address her financial circumstances. She testified that once this litigation was over, she was confident that she could obtain more lucrative employment. Requiring her to pay child support at this time will frustrate her attempt to get on her feet which needs to happen if she is to resume week about parenting. Ordering child support at this time will not only be a hardship to her, but it will also frustrate what is ultimately in the Child’s best interests—that she get on her feet financially.

[184] The Father will not suffer any hardship if child support is not paid and neither will the Child. The Father earns a significant income and has a partner contributing between $400 and $600 to household expenses.

[185] I have conducted the comparison of income test in s. 10(4) of the CSG which shows that the Mother’s household’s standard of living would be dramatically lower than the Father’s if she pays CSG Table amount. The Mother’s household income ratio is 2.321 compared to the Father’s 6.686. This calculation is attached as a schedule to these reasons.

[186] Therefore, I am ordering that from today, until September 1, 2022 when the Mother’s week about parenting time begins, she shall not be required to pay any child support.

[187] Commencing September 1, 2022, the CSG Table amounts shall be used in determining any support obligations. I am ordering that the child support payable beginning at that time is $887 per month based upon the current income information before me. I have incorporated into the Order the exchange of financial information for the parties to address any changes to the CSG Table amount based on changes to their incomes.

[188] As well, if the Mother elects to resume work about parenting prior to September 1, 2022, then the Father shall commence paying child support in the amount of $1,157 per month at that time. Because I have determined that she would suffer undue hardship and that she should not be required to pay child support until September 1, 2022, there is no set off for 2021.

Child Support Arrears

[189] The Mother had 50% parenting time with the Child from November 2020 until the end of April 17, 2021—a period of 5.5 months and the Father did not pay any child support during this time. The Mother claims retroactive child support for this period.

[190] The Father’s Table amount for this period, on a shared parenting basis, is $887 per month as set out above. Therefore, the Father owes the Mother child support arrears in the amount of $4,878.50 (5.5 x $887).

[191] The Father asks that this be set-off against child support that the Mother should have been paying him from July 2019 until November 2020, and between April 17, 2021 to June 2021, which he calculated to be $5,355.

[192] Orders requiring the payment of retroactive child support are discretionary and also subject to the hardship exception outlined above. In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court outlined four factors to consider in determining retroactive claims:

(a) A reasonable excuse not to have enforced;

(b) Conduct of the payor

(c) The past and present circumstances of the child;

(d) The hardship on the payor parent if a retroactive order was made.

[193] Both parties have sought child support orders at the commencement of this proceeding therefore neither has delayed.

[194] I have already assessed the issue of hardship on the Mother which also applies to the Father’s request for retroactive support. There is no hardship to the Father in making a retroactive order against him given his income and circumstances.

[195] As well, there was no moral blameworthiness on the Mother’s part when she did not pay child support. She simply could not afford to pay support given her circumstances. The Child was well taken care of by the Father at the time who earned a significant income. However, in my view, the Father has engaged in blameworthy conduct and privileged his own interests over the Child’s. In that regard, he knew of the Mother’s financial circumstances yet when he sent the Child to her home for stepped up parenting which was at 50% as of November 2020, he did not pay child support. Therefore, he was sending his Child to a home where he knew the Mother did not have adequate financial resources.

[196] In all the circumstances, I am making a retroactive order in favor of the Mother in the amount of $4,889.50, but not in favor of the Father. Therefore, there will be no set off.

Section 7 Expenses

[197] Section 7 of the CSG provides that:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

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

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extra-curricular activities

[198] Section 7 is permissive not mandatory and in considering s. 7 requests, the Court is to have regard to the means of the parents: Brock v. Sorger, 2015 ONSC 7478.

[199] The Father asks that the parties share s. 7 expenses on a go-forward basis in proportion to their incomes, but he seeks no retroactive amount.

[200] He includes in this category expenses for daycare as well as $800 per year for extracurricular activities.

[201] The Mother opposes this request because she does not need daycare. She lives near the school and the Child can come to her house after school during her parenting time. She also does not have the means to pay for daycare. As the daycare is primarily needed by the Father, I am not ordering that the Mother pay daycare expenses on a going forward basis.

[202] With respect to extra-curricular expenses, I am ordering that she pay these but only after September 1, 2022, in proportion to her income for the reasons outlined above. I am exercising my discretion to give her one more year to improve her finances before imposing additional costs on her.

[203] With respect to the overall cost of extra-curriculars, the parties have agreed that they will each be able to select one activity the Child does at a maximum of $400 per activity.

