Overview

[1] The Applicant, Vikas Kohli, and the Respondent, Sheri Thom, were married from May 14, 2003 to September 11, 2019. They have one child, X, who was born in April 2018.

[2] Since the parties’ separation in September 2019, the Applicant has had twelve hours per week supervised parenting time with X.

[3] The Applicant brought this motion for increased and unsupervised parenting time with X. The Respondent brought a cross-motion for interim spousal and child support. Both motions were permitted to proceed pursuant to Kraft J.’s endorsement dated September 29, 2020.

[4] In this case, I find it necessary to highlight that the material filed on the motions consisted of multiple lengthy, repetitive, and voluminous affidavits with numerous attachments totalling over 2,100 pages, as follows:

Applicant’s affidavit, sworn August 4, 2020 (461 pages)
Applicant’s affidavit, sworn November 16, 2020 (654 pages)
Applicant’s affidavit, sworn November 23, 2020 (46 pages)
Affidavit of Rahul Arora, sworn August 4, 2020 (2 pages)
Respondent’s affidavit, sworn October 17, 2019 (157 pages)
Respondent’s affidavit, sworn July 27, 2020 (433 pages)
Respondent’s affidavit, sworn October 17, 2020 (155 pages)
Respondent’s affidavit, sworn November 18, 2020 (35 pages)
Respondent’s affidavit, sworn November 23, 2020 (243 pages)

[5] The motions were booked for a half day. One party confirmed that their motion would require sixty minutes. The amount of material filed on the motion is disproportionate to the issues before the court, the length of the hearing, and the fact that the record is entirely electronic. The difficulty in weeding through such voluminous electronic materials, some of which are insufficiently bookmarked and described, cannot be overstated. At the hearing, counsel were each directed to file a compendium of evidence referred to in their submissions. Counsel did not file compendia but, rather, provided links to electronic folders containing all of the original affidavits, which were somewhat more organized than the original motion material.

[6] Filing disproportionately voluminous material is inconsistent with the primary objective, which parties and lawyers are required to help the court promote, because it impedes the court’s ability to address matters in an efficient manner, appropriate to their importance and complexity. Such material obscures rather than illuminates the issues before the court and the facts on which they are to be decided. Considerable time had to be devoted to poring through the evidentiary record in an effort to arrive at a result. In a case where both parties are seeking interim relief and, presumably, an expeditious result, consideration ought to have been given to whether the volume of material filed serves, or hinders, their interests.

Issues

[7] The issues in the Applicant’s motion and the Respondent’s cross-motion are as follows:

(a) Should the Applicant’s parenting time with the child continue to be supervised?

(b) Should the Applicant’s parenting time with the child be extended?

(d) If so, how much support is the Respondent entitled to?

Factual Background

[8] The parties married in 2003 and lived in California until 2007. They decided to return to Canada in 2007. They lived in New Brunswick, where the Respondent’s parents reside, for over a year before moving to Toronto in 2008. The parties’ child, X, was born in April 2018.

[9] The Respondent alleges that the Applicant abused her physically and emotionally throughout the course of their marriage. In her affidavits, she details several serious incidents of abuse over the course of many years. The Respondent states that she did not tell anyone, including her family members, about the abuse and that she repeatedly requested that the Applicant get professional help for his anger issues. The Respondent alleges that the Applicant is “deeply disturbed” and has an undiagnosed psychotic or sociopathic condition resulting from unresolved anger over his own father’s abuse of him and his mother when he was a child.

[10] The Applicant denies that he was physically abusive toward the Respondent. He acknowledges that they frequently argued and yelled at each other. The Applicant alleges that their arguments often arose from his failure or refusal to follow rules and rituals prescribed by the Respondent, who has been diagnosed with anxiety and obsessive-compulsive disorder (“OCD”). The Applicant states that the Respondent was physically abusive towards him. The Applicant acknowledges abuse by his father but denies that he has a mental health condition or suffers from anger issues.

[11] The Respondent alleges that her anxiety and OCD became worse as a result of the abuse that she suffered at the hands of the Applicant. She states that her OCD is under control but that she suffers from post-traumatic stress disorder (“PTSD”) from years of abuse by the Applicant.

[12] The parties’ relationship was characterized by significant conflict and further deteriorated before and after X’s birth. At some point, the parties were still living together but no longer sharing a bedroom. On September 11, 2019, the Respondent’s lawyer sent a letter to the Applicant to commence the process of separating.

[13] On September 20, 2019, the Applicant contacted Toronto Police Services and told police of his intention to leave the matrimonial home with X. Later that day, the Applicant left the matrimonial home with X and sent the Respondent an email informing her that X was safe and in his care. Police attended at his location for a well-being check but no charges were laid.

[14] When the Respondent found out that the Applicant had left the matrimonial home with X, she sent an email pleading that the Applicant return with X, who she was breastfeeding every three hours. When the Respondent did not return, the Applicant contacted Peel Police Services and made historical allegations of abuse. As a result, Peel Police located and charged the Applicant with numerous offences, including assault, uttering threats, and possession of a firearm without a licence. X was returned to the Respondent’s care.

[15] The Applicant states that he left with X because the Respondent had told him that her mother would be coming to help move her to New Brunswick and he was afraid that the Respondent would abscond to New Brunswick with X. The Respondent denies any intention to remove X to New Brunswick.

[16] The Applicant alleges that the Respondent went to Peel Police after she was unsuccessful with Toronto Police in having him charged. At the motion hearing, Applicant’s counsel advised that all charges had been withdrawn recently and that the Applicant had entered into a six-month peace bond.

[17] The Children’s Aid Society (“CAS”) also became involved in September 2019. The CAS noted that the risk of future harm to X was “moderate” given his age, the presence of domestic violence, and the Respondent’s mental health. X’s safety was rated eight out of ten because the Applicant’s access was supervised, a restraining order was in place, there were no plans for reunification, and because of the court’s involvement.

[18] The Applicant brought an urgent motion for parenting time with X. On October 17, 2019, the motion was adjourned by Diamond J. and the Applicant agreed, on a without prejudice basis, to supervised parenting time for twelve hours each week. On October 31, 2019, Del Frate J. continued the order with certain amendments.

[19] In his order dated October 17, 2019, Diamond J. also requested the assistance of the Office of the Children’s Lawyer (“OCL”). The OCL provided a Report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 on August 12, 2020 (the “OCL Report”). The OCL’s findings are detailed further in these reasons.

Analysis

Should the Applicant’s Parenting Time Continue to be Supervised? Should the Applicant’s Parenting Time be Extended?

[20] The first and second issues are related and will be dealt with together.

