COURT FILE NO.: FS-16-307-00 DATE: 2022 04 05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ELISABETTA APA Sean Lakhan for the Applicant Applicant

- and -

BIRJU VAGADIA Respondent John David Ekpenyong for the Respondent

HEARD: September 27 and 29, 2021, Brampton

REASONS FOR JUDGMENT

INTRODUCTION

[1] This proceeding is the undefended trial of Ms. Apa’s Motion to Change the final order of Douglas, J., dated 4 March 2015, along with her Motion to relocate with the children of the marriage from Mississauga to Cambridge, Ontario, which LeMay, J. adjourned from August to the trial of this matter.

FAMILY FACTS

[2] The parties were married on 10 June 2005 and separated on September 19th, 2012. They are not yet divorced.

[3] The parties have four children:

• Alijah Birju Vagadia, DOB 6 August 2006
• Jeremiah Birju Vagadia, DOB 6 January 2008
• Abigail Priya Vagadia, DOB 1 January 2010, and
• Gabrielle Kishor Antonio Vagadia DOB 12 October 2011

EXISTING ORDER

[4] On 4 March 2015, after a trial, Douglas, J. of the Superior Court in Newmarket, made a final order in which he ordered, among other things:

a) Ms. Apa would have sole custody of the children; b) Mr. Vagadia would have parenting time with the children on alternate weekends and Wednesdays from after school to Thursday at 7 pm; c) Holiday access; d) Neither party shall remove the children from the province of Ontario without the prior written authority of the other parent, provided the party wishing to travel has provided a travel itinerary in advance to the non-travelling parent; e) Because the parties’ incomes were equal, child support was set at $0; f) Spousal support was set at $1; and g) The parties were to exchange income information annually and adjust spouse & child support, and section 7 expenses.

THE AMENDED MOTION TO CHANGE

[5] On 16 December 2016, Ms. Apa brought a Rule 15 Motion to Change in which she sought the following relief:

a) To change the pickup and drop-off points for the children; b) Eliminate weekly Wednesday – Thursday overnight parenting time for Mr. Vagadia and the children; c) An order for child support arrears of $5,500 based on imputed income, paid at $200 a month commencing 1 June 2016, per month; d) A recalculation of equalization; and e) Child support and spousal support going forward and based on Mr. Vagadia’s income imputed at $23,400 until Mr. Vagadia obtains work in his chosen field.

[6] Pursuant to the order of LeMay, J, dated 20 August 2018, Ms. Apa amended her Motion to Change. She claimed that the material changes in circumstance were: a) Mr. Vagadia, was not compliant with the current final order in that he has not been exercising access as ordered; b) the children have re-located with the applicant to Mississauga, Ontario in February 2015; c) the children are now older; d) the Mr. Vagadia is employed as of September 2018 in Montréal, Québec in the field of an aircraft engineer mechanic; e) Mr. Vagadia does not have suitable accommodation for the children when he visits his family in Vaughan and exercises access with the children; and) the eldest child has refused to participate in any access and her three younger children are resistant.

[7] Ms. Apa sought to impute income to Mr. Vagadia of $25,000 from 4 March 2015 until the father started to work in 2018, and $50,000 thereafter, and therefore sought child support arrears of $36,308 (net of $5,500 reflecting personal child support payments made by the father directly to the mother sporadically since June 2017), to be paid at a rate of $500 per month.

[8] Mr. Vagadia never defended the original Motion to Change. He made no significant financial disclosure until after the deadline imposed by LeMay, J. Likewise, Mr. Vagadia did not respond to the Amended Motion to Change following its service on him on 6 September 2019.

[9] In her Affidavit for an uncontested trial of 4 November 2020, Ms. Apa sought child support of $2,695/month based on imputed income of $120,000.00 from 2018 onward. This meant that he owed child support arrears of $69,134.00. She also sought a bi weekly parenting time schedule.

[10] In her Affidavit of 21 September 2021, Ms. Apa requested additional relief including an order vesting title to Mr. Vagadia’s home in her as security for his support obligations, or a charging order of $250,000 against the home.

[11] Mr. Vagadia’s first appearance in this matter came by way of an urgent motion dated 28 July 2021, returnable 19 August, whereby he sought to set aside the 5 March 2021 order of Baltman, J., ordering that this matter proceed as an undefended trial during the week of 27 September 2021, to be held over 2 to 3 days.

[12] In response to this motion, Ms. Apa brought a motion for an order permitting her to relocate with the children. While the motion was for an interim order, at trial the parties treated the request as one for a permanent order relocating with the children. Based on the parties’ approach, I too have treated the motion as a request for a find order permitting Ms. Apa to relocate with the children to Cambridge.

LEMAY, J.’s 1 SEPTEMBER 2021 RULING

[13] By Endorsement dated 1 September 2021, LeMay, J. dismissed Ms. Apa’s relocation motion with leave to have it determined at the same time as the defended trial, with leave to file further information. LeMay, J. also dismissed Mr. Vagadia’s motion to set aside the order that the trial proceed undefended since:

a) Mr. Vagadia had done nothing since being served with Baltman, J.’s order on 31 March 2021, and had offered no explanation for his failure, and b) He had provided no draft Answer or any documentation to show that he would be ready to move this matter forward if Baltman, J.’s order for an undefended trial were set aside.

[14] In para. 51 and 60 of his reasons, LeMay, J. set a timetable for filings for the undefended trial, including that:

a) Mr. Vagadia file his Answer by 15 September 2021 along with a current financial statement, his last three years complete income tax forms, and documents regarding the mortgage on the property that he owns, b) At the same time Mr. Vagadia filed his Answer, he was also permitted to file a further Affidavit setting out any additional facts and documents he was relying on regarding parenting issue, and c) Mr. Vagadia was not permitted to file anything additional without leave of the judge hearing the trial unless he files his answer and documents referred to, above.

[15] Finally, LeMay, J., held that the extent to which Mr. Vagadia might participate in the Motion to Change hearing was in the discretion of the judge at the trial of the Motion to Change, upon review of the materials that he filed.

[16] LeMay, J. also ordered that Mr. Vagadia was prohibited from raising any issues other than those raised by Ms. Apa in her Motion to Change or relocation Motion, especially with respect to decision making power with respect to or expanding access with the children other than as set out in the current order.

TRIAL EVIDENTIARY RULING – MR. VAGADIA’S FAILURE TO COMPLY WITH LEMAY, J.’S ORDER

[17] On 27 September 2021, Ms. Apa asked for a ruling prohibiting Mr. Vagadia from participating in the trial given that he had not met the disclosure and filing order of LeMay, J.

[18] On 27 September 2021, after the lunch break, I said that for Oral reasons read into the record, Mr. Vagadia’s 14 and 15 September 2021 Affidavits, his Response to the Motion to Change, and his Financial Statement were inadmissible. The only items that I ruled were admissible where Mr. Vagadia’s 2018, 2019, and 2020 CRA assessments.

[19] While my oral ruling and reasons stand on their own, by way of summary, and in order to provide context here, I refused to admit Mr. Vagadia’s filings as none were complete, and none were served with in the timelines set out by LeMay, J. Mr. Vagadia had many years to make the disclosure which LeMay, J. ordered. He was present in court to hear LeMay, J.’s order. He received a copy of LeMay, J.’s reason of 1 September 2021. He provided no evidence as to what he had done following LeMay, J.’s order to comply with it, aside from his request 48 hours before the deadline to get a copy of his mortgage application.

[20] With respect to his Response, Mr. Vagadia understood that filing an answer to the Amended Motion to Change was a precondition to filing his Affidavits and Financial Statement. He did not, however, file a proper and complete answer. He blamed Ms. Apa saying that she never properly served him. She did, both personally in 2019, and by substitute service in 2020.

