Court File and Parties

COURT FILE NO.: FS-20-019660 DATE: 20220324 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Angela Sue-A-Quan Applicant – and – Paul Duarte Respondent

Counsel: Efua Cobbina, for the Applicant Jason Isenberg, for the Respondent

HEARD: March 1, 2 and 15, 2022

J. Steele J.

Endorsement

[1] This was a motion to change the final order of Justice Shaughnessy, dated November 20, 2015 (the “Order”). The Order was based on the terms of final Minutes of Settlement executed by the parties on November 20, 2015.

[2] The applicant, Angela Sue-A-Quan, seeks:

a. Variation of paragraph 2 of the Order to provide for an order relating to the sharing of specific holidays and special occasions (S.D.’s first day of school, Easter, Halloween and Christmas);

b. An order for set-off child support, retroactive to 2019;

c. An order for prospective, set-off child support;

d. An order for the respondent’s contribution to special expenses for S.D.;

e. An order that the parties share all future special and extraordinary expenses proportionate to their income;

f. An order for final decision-making on special and extraordinary activities for S.D.;

g. Variation of paragraph 4(d) of the Order such that S.D. may be able to participate in activities which may occur during the other parent’s parenting time.

[3] The respondent, Paul Duarte, seeks a change to the current parenting time schedule such that S.D. would reside with each party in alternating weeks from Monday after school or daycare to the following Monday. Mr. Duarte also seeks several changes to the Order, including changes with regard to decision making for S.D. and sharing of holiday time, including a comprehensive holiday schedule.

[4] The parties consented to an order at the outset with regard to certain of the disputed items, including that the parties will use OurFamilyWizard (“OFW”) to improve communication and that the parties will alternate claiming of the dependent credits for S.D.

Background

[5] The parties were married on August 14, 2010 and divorced on May 2, 2015. They have one son, S.D., who is nine years old. S.D. resides with both parties on a near-equal parenting schedule.

[6] The current regular parenting schedule for S.D. is as follows:

a. Week 1: with the applicant from Sunday evening to Wednesday morning, with the respondent from Wednesday from daycare/school to Friday morning, and again with the applicant from Friday to Monday morning.

b. Week 2: S.D. resides with the respondent from Monday morning to Wednesday morning, with the applicant from Wednesday after school/daycare to Friday morning and again with the respondent from Friday to Sunday at 6:00 p.m.

c. S.D. spends every Sunday night with the applicant.

[7] The parenting schedule, which includes six exchanges during the two-week period, was put in place when S.D. was three years old. He is now nine.

[8] The Order provides:

a. that all religious holidays and school holidays and/or vacations will be “equally shared or alternated as agreed upon between the parties.”

b. Neither party will arrange activities for S.D. during the other party’s residency time without the other party’s consent, which is not to be unreasonably withheld.

c. that the parties will make all major decisions together, including decisions about S.D.’s major non-emergency health care, education and religious upbringing. However, Ms. Sue-A-Quan is afforded the ability to make final decisions on major decisions if the parties cannot agree.

d. there shall be no child support payable by either party, “taking into consideration the similar incomes of the parties and the shared custody regime for [S.D.].”

e. neither party shall incur a special and extraordinary expense without first consulting the other party and obtaining their prior written consent, which is not to be unreasonably withheld.

[9] Ms. Sue-A-Quan is the parent who schedules and attends S.D.’s regular dentist appointments, orthodontic appointments, regular check-ups, allergy testing, etc.

Analysis

[10] Although Ms. Sue-A-Quan brought the motion to change the Order, she submits that there has not been a material change in circumstances such that there ought to be a change to the parenting schedule. I agree with Mr. Duarte that both parties seem to be of the view that the existing Order is not working for various reasons and needs to be revisited. However, the test for whether there has been a material change must be considered separately for the issues of parenting time and child support. Both are discussed below.

Parenting Time – Regular Schedule

[11] Mr. Duarte seeks to change the current parenting time schedule to week about. The current parenting time schedule involves six exchanges in a two-week period. S.D. is with Ms. Sue-A-Quan eight nights in the two-week period, and with Mr. Duarte six nights.