The Parties’ Positions

[21] The Applicant’s position is that his parenting time with X should be extended and unsupervised because it is not in X’s best interests that his parenting time continue to be subject to supervision and limited to twelve hours per week. The Respondent submits that supervision results in an artificial and constrained manner for him to interact with and parent X and does not permit him to engage in a full range of parenting activities with X. The Applicant further submits that paying for supervision is a significant financial burden to him and that, to date, he has paid more than $40,000 in supervised access fees. The Applicant submits that he only agreed to supervision on an interim, without prejudice basis and has had only supervised time with X for over a year.

[22] The Applicant seeks a gradual extension of his parenting time to include overnights and, ultimately, a 2-2-3 parenting schedule.

[23] The Respondent’s position is that the Applicant’s parenting time with X must continue to be supervised because he has undiagnosed mental health condition(s) and anger management issues. Specifically, she is concerned that the Applicant might commit a “murder-suicide” or otherwise harm X in order to hurt her. The Respondent submits that the Applicant’s failure to acknowledge his past abuse of her and any underlying mental health condition demonstrates a lack of insight and results in an ongoing risk to X.

[24] The Applicant opposes any increase in the Respondent’s parenting time and seeks to reduce the number of times per week to minimize transitions for X.

The Applicable Principles

[25] Under s. 16(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), the court may make an interim order respecting the custody of or access to a child of the marriage pending the determination of the application. In making an order for custody or access, the court shall take into consideration “only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child”: Divorce Act, s. 16(8).

[26] The Divorce Act stipulates that the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact: Divorce Act, s. 16(10).

[27] Subsection 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), articulates the factors relevant to determining the best interests of the child, which include the following:

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

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

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

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

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

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

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

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

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

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

[28] In making an order for custody or access, s. 16(9) of the Divorce Act precludes the court from taking into consideration the past conduct of any person unless the conduct is relevant to the ability of the person to act as a parent of the child. See also, CLRA, s. 24(3). Subsection 24(4) of the CLRA requires that in assessing a person’s ability to act as a parent, the court consider whether the person has committed violence or abuse against any child, a spouse, the parent of the child to whom the application relates, or a member of the person’s household.

[29] In resolving disputes over access, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children: Young v. Hanson, 2019 ONSC 1245, at para. 32. The best interests of the child are generally met by having a loving relationship with both parents, and such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being: Hameed v. Hameed, 2006 ONCJ 274, at para. 22. Moreover, the child has a right to have contact with both parents.

[30] Supervised access “is usually a last resort where there is a risk of harm to the children that cannot be addressed in any other satisfactory way.”: S.I. v. I.I., 2013 ONSC 2762, at para. 10. Supervision is not a long-term remedy, but “a temporary and time-limited measure designed to resolve a parental impasse over access”: McEown v. Parks, 2016 ONSC 6761, at para. 24. In Cox v. Lewis, 2014 ONCJ 147, at para. 62, McSorley J. stated that “[o]nce a non-custodial parent has proven an ability to care for a child and the child has been shown to have a relationship with the non-custodial parent, access should be moved to be unsupervised.”

[31] The onus is on the parent who seeks to restrict the other parent’s access to demonstrate why that parent’s access must be supervised: V.K. v. A.K., 2018 ONSC 7290, at para. 43; Young v. Hanson, at para. 32.

Is Supervision in the Child’s Best Interests?

[32] The above principles make clear that the analysis centres on X’s best interests. The child’s right to a loving relationship with both parents should not be interfered with in the absence of “demonstrated circumstances” of danger to the child’s physical or mental well-being. At the same time, a parent’s history of violence and unpredictable, uncontrolled behaviour is a consideration when weighing the risk to the physical and emotional safety of a child: Jennings v. Grant, 2004 CanLII 17126 (ON SC), 2004 CarswellOnt 2159, at para. 135.

[33] The potential risk raised by the Respondent is a serious one that must be based on a careful and thorough review of the voluminous evidentiary record. I note the challenges inherent in making a decision of this nature, on an interim basis, based on a paper record of highly conflicting evidence without the benefit of cross-examination.

Allegations of Domestic Violence

[34] As noted above, the Respondent makes serious allegations of a history of physical and emotional abuse that can only be described as severe. The Applicant wholly denies the allegations. Based on the evidentiary record, it is not possible to make findings about specific allegations, nor is it necessary to do so to determine the issues before me. However, I am required to consider the evidence to the extent that it impacts upon the Applicant’s ability to act as a parent and on the need for ongoing supervision.

[35] The Respondent relies on her detailed accounts and lengthy email communications between the parties to support her allegations of physical and emotional abuse. As I mentioned at the hearing, the email evidence is problematic because the messages do not appear as email chains typically do, where one party responds to another party’s message, with identifying information at the top of each distinct message. The Applicant and Respondent replied to one another’s email messages, responding and refuting various statements in the actual text. As a result, the email chains are broken up or have embedded responses and it is often unclear who wrote what. The Applicant argues that the content of some of the email messages has been altered and urges caution in relying on the content of the email exchanges. He has not, however, provided original or alternative versions of the email chains.

[36] In certain cases, the author of the message is apparent from the content of the message itself. Where I rely upon the content of specific email messages, the author was apparent from the text. In other words, I have not relied on any email messages where there was an ambiguity as to who wrote the email.

[37] In the email exchanges, the Respondent frequently alleges physical abuse or that the Applicant hit her. In at least one email message, dated June 14, 2017, the Applicant acknowledges hitting the Respondent, stating: “No wonder you keep getting me to fucking hit you (yeah I said it, it’s the truth and no matter how much you try to make me afraid to say it I won’t) so all your shit gets buried and all we have to talk about is Vick the wife beater…[.]” In another message on the same date, after the Respondent refers to the Applicant’s father hitting his mother, the Applicant states “[just] because both cases involve hitting does not mean both had the same causes.”

[38] In other email messages around the same time period, the Applicant admits to “yelling my guts out,” “breaking shit” and “throwing your stuff of your table…[.]” In a further email exchange, after the Respondent mentions the Applicant getting help to “stop PHYSICAL VIOLENCE,” the Applicant replies: “For the millionth time I am going to get help for it even after I’ve dumped your ass. I want to grow. I know I have a problem.”

[39] The Applicant’s argument that the Respondent is falsely alleging abuse to gain an advantage in this proceeding is significantly undermined by his apparent acknowledgment of physical abuse, and by the fact that the allegations pre-date the parties’ separation.

[40] In addition, the OCL Report referenced collateral information that verifies the Respondent’s allegations of abuse. Specifically, in November 2011, the Respondent attended emergency at a hospital for chest and abdominal pain and reported that she was in an abusive relationship. At the time, a safety plan was made with the assistance of a domestic violence nurse.