[21] In response to this evidence, he changed tactics and blamed his sister for not bringing the Amended Motion to Change and supporting documents to his attention. She lived in his house while he was studying to be an airplane mechanic, in Montréal. He and his sister were not speaking to each other.

[22] He also blamed Ms. Apa for not sending another copy of the Amended Motion to Change to his lawyer, having first alleged not being served with it on 14 September 2021.

[23] He blamed Legal Aid for delaying his application for a legal aid certificate. This makes no sense. His obligation to produce exists regardless of Legal Aid funding. The documents that support his financial disclosure are in his possession. For seven years has not met this obligation. Everything he put in his 14 and 15 September 2021 affidavits was available to him to have been put in an affidavit a week earlier, had he acted in a timely way. He did not do so.

[24] Ultimately, I held that Vagadia followed the same pattern with respect to LeMay, J.’s 1 September 2021 order as he had throughout the litigation – he did too little, too late, believing he could do nothing or very little and slide by on partial disclosure made too late.

[25] Notwithstanding my 27 September evidentiary ruling, following Mullen v. Sherlock, 2018 ONCA 1063, I permitted Mr. Vagadia to make an opening statement, cross-examine Ms. Apa and her witnesses on issues related to mobility or other issues in the Amended Motion to Change, and to make a closing statement.

TRIAL ISSUES

Preliminary Note

[26] Trial judges, in family law proceedings, have great latitude in using their discretion in adjudicating cases. They must do so fairly. In an uncontested trial, the judge must not accept the moving party’s evidence and grant whatever relief is sought by the applicant. Because the court is being asked to grant significant relief based on only one party’s evidence, or based on limited evidence from the other party, the court must guard against factual errors giving rise to an injustice. The trial judge is required to probe the applicant’s evidence to ensure a just result at trial (see: Manchanda v. Theti, 2021 ONCA 127, at para. 11-14).

Credibility

[27] In assessing credibility, I direct myself to the following considerations:

a) The demeanor of the witnesses is important. Findings of credibility, however, should not be made on demeanor alone. b) Does the evidence make sense in light of the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). c) Does the evidence have an internal consistency and logical flow? R. v. C.H., 1999 18939 (NL CA), 182 Nfld. & P.E.I.R. 32 (Nfld. C.A.). d) Is the evidence consistent with the witness’s other statements? How significant are the differences, and are they adequately explained? R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. e) Is there independent confirming or contradicting evidence? R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531. f) Does the witness have a motivation to lie or exaggerate? The witness’s motivation to lie must be greater than his/her interest to win or lose the case. R. v. S.D., 2007 ONCA 243, 218 C.C.C. (3d) 323.

[28] Assessing the credibility of a witness, however, is not an exact science. In Baker-Warren v. Denault, 2009 NSSC 59, Forgeron J. noted that,

“It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” R. v. Gagnon, 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” R v. R.E.M., 2008 SCC 51, para. 49.”

[29] Further, special consideration must be given to the testimony of witnesses who are parties to proceedings. It is important to consider the motive that witnesses may have to fabricate evidence (see: R. v. J.H., 2005 253 (ON CA), [2005] O.J. No. 39 (OCA) [at paras.] 51-56).

[30] There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part, or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence (see: R. v. D.R., [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra).

[31] Finally, Shelston, J., described assessing credibility as a “holistic undertaking incapable of precise formulation” (see: Ouellette v. Udin, 2018 ONSC 4520 at para. 9). It is not a precise science. Rather, it is a challenging and delicate task the outcome of which is often difficulty to explain in precise terms, but one which is achieved after considering specific factors (see: Al-Sajee v. Tawfic, 2019 ONSC 3857 at paras. 41 and 42).

[32] As in all trials both parties have credibility issues. Each spouse’s views of and dispute with the other have coloured their evidence. Each party has shown, in some way, his or her contempt for the other and the evidence of each must be considered carefully in light of this fact.

Ms. Apa

[33] There is reason to doubt the veracity of Ms. Apa’s candour with the Court, the most significant of which is the fact that she relocated with the children to Cambridge notwithstanding that she had no authority to do so on either an interim or final basis. Further, there are selective absences of information in her Affidavits.

[34] Ms. Apa brought her Amended Motion to Change to, in part, obtain permission to relocate with the children. She brought a cross motion in August 2021 to Mr. Vagadia’s motion in which she sought interim permission to relocate. LeMay, J. dismissed the cross motion for interim permission to relocate for insufficient information, deferring the question to trial.

[35] Notwithstanding that she had no permission to move, she conceded in cross examination that at the time of the appearance before LeMay, J. on 19 August 2021:

a) she had an agreement of purchase and sale for her house in Cambridge, b) the sale closed on 23 or 24 August, c) she and the children moved into that house on 24 or 25 August and have lived here since.

[36] Notwithstanding that Ms. Apa was permitted to give further evidence concerning relocation, and did so, that evidence all related to the best interests of the child analysis. She omitted the above information from her 7 September 2021 Affidavit. She said in para. 10 of that affidavit that there were difficulties with exchanges on 27 August because “… we live in Cambridge now.”

[37] In para. 14 of that affidavit Ms. Apa justified her move in late August as necessary so that the children could start school, as opposed to starting at the school in Mississauga then having to transfer to Cambridge.

[38] In cross examination at trial Ms. Apa agreed that she moved without permission, notwithstanding her justifications for doing so.

Mr. Vagadia

[39] Mr. Vagadia has serious credibility issues which make me favour Ms. Apa’s evidence over his. A few examples of his credibility issues will serve to illustrate this point:

1. He knows his obligations to produce but ignores them. This family has been involved in litigation since separation in 2012. The litigation was contentious, even after the final order of 4 March 2015. I conclude that Mr. Vagadia is and was aware of his obligation to disclose financial information, yet, as I found on 27 September 2021, produces only what he wants, when he wants, which is too little, too late.
2. He blames others for his defaults and denies the obvious, notwithstanding evidence to the contrary. For example, he says that he was never sent a copy of Baltman, J.’s order or supporting reasons ordering this matter into an undefended trial, yet he confirmed that the email the Court had on file was correct. He says that he was never served with the Notice of Motion and supporting Affidavit for the motion before Baltman, J., in face of a clear Affidavit of Service and no evidence to contradict it. Finally, said that he never received the Amended Motion to Change and supporting documents, although there is a clear affidavit that says it was served to his house and his active email account. He blamed his sister for not giving him the documents that arrived at the house. They were not speaking to each other at the time. Ms. Apa called Mr. Vagadia’s sister, Pritti Vagadia. She said that she received several things in this litigation while she lived at Mr. Vagadia’s house. Her habit was to call Mr. Vagadia who would instruct her to open the envelopes and read the contents to him, which she did. She would give them to him the next time he was at the house. I prefer her evidence. She has no reason to fabricate.
3. He ignores Court orders when it suits him. I have already addressed the issue of disclosure. There are three other circumstances worthy of note here. a. Mr. Vagadia moved to Montreal for two years between 2018 and 2020, to become an airplane mechanic. He did so unilaterally, which imposed on Ms. Apa, the obligation to have the children during his weekly mid-week access. b. Notwithstanding my 27 September 2021 order that he not file further evidence, he attempted to file documents as admissible evidence. At trial, Mr. Vagadia received permission to file his “exhibit list”. It was filed, but it also attached Email exchanges between the parties and the Court canvassing availability for motion dates, the Parcel Register for Ms. Apa’s property in Cambridge, the Affidavit of Service of the Notice of Change in representation, sworn April 16, 2021, and a letter from Mr. Vincent de Paul Wafo to the Applicant, dated June 3, 2020. Irrespective of my order, none of this was properly proved, nor requested. c. Notwithstanding my 27 September 2021 order about his evidence, attached to his 29-page written closing argument, were 126 pages of financial documents comprising, in the main, his 2021 to 2020 income tax T1 forms. This was in direct violation of my evidentiary ruling. None of it is properly proved. d. He failed to comply with providing the information ordered by Kumaranayake, J.’s 5 March 2021 order.
4. Mr. Vagadia’s objection to Ms. Apa’s relocation was that it would take the children too far away, and deprive him of some of his parenting time. This argument is illogical. It did not stop him from relocating for 2 years to Montreal. He says that during that period, he said that he drove home every other weekend or every 3rd weekend for his weekend parenting. He admits he did not use his mid-week access during this time.

