Overview

[1] The major focus of this trial was the Applicant’s allegations of regarding the Respondent’s violence. The parties’ positions on these allegations were central to their submissions with respect to the parenting schedule and decision-making responsibility. The Applicant alleged that the Respondent was violent, abusive, and controlling towards her during the marriage and has also been violent towards their older daughter A. According to the Applicant, the Respondent’s violent behaviour precipitated their separation. The Respondent denies the allegations of violence, except for an incident on May 30, 2019, when he admits he hit A.

[2] The parties were married on February 17, 2013. Their date of separation is in dispute. However, on a without prejudice basis, for the purposes of valuation only, the parties have agreed to use the date of July 8, 2019. The precise date of separation does not need to be determined for the remainder of the issues in dispute. The Applicant mother is 33 years old. The Respondent father is 34 years old. The parties have two children, A., age 8 and M., age 4, whom I will refer to as the “children”.

[3] The events precipitating the parties’ separation came to a head on May 30, 2019. On that day, the Children’s Aid Society of Toronto (“CAS”) verified the allegation that the Respondent hit A. with an open hand on her thigh. Following this incident, the Applicant stayed with her parents briefly. She retained counsel, who wrote to the Respondent on June 3, 2019 to address parenting arrangements following the “breakdown of [their] marriage.” However, the Applicant subsequently moved back to the matrimonial home. She alleges that on June 14, 2019, the Respondent sexually assaulted her when he forced her to have intercourse with him. The parties attended two family vacations together in late June and early July. On July 8, 2019, the parties signed a handwritten separation agreement, in which they set out a schedule for a nesting arrangement throughout the summer.

[4] On August 30, 2019, the Applicant provided a statement to the police that lead to the arrest of the Respondent. He was charged with multiple offences for the period from June 1, 2015 to June 14, 2019 — specifically sexual assault, several counts of assault, uttering a death threat, and mischief. Since the criminal charges, there have been a number of orders or agreements with respect to the parenting schedule. Initially, the Respondent had parenting time with the children every Sunday from 10:00 am to 4:00 pm, which was supervised by his mother or aunt. His parenting time was expanded on consent at a case conference in January 2020, but then at a motion in March 2020 it was restricted to supervised parenting time once a week. There were also periods of no in-person parenting time due to COVID-19. Since late April 2021, the Respondent has had parenting time on Sundays from 10:00 a.m. to 4:00 p.m., supervised by his mother or aunt.

[5] The circumstances surrounding the criminal charges are in dispute. On October 20, 2021, the Respondent’s criminal charges were stayed due to delay under s. 11(b) of the Canadian Charter of Rights and Freedoms. Following the staying of the criminal charges, on April 21, 2021, on a temporary without prejudice basis, Horkins J. issued a restraining order pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”).

[6] The Applicant submits that because of the Respondent’s violent behaviour and limited parenting tools, his parenting time should be maintained at one day per week supervised. She also seeks an order for sole decision-making. Further, she seeks a restraining order against the Respondent.

[7] The Respondent admits to the May 30, 2019 incident of striking A, but denies physical violence against the Applicant. He submits that he is close with his daughters and was very involved in parenting prior to separation. He seeks an order for equal parenting time and joint decision-making. He objects to a restraining order and seeks an order providing him with a right of first refusal when the Applicant is unable to care for the children during her parenting time.

[8] The parties also have several minor financial disputes. The Applicant seeks to have rental income imputed to the Respondent for the purposes of calculating child support and s. 7 expenses. She alleges that he has understated the rental income earned from a jointly-owned investment property. She also claims contribution from the Respondent with respect to various s. 7 expenses already incurred, most significantly A.’s private school and M.’s daycare. She further seeks repayment with respect to her payment of the mortgage on the matrimonial home post-separation. Finally, there are a number of items in dispute in the calculation of the parties’ net family properties.

Issues and Brief Conclusions

[9] The primary issues I need to determine are as follows:

(a) What order for parenting time is in the best interests of the children?

(b) What order for decision-making is in the best interests of the children?

(d) Should the Respondent have a right of first refusal when the Applicant is not able to care for the children?

(e) Should income be imputed to the Respondent?

(f) What amount of outstanding child support does the Respondent owe the Applicant? What amount should be paid going forward?

(g) Does the Respondent owe the Applicant for s. 7 expenses since the date of separation?

(h) What equalization payment is owing? and

(i) Does the Respondent owe the Applicant for post-separation adjustments?

[10] In my analysis below, I have also briefly addressed a few narrow issues the parties raised in closing submissions in support of their draft orders.

[11] With respect to parenting time, I conclude that it is in the best interests of the children for the Respondent’s parenting time to be supervised when they are in the home given what I find to be his history of being unable to control his anger and frustration, leading to abuse. Because the evidence showed the Respondent’s abusive conduct occurred in the home and not outside the home, his parenting time does not need to be supervised when he and the children are outside of the home. For example, no supervision is required at the park, on an outing, or at an activity. This non-supervised time is limited to daytime activities and may not be extended overnight. Any overnights outside the home must be supervised.

[12] I also find it is in the children’s best interests for the Respondent’s parenting time to be expanded beyond the current period of 10:00 a.m. to 4:00 p.m. on Sundays. This limited time puts undue pressure on the relationship between the Respondent and the children. I conclude it is in the children’s best interests to have more time with the Respondent so long as that time is supervised while in the home. Specifically, the Respondent will have parenting time with the children every second weekend and on Wednesday evenings during the week that they do not reside with him on the weekend. Additionally, the Respondent shall have videoconference calls with the children twice per week at times to be agreed between the parties. During holidays, the Respondent will have expanded parenting time.

[13] I find it is in the best interests of the children for the Applicant to have sole decision-making. Due to the Respondent’s history of violent behaviour toward the Applicant, it is not reasonable or appropriate for her to be required to negotiate and seek the Respondent’s consent regarding major decisions affecting the children. It is in the children’s best interests for her to be permitted to avoid the stress and difficulty this would cause. Similarly, the Applicant shall not be required to seek the Respondent’s consent with respect to travel with the children during her parenting time.

[14] In view of the Applicant’s reasonable fear for her safety given the history of violence, I conclude that the order under s. 35(1) of the CLRA should be continued. Also, given my conclusions about parenting and the Respondent’s history of violence, the Respondent shall not be entitled to a right of first refusal when the Applicant is not able to care for the children.

[15] On the financial issues, I find that rental income should be imputed to the Respondent, such that his total income is $160,859.00. The Respondent owes outstanding child support as detailed below. His monthly child support payments going forward shall be $2,207.00.

[16] With respect to s. 7 expenses, I conclude that M’s daycare is a s. 7 expense until she enters grade one. However, I do not find A.’s private school to constitute a s. 7 expense. That said, the parties had an agreement from separation until January 2020 that the Applicant would pay A.’s private school, while the Respondent paid M’s daycare. Therefore, I am not requiring the Applicant to reimburse the Respondent for what would have been her portion of M’s daycare expenses for that period. I have also approved specific other s. 7 expenses as detailed below. I calculate the Respondent to owe the Applicant $842.48 as reimbursement of s. 7 expenses. He is also required to pay a monthly amount for his proportional share of s. 7 expenses.

[17] I have calculated the Respondent to owe the Applicant an equalization payment of $29,928.94.

[18] Finally, with respect to post-separation adjustments, the Respondent is required to pay the Applicant $3,054.00.

Parenting Time

A. Legal Principles

[19] Subsection 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), directs the Court to take into consideration “only the best interests of the child of the marriage in making a parenting order.” Subsection 16(3) sets out a number of factors that the court must consider in carrying out a best interests analysis. In considering those factors, the Court is required by virtue of s. 16(2) to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” The primary consideration articulated in s. 16(2) recognizes that there may in some cases be conflicts in attempting to weigh the enumerated best interests criteria. The clear direction in the statute is that any such difficulties in carrying out the analysis should be resolved in favour of ensuring that the child’s physical, emotional, and psychological safety, security, and well-being are promoted: McBennett v. Danis, 2021 ONSC 3610, at para. 82.

[20] The factors set out in s. 16(3) 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;

(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.

[21] The allegations of family violence are central to the parenting determination in this case. The Divorce Act defines “family violence” broadly to include threatening behaviour and conduct that constitutes a pattern of coercive and controlling behaviour. It also recognizes that a child’s direct or indirect exposure to such conduct itself constitutes family violence. It reads as follows:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[22] Subsection 16(4) provides further direction with respect to assessing family violence in the best interests of the child analysis. The provision focuses on the nature of the family violence, patterns of coercive and controlling behaviour, and the impact of the family violence on the child, among other things. It reads:

(4) In considering the impact of any family violence under paragraph 3(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[23] Subsection 16(5) addresses the relevance of a person’s past conduct in carrying out the best interests analysis. It provides that in determining 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 parenting time, decision-making responsibility or contact with the child under a contact order.”

[24] Subsection 16(6) must also be considered in determining the appropriate allocation of parenting time. It recognizes that children should have as much time with each parent as is consistent with their best interests.

B. Application of Legal Principles: s. 16(4) Factors

[25] In considering the best interests of the children, the starting point in this case is to determine the central issue of family violence. Specifically, I will review each of the factors set out in s. 16(4) of the Divorce Act. In order to assess these factors, I will need to determine whose version of events to accept. The Applicant makes numerous, serious allegations of violence. The Respondent denies all violence towards the Applicant and admits to one incident of striking A. Therefore, I start the analysis by considering the parties’ credibility.