[41] When weighed against the Respondent’s detailed allegations, the Applicant’s blanket denial rings hollow. Moreover, in a number of email messages, the Applicant unleashes torrents of insults and name-calling in extremely offensive language. The content of those messages is abusive. Other than to allege that the Respondent has altered some of the email chains, the Applicant has not offered an explanation for those messages or for the email messages that acknowledge physical abuse.

[42] The Applicant counters the Respondent’s allegations by stating that it was the Respondent’s rules and behaviours stemming from her OCD that led to the breakdown of their relationship and that the Respondent was violent towards him. Unlike the Respondent’s allegations, the OCL Report found no collateral information to verify that the Respondent had been abusive toward the Applicant.

[43] Based on the record before me, I find that the Respondent’s allegations of abuse have some evidentiary basis. I must therefore consider whether this past conduct has an impact on the Respondent’s ability to act as a parent to X and whether it raises a risk of harm to X’s physical and mental well-being.

Allegations of Ongoing Anger Issues

[44] The Respondent’s concerns about the Applicant having unsupervised parenting time with X are centred on her view that he is “deeply disturbed” and the possibility that he would engage in a murder-suicide, harming X in order to hurt her. The related risk raised by the Respondent is that the Applicant would be unable to control his anger and would lash out at X. The Respondent resists any expansion of the Applicant’s parenting time to include unsupervised time until the Applicant has had a comprehensive psychiatric assessment or s. 30 assessment.

[45] If there were any objective basis to support even a minimal risk of a murder-suicide or other harm to X, an order for continued supervised access would be warranted. The OCL Report declines to make any findings on the risk of a murder-suicide as beyond their expertise.

[46] In support of her concern about a “murder-suicide,” the Respondent relies on statements made by the Applicant, long before the separation, that he would fly a plane into a mountain or that he would cut her up in pieces and eat her. While the first statement is hyperbolic, it is not entirely fantastic because the Applicant has a commercial pilot licence. There are no email messages in which the Applicant specifically makes those threats. In support, the Respondent relies upon her repeated references in email messages to the Applicant having made those statements. Those messages date back to 2016 and 2017. In his email responses, the Applicant did not deny or admit to making those statements.

[47] The Respondent also relies on examples of the Applicant having behaved in a manner that demonstrates a suicidal or homicidal tendency. The Respondent alleges that during an argument, the Applicant once jumped in front of a moving vehicle and then jumped back at the last minute and that he stabbed a couch with a knife after threatening to stab himself. The Respondent alleges that the Applicant harmed one of their pets. These alleged incidents also took place years before the separation.

[48] The email messages that I referred to above, in which the Applicant disparages the Respondent, reflect a significant level of anger and hostility. The question is whether they support a risk of harm to X. The most recent email chain provided by the Respondent dates back to June 2017, before the parties’ separation and before X’s birth. Given the “kitchen sink” approach to the evidence, if there were similar email exchanges after X’s birth and leading up to the separation, I expect that they would have been included in the record.

[49] In my view, the email exchanges and alleged incidents relied upon by the Respondent took place at a time of considerable conflict, hostility, and instability in the parties’ relationship. At the time, the parties were not yet parents. In my view, this historic evidence must be examined within the context of the evidentiary record as a whole, including more contemporaneous evidence of the parties’ respective parenting abilities.

The OCL Report

[50] The OCL Report describes X as a “happy, well-behaved and well-tempered boy.” He is comfortable and at ease with both parents. X’s development is consistent with his age, although he appears to have some delays with speech development. He has recently started speech and language therapy. Although he is in the third percentile for body weight, his pediatrician is not concerned as long as he gains weight, remains in the percentile range and because he is healthy and well taken care of.

[51] The OCL clinician had the opportunity to observe the Applicant’s interactions with X. She also conducted a thorough review of the matter, contacting numerous “collaterals,” including at least three different supervised access workers and the Applicant’s counsellor. The OCL Report found that the “information gathered from collaterals and through interactions by this writer, did not reveal any concerns or indicators that Mr. Kohli presented as aggressive or hostile to X.”

[52] The OCL clinician’s observations are echoed in the evidentiary record, which includes substantial evidence from third parties that support that the Applicant is a loving, caring and attentive father. Multiple observers, including the supervised access centre workers, describe the Applicant as “calm,” “gentle” and “attentive” in his interactions with X. The Applicant engages in a wide range of age-appropriate activities with X, is responsive to his needs, and is able to redirect X’s attention as necessary. X looks to the Applicant for encouragement and reassurance. The Applicant is able to comfort and calm him. The notes observe that X is also comfortable with and happy to see the Applicant’s mother, Usha Kohli, who currently lives with him. This evidence stands in stark contrast to the Respondent’s allegations of uncontrolled rage and abuse.

[53] The Applicant admitted to the OCL clinician that he had anger issues in the past. In 2006, he completed an anger management course while living in California. The Applicant also admitted that the parties had argued in front of X. The Applicant continues to take steps to manage his anger properly and to work on his parenting skills. He has been attending individual counselling since September 2019.

[54] As summarized in the OCL Report, the Applicant’s counsellor stated that he completed an anger assessment that raised no red flags. She further stated that he does not express anger about the court process or any blame toward the Respondent. The Applicant’s counsellor stated that the Applicant is focused on resolving problems, is engaged in his counselling, and receives support from others, including a dad’s group and friends.

[55] Significantly, the Respondent acknowledged to the OCL clinician that she has no specific concerns about the Applicant’s parenting and that she wants the Applicant and X to have a close relationship.

[56] The OCL Report further found as follows:

“The Applicant presented as motivated to attend counselling, motivated to ensure X’s reaching developmental milestones, and eager to increase his involvement in X’s caretaking.”
During the interview, he “remained respectful of Ms. Thom, described her as a good mother, and spoke about his concerns regarding Ms. Thom’s mental health as separate from who she is as a parent and person.”
The Respondent did not act negatively or angrily towards X during supervised parenting time.
Both parents are competent caregivers who contribute positively to X’s life. X is loved and well cared for by both.
X is developing a positive and trusting relationship with both parents.
It is important for X to have access to both parents on regular basis.
“Allegation of a potential ‘murder-suicide’ [have] huge impacts on the safety and well being of the child, and assessing the validity and/or risk of this allegation is beyond the scope of the OCL.”

[57] The OCL clinician was unable to assess an immediate risk or risk of future behaviour, and was unable to make a recommendation about removing supervision requirements. Nonetheless, the OCL clinician was unable to find any evidence to support reducing the Respondent’s parenting time with X. They expressed concern that a parenting schedule that would substantially reduce the Applicant’s parenting time is not in X’s best interests. The OCL recommended a schedule that would reduce transitions and increase the Applicant’s quality parenting opportunities, while maintaining a minimum of twelve hours per week with the Applicant.