[40] Where the parties’ evidence conflicts, I prefer that of Ms. Apa over that of Mr. Vagadia, unless his evidence is supported by other independent evidence.

FACTS:

[41] What follows are my findings of fact. In making these findings I have considered all of the evidence at trial including the 13 Exhibits and attachments thereto, and the parties’ examinations and cross examinations, regardless of whether I make specific mention of them below.

[42] There is no contest that Ms. Apa has been the primary caregiver of the children since birth. From the 19 September 2012 date of separation until Douglas, J.’s order, the children have resided with Ms. Apa, with parenting time with Mr. Vagadia as ordered by the Court and amended from time to time. That remained the case after Douglas, J.’s order.

[43] In his judgment of 4 March 2015, Douglas J. gave Ms. Apa sole decision-making authority over the children, subject to the requirement to discuss those decisions with Mr. Vagadia beforehand. Mr. Vagadia had parenting time with the children on alternating weekends from Friday after school until Monday morning drop off at school, and each Wednesday from after school until Thursday at 7 pm, drop off at a designated location. Child support was fixed at $0 based on $0 income for Mr. Vagadia. Spousal support was fixed at $1. The parties were required to inform each other of any change in employment or income.

Mr. Vagadia’s Use of Parenting Time:

[44] Mr. Vagadia’s compliance with his parenting time has been spotty.

[45] For two years (2015 & 2016), Mr. Vagadia ceased work to study to become an airline mechanic. This decision was unilateral. Accordingly, while he exercised his alternate weekend access, for the most part, he was not able to drop the children off at school on Mondays, nor was he able to utilize his weekly Wednesday overnight with the children. Ms. Apa was left no choice but to accommodate Mr. Vagadia’s decision to relocate for his education.

[46] After completing his education, Mr. Vagadia’s employment status was unclear. At the beginning of 2018, he began work in Montreal as an airplane mechanic. This decision was unilateral. However, he was laid off in July 2020, with the onset of the Covid 19 pandemic and returned to Ontario.

[47] During his employment in Montreal, Mr. Vagadia exercised parenting time only once every three weeks. Ms. Apa, again, accommodated, trying to be flexible with the children. She gave him March breaks to make up time with the children, and on a few occasions took the children with her when she travelled to Montreal for work so that the children could spend the day with Mr. Vagadia.

The Move to Cambridge:

[48] There is an issue about when Ms. Apa provided notice to Mr. Vagadia about her decision to relocate with the children to Cambridge.

[49] Ms. Apa says that she advised Mr. Vagadia of her intention to move to Cambridge by text messages sent in August 2020. In a text dated 12 August 2020, Ms. Apa said to Mr. Vagadia:

“I may have to stay here for another year. Covid made a mess of everything. I asked him if he can go to a public school but he really wants to be at the same school as his friends especially because if we can move next year it will be far away from them.”

[50] Then, in a text apparently sent on 16 July 2021, Ms. Apa said to Mr. Vagadia:

“U insisted U had to keep the kids until today… Yet u left them home alone… Oh and tell ur lawyer to get it right, we aren’t moving to London we are moving to Cambridge… Already have notice and will be moved out as of Sept. 1.”

[51] In his reasons of 1 September 2021, LeMay, J, held that these texts did not provide adequate notice. He ordered that Ms. Apa provide further information with respect to the move to Cambridge, the notice that she gave Mr. Vagadia of her intention, and the reasons for it.

[52] Before me, Ms. Apa indicated that she told Mr. Vagadia orally in August 2020 that she would be moving. She did not know to where until July 2021, when she made the offer to purchase the home in Cambridge.

[53] It is unclear whether, at the time of their first appearance before LeMay J. on 19 August 2021, Ms. Apa informed LeMay, J. That she had made an offer or arranged to move to Cambridge.

[54] In her testimony at trial, she had been looking to leave Mississauga before the Covid-19 pandemic struck. The pandemic delayed her searching by a year.

[55] In her oral evidence, Ms. Apa said that she moved into her Cambridge home on August 24 and 25th, 2021. She admitted that she moved to Cambridge without court authority since her motion to relocate was adjourned to trial, but did so in order that the children not be required to change schools after a month of classes in Mississauga.

[56] In her affidavit of 7 September 2021, after she relocated to Cambridge, Ms. Apa provided the following additional information with respect to the move:

a) She is employed as a sales representative for Balcan Packaging. Her territory includes Cambridge, Kitchener, Hamilton, some captains, and Niagara Falls. Her employer allows her to work from home. When living in Mississauga, before moving to Cambridge, she worked out of her company’s office in Etobicoke. b) In Mississauga, Ms. Apa lived in a townhouse in a public housing complex. Because of the Covid 19 pandemic, the children have been in virtual lock down, maintaining their friendships primarily through online communication. c) In her 13 August 2021 Affidavit Ms. Apa said that her Mississauga townhouse complex has a by law that prevents the children from playing outside of the unit. It is unclear whether this by law is for child safety purposes, or as a Covid mitigation strategy. d) The townhouse complex is unsafe. By way of example, in May 2021 there was a shooting, in July 2021 a murder, and in August 2020 a carjacking. The use of drugs is frequent. Children cannot walk their dogs, ride their bicycles, or play at the park in the complex because of the violence. e) Further, given the housing prices in mid-2021 in Toronto, Ms. Apa was unable to purchase a house in Mississauga. The only thing she could afford was government housing or inadequate accommodations such as a basement apartment. She received no spousal or child support from Mr. Vagadia. f) Ms. Apa’s evidence about the safety of their Mississauga neighbourhood is confirmed by the affidavits of Monika Anisko-Ifill (a friend and former neighbour) and Pritti Vagadia (Mr. Vagadia’s sister). g) The move to Cambridge is closer to her sales territory and being at home will save her commute time and expense, which she can devote to her children. h) In Mississauga, each child went to a different school. They are all enrolled in French immersion. The school that the middle two children went to was plagued with vandalism. The schools broken into which resulted in damage to the interior of the building and some property. i) In Cambridge, each of the children will continue to attend Catholic schools which will meet all of the children’s educational needs. In addition, the neighborhoods in Cambridge are safer and those in Mississauga. j) For the first time, she disclosed her address in Cambridge. She says that “the respondent has been provided with this information. He has selectively chosen when to take issue with my move to Cambridge.” k) The house in Cambridge is a four-bedroom home as opposed to a rented townhome in Mississauga. The schools in Cambridge are a 10 minute walk or two minute drive from the Cambridge home as opposed to a 20 minute drive from the Mississauga home. l) Ms. Apa conceded that the move to Cambridge will result in a change in the current parenting schedule. Mr. Vagadia, however, has not availed himself of the access provisions in the current order. She was his change access to alternate weekends, Friday to Sunday. This would eliminate the midweek access. Given Mr. Vagadia’s sporadic access with the children, is a says that the move will not have any impact on the children’s relationship with Mr. Vagadia. m) Ms. Apa is prepared to meet Mr. Vagadia in Milton for exchanges. n) The move to Cambridge will benefit the children as follows: a. Alijah - his Catholic secondary school is highly rated and has an active basketball program. Elijah plays competitive basketball and will have greater opportunities at his Cambridge school than at his Mississauga school. b. Jeremiah – Jeremiah loves to play hockey. He would be able to play AA hockey, as opposed to single a hockey, the highest level available at his Mississauga school and local hockey league. c. Abigail – she was bullied at her school in Mississauga. Accordingly, she disliked her school in Mississauga. She likes to swim. There is a community centre offering a swimming program. Due to financial constraints and logistical problems in Mississauga, Ms. Apa was unable to enrolled Abigail and swimming in Mississauga. d. Gabriel – Gabriel has an individual education program doing due to a learning disability. In Mississauga he had to be removed from his glass in order to obtain extra help he needed. This will not happen in Cambridge. Thus, he will not be singled out from or feel different from other students. o) Ms. Apa says that the travel time between Cambridge and Woodbridge, where Mr. Vagadia lives, is slightly longer (one hour and 7 minutes without traffic, and hour and 35 minutes with traffic) than the drive from Road Bridge to Mississauga (42 minutes with no traffic and 57 minutes with traffic. Cambridge is almost 3 times as far from Woodbridge as Mississauga. Ms. Apa, in order to reduce Mr. Vagadia’s travel time for his parenting time, will meet him with the children in Milton. p) Ms. Apa reports that before the move to Cambridge, the children looked forward to leaving Mississauga and moving to Cambridge. Since moving, they prefer the new home and the change of environment. q) Ms. Apa, since separation, has kept in touch with Mr. Vagadia’s family, especially his sisters, and allowed access between the children and Mr. Vagadia’s family.