Credibility

[26] Overall, I find the Applicant to be more credible with respect to the incidents of violence and I accept her version of events.

[27] Assessing credibility is not a science. It is difficult 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, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 48. A judge is not required to believe or disbelieve a witness’s testimony in its entirety. On the contrary, the judge may accept none, all, or part of a witness’s evidence: Kinsella v. Mills, 2020 ONSC 4785, at para. 69.

[28] In assessing a witness’s credibility, as set out in Kinsella v. Mills at para. 69, the court may take into account considerations including the following:

• Were there inconsistencies and weaknesses in the witness’s evidence, including internal inconsistencies or evidence of prior inconsistent statements?

• Was there a logical flow to the evidence?

• Were there inconsistencies between the witness’s testimony and the documentary evidence?

• Were there inconsistencies between the witness’s evidence and that of other credible witnesses?

• Is there other independent evidence that confirms or contradicts the witness’s testimony?

• Did the witness have an interest in the outcome, or were they personally connected to either party?

• Did the witness have a motive to deceive?

• Did the witness have the ability to observe the factual matters about which they testified?

• Did they have a sufficient power of recollection to provide the court with an accurate account?

• Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?”

• Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?

• Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?

• Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. The courts have also cautioned against preferring the testimony of the better actor in court, and, conversely, misinterpreting an honest witness’s poor presentation as deceptive.

[29] I have carefully considered these factors in relation to the parties’ evidence. Overall, I find the Applicant’s evidence with respect to the allegations of family violence to be credible for the following reasons:

(a) The Applicant provided some independent evidence that was consistent with her version of events. There were two photographs consistent with violence against her. In relation to her allegation that the Respondent grabbed her phone and smashed it to pieces (described further below), she produced a receipt for a new phone purchased after the incident.

(b) The Applicant testified that the Respondent communicated with her in an abusive manner. This is evidenced by abusive text messages written by the Respondent. In one message, written in the summer after separation, the Respondent called her a “selfish bitch […] back stabbing whore.” He wrote: “Your [sic] such a loser… Couldn’t even get promoted. Boss keeps using you like the stupid idiot you are […] Your [sic] worthless…absolute garbage… Worst mom in the world. Honestly it’s a shame people like you can even be called mom. Piect [sic] of shit is the right word.” The Respondent admitted he wrote unacceptable text messages just after separation because he was going through a difficult period. However, in another message, written almost a year and a half before separation, he wrote (referencing taking care of one of the children), “Told you she’s ur responsibility u cunt.”

(c) In a text message following separation, the Respondent apologized for what he had done to the Applicant after the Applicant accused him of violence against her. The Applicant wrote:

I have never slept with anyone else but I did go on a dating app last year after you beat the shut [sic] out of me yet again as a form of escapism from this terrible reality […] Shame on you. The psychological toll that I have experienced with you and the systematic control and abuse. Face the reality of what you have done to me so that you can properly apologize and help me move forward.

The Respondent then replied:

I’m sorry for everything I’ve done to you, ok? I’m also hurting. I know I haven’t been the best spouse…I have lots of excuses…but I think we can be strong together and move forward.

(d) Although the Applicant was cross-examined on prior statements she made in the criminal proceedings, I found the inconsistencies to be minor and her fundamental allegations regarding the incidents of violence to have remained consistent.

(e) The Applicant provided her evidence in a candid and straightforward manner. She paused to consider her answers and, in some instances, corrected her evidence on reflection. She acknowledged if she made a mistake. She was fair to the Respondent, for example, by acknowledging on one occasion that the children had fun during visits with him and on another occasion that a supervision note was very positive.

(f) The Applicant’s narrative of events was internally consistent. The Respondent’s explanation for some of his poor behaviour focused on the fact that he lost his job shortly before his marriage broke down. He acknowledges he sent inappropriate text messages in the summer following separation. However, this version does not account for the abusive text messages before he lost his job. In addition, his narrative does not account for why the Applicant called the police in September 2018. Meanwhile, the Applicant’s version of events relays her struggle with multiple incidents of violence over an extended period. This is internally consistent with having called the police in September 2018, with the ultimate decision to separate, and with the Respondent’s text message apologizing for everything he had done to her.

[30] By contrast, I find the Respondent’s evidence regarding the allegations of family violence to lack credibility for the following reasons:

(a) As set out above, his narrative lacked internal consistency. I do not accept his explanation for the text message in which he said he was “sorry for everything” he had done to the Applicant. The Respondent claimed he was apologizing generally but was not acknowledging the Applicant’s specific accusations. However, if the accusations were not true, a practical and informed person would expect something more from the Respondent in the face of an accusation that he had “beat the sh*t” out of the Applicant.

(b) The Applicant testified that the Respondent often “distorted reality.” There was some basis for this in the evidence. For example, the Respondent steadfastly maintained that the Applicant had been travelling for two weeks per month prior to separation, but the travel dates put into evidence clearly showed that was not the case.

(c) Numerous instances came to light during the trial of the Respondent behaving in a deliberately deceptive manner. For example, after he lost his job in March 2019, the Respondent claims to have exaggerated his mental health symptoms to his doctor in an attempt to obtain disability benefits. He either was untruthful to the doctor in order to deceive the insurance company or he was untruthful to the court about the severity of his symptoms. On another occasion, he admits that he applied for CERB benefits even though he was working and did not qualify for them. On a further occasion, after A. reported to her teacher that the Respondent hit her on May 30, 2019, the Respondent texted the Applicant that “[a] kid shouldn’t be talking to teachers and strangers like thag [sic]” and “[y]ou should’ve coached her.”

(d) The Respondent’s evidence on various issues shifted through the course of the trial. For example, when explaining a spreadsheet setting out his income and expenses from the investment property, he first gave one explanation and then when faced with contradictory evidence he changed his position.

(e) During the course of the trial, it became apparent that the Respondent had produced modified text messages to the Applicant in order to hide content he considered shameful or harmful to his position. It was acknowledged in court that upon pressure from his counsel, he produced the full messages.

[31] In short, throughout the trial, on a range of issues, including the allegations of violence, it was apparent that the Respondent was prepared to shift and revise the truth for expediency.

[32] In assessing the parties’ credibility, it is also important to address the fact that the Applicant submitted a forged document into evidence on the issue of A.’s private school. Specifically, the Applicant submitted a registration form for A.’s private school that appeared to be signed by both parties and dated April 26, 2019, prior to separation. Meanwhile, the Respondent disputed that he ever agreed to A. attending this school. On cross-examination, when it was suggested to her that the Respondent had never signed the document, the Applicant repeatedly maintained the veracity of the document. However, counsel for the Respondent was able to show that the Applicant had modified the document to insert the 2019 date and add the Respondent’s signature. The Applicant ultimately admitted to having submitted this modified and forged document.

[33] It was completely unacceptable for the Applicant to submit a forged document and repeatedly insist it was legitimate until the evidence unquestionably showed otherwise. This conduct must be strongly condemned and will be taken into consideration with respect to the Applicant’s credibility on the private school issue. However, I do not find it tarnishes her credibility with respect to the allegations of family violence. As set out above, the court is entitled to believe a witness on some issues and not on others. I found the Applicant to be credible on the issue of family violence for the reasons set out above. Her clear lapse in judgment on the private school issue does not convince me that she was untruthful on the topic of family violence.

The nature, seriousness and frequency of family violence and when it occurred

[34] Turning to the first of the factors under s. 16(4), I find the family violence in this case was serious and relatively frequent when it occurred. In this section of my Reasons, I focus on the incidents of violence against the Applicant. In a subsequent section, I address the allegations related to A.

[35] The first incident of violence the Applicant described occurred when she was approximately seven or eight months pregnant with A. Both parties agreed that when they first met in 2011, they had an “amazing” relationship. The Applicant became pregnant approximately a year and a half later. Within three months, they were married and moved in together.

[36] Their relationship deteriorated after they moved in. The Applicant describes the Respondent as being demanding of her, for example with respect to dinner being ready on time. At the time of the first incident, which happened when she was pregnant, the Applicant describes having made a meal of mashed potatoes and chicken. The Respondent took a bite of the mashed potatoes and spit them out because they had been made from a box. He was angry, shoved the Applicant to the ground, threw the box, then stormed off. He later came back and apologized for his behaviour.

[37] The Respondent’s version of this event is that the Applicant had made mashed potatoes out of a box, and it was a joke between them that they laughed about frequently. He denies having pushed the Applicant. However, for the reasons described above with respect to credibility, I accept the Applicant’s version of this event and find that the Respondent did shove her to the ground.

[38] The next incident occurred in 2014. The parties were arguing, and the Respondent punched the Applicant in the face. The Respondent later apologized, saying that he had not meant to punch her in the face; he had meant to punch her in the arm. The Applicant provided a photo she says was taken after this incident occurred. The photo is not particularly clear but does show some redness and swelling, particularly under one eye, with a small amount under the other eye.

[39] The Respondent denies this incident. He challenges the Applicant’s version on the basis that during her testimony in the criminal proceeding she said he punched her in the cheek just below the eye. In her evidence at this trial, she claimed to have been punched in the nose. I accept the Applicant’s explanation, which is that his hand was comparatively big against her face, and it hit the nose and area below the eye. The Applicant also was unsure when this incident occurred, although she was able to confirm it was prior to the parties’ move to their new home in 2015. The incident occurred over five years before trial. I do not find the Applicant’s confusion about the exact date surprising. Overall, I accept the Applicant’s version of this event.