[58] While not at issue in this motion, the OCL Report recommended that the Applicant have sole custody of X. One basis for the OCL’s recommendation appears to be the existence of a non-communication order prohibiting the Respondent from communicating with the Applicant. That order is no longer in effect, and the peace bond entered into by the Respondent will also soon expire. The OCL further stated that a move to New Brunswick “may” be in X’s best interests. The Applicant is challenging the OCL’s recommendations.

Interactions With the CAS and Police

[59] Both the CAS and the police were involved with the parties on multiple occasions before their separation in September 2019, as detailed in the OCL Report.

[60] The Respondent contacted Toronto police on June 18, 2018 because she wanted to know if she could take X to New Brunswick, given that she was in an abusive relationship. On that occasion she withheld her name because she did not want police to attend the home. However, police traced the call and attended. Victim services were offered to the Respondent, but she refused.

[61] The Respondent contacted the Toronto police on five separate occasions between June 2018 and March 22, 2019. According to the OCL Report, on none of those occasions were any assaults or threats of violence reported. The Respondent’s explanation is that every time she called the police, the Applicant would convince her not to report any abuse. The Respondent did tell police that the Applicant was verbally abusive and would yell at her, and that he made her feel anxious.

[62] In the spring of 2019, the CAS was contacted by Toronto police after they attended the parties’ home regarding a domestic incident. At the time, when the CAS contacted the Respondent, she reported a history of abuse. However, according to the OCL Report, she stated that the Applicant had not been physically abusive since X’s birth and that she was not concerned that the Applicant would harm X. The Applicant expressed concerns for X’s safety as he got older. The CAS case was closed.

Findings

[63] The Respondent first expressed her concern about a potential “murder-suicide” in early 2020 when she raised it with the OCL clinician. The OCL then contacted the CAS. The CAS verified the risk of emotional harm to X as a result of his exposure to the ongoing post-separation conflict but closed the file in April 2020. While the OCL made further inquiries to the CAS about whether they would have any protection concerns if the Applicant’s parenting time was unsupervised, no response was received from the CAS by the time for the report was written.

[64] In my view, it is significant that the “murder-suicide” scenario was not raised by the Applicant until these proceedings were commenced. Given the gravity of such a risk, it is striking that the Applicant did not raise it previously, despite repeated interactions with the police and the CAS. Moreover, while the Respondent now alleges that the Applicant threatened her with a weapon and abused their pets, when she went to emergency in November 2011, she specifically stated that he did not threaten to kill her or use any weapons against her and was not violent towards their pets. The OCL Report notes that the Respondent spoke to her counsellor about her previous lawyer’s stepchild, who may have been killed by her father in an apparent “murder-suicide.”

[65] In effect, the Respondent is arguing that the Applicant must demonstrate that he does not suffer from a psychotic or sociopathic mental illness in order to have unsupervised parenting time with X. The case law is clear, however, that the burden is on her to demonstrate that supervision is required.

[66] To meet her burden, the Respondent cannot rely on her suspicion that the Applicant suffers from undiagnosed and untreated psychological conditions. The Respondent is not a professional. Her suspicions have not been verified by any third party or professional. To the contrary, the Applicant’s counsellor advised the OCL that she does not have concerns that the Applicant had any homicidal or suicidal tendencies or that he would act out violently.

[67] I further note that the only evidence of any suicidal tendency on the Applicant’s part is the Respondent’s evidence that he made suicidal statements in the past. By contrast, in the email messages relied upon by the Respondent, she is the one who makes statements about taking her life. Making a suicidal statement at a time of extreme stress should not be sufficient to find a risk of a “murder-suicide” thereby requiring ongoing supervised parenting time.

[68] The seriousness of the Respondent’s allegations of abuse, the Applicant’s email admissions of abuse, and the anger expressed in email messages to the Respondent are concerning. However, despite these concerns, other than the Respondent’s fears, there is an absence of evidence to suggest that the Applicant poses any risk to X, whether to hurt the Respondent or for any other reason. The email exchanges took place long before X’s birth, at a time when the parties were experiencing a high level of conflict. Living together appears to have created a high degree of stress for both parties. They are now separated and involved in the court process. They are represented by counsel, which will minimize the need for them to come into direct conflict. They have both sought and obtained assistance from professionals and by taking courses like Families in Transition. They are now both focussed on parenting X and ensuring his safety and well-being.

[69] The Respondent’s overarching concern is that the Applicant’ anger toward her will be directed at X. Both the OCL clinician and the Applicant’s counsellor specifically note that the Applicant does not express anger toward the Respondent. Although he expresses concern about the impact of her OCD on X, for example, because it prevents her from leaving the house, he readily recognizes that she is an “amazing” mother.

[70] In my view, the Applicant’s past conduct toward the Respondent should not forever preclude him from developing the normal parenting relationship with X that he seeks. See: Kennedy v. Peters-Kennedy, 2017 ONSC 7296, at para. 51. Nor should it forever constrain X’s time with his father, whom he is always excited and happy to see. Supervised parenting time has been in place for over a year at a time when X is developing rapidly. Despite the fact that the Applicant’s parenting time has been significantly constrained, he and X have a loving and meaningful relationship that should be permitted to develop, in X’s best interest. To further this relationship, they should be able to progress to a more natural parenting environment and schedule.

[71] The cases relied upon by the Respondent do not assist her. In A.C.V.P. v. A.M.T., 2019 ONSC 1559, the mother had written suicidal notes and there was no expert or third-party evidence as to her mental health. In Kucan v. Santos, 2017 ONSC 6725, the mother threatened to hit the parties’ child and involved him in the adult dispute by threatening that he would lose his family. In that case, the CAS had recommended that the mother obtain counselling for her anger issues.

[72] In this case, the existence of a clinical issue originates with the Respondent and has not been supported by the counsellor. The Respondent maintains that the Applicant is manipulative and has been able to conceal his issues from the counsellor. It would be difficult for the Applicant to conceal his anger issues from his counsellor, who conducted an anger assessment, and from the access supervisors for over 150 visits. This is not to say that the Applicant has no issues with anger but that any issues that the Applicant may have with anger do not mean that he is “deeply disturbed,” psychotic or sociopathic, as the Respondent suggests. Most importantly, they have not manifested themselves in an inability to be a caring and competent parent or in a risk of harm to X.

[73] The evidence supports that the Respondent is a loving and attentive parent, that he engages in age-appropriate activities with X, and that he introduces him to a variety of new activities and food, including those relating to his Indian heritage. X is bonded to and comfortable with the Applicant.