[57] In his examination at trial, Mr. Vagadia agreed that Ms. Apa’s townhome in Mississauga was a dangerous place. He referred to it in front of the children as ‘the ghetto’. He also agreed that moving out of that neighbourhood would benefit the children. He also agreed, reluctantly, that it would be difficult for Ms. Apa to buy a home or rent adequate accommodation in Mississauga, but said that there were “some things she could buy” within the Mississauga area. He said this without supporting evidence. He was not qualified to give this opinion evidence.

[58] Mr. Vagadia also testified that he had spoken to the children about the move. They all seemed to like the idea of moving. Abigail, however, said that she misses him, and Mr. Vagadia said that all of the benefits of moving out of the dangerous public housing unit would “not replace the love of a father”.

[59] He did not address any issues of relocation in his affidavit materials except for inconvenience to him in pickups and drop-offs, the loss of his weekly midweek overnight, and the difficulty with the children maintaining relationships with his family. His evidence, however, consisted of broad statements of opinion, with little evidence.

[60] Mr. Vagadia agreed that in the month between when Ms. Apa moved to Cambridge and the trial, he had seen his children once for weekend access, and once for a day at Canada’s Wonderland. This is not his regular parenting schedule.

[61] He disputed the fact that there was a parallel between his changed parenting time when he lived in Montréal for two years and since Ms. Apa’s move to Cambridge. He said that his move to Montréal was only temporary. I infer, however, that had he not been laid off because of Covid, he would have continued working in Montréal indefinitely.

[62] Mr. Vagadia says that he consulted with Ms. Apa before going to Montréal for school or work. He says that he would not have left the Greater Toronto area if Ms. Apa had objected to his relocating to Montréal. They both agreed he could go to Montréal and agreed to temporarily amend the access schedule in Douglas, J.’s order.

[63] I do not accept this evidence. It is self-serving. All of the evidence in this file indicates that Mr. Vagadia would have gone to Montréal regardless of Ms. Apa’s opposition.

[64] With respect to the time the children, Mr. Vagadia confirmed that while he was in Montréal he came home every other week or sometimes every third week to spend time with the children. While he did not have parenting time with them during the week, he spoke to them nearly every day. Ms. Apa contests this latter statement.

Child and Spousal Support:

[65] Since the final order of Justice Douglas in March 2015, Mr. Vagadia has not supplied is updated income information as required. He was ordered several times, including on 1 September 2021 by LeMay, J, to provide financial disclosure, which he did not do fully, as required.

[66] Mr. Vagadia has supplied three CRA assessments which I ruled were inadmissible in my ruling of 27 September 2021. These indicate line 150 income of:

2018 – $40,092 2019 – $63,998 2020 – $31,521

[67] He has not provided admissible evidence with respect to the source of his income or why it fluctuated. Most significantly, he has not provided admissible evidence as to why his income reduced by approximately 50% in 2020. One might speculate that his drop in income was due to the pandemic, although he did not say this.

[68] He said in his testimony that while he was in school in 2016 and 2017, he only had OSAP for income.

[69] He is currently employed by Purolator although there is no admissible evidence with respect to what he does for Purolator or what he earns.

[70] Mr. Vagadia owns his home. The home was a family home which was left to his three siblings and he. In May 2020, he gave a $750,000 mortgage in order to buy out the interests of his three siblings (at $250,000 apiece). Further, he admitted that since February 2021 he has had tenants living in his house but has provided no admissible evidence with respect to the income he received from the tenancy.

TRIAL ISSUES:

[71] In this matter, I must decide the following:

a. Has there been a Material Change in Circumstances? b. Is Ms. Apa entitled to Relocate with the Children to Cambridge? c. What parenting time should Mr. Vagadia have and where do exchanges take place? d. Does Mr. Vagadia owe child support and if so, how much? e. Is it appropriate to make a Vesting Order?

Issue A) MATERIAL CHANGE

a) The Law

[72] On a motion to change the moving parent must demonstrate a material change in circumstances affecting the child. If the moving party can do that, then the court can embark on a fresh inquiry into what is in the best interests of the child having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them (see: Gordon v. Goertz, 1996 191 (SCC), 19 RFL (4th) 177, at para. 19).

[73] A material change in circumstances is one which, had it existed at the time of the original order, would have resulted in a different original order.

b) Positions of the Parties

[74] Ms. Apa says that the material changes are:

1. The applicant and the children relocated to Mississauga, Ontario in February 2015;
2. children are older;
3. Mr. Vagadia has been employed as of 2018;
4. from 2018 2020 Mr. Vagadia lived in Montréal;
5. Mr. Vagadia has not complied with the order since 2015 when it was issued, particularly as it relates to his parenting time with the children.

[75] Mr. Vagadia says that there is no material change. Instead, mother has moved out of the jurisdiction, thereby intending to create a “new normal” and the change in circumstances which she did it intentionally, and in defiance of court process.

c) Analysis

[76] There has been a material change in circumstances affecting the best interests of the children. These are:

a) the children relocated to Mississauga in 2015; b) the children are now 16, 15, 12, and 11, whereas at the time of the original order they were 9, 7, 5, and 4; c) Mr. Vagadia was in school in 2016 and 2017 and moved to Montréal to work as an airplane mechanic in 2018, which only ended when he was laid off due to the pandemic. Otherwise, he would have remained at that job in Montréal; and d) Mr. Vagadia’s use of his parenting time is less than that ordered in 2015.

Issue B) RELOCATION

a) The Legislative Framework

[77] Section 16.1 of the Divorce Act gives the Court the power to make an order, including an interim order, for both decision-making authority and parenting time. When it comes to making decisions on mobility issues, the key provisions in the Divorce Act are as follows:

16.7 Section 16.8 does not apply to a change in the place of residence that is a relocation.

16.8 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

(2) The notice shall be given in writing and shall set out (a) the date on which the change is expected to occur; and (b) the address of the new place of residence and contact information of the person or child, as the case may be.

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections do not apply or may modify them, including where there is a risk of family violence.

(4) An application referred to in subsection (3) may be made without notice to any other party.

16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

(2) The notice must set out (a) the expected date of the relocation; (b) the address of the new place of residence and contact information of the person or child, as the case may be; (c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and (d) any other information prescribed by the regulations.

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.

(4) An application referred to in subsection (3) may be made without notice to any other party.

