COURT FILE NO.: FS-20-00016693-0000 DATE: 20220214

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Wided Bayar Mestiri Applicant – and – Moncef Mestiri Respondent

Self-represented Self-represented

HEARD: January 11, 2022

BOUCHER J.

REASONS FOR DECISION - TRIAL

[1] These are the reasons for decision for the uncontested trial in this matter, heard January 11, 2022. The reasons will first set out a short procedural history for the trial, then present an outline of the orders sought by the applicant on the trial, followed by the analysis and decision on the issues litigated at trial.

Procedural history re Uncontested trial

[2] The applicant mother, Ms. Bayar Mestiri was given leave to schedule this matter for an uncontested by the order of Justice O’Brien from June 22, 2021. Justice O’Brien granted the uncontested trial order because the respondent had not filed an Answer or any other responding documents as required by the Family Law Rules in the 10 months leading up to the motion seeking to set an uncontested trial, despite being granted extensions to file various documents. The respondent had also failed to comply with court orders for payments of costs and to file the required documents in the lead up to the request for the uncontested trial.

[3] The Family Law Rules precluded the respondent from filing any other evidence for the trial or from otherwise challenging the assertions made by the applicant, although Justice O’Brien’s order made an exception granting the respondent father, Mr. Mestiri, leave to cross-examine the applicant and the clinician from the Office of the Children’s Lawyer, at the uncontested trial.

[4] The uncontested trial was initially set for October 25, 2021, before Justice Papageorgio. The father attended on October 25, 2021 and requested that he be permitted to cross-examine the OCL clinician in French, though he said he was comfortable with the materials in English. Justice Papageorgio then adjourned the uncontested trial to January 11, 2022. Justice Papageorgio ordered that the matter proceed in French or with an interpreter, because the respondent father was self-represented and the issues at trial involved parenting time and decision making.

[5] The uncontested trial took place before me, Justice Boucher, on January 11, 2022. The oral proceedings took place in French according to Justice Papageorgio’s order, and the OCL clinician was cross-examined with the assistance of an interpreter. The materials filed were all in English, and so this decision is written in English as well.

[6] In an uncontested trial, according to the Family Law Rules, s.2, only the party making the claim provides evidence and submissions. However, following Justice O’Brien’s order, I permitted the respondent to cross-examine both the OCL clinician, Ms. Nagy, and Ms. Bayar on the issues of parenting time and decision making and the voice of the child. Because of the support issues, he also provided unchallenged oral evidence about his income and employment. I also permitted the respondent to make closing submissions on those issues.

Orders requested at the uncontested trial

[7] The applicant mother requested the following orders in this uncontested trial.

1. Divorce;
2. Parenting time and decision making;
3. Imputation of income to the respondent;
4. Child support for two children and a monthly deadline for child support payments, in an increased amount based on cost of living and children’s needs;
5. S.7 expenses;
6. Pre and post judgment interest for child support; and
7. An order for the respondent to provide a copy of family photos and videos.

[8] The court’s reasons for decision are set out according to the list of issues above.

1) Divorce: have the criteria for granting a divorce been met?

[9] The applicant has applied for a divorce alleging a breakdown of the marriage. The divorce application commenced June 2, 2020.

[10] Before granting a divorce, the judge must be satisfied of several procedural and legal requirements, including that the court has territorial jurisdiction and that no other court has dealt with the issue, that there was a marriage, that there has been a separation of at least one year, that there is no prospect of reconciliation, that there is no connivance or collusion, and that there are reasonable provisions for any children of the marriage.

[11] In terms of the court’s jurisdiction, the applicant has been ordinarily resident in Ontario since 2006. The court also has the clearance certificate from the Central Registry of Divorce, dated 2020-06-26, confirming that there are no other pending divorce proceedings in a Canadian Court and that no other divorce was granted in this same marriage in Canada. The parties indicate in their materials that the respondent’s Tunisian court applications have not been granted. Accordingly, there is jurisdiction for the court to decide the matter.

[12] The parties were married on December 30, 2005. The applicant filed the Tunisian marriage certificate, showing a registered marriage that took place on December 30, 2005, in LaMarsa, Tunisia. Both parties were from Tunisia. In the affidavits filed on the hearing, both parties acknowledge the fact that they were married in Tunisia in 2005, and that they started living together in Canada in 2006.