[74] The Applicant argues that it is the Respondent, who has been diagnosed with anxiety and OCD, who refuses to seek treatment. The evidence supports that the Respondent stopped taking her medication many years ago and failed to complete a program at CAMH. The Applicant explains that her OCD has been under control since she became a parent because her parenting responsibilities take precedence over her OCD “rules.” The OCL Report finds that the Respondent’s mental health conditions do not interfere with her ability to parent X, and I do not raise them to suggest otherwise. I simply note the inconsistency in the Respondent’s position in insisting that the Applicant be treated for an undiagnosed mental health condition, while maintaining that treatment is unnecessary for her own diagnosed condition.

[75] In addition, while the Respondent opposes unsupervised access until the Applicant is assessed, she has not brought a motion for an assessment.

[76] The Respondent further submits that supervision has not impeded the development of the parent-child bond between the Applicant and X. While X may have become used to interacting with his father in supervision, that is not the status quo. When the parties were living together, the Applicant worked from home and was an involved parent. X was used to seeing considerably more of the Applicant than he does now and in a less constrained manner.

[77] The Respondent suggests that the Applicant’s objection to ongoing supervision is based mainly on the cost and is dismissive of his concerns about the cost. The cost is not, however, a negligible factor. The Applicant is the sole source of income for the family and has experienced a decrease in income. He has already paid $40,000 in supervision fees. Even under the current arrangement, where the parties have hired a supervisor for $15 per hour, the monthly cost is still over $700. The resources available to the family as a whole are negatively impacted by the need to pay for supervision.

[78] For all of the foregoing reasons, the Respondent has failed to satisfy me that the Applicant’s parenting time with X must continue to be supervised. In addition, I further find that based on X’s interest in a close and loving relationship with the Applicant and X’s right to as much contact with his father as is consistent with his best interests, the Applicant’s parenting time should be extended beyond the current twelve hours. Other relevant factors include the relationship between X and his grandmother, Mrs. Kohli, and the importance of remaining connected to his cultural heritage.

[79] In my view, it would be appropriate to provide for a transition period from third party supervision to supervision by the Applicant’s mother, Ms. Kohli. The Respondent objects to Ms. Kohli supervising the Applicant’s parenting time because she believes that Ms. Kohli assisted the Applicant in attempting to abscond with X and because she failed to prevent the Applicant’s father from abusing him when he was a child. The Respondent further alleges that Ms. Kohli does not have insight regarding her son’s anger or behaviour. The OCL Report and notes of the third-party supervisors make positive observations about Ms. Kohli’s interactions with X. There is no evidence to suggest that Ms. Kohli would not be an appropriate supervisor.

[80] While I have found that the Applicant should have unsupervised parenting time with X, at this time, I am not prepared to order the 2-2-3 schedule or overnights. The Applicant has not had X in his care for more than three hours for a significant period of time. It would be in X’s best interest that the time be increased gradually and that they both develop greater comfort. Moreover, the Applicant behaved irrationally when he left the matrimonial home with X in September 2019. It is not clear what, if any, plan he had, especially when X was being breastfed.

[81] Accordingly, on an interim basis, the Applicant shall have weekly parenting time with X as follows:

From February 7 to February 20, 2021, the Applicant shall have 15 hours of parenting time with X per week on Tuesdays, Thursdays and Saturdays from 11 a.m. to 4 p.m. During this period, Ms. Kohli will be required to remain with the Applicant;
From February 21 to March 6, 2021, the Applicant shall have 20 hours of parenting time with X per week on Tuesdays and Thursdays from 11 a.m. to 4 p.m. and on Saturdays from 9 a.m. to 7 p.m. During this period, Ms. Kohli will be required to remain with the Applicant;
From March 7 to March 27, 2021, the Applicant shall have 24 hours of parenting time with X per week on Tuesdays and Thursdays from 11 a.m. to 6 p.m. and on Saturdays from 9 a.m. to 7 p.m.; and
From March 28, 2021 onward, the Applicant shall have 30 hours of parenting time with X per week on Tuesdays, Thursdays and Saturdays from 9 a.m. to 7 p.m.

[82] In all cases, the days of the week, and pick-up and drop-off times or locations, may be altered on consent of the parties. To date, pick-up and drop-off has been taking place at the Applicant’s residence with the third-party supervisor conducting the transitions. The Respondent does not oppose Ms. Kohli conducting the transitions.

[83] It is difficult to further expand the Applicant’s parenting time without overnights. However, the extended day time hours with X provides the Applicant with the opportunity to engage in many daily parenting activities with X, including cooking and having meals together, putting X down for a nap, and having both active play and down time together. The above schedule ensures regular time while minimizing transitions. The longest X goes without seeing the Applicant is from Saturday evening to Tuesday morning, which was the case under the parties’ previous schedule.

[84] In addition, the Respondent shall facilitate video calls between the Applicant and X on the days on which he does not have parenting time with X. The parties should agree to a regular, mutually convenient time for those calls to take place.

[85] The above parenting schedule is ordered without prejudice to the Applicant’s ability to bring a motion for overnights or additional parenting time, after April 26, 2021, particularly in the event that a trial in this matter is delayed.

Pediatrician

[86] The Applicant also seeks an order to permit him to take X to a different pediatrician to be assessed, in particular, regarding his weight and development. The Applicant is concerned that X is underweight. The parties had both agreed early on that X would have a vegan diet and not be vaccinated. The Applicant’s position on vaccination appears to have changed.

[87] The Respondent submits that the Applicant has never been impeded from obtaining information from X’s doctors or other health care providers and that he has never raised any issues regarding X’s current pediatrician. She alleges that the Applicant is now raising these issues to make her appear to be an incompetent parent. Nonetheless, the Respondent does not oppose taking X to another pediatrician but wants to do this herself.

[88] The Respondent shall make an appointment to take X to a different pediatrician for a second opinion regarding his development and general health. If it is possible to arrange with the pediatrician, the Applicant shall be permitted to participate in the appointment by videoconference. If the Applicant’s participation in this manner cannot be facilitated by the pediatrician, the Applicant shall be at liberty to schedule a virtual appointment for himself with the pediatrician to be brought up to date on X’s examination and health and to ask any questions. The Applicant shall have access to X’s medical information including the results of the examination by the second pediatrician.

Is the Respondent Entitled to Interim Spousal and Child Support?

The Parties’ Positions

[89] The Respondent seeks interim child and spousal support on compensatory and needs-based bases at the high end. She submits that the Applicant should be imputed with an annual income of $266,000, resulting in $2,100 in child support and $6,100 in spousal support per month. She states that she is currently unable to return to the workforce because of her childcare responsibilities and because she has been out of the workforce for an extended period of time. She states that she suffers PTSD from years of abuse at the Applicant’s hands and from back pain. She states that the Applicant has always controlled the finances in their relationship but that their lifestyle included frequent trips.