16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if (a) the relocation is authorized by a court; or (b) the following conditions are satisfied: (i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in (A) a form prescribed by the regulations, or (B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and (ii) there is no order prohibiting the relocation.

(2) The form must set out (a) a statement that the person objects to the proposed relocation; (b) the reasons for the objection; c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and (d) any other information prescribed by the regulations.

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16, (a) the reasons for the relocation; (b) the impact of the relocation on the child; (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement; (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

2…… relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with (a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or (b) a person who has contact with the child under a contact order.

[78] These provisions are mirrored in s.29(2) et seq. and 39.3 and 39.4 of the Children’s Law Reform Act.

[79] These provisions establish a process for dealing with how the Court will consider mobility applications made by parents with decision-making authority. Notice must normally be given to the other parent of any move, regardless of whether it is a change of address or a relocation, unless the Court orders otherwise. The Court has a discretion to order otherwise in cases where the Court views it appropriate, but the section specifically mentions domestic violence as a factor the Court should consider in exercising that discretion.

[80] Once notice is given, the opposing party has the right to object to the move. If there is no objection to the move, then the party with decision making authority is entitled to move. If there is an objection (as is the case here), the matter must be considered by the Court.

[81] These provisions formalize the requirements for considering a relocation set out in Gordon v. Goertz, 1996 191 [1996] 2 S.C.R. 27. They also place the best interests of the child as a paramount factor for the Court to consider. The manner in which these provisions are to be considered has been discussed in Authier v. Noel, 2021 ONSC 5326 and Siddiqui v. Khan, 2021 ONSC 4673.

b) Relocation or Change in Residence?

[82] Is Ms. Apa’s move to Cambridge from Mississauga is a “relocation” as defined in the statute or a change in residence. There is no real dispute on this question between the parties. Under s. 2 of the Divorce Act re definitions, a relocation is defined as a change in residence of the child “…that is likely to have a significant impact the child’s relationship with a person who has parenting time with the child or who is contact with the child under contact order”.

[83] Ms. Apa argued before me as she did before LeMay, J, on 19 August 2021 that her move to Cambridge will not have a significant impact on the children’s relationship with the Respondent for two reasons:

a. The distance between Ms. Apa’s Mississauga town house and Mr. Vagadia’s home in Woodbridge is 36.1 kilometers, while the distance between Ms. Apa’s Cambridge home and Mr. Vagadia’s Woodbridge home is only 81.9 kilometers. b. Mr. Vagadia has not exercised his access with the children on a regular basis over the past number of years. As a result, this move will not affect his relationship with the children.

[84] Mr. Vagadia argued that Ms. Apa has no reason to move to Cambridge other than that she is trying to interfere with his relationship with the children because he would have to travel two hours each way on both Wednesdays and Thursdays in order to exercise his right to mid-week overnight access. Mr. Vagadia argued that this would make his weekly Wednesday/Thursday access impossible to exercise.

[85] Beginning at paragraph 37 of his 1 September 2021 reasons, LeMay J. noted that the parties did not provide him with any case-law on the issue of whether this move is a relocation. They did not provide me with such caselaw, either. Justice LeMay stated that he was guided by the following considerations in determining whether the move was a relocation or change of address:

a. The question of whether a particular move is a “relocation” is a question to be determined on the facts of each case. b. The distance that a party is moving with the children is a relevant factor to consider in whether the move is a relocation as is the change in the length of commute for the parents. c. The amount of parenting time that is lost by a moving party as a result of the move must be considered both in absolute terms and as a proportion of that parent’s total parenting time. d. The age of the children is a factor to be considered. Older children are more easily able to maintain a long-distance relationship than young children. e. Whether the parenting time that is envisioned by the existing arrangements is actually being exercised must also be considered.

[86] In Children’s Aid Society of Brant v. A.C., 2022 ONCJ 63, Hilliard, J, adopted the criteria set out by Kurkin, J., Boudreault v. Charles, 2014 ONCJ 273, which held that in order to determine whether the move was a relocation, as being applicable under the amended legislation the court should consider these criteria:

a. The existing custody arrangement and relationship between the child and the custodial parent; b. The existing access arrangement and the relationship between the child and the access parent; c. The desirability of maximizing contact between the child and both parents; d. The views of the child; e. The custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; f. Disruption to the child of a change in custody; and g. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[87] I find that the move to Cambridge is a relocation within the definition of “relocation” in the legislation because:

a. The distance between Mr. Vagadia’s house in Woodbridge and Ms. Apa’s Cambridge house is almost triple that between his house and her Mississauga house, and the commute time is almost double. b. The increase in distance at commute time will make Mr. Vagadia’s weekly overnight (Wednesday to Thursday) parenting time difficult. All training weekend access, however, should not be affected, significantly. c. Ms. Apa’s reasons for moving are relevant to her ability to meet the needs of the children both in terms of less expensive accommodation, and safety of the children. d. The move, no doubt, will lead to a disruption to the children’s time with their father, although given the level of parenting time used by Mr. Vagadia, this disruption is blunted. e. The move, no doubt, will lead to disruption of the children in terms of removal from schools and the community that they had to come to know. The increased distance from their Cambridge home to their former community and family and father is not so great as to cut the children off from them.

c) Adequacy of Notice

[88] The notice that Ms. Apa provided is not adequate.

[89] The amendments to the Divorce Act in 2021 do not set out the form of the notice that is required, although s. 16.9 says that a form is prescribed. S. 16.9 provides that the notice must be in writing and sent to the other parent 60 days before the expected date of the proposed relocation, and specify the expected date of the relocation, the new address, and how parenting time is to be shared.

[90] In this case, the only written notice that Ms. Apa gave to Mr. Vagadia is in the August of 2020, and July 2021 texts referred to above, supplemented by her oral evidence that she also advised him orally of the move to Cambridge.

[91] Neither of the texts provide sufficient notice under section 16.9. Even accepting Ms. Apa’s trial evidence on this point, she only said that she also orally advised the of the move to Cambridge in August 2020. Her oral evidence does not indicate that she told Mr. Vagadia of the details required by the section. None of the evidence indicates that Ms. Apa told Mr. Vagadia of the address and contact information in Cambridge or how parenting time and decision-making responsibility would be exercised in the changed residential circumstances.

[92] There is a gap in the notice provision.

[93] The notice provision requires that, 60 days before the proposed change of residence the custodial parent will advise the other parent of the new address. The notice provision requires that the relocating parent provide the other parent with the address post relocation. Logically, this presumes that the relocating parent will have already secured an apartment or home in the new location prior to giving notice. In most cases, this is impractical or impossible, especially where objection is taken by the other parent and an application must be brought before the court. Further, absent a reasonably certain abode in the new community, it is difficult, if not impossible, to address the benefits of the move, such as where the children will go to school and the effect that the move will have on parenting time.

[94] Although I have found that notice was not properly given, section 16.9(3), gives me the discretion, notwithstanding the notice requirements and subsections, to dispense with or modify notice in the circumstances, including where there is a risk of family violence.

[95] In Siddiqi v. Khan, 2021 ONSC 5326, Williams, J. applied s. 16.9(3) to waive formal compliance with written notice in a prescribed form 60 days in advance of the proposed relocation, where the moving party had substantially complied with the notice requirements by notifying the other party of the proposed relocation and provided details as soon as they were known. The court found that the moving party had provided all of the information, orally, within the specified timelines.

[96] In A.E. v. A.B., 2021 ONSC 7302, the Court declined to require strict compliance with the notice provisions where the application was started before the amendments to the mobility the provisions and where the move was one of the driving forces behind the application.