[40] In 2015, the parties moved into a home they had purchased and renovated on Dunboyne Avenue. While they were renovating the home, each of the parties lived with their respective parents. Their daughter A. lived with the Applicant and her parents. After they moved into the Dunboyne home in approximately June 2015, the Respondent would come up behind the Applicant and pinch the back of her arms, sometimes twisting until it hurt. When she told him it hurt and asked him to stop, he would laugh and walk away. The Respondent claims that he pinched the Applicant lightly, in a playful manner, and she would laugh. I find the Applicant to be more credible on this point for the reasons set out above.

[41] In 2016, an incident occurred when the Applicant was sitting on the couch and the Respondent came up from behind and grabbed her phone. She chased him to get the phone back and he shoved her to the ground, telling her she needed a “time out” from her phone. She tried to get the car keys with the intention of leaving the house, but he blocked the door, grabbed the car keys, and told her she was not going anywhere. She then left through the back door and walked to her parents’ house. As they were not home, she sat in the backyard until the Respondent came by in the car and told her to get in.

[42] I accept the Applicant’s version of events for the reasons set out above. Also, her version of this incident makes more sense than the Respondent’s version. He recalls the incident and says it occurred as described by the Applicant, except that he did not shove her to the ground or take the keys. However, he agrees that she went to her parents’ house. The Respondent’s version does not explain why the Applicant walked to her parents’ house, which would have taken her 15 minutes. In addition, the Respondent’s admissions belie a level of aggression, in that he does not deny grabbing the Applicant’s phone from her or later driving to her parents’ house and telling her to get in the car.

[43] The next incident the Applicant identified occurred in March 2016. The Respondent came up behind the Applicant and slapped her. When she told him not to do that again, he laughed. The Applicant took a photograph of herself, which shows a red mark on one side of her face. Although the Respondent denies having slapped her, I accept the Applicant’s evidence given that I accept her overall credibility.

[44] In or around 2016, the Respondent also started hitting the Applicant with a hairbrush. The Respondent admits that if he could not find his hairbrush, he would ask or insist that the Applicant help him find it. He denies hitting the Applicant with it, but I also find the Applicant more credible on this point for the reasons set out above.

[45] The parties moved into the matrimonial home in 2017. After they started living there, sometime in 2017, the Applicant’s evidence is that the Respondent choked her on two occasions. The first time this happened was when she was sitting on the couch, and he came up behind and choked her. A second incident occurred a few months later in early 2018, during an argument in the bedroom. The Respondent choked her harder this time, pressing deeply on her neck so she could not breathe. She flailed her arms up and down. The Applicant states that the Respondent also periodically would choke her during sexual intercourse, purportedly to stop her from moving too much.

[46] The Respondent claims that he slapped and choked the Applicant only during sex. He said he started doing this after she had read the book Fifty Shades of Grey. He states that it was “fun” and always consensual. I do not accept this evidence. In addition to my credibility findings detailed above, I do not find this account believable in the face of the Applicant’s denial that she consented. The Respondent’s evidence on this point was brief and surprisingly casual considering the serious allegations at issue. He did not provide any details of discussions or any other way in which he assured himself that the activity was consensual.

[47] There is also evidence that the Respondent was controlling in relation to the timing of sex. The parties agree that they had a whiteboard on which, for a period, they would write when they would next have sex. The Respondent explains that he had read a book that advocated a specific type of sex. Based on the book, he wanted to have longer intervals between sex and would write the next date on the board. He acknowledges that if the parties had sex before the date on the board, he would blame the Applicant for not resisting. This evidences one example of a pattern of coercive and controlling behaviour that falls within the definition of family violence.

[48] Another incident arose after the parties moved to the matrimonial home. The parties were having an argument. The Applicant said something the Respondent did not like, and the Respondent told her, “say it again and I will smash your phone.” She then said it again, and the Respondent started smashing her phone to pieces. The Applicant produced a receipt dated October 4, 2017 for the new phone she purchased after this incident.

[49] The Respondent denies this incident. He points out that at the criminal trial the Applicant relied on an April 2018 phone receipt, which was for a new phone after she had lost her phone on a plane ride. The Applicant admits she made a mistake when she provided the April 2018 receipt, which was for the lost phone. But she now has produced the October 2017 receipt that she says is for the phone the Respondent smashed. The Respondent has not provided any explanation for why the Applicant needed to buy a new phone in October 2017. I accept her explanation.

[50] Another significant incident occurred in July of 2018. The Applicant recently had been promoted to a position as director, while the Respondent recently had been demoted at work. Related to this, the Applicant testified that the Respondent would tell her that she might be a director at work, but he was the director of their house. The Respondent admits to saying this, but says he was joking.

[51] In July 2018, the Applicant was sitting on the couch responding to e-mails. She says that the Respondent would often become annoyed when she was using her phone. The Respondent came up behind her and slid the phone from her hand. She chased after him, and he pulled her by her hair into the bathroom. The lights were off and he held the door shut. When he walked away, she opened the door, and he was waiting. He said words to the effect of “Your time out is not over. Go back in there until your time out is over.” When the Applicant finally came out of the bathroom, she told the Respondent she did not want to be with him anymore. His response was that he would leave with A. and the Applicant could keep M. He left with A. and for about a day would not respond to phone calls. When he finally picked up, the Applicant asked him to come home. He and A. then came home.

[52] The Respondent denies this incident. He states that around the same time, an incident occurred where he walked into the bathroom when the Applicant was in the shower and found that she had a “hookup app” on her phone. He says he was going to leave but did not do so. I accept that the Respondent found the Applicant was using a hookup app at some point, but this is different from the incident where he grabbed her phone and forced her into the bathroom. For the reasons set out above, I find the Applicant more credible with respect to the family violence and accept her version of this incident.

[53] The next incident occurred in September 2018. The Applicant went away on her first overnight trip for work. The following weekend, when she was home, she got up early with the girls, made pancakes, and played games. When the Respondent got up, he became very angry about the mess and started yelling. The Applicant states she could not calm him down and the children were scared. She then went to call the police. When the police arrived later in the day, she did not tell them anything. She explains that, ultimately, she did not want the Respondent to get into trouble. Also, the Respondent had threatened that the police could take the children away. He also called her “stupid” and a “traitor” for having called the police.

[54] The Respondent’s version of this event is not significantly different. He admits that when he woke up, he was upset and frustrated. He says that “he was giving [the Applicant] a hard time.” He does not deny that he called the Applicant “stupid” and a “traitor” after she called the police. However, the Respondent’s overall narrative was that the relationship was still stable at this point. His narrative does not explain why the Applicant would call the police. Additionally, the Respondent claims that the Applicant was concerned about losing the children, but not because of him. Meanwhile, in text messages from that day, after the Applicant told the Respondent the police had arrived, he wrote “[j]ust don’t tell them anything.” This text supports the Applicant’s narrative that the Respondent threatened her by saying the police could take the children away. It also demonstrates the Respondent’s controlling behaviour in directing her what to do. I accept the Applicant’s version of this incident.

[55] I also accept the Applicant’s version of the next incident in November 2018. During an argument, the Respondent grabbed the Applicant’s arm and dug his fingers deep into it. The Respondent denies this, but the Applicant has provided a photo showing bruising on her arm, which is consistent with her version of the incident. The Applicant also testified that she sent this photo to the Respondent’s mother with the hope that she would talk to him and convince him to stop. The Respondent then went to his mother’s house and, after being there for several hours, came home and said he would not do this again. The Respondent admits to going to his mother’s house, but denies it was related to the photo. He also admits he apologized to the Applicant afterward. But he says the apology was for acting impulsively and yelling. The Respondent’s version lacks specificity and does not explain the cause of the bruising to the Applicant’s arm. In view of this and my credibility findings, I accept the Applicant’s version.

[56] In February 2019, the Applicant was packing her suitcase to go on a work trip. She testified that the Respondent shoved her such that the back of her head hit the door frame. She had to lie down throughout the weekend. The Respondent denies this occurred and notes that the Applicant saw a doctor the following week for a stubbed toe and did not mention anything about a head injury. This does not convince me that the incident did not occur. The Applicant may not have raised the injury with the doctor because it was mostly resolved by then. More importantly, this happened during a period when the Applicant had not disclosed the abuse she was experiencing. She was still trying to make her marriage work and keep her family together. She had called the police once in September 2018 but did not tell them anything when they arrived. The only disclosure she had made up to this point was sending the photo of her bruised arm to her mother-in-law. I find the Applicant to be credible with respect to this incident. I am satisfied it occurred even though the Applicant did not disclose an injury to the doctor the following week.

[57] The final incident of physical violence against the Applicant occurred on June 14, 2019. This was after the incident of the Respondent hitting A. on May 30, 2019, which is discussed further below. On May 30, after A. disclosed having been hit by her father, the Applicant moved to her parents’ home with the children and retained a lawyer. However, her father’s health was precarious, and she did not want to stay there long. The parties had travel plans for the last two weeks of June, first to go to a friend’s cottage and then to travel to the Dominican Republic with the Applicant’s parents. The Respondent wanted the Applicant to move back in. He also said he would not sign a consent permitting her to travel to the Dominican Republic with the children without him. The Applicant decided to move back into the matrimonial home with the children.