[90] Until July 2020, the Applicant was paying $3,150 monthly in rent on the townhouse where the Respondent and X continued to reside, and credit card bills of $1,850 per month. In July 2020, the Applicant offered to pay support based on an annual income of $50,000, or $743 in spousal support and $461 in child support. The Respondent did not respond to the proposal and commenced her motion for interim support. In August 2020, the Applicant agreed to pay $6,000 when the Respondent’s motion was adjourned. In October and November 2020, the Applicant paid $1,806 per month. The Respondent submits that the Applicant should be imputed with $30,000 annually because she is capable of earning an income.

The Applicable Principles

[91] On a motion for interim spousal support, the moving party need only establish a prima facie case: Kelly v. Kelly, 2016 ONSC 6476, at paras. 14, 17. Interim support motions are not intended to involve a detailed examination of the merits of the case. Where the Applicant is able to put forward a good, arguable case, the court will assess interim support on the basis of the parties’ needs and means using a four-step analysis as follows:

(a) Does the party seeking support have standing to claim support?

(b) Is the party seeking support entitled to support?

(d) Does the payor have the ability to pay?

Kelly v. Kelly, at paras. 14-18.

Imputing Income

[92] The factors that are applied to determine whether income ought to be imputed for the purposes of child support also apply to imputing income for spousal support: Majmuder v. Rahman, 2018 ONSC 6587, at para. 33.

[93] Subsection 19(1) of the Federal Child Support Guidelines, SOR/97-175 (the “CSG”) sets out the factors that courts should consider when imputing income to a spouse. They include, among other things, whether a spouse is intentionally unemployed or underemployed and whether a spouse has failed to provide income information when under a legal obligation to do so.

[94] Pursuant to s. 16 of the CSG, the obligation to pay is based on the payor’s income, as stated on line 150 of their T1 income tax return. Section 17 of the CSG permits a court to depart from line 150 income where the court is of the opinion that the spouse’s line 150 income would not be the fairest determination of income. In that case, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[95] The court may impute income to a parent or spouse as it considers appropriate in the circumstances, including when the parent is intentionally underemployed; when the parent has failed to provide information when under a legal obligation to do so; and when the parent unreasonably deducts expenses from income: CSG, s. 19(1)(a), (f), and (g).

[96] In Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 36, the Court of Appeal for Ontario stated that it is not necessary to find bad faith or an intent to avoid child support in order to impute income. There must, however, be a rational and evidentiary basis for imputing income, which must be governed by the principles of reasonableness and fairness: Drygala v. Pauli, at para. 44.

Has the Respondent Demonstrated a Prima Facie Case for Support?

[97] The Respondent has standing to claim support and is entitled to support. While the Applicant argues that income should be imputed to the Respondent, he does not substantially dispute her entitlement to support on an interim basis.

[98] The parties were married for over 13 years. The Respondent has not been employed in over nine years. The parties disagree as to whether they agreed that the Respondent would stay home to care for X. In any event, the Applicant has long been the family’s sole source of income. The Respondent has no assets or regular source of income. She receives approximately $747.45 per month in child tax benefits and GST/HST rebates.

[99] The Respondent has a limited ability to earn an income at this time. She has a high school education and her last job was at a grocery store. The Respondent has been diagnosed with anxiety and OCD, suffers from back pain and is receiving counselling for PTSD. While there is no medical documentation regarding her back pain and PTSD in the record on the motion, the OCL Report noted that the Respondent is attending counselling. The Applicant had previously acknowledged the Respondent’s back pain.

[100] The Respondent’s need for interim spousal and child support is clear. The parties’ child, X, resides primarily with the Respondent, who must feed and clothe him. Her estimated monthly budget is $6,745, including $3,150 in rent. She does not have the means to pay these expenses. The Respondent has established a prima facie case for support.

How Much Support Should the Applicant Pay?

[101] The Applicant is self-employed. From 2016 to 2018, his line 150 income was $147,285, $123,074, and $93,035, respectively. The Applicant has not filed his 2019 tax return but states that his income for 2019 was approximately $75,000.

[102] The Respondent submits that the court ought to impute income to the Applicant based on his failure to disclose financial information, his revenue, and because his expenses are incompatible with the income he claims to be earning.

[103] The Applicant submits that an annual income of $30,000 should be imputed to the Respondent.

Should Income be Imputed to the Applicant?

[104] The Applicant is a shareholder of a company known as Trilateral Management Inc. His mother and brother are the other officers/shareholders of Trilateral. Trilateral offers stock market research to customers by online subscription. The Applicant disclosed corporate tax returns for Trilateral for 2016 to 2019. Trilateral’s gross income in its best year, 2018, was approximately $140,000. Trilateral’s gross income in 2019 was $125,995 before expenses, or $26,052 after expenses. The Applicant states that he received approximately $75,000 in personal income from Trilateral in 2019.

[105] The Applicant states that his income is approximately 66 percent of Trilateral’s gross revenue. The Applicant anticipates that Trilateral’s gross revenue for 2020 will be approximately $89,000 USD. The Applicant estimates his income from Trilateral in 2020 at approximately $53,000 USD.

[106] The Applicant states that his income has suffered due to the COVID-19 pandemic. Trilateral obtains customers through “swaps” with other business, with which they connect at trade shows. The trade shows have been cancelled due to the pandemic. In addition, because of the outstanding criminal charges, he was not able to travel to a trade show in Las Vegas in the fall of 2019, where he would have obtained clients. Trilateral receives its revenue through an online payment platform, which shows that as of July 2020, gross revenue was down 51 percent compared to 2019.

[107] The Applicant also had an interest in a company known as Aequitas International Inc. The Applicant states that he was bought out by his friend and co-director, Rahul Arora, in 2016. The Applicant submits that his 2017 income was high because he received a payout when he sold his share of Aequitas.

[108] The Applicant’s motion record includes an affidavit from Mr. Arora, in which he deposes that in December 2016, he and the Applicant had a disagreement over how to run Aequitas and agreed that they “could no longer run the business together.” Mr. Arora states that the Applicant’s management role ended in December 2016 and that he was paid for his interest in Aequitas over 2017 and 2018, as dividends. Mr. Arora states that the Applicant has no interest in Aequitas and receives no dividends, salary, bonus or any ongoing amounts.