[13] The applicant and respondent have lived separate and apart for at least one year. The applicant says the separation date was July 14, 2018; she is the only one entitled to give evidence on the hearing on this point, so I accept her evidence. Moreover, the respondent has been living in Tunisia since 2019, while the applicant has been living here continuously.

[14] I accept the applicant’s position that the parties have no reasonable prospect of reconciliation, given the high-conflict nature of the situation, and the lack of reconciliation attempts since 2018. There is no evidence of collusion or connivance in seeking this divorce.

[15] There are reasonable provisions for the children of the marriage. The parties have two children, aged 12 and 6, who were born and raised in Canada and who go to school in Canada. This uncontested trial decision includes orders for child support and parenting time and decision making, so the issue of the care of the children is resolved.

[16] Because all the legal and technical requirements have been met, a divorce order shall issue in the usual form.

2) Parenting Time and decision-making

[17] The mother asks for an order giving her parenting time for most of the year, because the respondent father’s current residence is in Tunisia. The mother requests decision-making authority with respect to the children as well, given the geographic circumstances and issues related to trust.

[18] As a result of the litigation history, the mother requests that the court order that the bulk of the children’s residential time be spent under her care. She says that practically, because the father is living in Tunisia, and that he does not travel here, the order would have to grant her most of the parenting time. Moreover, she says that it would be too risky for her or the children to travel to Tunisia because of the father’s outstanding court case there and his stated desire to have the children take up residency with him in Tunisia, and the history of retention, and that she cannot afford to litigate for their return given her litigation debt to date. Regarding decision-making, the parties’ evidence is clear that they are not in communication such that they could make decisions together, and that there is a lack of trust between the parties to enable cooperativeness.

[19] Section 16.1 of the Divorce Act permits the Superior Court to make an order for the exercise of parenting time or decision-making responsibility for the children of the marriage, taking into account only the best interests of the children and the factors including those listed in s.16.

[20] The analysis below shows my consideration of the factors relevant to the best interests of the children in this case.

The children’s views and preferences (Factor (e))

[21] The Office of the Children’s Lawyer provided a “voice of the child” report to the court regarding the children’s preferences with respect to a parenting order. The clinician testified at trial.

[22] Driss, who is 12 years old, presented as a warm, open, and engaged child, who in the court’s estimation seems highly intelligent and mature. Driss loves both his parents and would like to spend time with both. Driss would like for his father to move back to Toronto and for there to be equal parenting time. However, recognizing that his father does not plan to move back, Driss says that he would visit in Tunisia during school breaks. Driss also thinks the parenting time with his father should be unsupervised.

[23] Driss was very clear that he wished to remain in Toronto and that does not wish to move to Tunisia. He said that living in Toronto was his “normal life”, and that he wanted to continue living here because of his “school, the infrastructure, his friends and his plans for his future.” Driss is also concerned about the education system in Tunisia, which he says is quite different from here. He is also concerned about having to learn classical Arabic, and the fact that he cannot currently write in Arabic. Driss worries about having to make new friends there, particularly because “he finds the kids in Tunisia very judgemental.” Driss however likes the idea of Tunisia for vacation and visiting his extended family. Driss is a competitive swimmer, who strongly communicated the importance of this activity to him, explaining that he decided to give up other activities to focus on swimming, and that this is one of his main focuses outside of school. He currently swims with an Etobicoke club 6 days a week with competitions every few weeks, and he has participated in high level swimming for many years.

[24] Zied is 6 years old, and in grade 1. Zied has a significant medical issue related to one of his legs. The clinician could not get a clear picture of Zied’s views and preferences regarding parenting time because Zied believed his parents would get back together after the pandemic was over, and because of how he expressed himself in terms of his age and maturity. The clinician was able to discern that Zied loves both his parents, that he wants to spend time with each of them, and that he misses his father.

[25] The court will accord substantial weight to the wishes and preferences of Driss. He is an older child, nearly a teenager, who has a clear sense of himself, with respect to his own priorities for school, sport, and future career opportunities, as well as issues with respect to friend and peer group acceptance. His views and preferences will be given significant weight. For Zied, his views are less clear, although he obviously wants to spend time with both parents. The court will accord Zied’s views weight as well, in that respect.