[58] The following week, she had to travel for work. This was a point of contention. In March 2019, the Respondent was dismissed from his job and experienced a deterioration in his health. There is a dispute about the degree to which he was experiencing mental health challenges. In March 2019, the Respondent both attended at North York General Hospital and also saw his family doctor. His family doctor prescribed Risperidone, which is typically used for psychosis according to the pharmacy’s medication information. His doctor also prescribed Escitalopram, which is typically used for depression. Although there is no dispute that the Respondent received these medications, his diagnosis is not clear. In any event, the Respondent acknowledges that this was a very difficult time for him. Further, the repeated evidence was that he resented the Applicant’s travel for work and told her he could not cope with her traveling so much. This was in part because her travel left him having to care for the children.

[59] On June 14, 2019, the Applicant returned home from her work trip late in the evening. She testified that the children were still up and that she put them to bed. Afterwards, the Respondent started asking her for sex and she repeatedly said no. She then went into the bathroom to brush her teeth and locked the bathroom door. The Respondent unlocked the door with a butter knife and kept pressuring her to have sex. She kept saying she did not want to. She then went to bed and was almost falling asleep when the Respondent came into the room, pulled the blanket off the Applicant, pulled her pants down, and had sexual intercourse with her. The Applicant’s evidence is that it was physically painful for her and that she was crying afterwards for several hours.

[60] The Respondent testified the parties had consensual intercourse that night. He denies the Applicant put the children to bed that night, saying that she arrived home too late to do so. At the criminal proceeding, the Applicant apparently estimated she had arrived home earlier. I find any inconsistency here to be minor and to not undermine the Applicant’s fundamental allegations. The Respondent agreed that the Applicant initially said she did not want to have sex that night, but he says she later agreed to do so. For the reasons set out above, I find the Applicant to be more credible with respect to this allegation.

[61] The parties went on a trip with the children to a friend’s cottage after this incident and then to the Dominican Republic with the children and the Applicant’s parents. Shortly after their return from the Dominican Republic, they entered into a handwritten separation agreement that set out a schedule for a nesting arrangement over the summer. After the June 14, 2019 sexual assault, there have not been any further incidents of physical violence against the Applicant.

Whether there is a pattern of coercive and controlling behaviour in relation to a family member

[62] In addition to the physical violence described above, there is other evidence of the Respondent’s coercive and controlling behaviour. I reproduced above abusive text messages from the Respondent to the Applicant. There are other examples of the Respondent speaking or texting the Applicant using aggressive language. For example, in February 2019, when the Applicant was supposed to attend a work dinner and the Respondent did not want her to go, she alleges he called and texted her repeatedly and said he would kill her if she went to the dinner. The Applicant did not produce such a text message. Even if such a message existed, it would be important to see the precise wording and context of what was said. While I do not find the Respondent seriously threatened to kill the Applicant, he does admit that he called her on that occasion, raising his voice and demanding she come home. This in any event constitutes controlling behaviour.

[63] As part of the same controlling, coercive behaviour, the Respondent also tended to blame the Applicant for things he had done. For example, after A. reported the incident of hitting to her teacher, the CAS contacted the Respondent. He then contacted the Applicant, telling her to come home and clean the house (before the CAS arrived). In text messages on that day, he blamed the Applicant for his having hit A. He said he hit her because he was left to care for the children in the morning. He also blamed the Applicant for not having coached A. to not disclose the incident. He stated: “This is all your fault. The way you let others raise your kids and how you dont [sic] listen to me when I said it’s too much for me to watch them every morning. Everything has a price and this is the price you’re paying for constantly prioritizing your work over your family. Enjoy.” Shortly thereafter, he wrote: “I’m blaming you […] A kid shouldn’t be talking to teachers and strangers like tha[t]. You should’ve coached her.”

[64] In another example, the Respondent blamed the Applicant for having lost his job. On July 3, 2019, he texted her that he lost his job because of the stress caused by her travelling. In the same exchange, he told her “You definitely don’t deserve our family.”

[65] On other occasions, the Respondent repeatedly pressured the Applicant to go on short-term disability leave even though there was no medical basis for her to do so. He sent her multiple text messages in July and early August 2019, following the parties’ separation, asking her to go on short-term disability leave so she would stop travelling and working.

[66] During the summer post-separation, the Respondent also hired people to follow the Applicant after he discovered she was dating someone else. He also bought a recording device with the intention that he would record the Applicant. He denies purposely leaving the device in the Applicant’s car. He says he lost it. However, the Applicant found the device in her car. The Respondent justifies this behaviour by pointing to the fact that the Applicant recorded some of their conversations that summer. Still, the Respondent has a history of abusive and controlling behaviour. Having the Applicant followed and attempting to record her conversations with others was a continuation of this conduct post-separation.

[67] In the face of abusive text messages admitted into evidence from the summer post-separation, the Respondent expressed regret for how he conducted himself at that time. He states that he was struggling mentally, spiritually, and emotionally due to the breakdown of his marriage and that he did not have the appropriate tools to address his feelings. I accept this to be true, but I find that this unacceptable behaviour was not limited to the period post-separation. As set out above, the Respondent engaged in unacceptable violent, abusive, and controlling behaviour during the marriage as well. This behaviour is important in my consideration of parenting and decision-making orders sought by the Applicant, as discussed below.

Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence

[68] In addition to the undisputed evidence from May 30, 2019, there is evidence of several other instances in which the Respondent acted in a violent or abusive manner towards A. I note that the CAS of Toronto and, subsequently, the Jewish Child and Family Services (“JF&CS”) were involved with this family multiple times. The CAS verified the first incident, on May 30, 2019, but discontinued their involvement on the understanding that the Applicant was no longer residing with the Respondent. Neither the CAS nor JF&CS concluded that the Respondent should be prevented from having time with the children.

[69] The evidence of the abuse towards A. in some cases arises from CAS or JF&CS notes that were admitted into evidence on consent for the truth of their contents. On various occasions, A. reported incidents to the CAS/JF&CS workers. I have considered the weight to attach to these statements. Overall, I have found them to be reliable. These statements were made by A. when she was being interviewed without her parents present. The evidence does not support a finding that she was coached or otherwise influenced.

[70] The first incident involving the CAS occurred on May 30, 2019. It is undisputed that the Respondent hit A. with an open hand on her thigh that morning. The Respondent explains that he was feeding M. her bottle on the couch and A. was swinging her legs near her sister’s head. A. told her teacher that her dad hit her. The Respondent must have struck A. quite hard. When the CAS worker interviewed A. that evening, she observed that A’s leg were still red, with three distinct lines consistent with the outline of a hand.

[71] During the CAS interview, A disclosed other abusive conduct. She told the CAS worker that her dad had slapped her hand three weeks earlier, and that it had left spots that were “black yellow and blue.” She also said that her dad gives her time outs and will lock her in the bathroom in the dark. At a subsequent JF&CS visit in October 2019, A. again said that if she does not follow dad’s rules, he puts her in a timeout, puts her in a dark room, or hits her.

[72] On a related note, one of the neighbours living beside the matrimonial home, Hannah Kazushner, provided an affidavit and was cross-examined in court. Her affidavit stated that just before the summer of 2021, A. told her about an incident when her father locked her in the garage. When Ms. Kazushner suggested maybe it was a mistake, A responded, “No, he put me in the garage and locked the door.”

[73] I accepted this statement into evidence as it appeared to have been said to Ms. Kazushner unprompted. Although Respondent’s counsel cross-examined Ms. Kazushner on an unpleasant encounter she had with the Respondent, I overall find Ms. Kazushner to have been a credible witness, who did not have an interest in the outcome of the case. Throughout her cross-examination, she stated several times that the issues in the family were not her business and that it was “not her place to get involved.”

[74] The Respondent admitted to an occasion when he was in the garage with A, and he closed the garage while in there with her “to tease her.” If this occurred, this does not seem like an appropriate thing to do with a young child. In any event, A also told a JF&CS worker that one time “dad had closed [her] in the garage in the morning.” Whether or not this was the same incident, I find that on at least one occasion, the Respondent closed A in the garage alone.

[75] Another incident happened in June 2019. As described above, the Applicant and children moved back into the matrimonial home from the Applicant’s parents’ home in early June 2019. One of the conditions of this was that the Respondent would complete an anger management course, and that he would no longer use physical discipline with the children. He completed the anger management course on June 9, 2019. One of the recommendations from the course was for the Respondent to complete an “anger journal.” The Applicant discovered this journal in the matrimonial home in late August of that year, post-separation. The journal consists of one handwritten page. It indicates that the Respondent spanked A. the day after completing the anger management course. There is also reference in his notes from June 11 to 13 (when the journal ended) of yelling at A. and being mean to her.

[76] The Applicant also testified, and I accept, that during the same summer, there was an occasion when the Respondent came to the matrimonial home and saw A eating in a messy manner. He dragged her by her collar to the bathroom to clean up. This upset M, who started screaming loudly.

[77] The Applicant further testified that the Respondent had a history of cutting A.’s hair as punishment. She provided photos of A. on May 17, 2018, with long hair and on May 19, 2018, crying, with her hair cut much shorter. She also testified that, post-separation, after spending time with the Respondent over the winter holidays, both children returned to her care with “chunks” of their hair missing. The Respondent denied the hair-cutting in May was a form of punishment. But he agrees the Applicant was opposed to it and upset by the haircut. He nonetheless instructed his aunt to cut A.’s hair. I find that the Respondent did cut the children’s hair in a manner that upset them.

[78] In February 2021, A. returned home from a visit with the Respondent complaining that the Respondent had pinched her hard on the cheek. When the Applicant reported this to the JF&CS worker, the worker interviewed A. A. reported that her dad had pinched her because she was looking the other way. She reported the pain at being 0-3 on a scale of 0-10. Because of the low pain score, JF&CS did not verify the incident.