[109] However, the Applicant filed Aequitas’ annual corporate return for 2017. In addition, Aequitas’ “Form 6 Changes Regarding Directors” filed on March 6, 2018 includes the Applicant as a director. The Applicant has not provided any more recent filings to reflect that he is no longer a director. Nor did he provide any documentation regarding the transfer of his ownership interest to Mr. Arora. There is no evidence in the record regarding the Applicant’s current and/or former interests in the company. The Applicant has not disclosed any corporate income tax returns, notices of assessment, or financial statements for Aequitas.

[110] In brief, the income disclosed by the Applicant on his personal income tax returns for 2016 to 2018 was based on his income from Aequitas, as opposed to Trilateral. He has yet to report income from Trilateral on any personal income tax return. In this proceeding, he has disclosed financial information for Trilateral but not for Aequitas.

[111] The Respondent argues that Trilateral’s tax returns reflect significant revenue and accrual of assets in 2018 and 2019 but, to date, the Applicant has declared no personal income through Trilateral in any year. The Respondent further hypothesizes that Applicant has hidden income in Trilateral by deducting from corporate profit a sum payable to him (i.e. a shareholder loan), which he does not receive or claim. The Respondent claims that a liability described as “trades payable” is actually a shareholder loan by the Applicant.

[112] The Respondent alleges that the Applicant has other business interests, including in a marijuana distribution company and a marijuana crypto-currency company. The Respondent submits that the Applicant has failed to provide evidence of his 2019 personal income; details of his corporate shareholdings, interests and responsibilities; details of his corporate income and expenses; an up-to-date resume; an explanation of his self-employment income; and credit applications.

[113] The Respondent calculates the Applicant’s annual income from all sources to be between $260,000 to $280,000. The Respondent uses the Applicant’s pre-separation expenses of $116,307 annually and $11,150 contributed annually to savings. The Applicant then adds Trilateral’s pre-tax corporate income of $48,088.

[114] The Applicant disputes that he has ever earned the amount of money alleged by the Respondent. To the contrary, he states that he has incurred significant debt since the separation because of the high expenses, including the Respondent’s credit card bills and supervised access fees, which were approximately $2,600 per month. The Applicant submits that, as a result, he could not obtain his own apartment and had to live with Mr. Arora for six months after the separation. He also states that he borrowed $60,000 from his mother, which she withdrew from her retirement savings.

[115] While the Respondent alleges that the Applicant lives in a luxury condominium, he states that he pays half the rent, $1,425 per month, and his mother pays the other half. In his financial statement dated July 2020, however, he included the entire rent in his monthly expenses. The Applicant states that he had to borrow money from Mr. Arora for first and last month’s rent. In his affidavit, Mr. Arora deposes that the Applicant has borrowed $12,200 from him, which is verified by electronic transfer records.

[116] On a motion for interim support, “the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial”: Van Haren v. Stewart, 2017 ONSC 4238, at para. 24. In that case, MacLeod J. held, at para. 25, in relation to imputing income, that “the court should avoid making extreme orders on vague and uncertain evidence, where findings are made without the benefit of cross-examinations and on an incomplete evidentiary record.” Given that this is a preliminary stage in the proceedings, and that neither party filed an updated financial statement before the hearing of the motion, it is neither possible nor appropriate to engage in an extended analysis of the Respondent’s income at this time.

[117] I am not satisfied that there is a sufficient basis to impute $260,000 to $280,000 income to the Applicant, especially for 2020. The COVID-19 pandemic has hit many businesses and industries. The Applicant has provided reasonable explanations for a loss of revenue by Trilateral.

[118] Moreover, while the Respondent portrays the parties’ lifestyle during the marriage as lavish, and it is apparent that they took numerous trips a year, the email exchanges from 2016 to 2017 reflect that they also experienced financial pressures. For example, they lived in rental accommodation in Mississauga as opposed to Toronto to save money. They discussed whether they had sufficient resources to purchase a home and, ultimately, did not. It is also clear that the cost of supervision over a lengthy time period has created a significant financial burden for the Applicant.

[119] At the same time, the Applicant has not provided a tax return for 2019 or satisfactory documentary evidence regarding his business interests or his 2020 income. There is no sufficient explanation as to why the Applicant receives 66 percent of Trilateral’s income when he has a one-third share. The is insufficient evidence regarding the expenses deducted from Trilateral’s income. There are no documents reflecting the transfer of the Applicant’s share in Aequitas. It is difficult for the court to determine, in any conclusive manner, what the Applicant’s actual income is.

[120] Based on the lack of evidence to impute income to the Applicant at the amount suggested by the Respondent, and the lack of evidence regarding the Respondent’s 2019 or 2020 income, for the purposes of interim child and spousal support, I have determined it appropriate to use the Applicant’s 2018 line 150 income, $93,035.

Should Income Be Imputed to the Respondent?

[121] The Applicant’s position is that the Respondent is a capable and intelligent person and that the parties never agreed that she would be a stay-at-home parent.

[122] The Applicant submits that the Respondent’s monthly expenses are high because she continues to reside in the matrimonial home, where the rent is $3,150 per month. The Respondent states that she has not attempted to secure alternative accommodation because she is unlikely to be successful when she has no income and no support order is in place.

[123] The Applicant also points to the Respondent’s excessive spending post-separation on their joint credit card. The credit card statements show that the Respondent was spending $1,000 to $2,000 per month, and sometimes more, and that the bulk of the amounts were from the 7-11 convenience store, fast food restaurants and online purchases. Because the credit cards were in the Applicant’s name, he remains liable for the amounts. The Respondent explains that a significant portion of the online purchases were for groceries and that she gets gas for her car at 7-11.

[124] The Applicant also points to the Respondent’s lack of disclosure in response to his request for information, which was to be provided by October 15, 2020. The Respondent did not respond to the requests for information until shortly before the motion hearing, and failed to respond to certain requests, such as providing an updated resume and list of job search efforts.

[125] At this stage, for the purposes of determining interim support, I am not prepared to impute income to the Respondent. The Respondent has been out of the work force for many years, has diagnosed mental health disabilities and is the primary caregiver to a very young child. Moreover, as a person with a high school education and no particular skills or expertise, obtaining employment during the COVID-19 pandemic would likely be a challenge.

[126] This is not to say that the Respondent will not be expected to work toward self-sufficiency. In addition, parties are expected to provide full and frank disclosure in a timely manner. The Respondent has not provided medical documentation to support her back injury and that she suffers from PTSD. The Respondent has also refused to disclose gifts and/or loans received from family members. This is relevant to determine the Respondent’s need for spousal support. The Respondent has also sought similar information from the Applicant. All of this information will be expected to be disclosed before trial.

What Amount of Support is Appropriate?

[127] Based on the foregoing, beginning on August 1, 2020, the Applicant shall be required to pay spousal support at the mid-range of $1,739 and child support of $855 per month, based on his last reported line 150 income of $93,035.