The children’s needs given their age and developmental stage, and their need for stability (Factor a)

[26] In this case, the children love and need both parents and have articulated the importance of spending time with both parents. However, the geographic realities of the father living in Tunisia, and their young age, make equal time not possible.

[27] The children’s need for stability is high, particularly given the disruptive circumstances of the pandemic to the children’s normal life, and the disruptive event of their father’s move to another country. Driss has given clear views about the importance of stability of his living arrangement in Toronto, as described above, over and above the need to be with one parent or another. Driss needs the stability of his current schooling and competitive swimming environment to ensure that his sense of self and security is not jeopardized. Zied would be better served staying with Driss, as Driss is a stable factor for him, and he clearly wants stability in his family circumstances though he would wish for both parents to be together as well.

[28] Geographically speaking, both children were born in Toronto, and they have done all their schooling here. Tunisia is also a special place for the children, in the sense of having extended family and a history of pleasant experiences there. However, there is only stability with respect to Tunisia if there is also a unified and cooperative parenting approach: if there is discord with the parents, or a plan to disrupt the children’s circumstances, there is no longer stability in Tunisia as a destination for the children. I must note that Tunisia is viewed by the children, particularly Driss who is more mature, as a vacation destination, not as an alternate living arrangement for them, even though their father and extended family lives there. All these factors favor the children remaining in Toronto, as their primary residence, and with the mother having the bulk of parenting time given the current reality of the father living abroad and maintaining competing litigation there.

Nature and strength of the relationship with each spouse, the siblings, and grandparents and others of importance / cultural/religious/linguistic/ plans for the children’s care (Factors (b) (f) (e)

[29] The children have strong relationships with both parents. Driss says some of his cousins in Tunisia are his good friends. They seem to have extended family there who support and love them. The father’s plan of care, very generally stated, seems to be that he would have them in Tunisia as the primary residence, with his extended family and that the children would go to private French school, with the mother being granted liberal access by video or phone and there during school breaks. The mother’s plan of care is for the children to stay with her in Toronto, keeping the status quo for schooling and activities and friends, with no current plans to visit Tunisia because of the risks she perceives in having the children leave the country.

[30] The parents were both clear that they view themselves as Tunisian and that in the past it was normally part of their life to spend time in Tunisia. I note that in the father’s affidavit, filed by the mother, he mentions that the children are no longer taking Arabic language classes and that he thinks their language and cultural needs would be better supported in Tunisia.

[31] All things being equal, this factor would favour having a parenting schedule that included Tunisia as this is part of their heritage and upbringing. However, the parents’ relationship at present would not permit parenting time to occur in Tunisia in a safe manner for the stability of the children, as I discuss throughout this decision.

[32] Given the importance of this factor however, the children should restart and continue their language training in Arabic, if this is something they were pursuing historically, because of the importance of remaining connected with their culture and family.

Each spouse’s willingness to support the development and maintenance of the relationship with the other spouse / willingness to cooperate and communicate / civil or criminal proceedings relevant to children’s safety, security, and well-being (Factors (c), (h), (i))

[33] The parties are in a high-conflict situation, with seemingly poor communication, that has been further strained by international litigation issues.

[34] As noted above, the parties had settled their separation and entered into an agreement in the summer of 2019. The agreement set out a parenting schedule and support agreement. In March 2020, the children traveled to Tunisia for a March break visit. Within a week of the children’s arrival, the father commenced an application for divorce and sole custody in Tunisia, despite the children’s residence being in Toronto as they had agreed.

[35] The father’s proceedings in Tunisia allege adultery and mistreatment of the children, allegations that are disputed by the mother. The father also requested that the separation agreement be vacated by the Tunisian court. The father brought no similar motions here to vacate the separation agreement or for parenting time and then did not respond on the required timelines to the application brought in Canada. Though he responded to some of the early motions regarding the return of the children from Tunisia, he did meet the other response requirements in the litigation that would have enabled him to have more of a say in the outcome of the matters here and in the presentation of evidence. The mother disputes the allegations made by the father in the Tunisian proceedings and alleges that he moved to Tunisia and started proceedings there in a pre-meditated way to try to gain sole custody of the children and to defeat their separation agreement.