The physical, emotional and psychological harm or risk of harm to the child

[79] Overall, I find that there is ongoing physical, emotional, and psychological risk of harm to the children. I also accept that, overall, the Respondent’s parenting and behaviour has improved somewhat since the period immediately after separation.

[80] On the positive side, the Respondent has taken a parenting course and is in the course of reading a parenting book. He was able to articulate new parenting strategies as a result of his learning. I do not put much weight on the parenting book, given that it has been almost three years since the May 30, 2019 incident, and he was only reading the book in the middle of trial.

[81] Still, other than the incident of cheek pinching, A’s reports of being hit or placed in a dark room are all historical. When the JF&CS interviewed her in January 2021, she was asked, “What happens when you do something your dad doesn’t like”? Her response was “Now he explains it. When dad was in this house, maybe 2 years back, he would punish her”.

[82] On the other hand, since separation, almost all the Respondent’s time with the children has been controlled and supervised. For various periods, on consent, his parenting time was supervised either by professional supervisors or by the Respondent’s mother or aunt. In response to a parenting motion in March 2020, Paisley J. ordered the Respondent’s parenting time take place at a supervised access centre. In December 2020, the Respondent brought a motion seeking equal parenting time. He was unsuccessful on the motion. Hood J. ordered his regular parenting time (outside of holidays) to be Sundays 10:00 am to 4:00 pm and supervised by Daniel Navy, a supervisor hired by the parties, or by his mother or aunt.

[83] The Respondent is still somewhat volatile and shows a lack of sensitivity and judgment with the children. One example of this is pinching A’s cheek. While this incident was not serious, it was the same type of behaviour he demonstrated towards the Applicant, which escalated over time and became extremely serious. Since he continues to demonstrate this type of behaviour, there is an ongoing risk of harm to the children.

[84] While not specifically related to violence, the notes from various supervised visits demonstrate that although the children enjoy their time with the Respondent, and seek his attention, there is a lack of control. The Respondent plays a lot of active, rough games with the children. At one supervised visit in April 2021, Daniel Navy documented that the children bumped into each other three times, one time running into each other face first. After this visit, Mr. Navy made a child protection report to the JF&CS arising from his supervision. The report raised safety concerns as follows:

Daniel advised that he has concerns about the children’s safety. … he does not necessarily think the father who is having the supervising access is intentionally trying to harm the children, but he is concerned about the safety and level or lack of discipline, lack of control, and the children’s potential to get hurt. Daniel advised that his supervision has always been for 3 hours at a time, and 2.5 of those hours are spent wild, screaming, and running around the home.

[85] In addition, Mr. Navy reported that at the end of the visit, the children took off running past the front of the home right into the street.

[86] As a result of the Respondent’s lack of control, A. reports that she does not feel entirely safe at her father’s house. When interviewed by JF&CS, she reported that she felt “safe at moms and sometimes safe at dads.”

[87] In addition, the Respondent has poor judgment when it comes to teasing and joking with the children. He does so in a manner that is upsetting to them. Mr. Navy’s notes document numerous occasions of him upsetting the children, mostly M., because of jokes or behaviour that was insensitive. I accept the Applicant’s evidence that A. has conflicting emotions about her relationship with her father. She craves his love and attention but also does not entirely trust him.

[88] The Respondent’s impulsiveness and volatility is also evident in his struggles with boundaries and rules. For example, at one point, the parties retained Brayden supervision services to supervise the Respondent’s parenting time. After two visits, Brayden refused to continue on the basis that the Respondent had not followed their rules. He had to be reminded several times to keep his mask on. He also had a guest into the home (his aunt), although this was not permitted.

[89] This attitude is further evidenced in the Respondent’s willingness to seek CERB and disability benefits, even without an entitlement. Similarly, when the CAS investigated the May 30, 2019 incident, his text messages to the Applicant demonstrate his disrespect for their role. He wrote about the CAS: “They are idiots and can’t do shit.” Because the CAS had not given the Applicant what the Respondent referred to as a “legal document” preventing her from bringing the children home, he believed there was nothing to prevent her from doing so. He stated “Because in order to that [sic] they should’ve given you written instructions. In a legal document. She just made up some random shit.”

[90] Even in the conduct of the trial, I witnessed the Respondent’s difficulty with rules. I was required to instruct him three times that he was not permitted to have other documents in front of him, or to look them up on his computer, while testifying. He either was unwilling or unable to follow those instructions until the third reprimand. During the trial, the Respondent also smirked or laughed on some occasions when the Applicant was testifying about serious, upsetting incidents. He apologized for this on the basis that it was a nervous tic. Even so, it is consistent with his general impulsivity.

[91] Although I find the Respondent to be unable to or ineffective in establishing boundaries, I also recognize that having only one supervised visit of three hours per week is challenging. During this period of limited parenting time, the children were seeing the Respondent so seldomly that they were desperately clamouring for his attention. The supervision notes reveal that the children would interrupt one another and engage in attention-seeking behaviour. On one occasion when the Respondent followed M. upstairs, A. yelled from downstairs: “I want attention!” This is one of the reasons I have concluded it is in the children’s best interests to have extended parenting time with the Respondent every second weekend.

[92] In addition, while I have raised concerns above about the Respondent’s failure to establish boundaries, his mother was much more successful in doing so. Mr. Navy’s notes show that when a situation began to deteriorate, she was able to either divert the children’s attention or speak firmly to re-establish control of the situation. For this reason, it is important that his mother or aunt continue in an ongoing supervisory role.

Any compromise to the safety of the child or other family member

[93] My concern for the safety of the children relates to the risk of ongoing physical, emotional, or psychological harm, described in the section above. In spite of the Respondent’s very serious conduct to the Applicant prior to the parties’ separation, on balance, I do not find it to be likely that she is at ongoing risk from the Respondent. The parties have been separated for almost three years. Although the Applicant has pointed to a small number of occasions where she felt the Respondent did not strictly follow his bail conditions, nothing that occurred compromised her safety.

Whether the family violence causes the child or other family member to fear for their own safety or that of another person

[94] There is little doubt that the violence the Applicant endured causes her to fear for her own safety. Although I do not find there to be a significant risk to her safety, it is entirely reasonable and expected that she would be afraid after what she endured from the Respondent. This has a significant impact on the appropriate orders for decision-making, travel with the children, and with respect to the Respondent’s request for a right of first refusal where the Applicant cannot care for the children, as further discussed below.

Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child

[95] As mentioned above, the Respondent has taken some steps to prevent further family violence. He took an anger management course, and he completed a parenting course. According to the reports from A., his conduct has improved in that he has not hit her, nor given her time outs in dark rooms since separation. In part for these reasons, I find it appropriate to expand his parenting time. On the other hand, as set out above, there continues to be a level of volatility, lack of judgment, and risk of harm to the children that justifies ongoing supervision.

[96] As a final point related to violence, I note that I have put no weight on the report of Dr. Lawrie Reznek. Dr. Reznek was retained to perform an independent psychiatric examination of the Respondent to determine whether he suffers from a mental disorder and whether this affects his ability to look after the children. He concluded that the Respondent is not currently suffering from a psychiatric disorder. On cross-examination, it became clear that Dr. Reznek had not taken into account many of the circumstances and incidents that I have found occurred. He acknowledged that some of these circumstances and incidents could affect his conclusions. More importantly, as Dr. Reznek acknowledged, the issue of the children’s safety and well-being is not dependent on whether the Respondent has a medical diagnosis. Regardless of whether the Respondent has a medical diagnosis, I find that his parenting time should be supervised.

C. Application of Legal Principles: S. 16(3) Factors

[97] Having considered the factors relating to family violence under s. 16(4), I now turn to the s. 16(3) factors related to the best interests of the children.

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

[98] Since separation, the Applicant has primarily cared for the children. The third parties who have commented on her care have described her as loving. A. has only reported feeling safe in her mother’s care. Meanwhile, even under supervision, there is a concern about the stability of the environment while the children are in the Respondent’s care. This factor supports the children residing primarily with the Applicant.

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

[99] Prior to the parties’ separation, they both worked. They were both involved in the children’s care, and they also received substantial support from both sets of grandparents and the Respondent’s aunt. For example, the Applicant’s parents would typically bring A. to school and pick her up from school. Before M. attended daycare, the Respondent’s aunt would care for her in the afternoons. One set of parents would often cook dinners for the parties. As a result of this, the children had a very close relationship with both sets of grandparents and the Respondent’s aunt. This factor weighs in favour of extending the Respondent’s parenting time beyond only Sundays from 10:00 a.m. to 4:00 p.m., so that the children can spend more time with the Respondent’s family.

Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

[100] Neither party has unreasonably interfered with the children’s relationship with the other. The Applicant of course has taken strong positions with respect to requiring supervision. These positions were overall reasonable in view of the history of violence and ongoing reports of concern.

The history of care of the child

[101] As set out above, both parties, as well as their relatives, were involved in the children’s care. The Applicant was required to travel for work. Although she did not travel nearly as often as the Respondent claims, it did mean that the Respondent had more responsibility than he might have otherwise. The Applicant’s evidence is that, when she was away, she ensured other family members would come over to assist the Respondent because he struggled to care for the children. There was clear evidence of this in the period leading up to and following the breakdown of the marriage. The Respondent blames his struggle to care for his children on his difficulty coping with the loss of his job and his marriage. While these factors no doubt exacerbated the situation, he was volatile and experienced outbursts of anger prior to the loss of his job and the breakdown of his marriage. I find he also had difficulty coping before those occurred.