[12] Ms. Sue-A-Quan is willing to change to a week about schedule provided that S.D. spends Wednesday nights with her in Mr. Duarte’s week. She wants to keep the number of nights she has with S.D. the same as under the Order. Ms. Sue-A-Quan also submits that she would try to enroll S.D. in activities on Wednesday nights to avoid any issues with booking activities during S.D.’s parenting time with Mr. Duarte. This is because activities have been a significant source of conflict between the parties.

[13] Under section 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.):

Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

[14] The court must first satisfy itself that there has been a material change in circumstances since the Order was made.

[15] When the Order was put in place, S.D. was three years old. He is now nine. Further, the level of conflict between the parties has escalated since the Order was made. As discussed below, the parties have been unable to agree on an equal sharing of parenting time for the holiday schedule as per the Order. I am satisfied that there has been a material change in circumstances since the Order.

[16] The court must then consider what is in the best interests of the child. This is a fresh inquiry into this issue: F.K. v. A.K., 2020 ONSC 3726, 43 R.F.L. (8th) 411. Mr. Duarte submits that as there is a fresh inquiry there is no presumption in favour of maintaining the current parenting schedule.

[17] The Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) states that in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child and in doing so, must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Under section 24(3) of the CLRA, the factors related to the circumstances of a child include,

a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

b. The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

c. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

d. The history of care of the child;

e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g. Any plans for the child’s care;

h. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

i. The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

j. Any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

k. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[18] Both parents have a close relationship with S.D. and both are able and willing to care for and meet S.D.’s needs. Historically S.D. has spent eight nights in a two-week period with Ms. Sue-A-Quan and six nights with Mr. Duarte. Ms. Sue-A-Quan has been the parent who has taken S.D. to most of his medical and other appointments.

[19] Mr. Duarte submits that a reduction in the number of transitions from one party to the other is in the best interests of S.D. It is clear that reducing the number of transitions and reducing or eliminating any that have to be at a party’s home would be in S.D.’s best interests. I am also of the view that given the significant level of conflict around S.D.’s activities, and the fact that Ms. Sue-A-Quan has been the parent who historically has done all the tasks regarding S.D.’s activities (researching, scheduling, enrolling), it is appropriate that there be one night a week where S.D. is always with Ms. Sue-A-Quan. This will give Ms. Sue-A-Quan the opportunity to enroll S.D. in a Wednesday night activity.

[20] Accordingly, S.D.’s parenting time schedule shall change to a week about schedule, provided that S.D. spends Wednesday nights with Ms. Sue-A-Quan in the week when S.D. has parenting time with Mr. Duarte.

Parenting Time - Holiday Schedule

[21] Both parties seek to amend paragraph 2 of the Order, which requires agreement of the parties with regard to the holiday schedule. It states: “In addition to the regular schedule set out above, all religious holidays and school holidays and/or vacations (once [S.D.] begins school) will be equally shared or alternated as agreed upon between the parties. Each party will take into account [S.D.’s] camp and other scheduled activities as agreed upon.”

[22] Mr. Duarte submits that change is needed to reduce conflict between the parties. He seeks a comprehensive and detailed holiday schedule, which equalizes the holiday parenting time.

[23] Ms. Sue-A-Quan also seeks a change to the holiday schedule. However, she claims that the parties have established a status quo for Christmas, Halloween and S.D.’s first day of school. This “status quo” is one that has been effectively imposed by Ms. Sue-A-Quan.

[24] S.D. has spent the night before the first day of school in Ms. Sue-A-Quan’s care in 2016, 2017, 2018, 2019, 2020 and 2021. Between 2016 and 2020, S.D. spent the evening of Halloween with Ms. Sue-A-Quan for trick-or-treating. Between 2016 and 2021, S.D. spent part of Easter Sunday with Ms. Sue-A-Quan each year. In 2015-2021, S.D. spent Christmas eve and Christmas morning with Ms. Sue-A-Quan.