[36] According to the decisions on the mother’s Ontario motions in this proceeding, the mother had apparently agreed for the children to remain for some period during the pandemic, but then tried to get the father to return the children; the father did not respond to her requests or did not agree to return the children immediately. In his affidavit, the father says the mother did not communicate with him and explained that he thought the children should stay in Tunisia for the summer as the agreement would have permitted and because Eid was in the summer that year. She says he kept the children there beyond the time agreed and that litigation was required to effect their return. The motions courts ruled in her favour.

[37] In June 2020, the mother started her own application in the Superior Court in Toronto, and brought an ex-parte motion for the return of the children. In July 2020, Faieta J. issued an order for the return of the children under the parens patriae jurisdiction of the court because the Hague Convention was inapplicable: Canada had not yet declared Tunisia’s acceptance of the Hague Convention. Several compliance motions were needed following this, and the children ultimately returned to Canada in August 2020.

[38] The children have not been back to Tunisia since 2020. The father has not visited here because he does not want supervised access, as set out by an interim order of the court, and as insisted by the mother. The father wants the children to live in Tunisia with him, or alternately that they spend the summers with him as well as the school breaks. He is continuing his Tunisian proceedings, despite the application here and the children’s residence being in Toronto.

[39] At the uncontested trial, the mother conceded that the father could have unsupervised parenting time with the children, in Canada, if she were to retain the children’s travel documents, and if they remained in Toronto. She was also willing for the father to have parenting time right away, starting in March 2022 and during school breaks for extended periods. She said that if the father lived here, she would even be willing to have more shared parenting time, perhaps equal time. She is willing to accord video/Facetime calls to the father on a frequent basis. She refuses however for the children to go to Tunisia for visits at present because of the outstanding proceedings there and the father’s lack of commitment or assurance to return the children again if they visited him in Tunisia.

[40] The narrative cited above shows that the parents are involved in high conflict litigation, with limited cooperation on an overall basis, and risks for the children’s stability because of the potential for upending their existing residential, schooling, social and sporting reality because of the competing litigation in Tunisia. It is true that the father returned the children eventually according to the court’s order, and the mother may have consented to a certain period of extended stay in Tunisia, but the fact that litigation was required including compliance motions demonstrates a problem with cooperation and a prior resort to self-help methods of dispute resolution rather than direct following of court orders and agreements. Such actions ultimately impact the children’s stability. Following this decision, the parties must strive to observe cooperation and following of court orders, and they must resort to the issuing courts to address any problems with the operation of the orders, rather than resorting to outside courts or to self-help. Some period of cooperative engagement likely would create better circumstances to promote mutually agreeable circumstances for a greater degree of shared parenting time, possibly even in Tunisia.

[41] At present, the level of conflict and nature of the competing legal proceedings makes the prospect of joint or shared decision making, or travel to Tunisia too risky for the children. There is no evidence of the parents trusting each other at present, nor evidence that they can work together such that they could make decisions together.

[42] The evidence at trial was that initially on separation, the parties had some sort of an agreed shared parenting situation, while the father was still in Canada. The specifics of the 2018 arrangement were not explained in evidence. The parties then entered into a formal separation agreement in 2019. The applicant did not apply to enforce that agreement in this court. The agreement was previously filed at the Ontario Court of Justice presumably for the purposes of support enforcement. In addition to support arrangements, the agreement says that the father would re-establish residency in Tunisia in 2019 and that he would have parenting time there during specified school breaks with the remaining time to be spent with the mother in Toronto. However, since 2019, the mother has been the primary caregiver apart from the 6-month period in 2020 the children were in Tunisia.

[43] This factor would otherwise favour shared parenting time and decision-making and if both lived in Toronto, possibly even equal parenting time. Because of the circumstances, parenting time with the father in Toronto should be encouraged and should happen unsupervised for a more natural situation. There were no specific concerns raised with unsupervised time in Ontario if the mother retained the children’s travel documents, apart from the mother’s generalized fears from the situation thus far.