[97] In the circumstances, based on my credibility findings, I accept that Ms. Apa told Mr. Vagadia orally in August 2020 that she was planning a move to Cambridge. Given that oral advice, the texts of August 2020 and July 2021 confirm Ms. Apa’s oral advice. What Ms. Apa did not do is advise Mr. Vagadia of the specific address and contact information and detail how parenting time under the March 2015 order would change. The effect on parenting time for Mr. Vagadia was set out in the Amended Motion to Change, amended in 2018. Ms. Apa did not advise of the new address until after she had moved. The Agreement of Purchase and Sale for the Cambridge house was not entered as an exhibit, but it appears that it was entered into in June or July 2021. Therefore, the failure to provide the notice details required in the legislation was only with respect to the specific address in Cambridge (which obligation only arose after the agreement of purchase and sale was entered into).

[98] In this case, I exercise my jurisdiction under section 16.9 (3) to abridge Ms. Apa’s failures in notifying Mr. Vagadia. She ought to have provided the address of the new Cambridge home when the Agreement of Purchase and Sale was signed. She ought to have advised Mr. Vagadia once conditions in the Agreement of Purchase and Sale, if any, were waived and the agreement of purchase and sale became enforceable.

[99] While I am prepared to abridge deficiencies in Ms. Apa’s notice using my discretion under section 16.9 (3), I must hold mother accountable for her intentional move to Cambridge without the agreement of Mr. Vagadia or a court order, especially since her motion for leave to relocate was adjourned at trial, pending more complete evidence.

[100] I will address this question on costs.

d) Best Interests of the Child

[101] In assessing the best interests of the child, I must be cognizant of the fact that Ms. Apa relocated with the children to Cambridge after LeMay J. deferred her motion to the trial, and before the trial of this motion to change began. Because of these facts, I confine my analysis of the best interests of the children to the evidence as it existed as of the date that the relocation occurred. I have ignored in my analysis of the best interests of the children, evidence which has arisen since the relocation.

[102] Because the March 2015 order gives decision-making power to Ms. Apa and provides that the children spend the vast majority of their time in Ms. Apa’s care, under section 16.93 (2), Mr. Vagadia has the burden of proving that the relocation would not be in the best interests of the child. In this case, however, the burden is not important. The best interests of the children speak clearly that the relocation is in their best interests, all things considered.

[103] I now turn to the factors concerning the best interests of the child are set out in section 16.92 of the Divorce Act.

Reasons For Relocation

[104] Ms. Apa gave three principal reasons for the relocation. The first and foremost is the safety of the children. The townhome development in which they lived in Mississauga was frequently the location of violent gun related and drug related crime. Ms. Apa’s evidence is amply supported by that of her friend and Mr. Vagadia’s sister. Further, crime rates are likely lower in Cambridge.

[105] Second, the monthly mortgage on the Cambridge house is lower than the rental payment on the town house in Mississauga. Further, the Cambridge house is a larger home. The children will benefit by the larger home and the freed up income from the lower accommodation cost.

[106] Third, the schools and other amenities at the new Cambridge house are as good as, or better than those in Mississauga and, are within a shorter walking or driving distance from the home.

Impact on the Children and the Children’s Preferences

[107] All of the children, to some extent, expressed their wish to relocate to Cambridge. I give this evidence varying degrees of weight for two reasons. First, some of the children are of an age that their views and preferences should be given greater weight than some of the other children’s. Second, the children spend the vast majority of the time with Ms. Apa, consequently, Ms. Apa’s views no doubt have an effect on the children’s views.

Time Spent with Mr. Vagadia

[108] As part of her motion to change, Ms. Apa seeks to eliminate Mr. Vagadia’s midweek parenting time. The March 2015 order gave Mr. Vagadia parenting time with the children on alternating weekends from the end of school Friday until Monday morning drop off at school (with an extension if there is a holiday at either end of the weekend). Further, he had a weekly overnight from Wednesday (pick up after school) to Thursday at 7 pm (drop off at a defined location). Finally, he has summer access, alternating March breaks, and an equal division of Christmas holidays.

[109] Even if Ms. Apa is not successful in her motion to change in eliminating Mr. Vagadia’s midweek overnight, the relocation to Cambridge will, in all likelihood, make Mr. Vagadia’s Wednesday to Thursday overnight parenting time impractical or impossible. It will also means that Mr. Vagadia’s pickup of the children for his alternating weekend parenting time will occur much later. There are two reasons for this. First, he will be driving in traffic leaving Toronto for his alternating weekend pickup and both his midweek pickup and drop-offs. Second, his employer may not accommodate his leaving early in order to pick up the children after school for any of his parenting times.

[110] Ms. Apa says that any difficulties Mr. Vagadia may have in picking up and dropping off the children, whether for midweek or alternating weekend access, will be ameliorated by the fact that exchanges of the children will be done in Milton. In that case, driving will be equal. While her proposal will reduce Mr. Vagadia’s travel time, he will still have to drive to Milton from Woodbridge at the beginning of rush hour traffic to pick up the children and at the end of rush are traffic on Thursday to drop the children off. Ms. Apa will be driving against the traffic.

[111] The nature of Mr. Vagadia’s employment is unknown because of his failure to make production in the face of repeated court orders. He said that he is working for Purolator. If I assume he is working a standard day, then he will have to take time off work in order to pick up his children after school. If his employer is not accommodating, his pick up and drop off times will occur later than currently ordered.

Whether Ms. Apa complied with the notice requirements.

[112] This factor is a close run thing. I have found that Ms. Apa’s failure in notifying Mr. Vagadia of the relocation is in not advising him of the specific address and contact number once she entered into the Agreement of Purchase and Sale in June or July 2021. Otherwise, Ms. Apa told Mr. Vagadia in August 2020 that she was going to move, likely to Cambridge.

An Order Specifying Where the Child is to Reside

[113] Douglas J.’s 2 March 2015 final Order provides that neither party shall remove the children from Ontario without the prior written consent of the other, such consent not to be unreasonably withheld. There is no other requirement that the parties are restricted in change in residence, or the circumstances in which they made change residence.

Reasonableness of Ms. Apa’s Proposal to Vary Parenting Time

[114] Ms. Apa’s proposal to vary Mr. Vagadia’s parenting time would eliminate his weekly overnight and reduce his alternate weekend parenting time from after school on Friday to return to school on Monday, to pick up at 6 PM on Friday was drop off at 6 PM on Sunday.

[115] Ms. Apa’s proposal in her Amended Motion to Change has father doing all of the pickups and drop-offs. She wisely amended this at trial by saying it pickups and drop-offs would be at a convenient location in Milton.

[116] While I accept Ms. Apa’s evidence that Mr. Vagadia does not use all of his parenting time with the children, sometimes cutting it short or not using it at all, her evidence is not detailed enough to permit me to determine the extent of which Mr. Vagadia forgoes parenting time with the children.

[117] I do note that Abigail does not wish to see her father and that two of the other three children are reticent to see their father. I also note that Mr. Vagadia had no compunction about giving up his mid-week access when he went to Montréal for two years to work, and, but for the Covid-19 pandemic, would have continued to work in Montréal foregoing his midweek access.

Compliance With Existing Orders

[118] Under this factor, the court must look at compliance with all orders under all family law legislation, not merely parenting orders (see: A.E. v. A.B., 2021 ONSC 7302, supra, at para. 136).

[119] The court must always be confident that a parent will support the terms of any relocation order. A parent’s history of complying with their parenting and non-parenting obligations under an order or agreement is relevant and may inform the viability of the terms of any order.

[120] In this case, Mr. Vagadia has a history of non-cooperation with Ms. Apa and non-compliance with orders. Most of these had to do with his obligation of financial disclosure. He has produced little and when he does it has always been late and incomplete. Mr. Vagadia also has a history of not complying with parenting orders. He unilaterally reduced his parenting time in 2016 and 2017 while he studied to become an airplane mechanic, and then between 2018 and 2020 when he moved to Montréal to work as an airplane mechanic. In both instances, Ms. Apa acquiesced to those changes in parenting time. The fact that she acquiesced, however, is not relevant to Mr. Vagadia’s failure to abide by that order. Further, while the evidence is less specific, he has not followed, to the letter, the Order regarding his parenting time, forgoing or shortening it when it suited him.