Documents

[204] The Father seeks custody of all the Child’s legal documentation, in the sense that he wants to be the one responsible for ensuring they are updated. I see no reason why either parent should have custody of such documents or sole responsibility to update them. I will be making an Order below where each parent will have custody of one legal document with the other having a notarized copy and vice versa and that the parent with custody of such document will take the necessary steps to update same. The Child’s health card shall travel with him: De Melo v. Gooding, 2010 ONSC 2271, 84 R.F.L. (6th) 369, at para. 63.

Our Family Wizard

[205] The Father wishes to have all communications through Our Family Wizard. This was previously ordered, and the Mother could not afford it and did not use it. She still cannot afford it and I see no reason to burden her further with this expense and learning how to use this app when she is in the midst of rebuilding her life. She prefers to communicate by text or e-mail, and I see no problem with this given the communications I have seen.

Costs

[206] Regarding, the costs of the proceeding, I am directing the Registrar to set up a time for a hearing on the issue of costs of this entire proceeding in August 2021.

[207] There have been costs orders made against the Mother in this proceeding in respect of various steps which the Father took. Pending the hearing on the costs of this proceeding, I am staying all such costs orders against the Mother in the interests of justice pursuant to s. 106 of the Courts of Justice Act and R. 2(2) of the Family Law Rules, which directs the Court to apply the Rules to deal justly with cases.

[208] SDO Order to follow.

[209] Accordingly, I order as follows:

1. Decision Making Authority-Pursuant to ss. 16.1(1), 16.2(2), 16.3 and 16.1(4)(d) of the Divorce Act

(a) The Applicant, T.P, and the Respondent, A.E., shall have shared decision-making authority for major decisions involving the child, A. P.;

(b) The parties shall consult whenever such major parenting decision is required.

(c) In the event either parent wishes to make a major parenting decision, he or she shall provide the other parent with notification through e-mail or text as to the decision he or she seeks to make together with the reasons, therefore. The other parent shall have 15 days to respond in writing by email or text. If the other parent does not respond, then the party who seeks to make the decision shall follow-up. If the responding parent still does not respond, the parent who seeks to make the decision may do so after a second 15-day period has passed.

(d) The resident parent shall be responsible for making day-to-day medical/health decisions (e.g. when to give over-the-counter medicines, attendance at a doctor’s or dentist’s office when there is an immediate concern, staying home from school due to illness, etc.).

(e) The resident parent shall inform the non-resident parent in a timely way (i.e. within 24 hours or before the next transition, whichever comes first) on any day-to-day events that fall outside the norm to provide consistency and continuity of care between the homes. This includes minor illnesses, administering medication, attendance at walk-in clinics, etc.

(f) The resident parent shall be responsible for making day-to-day decisions regarding the care of A. P.. Emergency decisions shall be made by the parent with whom A. P. is resident at the time.

2. Communications pursuant to s. 16.1(4)(c) of the Divorce Act

(a) The parties shall communicate by ordinary e-mail or text. Their communications shall be limited to those solely about A.P. and any issues which may need to be canvassed for a decision or confirmation of appointments or alterations to parenting time.

(b) The parties shall communicate in a cordial manner and shall not disparage each other in front of A. P.

3. Parenting Schedule pursuant to ss 16 and 16.2 of the Divorce Act

(a) The following parenting schedule will commence on July 12, 2021, beginning with Week 1 until school commences in September 2021:

Week 1:

A. P. shall be resident with A.E. on Tuesdays from 9:00 a.m. until Thursday morning at 9:00 a.m. At all other times during Week 1, A.P. shall be resident with T.P.

Week 2:

A. P. shall be resident with A.E from Friday at 9:00 a.m. until Sunday at 6:00 p.m.

(b) The following parenting schedule will commence on September 1, 2021 until September 1, 2022:

Week 1:

A. P. shall be resident with A.E. on Tuesdays from after school/daycare until Thursday morning school/daycare drop-off. At all other times he shall be resident with T.P..

Week 2:

A.P. shall be resident with A.E. from Friday after school/daycare until Sunday evening at 6:00 p.m.

At all other times during Week 2, A. P. shall be resident with T.P.

(c) Beginning September 1, 2022, the parties shall have week about parenting from after school on Friday until the following Friday morning at school/daycare drop off.

(d) At A.E.’s election, if she wishes to resume parenting time on a week about basis prior to September 1, 2022, she may do so by giving T.P. 30 days’ notice.