Family violence (Factor (j)

[44] While this matter is high-conflict and contentious, family violence is not a factor.

Conclusion – parenting time and decision making

[45] Parenting time in this case ideally would be shared between the parents. Nearly equal parenting time could even be an appropriate result if the father were living in Toronto, based on the parties’ parenting ability, the children’s preferences, the need for stability, and cultural and language issues. Decision-making too could be a more cooperative model, in different circumstances.

[46] Given the analysis of the relevant factors outlined above, however, the present circumstances dictate that most of the parenting time should be with the mother in Toronto. Parenting time for the father should be in Ontario, and at a minimum, during the two weeks of break over the Christmas school holidays, the March break, and four consecutive weeks in the summer. The mother may accord more parenting time to the father as she deems appropriate. At trial the mother said she would accord more parenting time if the father requested, in Toronto, and pledged to give him two weeks unsupervised parenting time in March 2022; the court will order two weeks of parenting time for the father in March 2022, in Ontario, and that the father will bring the children to school and their regular activities for the non-break week of school in March. The mother will retain the children’s travel documents.

[47] The court will not at this time make any orders for the children to have additional time with the father during periods of online school. The future is too difficult to predict in this regard and there is a current tendency to keep children attending school in person most of the time rather than shifting to long periods online. The mother as the primary residential parent will decide where the children should spend any extended period of online education.

[48] The father will also be granted parenting time by video technology a minimum of four times per week, on Tuesday / Thursday from 8-9 pm and on Saturdays and Sundays from 2-3pm. This is a minimum standard and more calls can be arranged at times respectful of the children’s school and activity schedules. The calls must occur in a fashion that affords the children privacy during their calls with their father.

[49] Decision-making with respect to the children will be the responsibility of the mother, in the current circumstances, given the analysis above. The mother however is required to consult with the father, in writing, in advance, on all major, non-emergency, medical issues including with respect to Zied’s pre-existing condition, by providing the father with detailed information and documents regarding the major medical issue well in advance of the decision being made on any major medical issue. The mother will take the father’s written feedback or oral discussions into account in making her decisions.

[50] Similarly, this consultation function will be imposed for major educational decisions, as well as for religious and language education, and s.7 level extracurricular activities. The mother must also keep the father up to date on the children’s educational, language, health, and extracurricular activities in regular bi-monthly reports to the father. Regular reporting by the mother is necessary because of the geographic situation, in order that the father may be kept up to date.

3) Imputation of Income

[51] The mother also asks for the father to be imputed income of $150,000 because that was his salary in 2018 in Canada before he moved away, and in their separation agreement he agreed to support based on that level of income. There were no notices of assessment, nor any other expense materials filed with respect to the father. In his affidavit, he said that he did not have notices of assessment for 2019, 2020, 2021 in Canada.

[52] The mother is not directly seeking to uphold the separation agreement, nor would this court have jurisdiction to uphold that order because it had been filed in the Ontario Court of Justice and is now effectively that court’s order.

[53] The separation agreement nonetheless could constitute some evidence of the respondent’s income or ability to pay child support, at least with respect to the point in time the agreement was signed. However, the information from the agreement must be viewed in the overall context: it was entered into without independent legal advice, it is point in time evidence about the respondent’s ability to pay from the summer of 2019 prior to him establishing residency or working in Tunisia.

[54] More importantly, the affidavit evidence filed by the mother and the oral evidence at trial from the respondent father show the respondent’s income to be substantially less than $150,000 Canadian since 2019: he earned 5,954 Tunisian Dinar, net of deductions, on a monthly basis, when he first started working, which then increased when he changed employment to his present income of 10,000 Tunisian Dinar per month, net of deductions.

[55] The mother did not dispute the father’s oral evidence at trial or in his affidavit about his actual income. Rather, she urged the court impute a higher income to him and award higher child support because he had the ability to earn more in the past and that his living expenses would not be high in Tunisia and because in the past he agreed to pay more. However, the mother’s affidavit makes only general assertions about the cost of living in Tunisia. The respondent himself filed no materials in that regard, although it is undisputed that the father is living with family and has reduced living costs. Both parties seem to be carrying the cost of litigation in both jurisdictions.