[121] On the other hand, I find that Ms. Apa has generally followed the March 2015 Order and, in the best interest of the children, acquiesced to father’s reduction in parenting time. In addition, she has facilitated makeup time and telephone access between Mr. Vagadia and the children. Finally, she has maintained contact with, and facilitation time with Mr. Vagadia’s family.

[122] Based on mother’s conduct, I find that she will continue to encourage the children to have a relationship with Mr. Vagadia.

Encouraging a Relationship With the Other Parent/ Alienating Behaviour of the Relocating Parent

[123] While alienating behaviour by one parent is not a factor enumerated under section 16.92, it is something to be considered in this case, especially as Mr. Vagadia has raised it (see: O’Brien v. Chuluunbaatar, 2021 ONCA 555, Bourke v. Davis, 2021 ONCA 97 and Kazberov v. Kotlyachkova, 2019 ONSC 3042).

[124] As indicated above, I have no concern that Ms. Apa will continue to encourage a relationship between the children and Mr. Vagadia and his family. I do not accept Mr. Vagadia’s position that mother is attempting to alienate the children from him or turn the children against him. The only evidence in this regard is his bald statement to that effect.

[125] Considering all of the relevant factors, Ms. Apa’s relocation to Cambridge from Mississauga is reasonable and in the best interests of the children.

Issue C) PARENTING TIME WITH FATHER

What parenting time should Mr. Vagadia have?

[126] In light of my finding that Ms. Apa’s relocation is in the best interest of the children, adjustment to Mr. Vagadia’s parenting time with the children must be made. The 4 March 2015 final Order of Douglas, J., is amended as follows with respect to Mr. Vagadia’s parenting time with the children:

a) Alternate weekends from Friday at 6 PM to Sunday at 6 PM. The first weekend with Mr. Vagadia under this alternating schedule will be the weekend beginning April 22; b) Three weeks during the summer, with no more than two weeks contiguous, with the weeks to be agreed upon by April 30 each year; c) In odd numbered years, the children shall be with Mr. Vagadia from 5 PM on the last school day before the Christmas break until noon on 27 December, and then they shall be with mother from noon on 27 December to their return to school. In even-numbered years the children shall be with Ms. Apa from the end of school until noon on 27 December and then with Mr. Vagadia from noon on 27 December to 6 PM on the evening of the last day of the Christmas break; d) The parties will split March break with Mr. Vagadia having the first half of the March break following the release of these reasons and in every other year thereafter; and e) All pickups and drop-offs shall be at a mutually agreed upon location in Milton Ontario; f) Mr. Vagadia shall not interrupt the children’s extracurricular activities as scheduled and ensure that the children attend all extracurricular activities as scheduled, when the children are in his care; and g) All other parenting related provisions of the 12 March 2015 final Order of Douglas, J., remaining in effect.

Issue D) CHILD SUPPORT

Positions of the Parties

[127] The only admissible evidence with respect to Mr. Vagadia’s income are the 2018, 2019, and 2020 CRA assessments that he provided. He has provided no admissible evidence for taxation years of 2016 or 2017. Accordingly, Ms. Apa submits that this court should impute income of $120,000 a year to Mr. Vagadia for support calculation purposes, beginning with the 2016 tax year. She concedes he paid $5,500 child support.

[128] Mr. Vagadia’s position is that he paid approximately $17,000 in child support since 2015. Further, it is inappropriate to attribute any income to him since he was studying in 2016 and 2017 and then from 2018 to 2020, he was apprenticing to be an airplane mechanic. This was cut short he says in March 2020 because of the Covid pandemic.

[129] Mr. Vagadia, notwithstanding several orders requiring financial production, has made virtually none. There was no admissible evidence except for the 2018, 2019, and 2020 CRA assessments with respect to income, and no admissible evidence with respect to support he may have paid. Accordingly, I do not accept his oral evidence that he paid $17,000 in support since 2015. Ms. Apa says, and I accept, that he paid $5,500 in child support since 2015.

Imputing Father’s Income

[130] The onus is on the party seeking to impute income to another party to establish that the other party took actions intentionally that reduced his or her ability to pay child support, that is, that he took steps intentionally that led to his or her unemployment or underemployment. In addition the person seeking to impute income to another must establish that employment was available, and that the employment would pay a certain amount (see: Draygala v. Pauli, 2002 41868 (ON CA), 2002, O.J. No. 3731).

[131] I decline to impute income to Mr. Vagadia for 2016 and 2017. The evidence is that he returned to school in order to become an airplane mechanic during this period. Ms. Apa has led no evidence of what work was available to him while he was at school. In any event, if Ms. Apa did not agree to Mr. Vagadia’s return to school, she acquiesced it.

[132] I declined to impute income to Mr. Vagadia for the period of 2018 and 2019. I accept as his income for those years as stated in his CRA assessments.

[133] With respect to 2020, I do not accept Ms. Apa’s position that I should impute income of $120,000 to Mr. Vagadia. She has led no admissible evidence with respect to the income that Mr. Vagadia should be able to earn.

[134] Instead, I impute income at $80,000 to Mr. Vagadia in 2020, and every year thereafter based on the following calculus:

a) Mr. Vagadia says that he was laid off from his apprentice position in March 2020 because of the Covid pandemic. There is no evidence about when he started or if he started any other work during that year. Presumably, his $31,521 in income represents his wage through to the end of March, plus any CERB or EI for the balance of that year. b) He admitted that he was able to take a mortgage of $750,000 in May 2020 in order to buy out the one quarter share of each of his siblings in the house in which he lives. He admits that he obtained that mortgage through a third party lender. c) I estimate Mr. Vagadia’s monthly carrying costs for a $750,000 mortgage at $3500-$4000, conservatively. d) I estimate that his property tax and property insurance would have added not less than $7500 to his annual cost. e) Therefore, his monthly carrying cost for the house is between $4000 and $4600 in after tax money. f) In addition, he would have had to have her earned income sufficient to feed, clothe, and transport himself. I estimate this, conservatively, at $1500 per month. g) I estimate a blended tax rate or effective tax rate of 35%.

Child Support Arrears

[135] Based on the foregoing, the child support arrears are as follows:

Year	Income	Monthly C/S	Annual C/S
2018	40,092	975	11,700
2019	63,998	1,508	18,096
2020	80,000	1,823	21,876
2021	80,000	1,823	21,876
2022	80,000	1,823	7,292 [1]
Total	80,840

[136] I accept Ms. Apa’s evidence that Mr. Vagadia paid $5,500 in child support since Douglas, J.’s order, and that the net owing is $75,340.

Future Child Support

[137] Beginning 1 May 2022 and on the first day of the month thereafter, Mr. Vagadia shall pay Ms. Apa $1,888 per month as child support for the 4 children, based on imputed income of $80,000 per annum for Mr. Vagadia’s income.

Issue E) VESTING ORDER

Position of the Parties

[138] Ms. Apa seeks a vesting order in Mr. Vagadia’s home to secure payment of past and future child and spousal support awards. She says that Mr. Vagadia’s history of not complying with orders makes the vesting order necessary. Mr. Vagadia says that the facts do not support a vesting order.

The Law

[139] A vesting order is an enforcement mechanism whereby title in the judgment debtor’s asset(s) is transferred or “vested” in a judgment creditor to secure a judgment.