[102] One of the parties’ neighbours, who lived near the matrimonial home, Christella Ranga, testified at this trial. She described becoming friends with the Respondent because he regularly took the children to play in the park and on the street with her children. She would see him out with the children frequently in the evenings. She did not have any concerns about his ability to care for his children. During closing submissions, I asked Applicant’s counsel whether the Applicant agreed that the Respondent was able to manage the children better outside the home. The Applicant herself nodded, clearly agreeing that this was the case.

[103] In other words, the Respondent was involved in the care of the children. He coped well with outings outside the house but had difficulty managing the children alone in the house. The Applicant benefited from assistance from the extended family but was the primary stable force in caring for the children.

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

[104] In ascertaining the children’s views and preferences, I am limited mostly to information provided by A. to CAS and JF&CS workers. M. is now only 4 years-old and has been too young to be interviewed by child services workers. I note that in Mr. Navy’s supervision notes, M. has expressed, on seeing the Respondent, “Daddy, I miss you!” Both children have run to hug and kiss the Respondent on seeing him. M. also has clung to the Respondent and sought his attention during visits. On the other hand, at various times, she is noted to have cried, “I want my mommy” when she became upset.

[105] There is more information from A. As described above, A. seeks attention from and time with the Respondent but also has some bad memories and reservations. In addition to running to hug and kiss the Respondent on arrival, there is an example where, upon leaving him, A. turned around and returned for a final embrace with the Respondent. A. also often brought drawings and notes to the Respondent. In one drawing, she has written “Dad is … the best [along with other positive adjectives on arrows pointing out from a heart.” In another, she writes “I love you to the sun and back.”

[106] On the other hand, when interviewed by the CAS or JF&CS, A. has expressed not feeling entirely safe at her father’s home. Although not raising discipline by her father as a current problem, she continues to discuss it. In Ms. Kazushner’s affidavit, she noted having seen A. resisting visits with the Respondent. Eventually, the Applicant’s father would walk her by the hand to the car picking her up for her visit.

[107] Overall, I find that A. craves more time with her father but also has reservations about feeling physically, emotionally, and psychologically safe in his care.

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

[108] Both parties believe it is important for the children to learn the languages of their heritage. To that end, A. currently is learning Hebrew and Russian, which are the languages of the Applicant’s heritage. The Applicant speaks Russian with them at home. The children used to speak Farsi. Since separation, due to spending less time with the Respondent and his family, the children have lost their facility in that language. This factor weighs in favour of some additional time with the Respondent’s family.

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

[109] Despite the trauma she has endured, the Applicant has successfully cared for the children, while holding down a full-time job, since separation. The children are doing very well in school and appear to be thriving.

[110] As set out above, the Respondent has faced challenges in caring for the children, both before and after separation. I remain concerned about his ability to parent the children without assistance in a safe and stable environment.

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

[111] It is not reasonable to expect the Applicant to communicate and co-operate with the Respondent on matters affecting the children. She was subjected to serious, traumatic, physically abusive behaviour, as well as coercive and controlling behaviour. Following the laying of the criminal charges in August 2019, the Respondent was prohibited by his bail conditions from communicating with the Applicant, except for the purposes of making contact arrangements or having contact with the children, in which case the contact would occur through a mutually agreed upon third party.

[112] In April 2021, the parties entered into a consent order on more or less the same terms under the CLRA on a temporary and without prejudice basis. As a result, since separation, all communications are through counsel or a third party, typically the Respondent’s mother. This should continue. There should be no direct communication between the parties. The Applicant should not be required to seek the Respondent’s consent on any issue, such that she would be afraid about him seeking to exert control.

Any family violence and its impact on, among other things,

The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

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

[113] In my discussion above, I have addressed these factors related to family violence. I conclude that, in spite of the improvement in the Respondent’s conduct, the Respondent’s impulsive and volatile behaviour continues to impact his ability to care for and meet the needs of the children. Therefore, I find that ongoing supervision by his mother or aunt is required inside the home.

[114] For the same reasons as set out above with respect to communication, it is not appropriate in the circumstances of the prior family violence directed at the Applicant to require her to cooperate with the Respondent on issues affecting the children. As a result of this, she shall remain the primary caregiver, with the children spending most of their time with her. Communications regarding the Respondent’s parenting time shall occur through the Respondent’s mother or aunt, or any other mutually agreed upon third party.

D. Conclusion on Parenting Time

[115] In summary, taking all the factors into account, and focusing especially on the children’s physical, emotional, and psychological safety, security, and well-being, I find that ongoing supervision is required for the Respondent’s parenting time inside the home. As has often been the case historically, the Respondent’s mother and/or aunt shall be the supervisors. The children know them well and historically had a close bond with them. Their presence is stabilizing and permits a level of normalcy to the situation.

[116] For activities outside the house, not including overnight activities, the Respondent’s parenting time need not be supervised.

[117] In addition, I find that the Respondent’s parenting time shall be extended to every second weekend from pick-up after school Friday to Sunday at 5:00 p.m. and every second Wednesday from pick-up after school until 7:30 p.m. Although neither party sought this schedule, it was a schedule they had agreed-to briefly pursuant to the consent order of Faieta J. in January 2020. The schedule was later modified because of the motion before Paisley J. in March 2020. I find that the extension of the Respondent’s parenting time is in the best interest of the children. In spite of certain reservations, the children love the Respondent and crave his time and attention. When their parenting time with him is overly limited, the children become frantic and desperate. With supervision in place, I find the children will benefit from a full weekend with the Respondent every two weeks, where they can engage in more normal activities, face a less pressing time limit, and can each receive more individual attention.

Holiday Time

[118] The Applicant agrees to the Respondent having expanded parenting time during holidays, when he would not need to worry about taking the children to activities and when stress levels would be lower. She proposes consecutive days of parenting time either 12:00 p.m. to 6:30 p.m. or 10:00 a.m. to 4:00 p.m. However, I find it appropriate for the Respondent to have supervised overnight parenting time with the children during holidays. His parenting time shall be expanded to up to four overnights at a time given the reduced stress and activities during holidays. Therefore, the Respondent shall have parenting time during holidays as proposed in the Applicant’s draft Order, except that the days shall be expanded to overnights during long weekends. During March Break, the Respondent shall have two overnights during the week. During the summer, the Respondent shall have two one-week periods during which he has parenting time for stretches of four overnights. All overnights and periods inside the home shall be supervised.

Decision-Making

[119] An order for decision-making is a “parenting order” for the purposes of the Divorce Act. As set out above, in making an order for decision-making, the court shall take into account only the best interests of the child.

[120] Section 16.3 of the Divorce Act provides that the court may allocate decision-making responsibility in respect of a child, or any aspect of that responsibility, to either spouse, to both spouses, to another person authorized to seek a parenting order, or to any combination of those persons. This gives the court a wide discretion to craft a tailor-made decision-making framework that supports and promotes the best interests of the child before the court, taking into consideration the unique facts of each case.

[121] To grant joint decision-making in some or all areas, there must be some evidence before the court that, despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child: Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 11. The trial judge must carefully assess in each case whether the parties’ ability to co-operate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making: Berman v. Berman, 2017 ONCA 905, at para. 5; McBennett, at para. 97.

[122] Here, as I have indicated, it is not appropriate for the parties to co-operate on matters affecting the children. In view of the history of violence and the Respondent’s controlling and coercive behaviour, the Applicant is not required to seek his consent when making decisions. Additionally, there is evidence of the parties having difficulty agreeing on matters affecting the children, for example counselling for A..

[123] Although the Respondent’s position at this trial was to seek joint decision-making, in his evidence he indicated that he did not object to the Applicant making decisions, so long as he is consulted. In order to foster the Respondent’s relationship with the children, I find it to be in the children’s best interests for the Applicant to consult with the Respondent prior to making all major non-urgent decisions affecting their health, education, or religion. In addition, both parties shall be entitled to expose the children to their own religious, cultural, and linguistic heritage during their own parenting time. The Applicant shall contact the Respondent through his mother or another agreed-upon third party to seek his input with respect to any major non-urgent decision. The Respondent shall have seven days to respond. The Applicant must take the Respondent’s input into account in good faith but is authorized to make the final decision herself if there is no agreement.

[124] With respect to extra-curricular activities, the Applicant shall be entitled to enroll the children in extra-curricular activities that occur during her parenting time without consultation. She shall not enroll them in extra-curricular activities during the Respondent’s parenting time, other than one activity per child on the weekend. For these weekend activities, the Applicant shall engage in the consultation process described above.

[125] The Applicant shall be entitled to apply for passports or other government issued identification for the children without the consent of the Respondent. She also shall be permitted to travel with the children during her parenting time with the children without the consent of the Respondent. Prior to travel, she shall provide the Respondent with a minimum of 30 days’ notice of the trip.

Restraining Order

[126] In view of my findings above regarding the serious violence to which the Applicant was subjected, she has reasonable grounds to fear for her safety. I am somewhat reassured by the fact that the Applicant has not faced any risk since the laying of the criminal charges. However, there have been criminal and then family law restraining orders in place continuously since that time. In all the circumstances, I find it appropriate for the restraining order made by Horkins J. to continue on a permanent basis. Therefore, pursuant to s. 35(1) of the CLRA, the Respondent shall not communicate either directly or indirectly with the Applicant except through his mother or another mutually agreed upon third party. He also shall not come within 250 meters of the Applicant’s home, place of work, or any other place where she may reasonably be expected to be.