[56] Section 15.1 of the Divorce Act governs the granting of child support in this case because the application for child support is corollary to the divorce application. According to s.15.1(3) a child support order must be made in accordance with the Child Support Guidelines, although s.15.1(5) allows for a different amount to be awarded in certain circumstances. For example, a court may award a different amount if satisfied that other court decisions or divisions of property would otherwise benefit the child, or if the guideline amounts would result in an inequitable amount of support, or if other reasonable arrangements have been made on consent of the parties.

[57] Normally, the amount of child support payable is based on income. The Child Support Guidelines provide that income is to be determined in accordance with the T1 total income amounts from the spouse’s yearly Canadian tax assessment: s.16 CSG. If the T1 amount would not be a fair representation of the spouse’s income, the court may determine or impute an amount different from the T1 that is fair and reasonable in light of any pattern of income, fluctuation of income or the receipt of non-recurring amounts in a year. S.17 CSG.

[58] Given the evidence presented in this case, the court would not impute an income of $150,000 to the respondent because it would not be a fair representation of his current income potential. The $150,000 income was earned nearly 4 years ago, in Canada. The father is now earning less in Tunisia. In his current circumstances, it would not be appropriate to average the income amounts over three years, given that his last job earned almost half the current salary, and there is no evidence he is at risk of going back to the lower salary, nor that he would again rise to the Canadian income level he had in 2018. The court cannot accept the mother’s suggestion that the respondent is underemployed, because the undisputed evidence shows that he is working at a high-level position appropriate to his skills, that he moved to that higher salaried position in a reasonable timeframe after moving, and that he has no plan to move from Tunisia.

[59] In the circumstances, it would not be fair or reasonable to impute anything much more than his current income. There were no specific tax documents or pay stubs filed or other proof of income to allow a specific calculation of the father’s income. However, in the father’s affidavit filed as an exhibit to the applicant’s affidavit, he discussed in paragraphs 73 and 74 the deductions and his income at that time in May 2021, as reproduced here, that the court could use to extrapolate a fair imputation for his current income:

“73) The above said contributions from me were despite the fact that my Tunisian job only pays me ND 5954 per month net or TND 71,448 per annum, which is equivalent of CDN $30722 net - or grossed up equivalent of just under $52,560/annum Canadian. With every real-life conversion I lose even more in conversion rates and fees.

74. Based on the grossed up income of equivalent to $52K, pursuant to the Child Support Guidelines my legal obligation to pay child support for our two children is between $772 per month. Given Applicant's income of over $100,000 last year, we should also be sharing our children's s.7 expenses.”

[60] Using the respondent’s rough calculations and estimations, given his new position that nearly doubles his former Tunisian salary, given the income conversion and fluctuation issues, I would impute an income of $100,000 Canadian Dollars under s.17 CSG. This imputed amount will be used for calculations for support.

4) Child support Order

[61] The mother requests child support of $2,500/month, an increased amount above the guidelines, based on cost of living and children’s needs, and the parties’ prior agreement.

[62] The applicant’s request regarding overall cost of living is a general assertion that would apply to nearly everyone, and the court has not routinely increased guideline support amounts for inflationary reasons. Neither parties’ income is said to be increasing relative to cost of living, so it would not be appropriate to increase the payment on that basis. The mother’s suggestion that the amount should be based on the amount in the separation agreement does not make sense either: the amounts were partially arrived at based on old income amounts that are no longer applicable, though it is not possible income was the sole factor because the $150,000 income would not generate a table amount of $2,500. That amount would have also been based on the father having agreed presumably to assume other costs like all the s.7 expenses and various other costs as he suggests. In any event, $2,500 per month would not be appropriate on the respondent’s current income on a court-ordered outcome.

[63] The table support amount calculated based on the incomes, as determined above, would result in a monthly child support payment of $1,471, that would be payable by the father on the 1st of every month, based on two children, and based on a residential schedule for the children with the mother. In the context, this is an appropriate amount based on the relative incomes of the parties, particularly if the s.7 costs are shared proportional to income as explained below. The court will then order ongoing monthly child support payments of $1,471 payable by the father to the mother for the two children of the marriage, Driss and Zied, payable on the first of every month.