[140] The seminal case in Ontario is Lynch v. Segal, 2006 42240 (ON CA), [2006] O.J. No. 5014 (C.A), in which the Court of Appeal tells us that a vesting order under s. 100 of the Courts of Justice Act or under s. 9 of the Family Law Act, is discretionary. They originated in the Court of Chancery and supplemented the contempt power (see: Lynch, para 30; Chippewas of Sarnia Band v. Canada (Attorney General), 2000 16991 (ON CA), (2000), 2000 16991 (ON CA), 51 O.R. (3d) 641 at p. 277).

[141] The discretion of the Court is broad. It is not, however, limitless. It developed in support of the contempt power, and therefore, is used rarely.

[142] In Lynch, at para. 32, the Court of Appeal said:

As a vesting order - in the family law context, at least - is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair, 2001 28208 (ON SC), [20011 O.J. No. 1837.18 R.F.L. (5th) 91 (S.CJ.). affd 2003 57393 (ON CA), [20031 Q.J. No. 2678.42 R.F.L. (5th) 46 (C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

[143] What conduct by a respondent is required to trigger a vesting order? The conduct must be extreme: leaving the country so that creditors pursued the Applicant for company and joint debts; the respondent’s return to demand 50% of the equity then refusing to allow his counsel to accept service leaving it entirely to the Applicant to pursue a determination in the courts; a backdrop of threatening conduct throughout their relationship; the unenforceability of the Applicant’s rights under judgements of the Brazil court in litigation commenced by the Respondent there; it is necessary to ensure compliance with his Ontario obligations to the Applicant through a vesting order.

Analysis

[144] It is not appropriate to issue a vesting order in this case. I say this for several reasons:

a) Mr. Vagadia’s conduct is not severe or extreme enough to convince me that he will not pay an order made. It is true that Mr. Vagadia has not paid child support. None was ordered. He failed to disclose information, however, that might trigger that obligation. b) There are other enforcement options available to Ms. Apa. FRO [Family Responsibility Office (“FRO”) can enforce. Although she has not sought the order, an order could have been made that FRO should sell the house if the outstanding amounts are not paid within a certain time. c) A vesting order should not be use where the value of the property significantly exceeds the amount of the order. Ms. Apa has not provided any evidence of the equity in the home. d) Ms. Apa delayed until shortly before the trial of this action, the payment of equalization set out in Douglas, J.’s order.

ORDER:

[145] The order shall issue pursuant to this judgment as follows:

1. Either party may take out a divorce over the counter.

2. The Applicant-Mother, Elisabetta Apa, shall be granted leave to relocate with the children of the marriage, namely, Alijah Birju Vagadia ("Alijah") born August 5, 2006, Jeremiah Birju Vagadia ("Jeremiah") born January 6, 2008, Abigail Priya Vagadia ("Abigail") born January 1, 2010, Gabriel Kishor Antonio Vagadia ("Gabriel") born October 12, 2011 from Mississauga, Ontario to Cambridge Ontario, retroactive to 1 September 2021.

3. Paragraphs 5 through 13 of the Order of the Honourable Justice Douglas, dated March 4, 2015, shall be changed to reflect the following parenting time schedule for Mr. Vagadia: a. Alternate weekends from Friday at 6 PM to Sunday at 6 PM. The first weekend with father on this alternating schedule will be April 22 weekend; b. Three weeks during the summer, with no more than two weeks contiguous, with the weeks to be agreed upon by April 30 each year; c. In odd numbered years, the children shall be with Mr. Vagadia from 5 PM on the last school day before the Christmas break until noon on 27 December, and then they shall be with mother from noon on 27 December to their return to school. In even-numbered years the children shall be with Ms. Apa from the end of school until noon on 27 December and then with Mr. Vagadia from noon on 27 December to 6 PM the evening of the last day of the Christmas break; d. The parties will split March break with Mr. Vagadia having the first half of the March break following the release of these reasons and in every other year thereafter; and e. Pick up and drop offs shall take place at the parking lot of Tommy Hilfiger, located at the Toronto Premium Outlet, located at 13850 Steeles Avenue West, Halton Hills, ON L7G 0J1, or other location as agreed upon.

4. Mr. Vagadia shall not interrupt the children’s extracurricular activities as scheduled and ensure that the children attend all extracurricular activities as scheduled, when the children are in his care;

5. All other parenting related provisions of the 12 March 2015 final Order of Douglas, J., shall remain in effect.

6. Alijah, Jeremiah and Abigail’s’ participation in the parenting time shall be at their discretion. Ms. Apa shall actively encourage the children to spend parenting time with Mr. Vagadia.

7. Beginning on October 12, 2023, Gabriel's participation in the parenting time shall be at his discretion.

8. The Respondent-Father shall have access to the children on Father's Day from 10 a.m. until 5p.m.

9. Paragraphs 17 through 19 of the Order of the Honourable Justice Douglas, dated 4 March 4, 2015, shall be changed to reflect the following: a. Mr. Vagadia shall pay arrears in child support for the period up to and including 30 April 2022 in the sum of $75,340; b. Mr. Vagadia shall pay Ms. Apa child support of $1,888 per month commencing 1 May 2022 and on the first day of each month thereafter, for the support of the children, namely, Alijah Birju Vagadia ("Alijah") born August 5, 2006, Jeremiah Birju Vagadia ("Jeremiah") born January 6, 2008, Abigail Priya Vagadia ("Abigail") born January 1, 2010, Gabriel Kishor Antonio Vagadia ("Gabriel") born October 12, 2011. This sum is based on the Respondent Father's imputed income of $80,000.00; c. The parties will share any s. 7 special and extraordinary expenses for the children proportionate to their incomes, with Ms. Apa being responsible for 40% of the s.7 expenses for the children and Mr. Vagadia being responsible for 60% of the s.7 expenses for the children. The Respondent-Father will pay his proportionate share after taking into account any available tax credits and other deductions available to the Applicant-Mother, on such s. 7 expense; and d. Each of the parties will, on an annual basis, but no later than June 1 of each year, provide to the other, his/her Income Tax Return and Notice of Assessment for the prior calendar year and the parties will readjust the monthly child support and s. 7 obligations based on the Table Guideline amount and the new monthly amount will be effective July 1 of each year thereafter.

10. FRO is to enforce. SDO to issue.

COSTS:

[146] I indicated, above, that I would address in costs Ms. Apa’s failure to properly notify Mr. Vagadia of her intention to relocate and her relocating without leave of the court. I do so using the Court’s power to use costs to correct a party’s behaviour.

[147] Ms. Apa knew that she needed the Court’s permission to relocate from Mississauga to Cambridge. That is why she brought the motion. She knew that her motion to relocate was put over to the trial of this matter and that the trial was set for a date after she closed on her new home in Cambridge. She knew when she moved to Cambridge on 24 or 25 August 2021 that she did so without permission. There is no indication in LeMay, J.’s 1 September 2021 Endorsement that Ms. Apa told LeMay J., that she had an offer on a house in Cambridge, or that is had or was about to close. Had she filed proper materials on the motion before LeMay, J. and disclosed the urgency of the move on a full record, her motion to relocate might have been addressed by LeMay, J.

[148] That Ms. Apa wanted to be in the new house so the children could start at their new schools at the beginning of the school year is an explanation for doing what she knew she ought not to have done. It does not justify it.

[149] The appropriate remedy for Ms. Apa’s behaviour in relocating without permission is to deprive her of costs in any way related to the mobility issue.

[150] Aside from that, Ms. Apa was substantially more successful than Mr. Vagadia and is presumed entitled to her costs. I will decide the question of who pays whom costs and in what amount based on written submissions. The submissions (exclusive of offers) are not to exceed 3 double spaced, typewritten ages. Ms. Apa’s are to be served and filed by 4 pm, 29 April 2022, and Mr. Vagadia’s by 4 pm, 20 May 2022. There will be no right of reply.

[151] If I have made arithmetic or other minor errors in this judgment, I may be spoken to.

Trimble J. Released: April 5, 2022