4. Drop-offs and Pick-ups pursuant to s. 16.1(4)(d) of the Divorce Act

(a) During the summer of 2021, T.P. shall do all the drop-offs and pick-ups outside A.E.’s building, 233 Carlaw Avenue, Toronto, Ontario.

(b) Commencing September 1, 2021 until September 1, 2022, all drop-offs and pick-ups before or after school shall occur at A.P.’s school, the Morse Public School. Any drop-offs or pick-ups outside of A. P.’s school day shall be done by T.P. outside of A.E.’s building, 233 Carlaw Avenue, Toronto, Ontario.

(c) Commencing September 1, 2022, all drop offs and pick-ups before or after school shall occur at A.P.’s school, the Morse Street Junior Public School. Any pick-ups outside of A.P.’s school day shall be done by whichever parent has parenting time at the time specified for A.P’s parenting time.

5. Education pursuant to s. 16.1(4)(d) of the Divorce Act

(a) A.P. shall attend Morse Street Junior Public School until the end of grade 6.

6. COVID-19 pursuant to s. 16.1(4)(d) of the Divorce Act

(a) If A.P. or anyone in the household of the parent who has parenting time with him is exhibiting any signs of COVID-19, the parent who has parenting time with him shall provide the other party with written notification of same prior to any scheduled drop-off or pick-up.

7. The Father to Send A.P. to A.E.’s with Clothing and other Necessities pursuant to s. 16.1(4)(d) of the Divorce Act

(a) Commencing from the date of this Order until September 1, 2022, T.P. shall pack sufficient clothing and other necessities for A.P.’s use during his parenting time with A.E.

8. Holiday Schedule ss 16 and 16.2 of the Divorce Act

(a) The parents shall adjust the parenting schedule of A.P. for holidays by overriding the parenting schedule as follows:

(i) A.E. shall have parenting time with A.P.:

• Mother’s Day from 10:00 a.m. to 7:30 p.m.;

• Rosh Hashanah from 10:00 a.m. of the first day to 7:30 p.m. on the following day;

• Yom Kippur from 10:00 a.m. of the first day to 7:30 p.m. of the following day;

• Passover from 10:00 a.m. the first day to 7:30 p.m. the following day;

• Sukkot from 10:00 a.m. to 7:30 p.m. the first day; and

• Purim from 4 p.m. to 10:00 a.m. the second day.

(ii) T.P. shall have parenting time with A.P.:

• Father’s Day from 10:00 a.m. to 7:30 p.m.

• Easter weekend from 10:00 a.m. on the Saturday to 7:30 p.m. on Easter Sunday;

• Thanksgiving Day from 10:00 a.m. the first day to 7:30 p.m. the following day;

• Christmas from 10:00 a.m. on Christmas Eve to 7:30 p.m. on Christmas Day;

• Canada Day from 10:00 a.m. the first day to 7:30 p.m. on the following day; and

• Victoria Day from 10:00 a.m. to 7:30 p.m.

9. Birthdays ss 16 and 16.2 of the Divorce Act

(a) The parties shall alternate spending A.P.’s birthday with him, beginning with A.E. having parenting time with him during his 2022 birthday from after school until the following morning school/daycare drop-off, if his birthday falls on a weekday. If his birthday falls on a weekend then that parenting time shall be from 9:00 a.m. on the date of his birthday until the following day at 9:00 a.m. or if the following day is a school day, until school/daycare drop-off.

10. Alterations to the Parenting Time pursuant to 16.1(4)(d) of the Divorce Act

(a) In order to limit transitions, the parties may agree to extend parenting time when the regular schedule and the holiday schedule would result in additional transitions over the span of 36 hours. Any requests to extend parenting time to reduce transitions in accordance with this paragraph shall be made at least seven days in advance. Requests shall not be unreasonably withheld.

(b) The parties shall alternate parenting time during A.P.’s March Break with T.P. having parenting time during the first March Break in 2022, if it does not fall within his parenting time.

(c) Any request to alter the parenting schedule, for any reason, including family events (e.g. wedding, birthday, party, etc.) shall be made as soon as possible and at a minimum seven days before the requested change. The other party shall not unreasonably withhold consent for the change and when such a change is made, the parties shall make reasonable attempts to reschedule the parenting time missed.

11. Information pursuant to s. 16.4 of the Divorce Act

(a) Each party may make inquiries and be given information regarding A.P.’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with A.P., without the need of the other parent’s written consent.

12. Travel ss 16 and 16.2 of the Divorce Act

(a) Both T.P. and A.E. shall be permitted to travel within Canada during their parenting time, provided they give notice of the intent to travel and travel details to the other parent 14 days prior to travel.