5) Section 7 CSG special expenses

[64] The mother also filed documents showing expenses for orthodontics, optical costs, and extracurricular activities and sports. These are categories of expenses normally appropriate for a s.7 expense order, and so the court will consider it under this head. In this case, a s.7 expenses order would be appropriate for summer childcare or afterschool care as with the gymnastics costs, medical/dental and health related expenses including therapists for the children’s medical conditions, prescription drugs, glasses and optical costs, and dental/orthodontic costs as well as insurance for these items based on the evidence filed showing the incurring of these expenses for the children. As well, the costs of computer and related IT equipment as educational supplies is a new type of expense for parents over and above what regular child support payment could cover, and too much of a burden for the residential spouse alone and the net expenses should be shared as a s.7 expense.

[65] With respect to extracurricular activities, the costs associated to Driss’ competitive swimming is beyond the normal expenses that should be borne by one spouse’s income. Similar costs for Zied’s swimming will arise for Zied in short order and are appropriate for s.7 apportioning. Similarly, the costs associated to Zied’s gymnastics and soccer are also very high for the mother’s income and overall expense burden given the intensity with which the children pursue these sports and the overall quality and competitiveness of the programs; this is particularly true for Driss who is pursuing a high level of competitive swimming such that he had to give up other activities to give it exclusive focus. The regular table child support order would not be expected to cover the funding required for the level of overall sports engaged in by the children. Pursuing these activities is in the best interests of these children, as the pursuits are highly beneficial for their development, future, and health.

[66] The evidence filed supports applying the presumption that the s.7 expenses be shared in rough in proportion to the spouses’ incomes. For clarity, as stated in her Form 13, the mother’s income is $90,357.36, while the father’s is imputed at $100,000, as per above.

6) Pre and Post judgement interest for support

[67] The applicant requests pre and post judgment interest for support payments that she claims should have been received prior to this decision, for the $2,500 monthly amount in the parties’ 2019 separation agreement. The mother says the support amount was based on his income at the time of the agreement, although the court notes that the respondent’s 2019 income would not generate a table amount of $2,500.

[68] The applicant has not applied to enforce the separation agreement in this court, and indeed it was filed in the Ontario Court of Justice, not this court. The applicant has not applied for “arrears” or retroactive support payments either. There is only an application for future support amounts, and no application for any outstanding amount owing.

[69] An award of pre-judgment interest is a discretionary decision. The authority for awarding pre-judgment interest is found in Section 128(1) and 130(1) of the Courts of Justice Act. The court may award prejudgment interest to “a person who is entitled to an order for the payment of money”, at the interest rate to be calculated from the date of the cause of action to the date of the order.

[70] I view s.128 as inapplicable in the circumstances: the court is not being asked to make an arrears or retroactive award, so there is no finding of a debt or past payment owed. Alternately, this is not an appropriate case for the exercise of this discretion to issue prejudgment interest as a separate and independent matter. The separation agreement is not directly sought to be enforced by this court, and neither are the amounts supposedly owing. The applicant was paid child support amounts for nearly all the months that the children were living in her residence, at an amount that more closely reflected the respondent’s income. While the court is not sanctioning self-help, the court is not satisfied that interest amounts should be paid on any amounts owing based on an agreement that is not sought to be enforced and given that the respondent would have satisfied any arrears that would have been ordered solely based on actual income.

[71] Post-judgment interest arises from s.129(1) “Money owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the post-judgment interest rate, calculated from the date of the order.” The court will award post-judgment interest on any amounts owing based on the decision in this case, in line with the normal practice of the Court, by including the following clause in the Order that will issue in this case:

“This order bears post-judgment interest at the rate of ____% per annum effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default."

7) Request for Photographs

[72] The applicant alleges that the respondent took all their family photos and albums that were contained on a hard drive taken by the respondent when he moved to Tunisia. The respondent was cross-examined on this issue. He did not directly admit having the photographs, and implied that the applicant had thrown her own copies in the garbage when they were selling the matrimonial home. The respondent seemed to have been hurt by this event. The applicant explained that the items were placed in the garage just for staging purposes, not for disposal purposes.