[25] With regard to Christmas, Ms. Sue-A-Quan proposes that S.D. continue to have parenting time with Mr. Duarte from 10:00 a.m. to 3:00 p.m. on Christmas day. For the past several years, S.D. has only had parenting time with Mr. Duarte from 10:00 a.m. on Christmas day to 3:00 p.m. on Christmas day, not Christmas eve, morning or dinner. This is despite the clear wording of the Order that all religious holidays and vacations will be equally shared or alternated as agreed upon between the parties. Ms. Sue-A-Quan’s evidence was that meal prep time on Christmas day is special time and is pretty much equivalent to Christmas eve with the cookies for Santa and the excitement of Christmas morning. She conceded, however, that this may not be the case for children.

[26] Christmas, Halloween, Easter Sunday morning, and the first day of school are all significant days for children. These are special times for children. The Order established a shared parenting regime and specified that holidays would be equally shared or alternated. This has not been the case. Based on the evidence, I accept Mr. Duarte’s submission that since the Order Ms. Sue-A-Quan has “bullied” Mr. Duarte and he has quietly acquiesced. I do not for a minute think that he agreed that S.D. should never spend Halloween, Christmas eve, Christmas morning, the first day of school or Easter Sunday morning with his father. The dynamics of the parties’ relationship has been such that it was easier to acquiesce than fight. As an example, Mr. Duarte and Ms. Sue-A-Quan had not been able to agree on S.D.’s Christmas schedule this past Christmas. On December 24, 2021, Ms. Sue-A-Quan wrote to Mr. Duarte and his counsel that S.D. would not be attending daycare that day and that she would “be keeping him with [her] tonight for Christmas eve and Christmas morning as [she] proposed a few weeks ago and [had] requested be added to the revised agreement. The current final order states that holidays must be agreed upon and since no agreement has been reached, [she had] no choice but to revert back to the last arrangement that was agreed upon regarding Christmas.”

[27] What is in S.D.’s best interests? Ms. Sue-A-Quan says:

a. That it is in S.D.’s best interests to spend Christmas eve night with her as they celebrate her mother’s birthday that night and go to Christmas eve mass.

b. That it is in S.D.’s best interests to spend every Christmas dinner with her as they have a large extended family dinner with S.D.’s cousins, who he is close to.

c. That it is in S.D.’s best interests to spend every Easter morning with her so they can attend 9:00 a.m. mass.

d. That S.D. wants the current holiday/vacation status quo to remain in place.

[28] Mr. Duarte says that S.D. has two parents, and he loves both his parents and spending time with both his parents. Mr. Duarte submits that it is in the best interests of S.D. to spend special moments in his life with both parents. Mr. Duarte has suggested a comprehensive holiday schedule that he submits is reasonable. Under his proposed schedule:

a. S.D. would spend every Halloween and first day of school with Ms. Sue-A-Quan as he has done for the past several years.

b. S.D. would spend Good Friday through Easter Sunday at 10:00 a.m. with Mr. Duarte. At 10:00 a.m. on Easter Sunday S.D. would go to Ms. Sue-A-Quan’s home for the balance of the holiday.

c. S.D. would continue to spend Christmas dinners with Ms. Sue-A-Quan and her extended family.

d. S.D. would spend Christmas eve and Christmas morning with the parties’ alternating years.

[29] I am of the view that it is in S.D.’s interests to share special moments with both his parents. S.D. will benefit from special times with both parents and should not be deprived of creating special memories on special days with one parent. The parents are both Catholic and, accordingly, Christmas and Easter are significant events. While Ms. Sue-A-Quan perhaps attends church more regularly, Mr. Duarte also attends church. The holiday schedule proposed by Mr. Duarte is very reasonable and permits S.D. to spend some special holiday time with both parents. Effective immediately this holiday schedule shall be in place.