(b) During the time period when A.E. does not have week about parenting, she will be entitled to two seven-day periods when she may take A.P. on holiday. She shall give T.P. at least 28 days’ notice of the dates she is seeking to vacation, and T.P. shall not unreasonably withhold his consent.

(c) Both T.P. and A.E. shall require the consent of the other to travel outside of Canada, which consent shall not be unreasonably withheld.

(d) If either T.P. or A.E. request to travel with A.P. outside their designated parenting time, they will require the written consent of the other parent. Notice of travel outside of their designated parenting time is to be provided at least 28 days prior to their intended travel date. Such consent shall not be unreasonably withheld.

13. Documents pursuant to s. 16.1(4)(d) of the Divorce Act

(a) T.P. shall retain custody of A.P.’s passport and A.E. shall have a notarized copy of same. T.P. shall also have custody of A.P.’s report cards and A.E. shall have copies. A.E. shall retain custody of A.P.’s Social Insurance Number card and birth certificate and T.P. shall have a notarized copy. A.P.’s health card shall travel with him in his backpack.

(b) The parties shall share equally original and notarized copies of any other legal documents related to A.P.

14. Child Support pursuant to s. 15.1(1) of the Divorce Act

(a) T.P. shall pay A.E. child support arrears in the amount of $4,887.50 as follows:

$2,000 on July 15, 2021

$2,000 on August 15, 2021

$887.50 on September 15, 2021

(b) There shall be no set-off in respect of any costs awards made against A.E..

(c) For the next year, T.P. shall be responsible for purchasing A.P.’s clothing and shoes.

(d) Whenever week about parenting time commences in September 1, 2022, T.P. shall commence paying $887 in child support.

(e) If A.E. elects to assume week about parenting before September, 2022, then T.P. shall pay $1,157 in child support each month, until September 1, 2022.

(f) For as long as child support is payable, the parties shall exchange copies of their personal tax returns and their corresponding Notices of Assessment or Re-Assessment as soon as they are available, for purposes of reviewing and/or varying the quantum of child support payable. The adjusted child support shall take effect as of July 1 of the applicable calendar year.

15. Section 7 Expenses pursuant to s. 7 of the CSG and s. 15.1(1) of the Divorce Act

(a) A.E. shall not have to pay any proportion of daycare expenses pursuant to section 7.

(b) Beginning September 1, 2022, the parties shall share the expense for extra-curricular activities in proportion to their incomes. The total cost for such extra-curricular expenses shall not exceed $400 per activity and each of T.P. and A.E. shall select one activity.

(c) With respect to other section 7 extraordinary expenses, either of the parties shall only be responsible for section 7 extraordinary expenses provided their consent is obtained in advance of said expense being incurred, save and except any medical, dental or education expense. The parties shall not unreasonably withhold their consent.

(d) This Order may be varied on consent of the parties.

(e) All previous costs orders made against A.E. are stayed until further order of this Court.

Papageorgiou, J.

Released: July 9, 2021

COURT FILE NO.: FS-19-11065

DATE: 20210709

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

T.P.

Applicant

– and –

A.E.

Respondent

REASONS FOR DECISON

Papageorgiou, J.

Released: July 9, 2021

[^1]: I did not find C.C.’s testimony helpful to the issues in this matter. C.C. had not met the Mother until shortly before the July 2019 motion, although she had attended at some drop-offs and pick-ups prior to then. C.C. gave evidence about having observed the Child cry one time when he left the Mother’s home and when she asked him about it, he said it was because the Mother took away his Pokeman book. She said she observed problems at drop-offs and pick-ups prior to July 2019, but did not explain what they were. She described an incident where she attended to a pick-up where she felt that the Mother might hit her but gave no explanation as to why or any description whatsoever of what happened other than her subjective belief. She also described a situation where the Mother was late to pick up the Child from daycare once and so she and the Father had attended. By the time they arrived, the Mother was there, and the Child waved at them. She complained that the Mother did not stop and say hello or send any follow-up text saying that she had picked up the Child. I fail to understand why the Mother acted inappropriately by not sending such a text when they had seen her. She testified that on one occasion the Mother told her to get a life and go back to China. If this is true, I agree it was inappropriate and offensive. She says she found the Mother’s voice intimidating. As well, after the week about parenting started, when the Mother had the Child, C.C. would try to talk to the Child during the Father’s phone calls. This was upsetting to the Mother who interrupted the call and kept saying that C.C. should not be involved in the call.