Right of First Refusal

[127] The Respondent shall not have a right of first refusal when the Applicant is unable to care for the children during her parenting time. The Applicant’s evidence is that her role at work has changed such that she is no longer required to travel. Therefore, I do not expect this issue will arise frequently. To the extent it does arise, the children have a close relationship with the Applicant’s parents, who could care for the children in her absence.

[128] More importantly, I have already expanded the Respondent’s parenting time to an amount I consider to be in the children’s best interests. Given the historical issues and ongoing concerns about the Respondent’s volatility and challenges with boundaries, it is important in my view to maintain as much stability and consistency with this schedule as possible, other than with respect to holiday time, which can be scheduled in advance. Finally, a right of first refusal would require the Applicant to disclose her plans to the Respondent more frequently. This should be avoided. For all these reasons, this request is refused.

Imputation of Income and Child Support

[129] The Applicant submits that income should be imputed to the Respondent for the purposes of child support. She claims that the Respondent has not truthfully reported his income from the parties’ investment property on Dunboyne Court. The Respondent relies on his income tax return for 2020, which lists his income from the property as $23,653.00 and his expenses as $29,889.80 for a loss of over $6,000.00. On his income tax return for 2019, the Respondent lists gross income of $22,180.00 and a net loss.

[130] Section 19(1) of the Federal Child Support Guidelines authorizes the court to impute such amount of income to a spouse as it considers appropriate in the circumstances. The court may impute income where the spouse has failed to provide income information when under a legal obligation to do so: s. 19(1)(f).

[131] Here, I agree with the Applicant that the Respondent has under-reported his true income from the property in his income tax return and in the figures, he relies on in this proceeding. The property has several units. The upstairs has one three-bedroom unit and a fourth bedroom that is rented out separately through Air BnB. The basement has three apartments: two one-bedroom apartments and one bachelor apartment.

[132] The Applicant has produced a spreadsheet that the Respondent had used to track the rental income during the parties’ marriage. The spreadsheet includes actual numbers for January to August 2019 and projected numbers thereafter. According to the spreadsheet, the gross income from the property for January to August 2019 was approximately $32,000.00, which is more than the total gross income claimed on the Respondent’s income tax returns in both 2019 and 2020. The projected gross income for all of 2019, according to the spreadsheet, was $48,920.16. The projected gross income for 2020 was $50,328.00.

[133] For context, the Applicant also produced the same spreadsheet for 2018. This spreadsheet was fully populated. The gross income was $47,811.00.

[134] On cross-examination, the Respondent had shifting explanations for the numbers. For example, he first testified that the total gross rental income was currently $2,875.00 per month. However, in a financial statement sworn just before trial, he had listed a monthly gross rental income of $1,971.00. In addition, when faced with the spreadsheet from 2019, he at first stated that the actual numbers entered were not accurate. He claimed that he sent these numbers to the Applicant so she would not become upset about the minimal income being collected. This means he was either untruthful to the Applicant then or untruthful to the court now. When it was put to him that the numbers could be traced to deposits in his bank statements, he acknowledged that these numbers were sometimes correct.

[135] In view of this, I find the Respondent not to be credible with respect to his account of the rental income received. I adopt the Applicant’s position, which is to use the actual/projected numbers from the spreadsheet for 2019 and 2020 and to use the 2020 numbers as the best available information for 2021 and 2022. In addition, the Applicant used the expenses declared on the Respondent’s tax returns for 2019 and 2020. In the result, the Respondent’s total income, including this imputed income, is $160,859.00. The Applicant has calculated the child support owing and outstanding using these numbers at Exhibit A. The Respondent contested the imputation of income but did not specifically dispute the calculations in Exhibit A should the court impute income to him. Therefore, I adopt these numbers. These values result in outstanding child support of $28,238.00 owing for 2019 to March 2022. The monthly child support owing for the remainder of 2022 is $2,207.00 per month.

Section 7 Expenses

[136] The Applicant seeks payment for retroactive s. 7 expenses since July 2019. The expenses for which she seeks reimbursement fall into the following categories: private school/camp/daycare, orthodontics, and extra-curricular activities. Of these, the Respondent has only contributed to M.’s daycare and a small amount of orthodontic expenses. He paid M.’s full monthly daycare expenses from August 2019 to January 2020. This was based on an agreement with the Applicant that she would pay A.’s full camp/private school fees. From February 2020 to August 2021, he paid half of M.’s daycare expenses. He stopped contributing to daycare in September 2021 on the basis that M. was starting junior kindergarten and could be attending the local public school for free.

[137] The Respondent objects to many of the expenses claimed. The biggest dispute relates to the fees for private school. The Respondent submits that the private school fees are neither necessary nor reasonable. He denies that he ever consented to A. attending her current private school. With respect to M., he says that he agreed she would attend her current daycare/school given that she was not yet old enough for kindergarten. However, he submits he did not consent, and it is neither necessary nor reasonable for her to attend this school now that she is eligible for junior kindergarten at the local public school.

[138] With respect to the expenses claimed for extra-curricular activities, the Respondent makes a number of arguments. He submits that he only received the Applicant’s claim for outstanding s. 7 expenses just before trial. This was improper in his submission, as the Applicant should have been making claims to him as the expenses were incurred. This would have allowed them to resolve the issues over time. Instead, he has been presented with a retroactive claim of almost $10,000.00 dating back approximately two and a half years.

[139] I dismiss this argument. In the circumstances of this case, where the parties separated as a result of serious violence and trauma, it is understandable that communication between the parties was not optimal. Indeed, since August 2019, a restraining order has been in place prohibiting direct communication between the parties. This obviously did not prevent the Applicant from providing receipts to a mutually agreed upon third party, but I understand if she was reluctant to contact the Respondent to seek his consent or insist on regular payments.

[140] Given that this was the only objection to the orthodontic expenses, which the Respondent otherwise agreed were necessary, the orthodontic expenses are allowed.

[141] The Respondent also submits he was not consulted regarding the children’s enrollment in various extra-curricular activities. He says that many of the expenses claimed by the Applicant were either not reasonable in the context of the parties’ incomes or were not extraordinary and therefore should have been covered by the child support paid.

A. Legal Principles

[142] Subsection 7(1) of the Guidelines describes the expenses that the court may include in a child support order as special or extraordinary expenses. The portion of that subsection relevant to the expenses under consideration in this case reads as follows:

7(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:

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) …; and

(f) extraordinary expenses for extracurricular activities.

[143] The term “extraordinary expenses,” which is found in para. (d) related to primary or secondary school education and in para. (f) related to extracurricular activities is defined by s. 7(1.1) of the Guidelines as follows:

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[144] Pursuant to s. 7(2), the guiding principle in determining the amount of an expense 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.

[145] The steps for determining the entitlement and quantum of s. 7 expenses have been described by the Court of Appeal as follows:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits: Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215, at para. 23; Ondrejech v. Markham, 2021 ONSC 787, at para. 24.

[146] The party claiming a s. 7 expense must provide evidence to support the reasonableness and necessity of the expense: Park v. Thompson (2005), 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (C.A.), at paras. 23 – 26; Ondrejech, at para. 26.

[147] In considering whether a claimed expense falls within s. 7, I am required to take into account whether the support payor was consulted. However, consultation is just one of many factors to be considered in the determination of the entitlement and is not a pre-requisite for obtaining an order: Park, at para. 26; Yeo v. Hutcheson, 2020 ONSC 1256, at para. 87; Ondrejech, at paras. 29 – 31.

B. Private School

[148] I start by applying these principles to the biggest dispute, the cost of the children’s private school. A. currently attends a school where the tuition is $1,325.00 per month. M. attends a daycare where the tuition is currently $1,380.00 per month. The Applicant’s current income from her employment is $162,000.00. She also collects rental income from the apartment in the basement of the matrimonial home. The Respondent’s current income is $124,000.00, not including the imputation of income for the Dunboyne property. The parties do not dispute that the private school expenses constitute extraordinary expenses. The dispute centres on whether the expenses are necessary in relation to the children’s best interests and reasonable in relation to their means and spending patterns prior to separation.

[149] In my view, A.’s private school expenses are not reasonable and necessary. Prior to separation, A. attended the daycare where M. is currently attending. She attended that daycare until grade one, then started attending the local public school. It was only after separation, in September 2019, that A. started attending her current private school.

[150] The Applicant claims that the Respondent agreed that A. should attend this school for 2019. She originally submitted the forged document as evidence of his agreement. Given that the Applicant forged the registration document, she obviously is not credible on this point. In addition, text messages between the parties from the summer of 2019 suggest they had not reached an agreement on A.’s school and were still discussing various options. I find that there was no agreement between the parties that A. would attend this school. Further, although it appears they were interested in some enriched programming for A., prior to separation she was attending a public school.

[151] The parties have good incomes, but I find expenses for two private schools totalling, on my calculation, over $28,000.00 per year, to be on the border of reasonable in relation to their means. This is particularly so when they currently have extensive legal fees to pay. Given that the Respondent did not agree to private school for both children, I find that this part of the test has not been met and the expense is not reasonable.

[152] In terms of necessity in the children’s best interests, I do not find the school to be necessary for A. I am aware that at the school A. learns Russian, which his part of her heritage. She also takes Hebrew as an extra-curricular activity through the school. There are also sports available before and after school at reduced costs, such as tennis. Finally, there is an afterschool program included in the tuition that provides coverage until the Applicant can collect A. from school.