Decision Making re: Activities

[30] The parties have joint decision making for major decisions, such as health, education and religion. If they are unable to agree, the applicant has the authority to make the final decision. The applicant seeks final decision-making authority on S.D.’s activities. As mentioned above, S.D.’s activities have been a significant source of conflict between the parties. Mr. Duarte states that Ms. Sue-A-Quan does not get his consent before she schedules activities, which fall in his parenting time and/or she asks that he contribute to the cost. Ms. Sue-A-Quan states that she typically will reach out to Mr. Duarte, but he is unresponsive.

[31] Mr. Duarte states that Ms. Sue-A-Quan has made unilateral decisions in the past, such as scheduling activities, without consulting with him. The parties have experienced conflict regarding this issue, as well as numerous other issues. Ms. Sue-A-Quan has done all the work in researching and enrolling S.D. in his activities, including important life skill activities such as swimming. Her evidence was that there is significant competition in the city for spots for children in many of the extra-curricular activities and quick decisions must be made. Also, activities generally are on the same day/time each week so when S.D. is booked in an activity it will fall in S.D.’s time with both parents. Mr. Duarte states that he enjoys doing activities with S.D. during S.D.’s time with him. However, the evidence is that although Mr. Duarte did not provide consent to certain activities, he would take S.D. to the activity when S.D. had parenting time with him.

[32] The activities have been a source of significant conflict. The list of S.D.’s extra-curricular activities from 2017 to 2020 shows that of the 19 activities, 11 were swimming lessons, and the others include skating, soccer, dance and tumbling. Ms. Sue-A-Quan has enrolled S.D. in many swim classes to ensure that he develops this important life skill. As Ms. Sue-A-Quan stated, these activities will generally be on the same day/time each week.

[33] Ms. Sue-A-Quan has been the parent primarily responsible for researching and scheduling extra-curricular activities. I agree with Ms. Sue-A-Quan that certain of the activities she has supported for S.D. are life skills and I accept her evidence that there is significant competition in the city for spots for children in certain activities and decisions must be made quickly. Accordingly, Ms. Sue-A-Quan shall be given final decision-making authority on S.D.’s activities, provided that he is not enrolled in more than one activity each week that falls on a day when S.D. has parenting time with Mr. Duarte.

[34] The parties shall consult on S.D.’s extra-curricular activities, with Ms. Sue-A-Quan having final decision-making authority, provided that this decision-making authority relates only to a maximum of two activities per week, only one of which may fall on a day other than Wednesday.

Appointment of a mediator or parenting co-ordinator

[35] Mr. Duarte had suggested that a mediator or parenting coordinator be appointed to address parenting issues between the parties. However, Ms. Sue-A-Quan does not agree with this approach.

[36] There does not appear to be jurisdiction for the court to make this order in the absence of consent: Bozin v. Bozin, 2010 ONSC 1010, 85 R.F.L. (6th) 360; CLRA, s. 31.

Payment of S.D.’s special and extraordinary expenses

[37] As set out above, the Order provides that neither party shall incur a special or extraordinary expense without first consulting the other party and obtaining their prior written consent, which is not to be unreasonably withheld. This provision needs to be changed. Mr. Duarte says that Ms. Sue-A-Quan has breached this provision by incurring special or extraordinary expenses without his prior written consent. Ms. Sue-A-Quan says that Mr. Duarte has breached this provision by deliberately avoiding providing answers when asked for consent.

[38] Sections 7(1) and (2) of the Federal Child Support Guidelines, SOR/97-175 provide that:

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

(f) extraordinary expenses for extracurricular activities.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[39] Mr. Duarte proposes that he make a regular contribution to S.D.’s ongoing special and extraordinary expenses, other than daycare, post-secondary educational costs and medical expenses. He proposes a monthly payment of $50. He notes that on an annualized basis this is $600.00, 75 percent of what Ms. Sue-A-Quan has claimed for these expenses for the last three years ($800 per year).

[40] The issue with the approach suggested by Mr. Duarte is that these expenses will change over time. Both parents acknowledge that S.D. should be given the opportunity to participate in extra-curricular activities. Both parents also should contribute their proportionate share to S.D.’s reasonable activities. There was no evidence of either party not being able to do so.