[128] The Applicant paid $6,000 in August 2020 and $1,806 per month in October and November 2020, for a total of $9,612 for four months, or $2,403 per month. Therefore, the Applicant owes the amount of $764 in child and spousal support arrears to the Respondent.

[129] Given the preliminary state of the evidence, the foregoing is without prejudice to either party’s right to seek a higher or lower amount of spousal and/or support, retroactive to the date of this order.

Conclusion

[130] Accordingly, the following terms are ordered on an interim, without prejudice basis, pending a trial of the matter:

(a) From February 7 to February 20, 2021, the Applicant shall have 15 hours of parenting time with X per week on Tuesdays, Thursdays and Saturdays from 11 a.m. to 4 p.m. During this period, Ms. Kohli will be required to remain with the Applicant to supervise;

(b) From February 21 to March 6, 2021, the Applicant shall have 20 hours of parenting time with X per week on Tuesdays and Thursdays from 11 a.m. to 4 p.m. and on Saturdays from 9 a.m. to 7 p.m. During this period, Ms. Kohli will be required to remain with the Applicant to supervise;

(c) From March 7 to March 27, 2021, the Applicant shall have 24 hours of parenting time with X per week on Tuesdays and Thursdays from 11 a.m. to 6 p.m. and on Saturdays from 9 a.m. to 7 p.m.;

(d) From March 28, 2021 onward, the Applicant shall have 30 hours of parenting time with X per week on Tuesdays, Thursdays and Saturdays from 9 a.m. to 7 p.m.;

(e) On days when the Applicant does not have parenting time, he shall have videocalls with X, which the Respondent shall facilitate;

(f) Unless otherwise agreed to between the parties, pick-ups and drop-offs shall be conducted at the Applicant’s building with Ms. Kohli conducting the transfers;

(g) The Respondent shall provide all contact information for professionals providing services to X and any programs X is attending to the Applicant;

(h) Both parties shall have independent access to information about X from any third party, including doctors, childcare providers, programs, therapists, school records, extracurricular activities, and any other relevant service providers;

(i) Within 30 days, the Respondent shall make an appointment for X with a different pediatrician for a second opinion regarding his development and general health. If possible, the Applicant shall be able to participate in the appointment by videoconference. If this cannot be arranged with the pediatrician, the Applicant shall be at liberty to schedule his own virtual appointment with the pediatrician to be brought up to date and to ask questions regarding X's examination and health;

(j) The parties shall refrain from any subtle or open disparagement of the other parent and/or members of the extended family in any communication with the child or in their presence or in any place where the children might hear;

(k) The parties shall not discuss the litigation with the child or otherwise involve him in their conflict;

(l) The Applicant shall pay the Respondent $1,739 monthly in spousal support;

(m) The Applicant shall pay the Respondent $855 monthly in child support, based on an income of $93,035;

(n) The Applicant shall pay child and spousal support arrears of $764.00; and

(o) A support deduction order shall issue.

[131] In addition, to ensure that this proceeding advances and that disclosure does not continue to be an issue, the following terms are ordered:

(a) Each party shall provide the other with a list of outstanding disclosure by February 24, 2021;

(b) Each party shall respond to the other party’s outstanding disclosure list by March 31, 2021;

(c) Without limiting the foregoing, the Applicant shall produce financial statements for both Aequitas and Trilateral, as well as documentation verifying his personal income for 2019 and 2020, by no later than March 31, 2021; and

(d) Either party may request a Trial Management/Settlement Conference to be held after disclosure is complete.

Costs

[132] At the conclusion of the hearing, I directed counsel to file their bills of costs and any relevant offers to settle with the court, which I would not access until reaching a decision on the motion. After reaching my decision, I reviewed the bills of costs and offers to settle.

[133] The Applicant’s costs for both motions on a full indemnity basis were $42,182.11. The Applicant’s costs on a partial indemnity basis were $27,833.04. Both amounts include $403.75 in disbursements and HST. The Respondent’s full indemnity costs for both motions were $47,494, and partial indemnity costs were $31,663.

[134] The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Council of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at para. 24. There is a presumption that the successful party will be entitled to costs: r. 24(1), Family Law Rules, O. Reg. 114/99.

[135] The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[136] In assessing the success of a party, the court looks to the positions taken by the parties at trial, Berta v. Berta, 2015 ONCA 918, at para. 102, as well as to the offers to settle exchanged by the parties as compared with the terms of the final order: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (Sup. Ct.).

[137] Other than as provided in rr. 24(8) or 18(14) there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.

[138] The Applicant had to bring the motion to obtain unsupervised and expanded parenting time. While he was successful in obtaining much of the relief sought, he was not successful in obtaining overnights.

[139] Similarly, the Respondent was required to bring her cross-motion and was successful in obtaining an order for interim spousal and child support. However, she was not successful in obtaining the amount sought.

[140] Neither party was more successful than their offers to settle.

[141] While the Respondent’s bill of costs broke down the time spent on each motion, the Applicant’s did not. The time spent by Respondent’s counsel on the parenting time motion was slightly more than the time spent on the interim support motion. I note that the Applicant’s bill of costs included time spent on a case conference.

[142] As noted above, the motion material was voluminous, duplicative and disproportionate to the issues on the motion. While the motions were important to both parties, they failed to focus their evidence on the relevant issues.

[143] In the circumstances, the Applicant is entitled to costs on a partial indemnity basis for the parenting motion, which I fix at $11,000. The Respondent is entitled to costs on a partial indemnity basis for the cross-motion for interim support, which I fix at $11,000. As a result, there shall be no order as to costs.

[144] The outcome of any motion is an order of the court enforceable by law from the moment it is released. Counsel may also submit an approved draft order by email for my signature.

Nishikawa J.

Date: February 4, 2021

Kohli v. Thom, 2021 ONSC 927

Case Summary

Overview

Issues

Factual Background

Analysis

Should the Applicant’s Parenting Time Continue to be Supervised? Should the Applicant’s Parenting Time be Extended?

The Parties’ Positions

The Applicable Principles

Is Supervision in the Child’s Best Interests?

Allegations of Domestic Violence

Allegations of Ongoing Anger Issues

The OCL Report

Interactions With the CAS and Police

Findings

Pediatrician

Is the Respondent Entitled to Interim Spousal and Child Support?

The Parties’ Positions

The Applicable Principles

Imputing Income

Has the Respondent Demonstrated a Prima Facie Case for Support?

How Much Support Should the Applicant Pay?

Should Income be Imputed to the Applicant?

Should Income Be Imputed to the Respondent?

What Amount of Support is Appropriate?

Conclusion

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legal Tests 3

Legislation 5