[73] There is no evidence about who owned the computer hard drive itself. Presumably, the images are shared if they are family photos, and the applicant’s claim that they are a shared asset is undisputed. The applicant has an interest in the images if she and her children are depicted in them, and they represent images of a time when they were a united family, so those would be a shared asset. The issue with respect to the photos appears to have arisen perhaps from a misunderstanding of intentions and desires. In the interests of preserving the long-term relationship with his children and the applicant, the respondent should be motivated to assist with this request, despite his view of the fairness of the situation overall. Providing a copy of the digital image would not unduly impact the respondent and would not remove the property from his custody but would simply revert the property to a shared status.

[74] The respondent is ordered to provide the applicant with a digital copy of the requested images within 90 days, or a paper copy if that is not feasible.

8) Conclusion Summary

[75] The court orders that issues in this proceeding shall be disposed of as follows.

1. A divorce order shall issue in the usual form.
2. In-person parenting time for the father will be in Ontario, Canada. The schedule for the father’s parenting time, at a minimum, will be two weeks during the school break in December/January, one week for the school March break, and four consecutive weeks in the summer school break. The parenting time will be unsupervised.
3. For 2022, the father will have two weeks unsupervised parenting time in March 2022 inclusive of the school March break, and for the other week the father shall bring the children to school and their regular sporting and other activities.
4. The father will also be granted parenting time by video technology a minimum of four times per week, on Tuesday and Thursday from 8-9 pm and on Saturdays and Sundays from 2-3pm. This is a minimum standard and more calls can be arranged at times respectful of the children’s school and activity schedules. The calls must occur in a fashion that affords the children privacy during their calls with their father.
5. The remainder of the residential schedule and parenting time will be the applicant mother in Toronto.
6. The mother will retain the children’s travel documents.
7. The mother may accord more in person and virtual parenting time to the father as she deems appropriate.
8. Decision-making with respect to the children will be the responsibility of the mother. The mother must consult with the father, in writing, in advance, on non-emergency major medical issues, major educational decisions, religious and language education decisions, by providing the father with detailed information and documents regarding the issue well in advance of the decision being made on any of the specified issues. In making the decisions, the mother will take into account the father’s written feedback or oral discussions.
9. The mother must consult with the father in the manner described above prior to incurring new s.7 level extracurricular activities or prior to discontinuing such activities.
10. The mother must keep the father up to date on the children’s educational, language, health and extracurricular activities in regular bi-monthly reports by email to the father.
11. The court imputes an annual income of $100,000.00 to the respondent father.
12. The respondent father shall pay to the applicant mother $1471.00 per month in ongoing child support, commencing February 1, 2022, and continuing on the first day of each month that follows, in child support for the children Driss Mestiri date of birth 01-05-2009 and Zied Mestiri date of birth 21-01-2015, in accordance with the Tables under the Child Support Guidelines based on two children and an imputed annual income of $100,000.00.
13. The father must pay 53% of the following s.7 expenses, net of any deductions or subsidies or credits or benefits: a. The s.7(1)(f) costs for competitive swimming, soccer and gymnastics; b. Summer and school PD day childcare; c. Medical, dental and orthodontic and other health related expenses including insurance premiums, and therapists for the children’s medical conditions; d. Prescription drugs; e. Glasses and other optical costs; and f. Computer and related IT equipment costs if purchased for school requirements. The s.7 expenses are to be calculated by the mother and submitted to the father on a quarterly basis, and adjusted for benefits, subsidies and deductions at the time if known or if not, at the end of the year.
14. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
15. A Support Deduction Order shall issue.
16. This order bears post-judgment interest at the rate of ___ per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
17. The applicant’s claim for pre-judgment interest is dismissed.
18. The respondent is ordered to provide the applicant with a digital or paper copy of the requested images within 90 days.
19. If the applicant wishes to pursue a claim for costs in connection with this matter, she shall serve by email and file a maximum of 2 pages written submissions, and a detailed Bill of Costs and copies of any Offers to Settle by February 16, 2022. Any responding submissions shall be served and filed by February 23, 2022, with a page limit of 2 pages. Reply submissions of a maximum of 2 pages shall be served and filed by February 28, 2022.

Boucher J. Released: February 14, 2022