[41] Given the significant conflict between the parties over this issue, I have determined that going forward expenses for these activities shall be addressed as follows:

a. Each June the parties shall exchange their income information.

b. Prior to August 15 each year, Ms. Sue-A-Quan shall provide Mr. Duarte with a proposed plan of the types of activities for S.D. for the upcoming year and estimated costs.

c. Mr. Duarte shall provide any feedback on the proposed plan by August 31 each year.

d. Taking into account any reasonable feedback provided by Mr. Duarte, Ms. Sue-A-Quan shall have the final decision-making for S.D.’s activities. However, this final decision-making authority relates only to a maximum of two activities per week, only one of which may fall on a day other than Wednesday (the “2 Weekly Activities”).

e. The parties shall each pay their proportionate share for S.D.’s 2 Weekly Activities.

f. Any proposed activities in excess of S.D.’s 2 Weekly Activities are subject to the terms set out in sections 17 and 4(d) of the Order.

Previously incurred special or extraordinary expenses

[42] Ms. Sue-A-Quan also seeks contribution from Mr. Duarte for previously incurred special or extraordinary expenses. She seeks equal contribution, as opposed to his proportionate share for these past expenses. Mr. Duarte’s position is that he did not consent and therefore he ought not to be responsible to contribute.

[43] Ms. Sue-A-Quan submits that she would ask Mr. Duarte for consent, but he would be unresponsive. She submits that she inferred his implied consent through Mr. Duarte’s actions and commitments to S.D.’s activities. Mr. Duarte would take S.D. to his activities during his parenting time. Further, he confirmed in cross-examination that he had not provided any evidence of him objecting to the activity when Ms. Sue-A-Quan would present information. Ms. Sue-A-Quan submits that even if the court finds that she did not meet her obligations with respect to consultation and obtaining Mr. Duarte’s consent, the court can still award a contribution.

[44] The parties have had significant conflict and issues communicating. Ms. Sue-A-Quan has certainly sought out Mr. Duarte’s consent for activities on at least some occasions. Mr. Duarte has not provided responses. He has, however, taken S.D. to the scheduled activities when they fall on his days. Mr. Duarte’s unresponsiveness should not be rewarded by his not having to contribute to S.D.’s reasonable section 7 expenses. As set out above, these expenses were for activities that are for S.D.’s benefit as a life skill, such as swimming, or S.D.’s enjoyment.

[45] Mr. Duarte shall pay 50 percent of S.D.’s section 7 expenses from 2017 to 2020 in the amount of $1,228.00.

Child Support

[46] When the Order was made, the parties agreed that there would not be child support payable by either party as their incomes were similar and they were sharing parenting time. At that time Ms. Sue-A-Quan made slightly more money than Mr. Duarte. Ms. Sue-A-Quan now seeks child support, as Mr. Duarte’s income has increased significantly whereas hers has not. Ms. Sue-A-Quan seeks table child support retroactive to when their respective incomes began to diverge significantly and prospective table child support.

[47] The jurisdiction of the court to vary an order for child support is under section 17 of the Divorce Act. Section 17(4) of the Divorce Act requires that:

Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

[48] Section 14 of the Federal Child Support Guidelines sets out factors that constitute a change of circumstances that give rise to the making of a variation order in respect of a child support order, including: “in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support.” The Supreme Court of Canada provided guidance on when a change of circumstances has occurred in Willick v. Willick, [1994] 3 S.C.R. 670, at p. 668:

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at that time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

[49] Ms. Sue-A-Quan submits that the respondent’s significant increase in income and the increasing disparity between their respective incomes constitutes a material change in circumstances and that S.D. is entitled to be properly financially supported by Mr. Duarte. Ms. Sue-A-Quan submits that based on Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217, the court has discretion to ensure that the amount of child support does not disproportionally impact the child when residing with the lower-income earning spouse and potentially causing a child to suffer a noticeable decline in their standard of living. Mr. Duarte argues that he is not required to pay child support as Ms. Sue-A-Quan “has not demonstrated she is unable to meet [S.D.’s] needs without any payment of support.” I agree with Ms. Sue-A-Quan that this reasoning is not a justification to resist a child support claim.

