COURT FILE NO.: FS-20-0173-00 DATE: 2022-05-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

C.H. M. Cupello, for the Applicant Applicant

• and -

M.N. M. Petryshyn, for the Respondent Respondent

HEARD: May 9, 2022 at Thunder Bay, Ontario via Video Conference Mr. Justice W. D. Newton

Decision on Motion

Overview

[1] The parties [1] are the parents of a daughter who is eight years old.

[2] Each has brought a motion seeking temporary relief: the mother for an order for decision-making authority with respect to the child and child support; the father for joint decision making for the child, an order prohibiting the change of residence of the child, and increased parenting time.

[3] The mother consents to a temporary order restricting her from changing the place of residence of the child.

[4] The parties consent to an order that they use My Family Wizard for communication regarding the child.

[5] The parties also consent to an order that each will have the child for a period of two weeks during the school summer vacation with the father having first choice of dates in 2022, provided that he gives notice of the date by June 15, 2022, with the mother having first choice in 2023, and thereafter alternating first choice each year.

Child Support

[6] In 2020, the father had T4 earnings of $155,444.16. In 2021, he had T4 earnings of $152,601.91.

[7] He has paid some child support in the past and contributed to other expenses which he says should be treated as child support. Due to loss of employment, he did not contribute to child support for February, March, and April of this year. He has now secured other employment making about the same and paid child support for May. Currently, the mother has no or minimal income. No confirmation of her income was provided on the motion.

[8] The mother seeks an order for child support to May 31, 2021, based on the 2020 T4 income and from May 31, 2022, based on the 2021 T4 income. The mother is seeking an order for child support for February, March, and April 2022, and going forward from May 31, 2022. This is without prejudice to the rights of the parties to address the issue of arrears at trial if not resolved.

[9] The only disagreement on the calculation of child support payable is whether, in calculating child support under the guidelines, the father may deduct prior support obligations of $14,976 with respect to two children from a prior relationship. The mother submits that the father must prove undue hardship before that amount can be deducted. The father argues that this deduction fairly reflects the amount available for child support. For this temporary order, I determine that the father may not deduct the prior support obligation. This is without prejudice to the father arguing the contrary at trial [2].

[10] Commencing June 1, 2021, child support payable by the father to the mother shall be $1,338 per month based on his 2020 income of $155,444.16. Commencing June 1, 2022, child support payable by the father to the mother shall be $1,317 per month based on his 2021 income of $152,601.91 [3].

[11] Therefore, it is ordered that the father pay to the mother child support in the amount of $1,338 per month for February, March, and April 2022 and commencing June 1, 2022, in the amount of $1,317.

Decision Making and Parenting Time

[12] Each party has filed multiple affidavits. There is disagreement about certain key facts.

[13] The parties began a relationship in 2010. They began cohabiting soon after the birth of their daughter in March 2014. Also residing with them was the father’s son from a previous relationship. Then, they lived in a community about two hours by car from Thunder Bay. That is where the father worked. Previously, the mother had resided in Thunder Bay.

[14] According to the mother, she moved back to Thunder Bay with her daughter in 2017. She said that the move resulted from concerns for her daughter’s safety given criminal charges against the father’s son and the father’s “abusive behaviour.” She said that the father did not dispute the move and never requested that the daughter return to Atikokan. The father said that the mother took the child to Thunder Bay in July 2015 without her consent.

[15] He says that they separated in August 2017. She says that they “formally” separated in June 2018.

[16] On his cross-examination on his affidavit the father testified that he would spend Friday afternoon to Monday morning in Thunder Bay with the mother and the daughter until their separation. Post-separation he said that he would still visit his daughter on the weekends. This continued up until 2021 when he said that the mother began to limit his access. This assertion is contradicted by the mother who deposed that the father neither requested or exercised regular access post-separation and noted that the father had not had overnight access from 2017 to December 2019. All during this period, the father continued to reside about a two hour drive from Thunder Bay.

[17] In November 2021, the father was terminated from his employment. He has now secured employment in another community about a two and one half hour drive in the other direction. He currently resides with his parents in a town about a one hour drive from Thunder Bay. He intends to purchase a home in Thunder Bay when he is able to do so. His new job requires him to work from Monday to Wednesday only. On those days he would reside out of town and on Thursday to Sunday he would be free to parent his daughter.

[18] The mother outlined her daughter’s activities during the school week and during the weekend in some detail. Her daughter is doing well in school, has friends nearby, and enjoys church on Sundays.

[19] The father currently has parenting time every second weekend from Thursday after school to Sunday at 6:00 p.m.

[20] The father seeks parenting time every weekend from Thursday afternoon to Sunday at 6:00 p.m. and to Saturday at 6:00 p.m. on alternate weeks. The mother seeks to maintain the current parenting schedule.

[21] The mother seeks sole decision-making, and the father seeks shared decision-making.

[22] The assistance of the Office of the Children’s Lawyer was sought but, due to circumstances beyond the control of the parties, an assessment has not been undertaken yet.

Best Interests of Child

[23] The Divorce Act, RSC 1985, c 3 provides

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(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 cooperate, 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 cooperate 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.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Analysis and Disposition

[24] I note that there is, apart from some “mudslinging”, little to suggest that either parent is not a fit parent. I have no doubt that each loves their daughter.

[25] I am guided by the proposition that I am to take into consideration only the best interests of the child. I also must give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests.

[26] In considering the enumerated factors, significant, in this case, are the following:

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

(d) the history of care of the child;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; [Emphasis added.]

[27] For at least five years, the day-to-day care of the child has been provided by the mother. Thus, the history of care of the child and the child’s need for stability are important factors. As the mother’s affidavit demonstrates, church and church school are important to the child also. The father makes no mention of church in his affidavit, although the proposal to return the child on Saturday evening on alternate weekends may be some concession to honouring the importance of religious upbringing for the child.

[28] As noted, there has not been any clinical assessment by the Office of the Children’s Lawyer yet. Considering the child’s needs and the principle that a child should have as much time with each parent as consistent with the child’s best interests, I do not consider it in the child’s best interest to not have any “weekend time” with her mother. It is in the child’s best interests to have equal quality “weekend time” with both parents and I would not grant the father’s request for parenting time for each weekend.

[29] Similarly, with respect to decision-making, without the input of the clinical assessor, I see no reason to order sole decision-making by the mother. It may be that the father has had little input on the decisions to date but that does not mean that he should be deprived of the opportunity to make important decisions regarding his daughter’s health, education, culture, language, religion and spirituality and significant extracurricular activities.

[30] Accordingly, with respect to decision-making and parenting time, an order shall issue in the form of the draft order submitted by counsel for the father except that the last sentence of paragraph 2(a) shall be deleted.

[31] If submissions are required on any other aspect of this order, counsel may arrange an attendance before me with the trial coordinator.

[32] If costs are sought, then the party seeking costs shall deliver cost submissions limited to two pages plus costs outline within 10 days. Any response is limited to two pages plus costs outline to be submitted no later than within seven days thereafter. If no costs submissions are received within 10 days, then costs will be deemed settled.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: May 10, 2022

COURT FILE NO.: FS-20-0173-00 DATE: 2022-05-10 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: C.H. Applicant - and - M.N. Respondent DECISION ON MOTION Newton J. Released: May 10, 2022 /lvp

[1] Nonspecific identifiers have been used to protect the privacy of the parties and their child.

[2] I note that the CSG calculation provided by the father’s counsel does not actually deduct the prior support obligation in determining child support.

[3] This calculation was premised on the mother’s income of $29,257 accordingly to the CSG calculation provided by the father’s counsel.