[50] The gap in the parties’ respective incomes has more than tripled since the Order was made. Between 2015 and 2021 Ms. Sue-A-Quan’s income increased by 16.9 percent, whereas Mr. Duarte’s income increased by 97 percent. When the Order was made, the income differential between the parties was about $8,400, with Ms. Sue-A-Quan earning more. She continued to earn more until 2019, when Mr. Duarte’s income surpassed Ms. Sue-A-Quan’s income by approximately $14,500. In 2021, Mr. Duarte’s income was $105,357, whereas Ms. Sue-A-Quan’s income was $71,858.

[51] In my view, the change in Mr. Duarte’s income is such that if it had been known at the time of the Order, the parties would not have agreed that no child support would be payable. The income differential has grown significantly over the past few years.

[52] Accordingly, Mr. Duarte shall pay prospective set-off child support to Ms. Sue-A-Quan effective April 1, 2022.

Retroactive child support

[53] Ms. Sue-A-Quan seeks an order that Mr. Duarte pay the set-off child support retroactive to when his income increased materially in 2019.

[54] The leading case on the issue of retroactive increase to child support is Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183. The Supreme Court of Canada stated, at para. 114:

It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:

(a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

(b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of the informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

(c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

(d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

(e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[55] The court in Colucci refers to the factors set out in D.B.S. v. S.R.G., [2006] 2 S.C.R. 231. In that case, the court set out four main factors for the court to take into account when considering whether retroactive child support is appropriate, at para. 133: (i) the reasonableness of the delay in seeking support; (ii) the conduct of the payor; (iii) the circumstances of the children; and (iv) the hardship that may be occasioned by a retroactive award. In Colucci, the Supreme Court notes that the court retains the discretion to depart from the presumptive date of retroactivity where the result would be unfair, and these four factors guide this exercise of the court’s discretion.

[56] In considering the D.B.S. factors, Ms. Sue-A-Quan was not aware of the changes to Mr. Duarte’s income until he provided her with hard copies of his 2018 and 2019 income on August 16, 2020. Accordingly, the delay in seeking the support is reasonable. Mr. Duarte and Ms. Sue-A-Quan had reached an agreement in 2015, which both parties respected. There was no evidence of Ms. Sue-A-Quan making frequent requests for income information from Mr. Duarte, however the Order did require annual income disclosure. The parties do not agree whether both parties typically complied with this requirement. S.D. has been well cared for and supported financially by both parents. There was no evidence that there would be hardship to Mr. Duarte of a retroactive award. However, a key consideration here is that Ms. Sue-A-Quan made more money than Mr. Duarte when the Order was made and for the following few years and there was no set-off child support pursuant to the Order.

[57] In all the circumstances, I have determined that a retroactive child support award is not appropriate.

Disposition and Costs

[58] In the result therefore:

a. Effective April 4, 2022, S.D.’s parenting time schedule shall change to a week about schedule, provided that S.D. spends Wednesday nights with Ms. Sue-A-Quan in the week when S.D. has parenting time with Mr. Duarte, as follows:

i. In week 1, S.D. shall be in the care of the applicant on Monday pick-up at daycare or school to the following Monday morning drop-off at daycare or school.

ii. In week 2, S.D. shall be in the care of the respondent on Monday pick-up at daycare or school to Wednesday morning drop-off at daycare or school. S.D. shall be in the care of the applicant from Wednesday morning drop-off at daycare or school to Thursday morning drop-off at daycare or school. S.D. shall be in the care of the respondent from Thursday morning drop-off at daycare or school to Monday morning drop-off at daycare or school.

b. Paragraph 2 of the Order shall be varied such that in addition to the regular schedule the following holiday schedule shall apply and override the regular schedule:

i. With respect to the first day of school, S.D. shall be in the care of the applicant the night before the first day of school each year. If S.D. is at daycare the day before the first day of school, then the applicant may commence pick-up at daycare. If S.D. is not in daycare the day before then a 3:00 p.m. transition of care shall occur;

ii. With respect to Easter when Easter falls within week one of the regular schedule, S.D. shall be in the care of the respondent from Thursday after school or daycare until 10:00 a.m. on Easter Sunday, and with the applicant from 10:00 a.m. on Easter Sunday to Tuesday return to school or daycare. When Easter falls within week two of the regular schedule, S.D. shall be in the care of the respondent from Thursday after school or daycare until 10:00 a.m. on Easter Sunday, and with the applicant from 10:00 a.m. on Easter Sunday;

iii. With respect to Thanksgiving, if the Thanksgiving holiday Monday falls within week one of the regular schedule, then S.D. shall remain in the care of the respondent until Tuesday morning return to school or daycare. If the Thanksgiving holiday Monday falls within week two of the regular schedule, then S.D. shall remain in the applicant’s care until Tuesday morning return to school or daycare.

iv. With respect to Halloween, if October 31st lands on a school day, S.D. shall be in the care of the applicant on the evening of October 30th until November 1st at which time the regular schedule shall resume. If October 31st lands on a Saturday or Sunday within week two of the regular schedule, then a transition of care shall occur at 3:00 p.m. and S.D. shall remain in the care of the applicant through that weekend and resume the regular schedule’s week one thereafter; and

v. With respect to Christmas:

A. In even numbered years, S.D. shall be in the care of the applicant from December 24th pickup from daycare if on a weekday, or from 6:00 p.m. if on a weekend, until December 25th at 10:00 a.m. at which time he shall transition into the care of the respondent until 3:00 p.m. on December 25th when he shall return to the care of the applicant. If December 26th falls within week two of the regular schedule, a transition of care shall occur at 12:00 p.m. from the applicant to the respondent. If December 26th falls within week two of the schedule on a Sunday, then S.D. shall remain in the care of the applicant that Sunday overnight and the parties shall resume week one of the regular schedule thereafter.

B. In odd numbered years, S.D. will be in the care of the respondent on December 24th pickup from daycare if on a weekday, or from 6:00 p.m. if on a weekend, until a transition to the applicant on December 25th at 3:00 p.m. If December 26th falls within week two of the regular schedule a transition of care shall occur at 12:00 p.m. from the applicant to the respondent. If December 26th falls within week two of the regular schedule on a Sunday, then S.D. shall remain in the care of the applicant that Sunday overnight and the parties shall resume week one of the regular schedule thereafter.

vi. For all other Ontario statutory holidays that fall on a Monday, S.D. shall remain in the care of the parent he is with from the prior week’s regular schedule for that Monday until Tuesday morning return to school or daycare.

c. With regard to decision-making for S.D.’s section 7 extracurricular activities:

i. Each June the parties shall exchange their income information.

ii. Prior to August 15 each year, Ms. Sue-A-Quan shall provide Mr. Duarte with a proposed plan of the types of activities for S.D. for the upcoming year and estimated costs.

iii. Mr. Duarte shall provide any feedback on the proposed plan by August 31 each year.

iv. Taking into account any reasonable feedback provided by Mr. Duarte, Ms. Sue-A-Quan shall have the final decision-making for S.D.’s activities. However, this final decision-making authority relates only to a maximum of two activities per week, only one of which may fall on a day other than Wednesday (the “2 Weekly Activities”).

v. The parties shall each pay their proportionate share for S.D.’s 2 Weekly Activities.

vi. Any proposed activities in excess of S.D.’s 2 Weekly Activities are subject to the terms set out in sections 17 and 4(d) of the Order.

d. Mr. Duarte shall pay 50 percent of S.D.’s section 7 expenses from 2017 to 2020 in the amount of $1,228.00.

e. Effective April 1, 2022, Mr. Duarte shall pay prospective set-off table child support to Ms. Sue-A-Quan for one child.

f. Success on this motion was divided. Each party shall bear his/her own costs.

J. Steele J.

Released: March 24, 2022

Reasons for Judgment

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Angela Sue-A-Quan Applicant – and – Paul Duarte Respondent

REASONS FOR JUDGMENT

J. Steele J.

Released: March 24, 2022