[153] These are wonderful benefits, but they are not necessary in A.’s best interests. By all accounts, A. is thriving academically and does not require any special assistance to succeed at school. The evidence does not support a finding that her needs cannot be appropriately met in the public school system. Public schools also offer extra-curricular sports activities. In terms of languages, the Applicant speaks Russian with the children at home and they can be enrolled in Russian and Hebrew programs privately. Finally, with respect to the after-school program, prior to separation the parties had assistance with after-school care, primarily from the Applicant’s family.

[154] With respect to M., I find that her continued attendance at her current daycare is a legitimate s. 7 expense until she starts grade one. A. attended this daycare until grade one prior to the parties’ separation and the parties agreed M. would attend there as well. Initially, after separation the Respondent paid the entirety of M.’s daycare expenses (while the Applicant paid A.’s private school fees). Starting in February 2020, the parties shared M.’s daycare expenses equally. The daycare is provided at a Jewish community centre. After this school year, M. will have only one further year to complete the program. This will give her the same experience as her sister. In these circumstances, I find this expense reasonable and necessary in relation to her best interests.

[155] Therefore, the Respondent shall reimburse the Applicant for his proportionate share of M.’s daycare expenses from September 2021 to date and shall continue to pay his proportionate share until M. attends grade one. Although I do not find A.’s private school expense to be a s. 7 expense, the parties did have an agreement for the period immediately post-separation until January 2020 that the Applicant would pay A.’s camp and school fees, while the Respondent would pay M.’s daycare fees. Because of this, the Applicant is not required to reimburse the Respondent for her portion of M.’s daycare fees for this time period.

C. Extra-curricular Activities

[156] Apart from his argument that the receipts were not provided promptly, which I have dismissed, the Respondent submits that the Applicant did not seek his consent for the children’s extra-curricular activities. He also submits that some of the specific expenses claimed are not “extraordinary,” in that they do not exceed the amount the Applicant can reasonably cover, taking into account her income and table child support.

[157] As I understand the Applicant’s submissions, although she has included receipts for a number of activities, she ultimately is only claiming reimbursement for dance and gymnastics. In any event, she has not justified why any other expenses are reasonable or necessary. I agree with the Respondent that some of the receipts cover expenses for items related to the activity, but that can be reasonably covered by the Applicant’s income and table child support. These are items like dance tights costing $27.98.

[158] However, I find the Applicant to be entitled to reimbursement for the children’s program costs for dance and gymnastics. Prior to separation, A. was enrolled in both activities. Given the Respondent’s acquiescence to these activities prior to separation, it is reasonable for M., who is now old enough, to participate in the same activities.

[159] I have calculated the total allowed s. 7 expenses (not including M.’s daycare until January 2020) and each party’s proportionate share in Schedule A. Based on these calculations, the Respondent is required to reimburse the Applicant for $842.48.

[160] I calculate the total cost of the children’s allowed extra-curricular activities in 2021 to be approximately $3,200.00. On this basis, going forward, I find that $3,200.00 is an appropriate budget for both girls’ activities per year. Therefore, the Respondent shall be required to contribute to extra-curricular activities costing up to $3,200.00 per year for both children. The Applicant may register the children for these activities in accordance with the consultation process described above (i.e., consultation is required only for activities on the weekend during the Respondent’s parenting time).

[161] The total monthly amount for extra-curriculars and M.’s daycare is approximately $1,650.00. Therefore, the Respondent will pay his proportionate share (33%) of this amount, which calculates to $545.00, to the Applicant, on a monthly basis.

Life Insurance

[162] The Applicant has requested an order that the Respondent maintain a policy of life insurance in the amount of $500,000.00 with the children to be named as beneficiaries. The Respondent is willing to obtain life insurance in the amount of $250,000.00 provided the requirement is mutual. Given that I have determined it is not in the children’s best interests for the parents to have equal parenting time, only the Respondent is obliged to pay child support. I have considered the amount of monthly child support and s. 7 expenses, as well as the ages of the children. Taking these amounts into account, $500,000.00 is a reasonable quantum of life insurance. Therefore, the Respondent is required to obtain and maintain a life insurance policy in the amount of $500,000.00 and shall designate the children as beneficiaries and the Applicant as trustee for the benefit of the children.

Equalization Payment

[163] There are a number of disputes regarding each party’s calculation of their own and the other party’s net family property (“NFP”). I will address each item in turn:

Property Owned on Valuation Date

Subaru: The Respondent had claimed on his NFP statement that the Applicant owned a Subaru vehicle on the valuation date, which he valued at $19,000.00. In closing submissions, counsel conceded that the vehicle did not belong to the Applicant. Therefore, the Subaru is not included in the Applicant’s NFP.

$50,000 Transfer: The Applicant claims the Respondent withdrew $50,000.00 from his account in June 2019, after she had indicated an intention to separate. The Respondent called his sister as a witness at the trial. She testified that the funds belonged to her. She had paid them to the Respondent so that he could then transfer them back to her. This was to demonstrate for mortgage purposes that the funds, which had originated from their mother, were a gift and not a loan. The documents were somewhat confusing because of reference in earlier documents to a payment to the real estate lawyer in April 2019. Despite this, there was clear documentation of a transfer of $50,000.00 from the Respondent’s sister on June 3, 2019, then a transfer back to his sister on the same day. I was not provided with another theory that would explain these transfers. Therefore, these funds are excluded from the Respondent’s NFP.

Settlement Proceeds: The Applicant initially submitted that the Respondent had received an $18,000.00 payment as proceeds of a settlement related to his termination of employment in 2019. The Respondent demonstrated that the payment was $7,104.70 and agreed it could be added to his NFP. Therefore, the amount of $7,104.70 is included in the Respondent’s date of valuation assets.

Cryptocurrency: The Applicant claims the Respondent had cryptocurrency on the valuation date that he has not included in his NFP. She also claims a resulting trust in his investment in BitCoin, which was valued at $2,989.35 at the valuation date, but which she calculates to have a value now of $10,482.72. She alleges that he used her funds to purchase the BitCoin by using her credit card number without her consent. She submits that, pursuant to s. 14 of the Family Law Act, which maintains the presumption of a resulting trust in the transfer of property between spouses, the BitCoin belongs to her. She has performed calculations using the value of BitCoin on the relevant dates, as well as US dollar exchange rates, to calculate the value in Canadian dollars of the BitCoin on the date of valuation and on the date of her calculation before trial.

In his testimony, the Respondent conceded that he owned the cryptocurrency. There was also an investment in Questrade, which he explained was not cryptocurrency but that he did not dispute. He also seemed to concede that he had purchased the BitCoin with the Applicant’s funds. When it was put to him that he had set up auto withdrawal using the Applicant’s credit card without her consent, he acknowledged that the BitCoin should be “put on his side of the equation.” In other words, he acknowledged having used her credit card for this purchase.

Although the Respondent did not endorse the Applicant’s calculation of the current value of the BitCoin, he does not offer any competing calculation. The Applicant has provided a calculation that makes sense using publicly available numbers. I accept that the Applicant has a resulting trust in the BitCoin and that the current value is $10,482.72. For simplicity, that value will be added to the Respondent’s NFP. The other investments shall also be added to the Respondent’s assets on the valuation date.

Notional Capital Gains: The Applicant submits that the Respondent miscalculated the notional capital gains from the eventual sale of the parties’ investment property. He claimed a deduction of $25,125.00. The Respondent calculated this amount using a 30% tax rate for the capital gain. The Applicant suggests the capital gains tax rate should be 21%. It is not clear to me whether the rate used by the Applicant was to be applied to 50% of the income, which is how the Respondent applied the 30%. In the absence of other evidence, I find the Respondent’s use of the 30% tax rate on half of the income to be a reasonable approach. Therefore, I allow his claimed liability of $25,125.00 on the valuation date.

Date of Marriage

OSAP Loan: The Respondent claims the Applicant had a $20,000.00 OSAP loan on the date of marriage. The Applicant acknowledges this, but states that the loan was essentially neutralized by an RESP of the same amount. The RESP was used to pay the loan. Although the Respondent states that the RESP was not her asset, the Applicant has produced a certificate of an RESP in the Applicant’s name. I find that the RESP counter-balanced the loan such that the loan should not be included in the Applicant’s NFP.

Ally Account: The Respondent claims he had $32,172.49 in an account with Ally Bank on the date of marriage. He does not provide a statement from this bank but relies on a transfer into the Scotiabank account on March 20, 2013, which was almost a month after the parties were married on February 17, 2013. The Applicant challenges the claim that this transfer represented an amount that existed on the date of marriage. She notes that the Respondent has not been able to provide any documents to prove he had an account at Ally, nor that it held this amount on the date of marriage.

I find the Respondent’s explanation that this amount came from an account at Ally Bank persuasive. He explains that he had saved money because he had been single and working for a period prior to marriage. There is no other proposed theory as to the source of the funds.

However, I also agree with the Applicant’s submission that we do not know whether this was the actual amount in the account on the date of marriage. The Applicant has demonstrated that the funds in her bank account increased by approximately $10,000.00 from the date of marriage to mid-March 2013. She states this was due in part to deposits arising from wedding gifts, which the Respondent also would have received. It is evident from a review of the Applicant’s bank statement that the increase was not entirely from gifts. There was a deposit of $6,200.76, for example, from “U of T pay,” which presumably was a student loan payment. The transfers with a generic “deposit” code to the Applicant’s account from the date of marriage until mid-March 2013 total approximately $7,250.00. There was also a cash withdrawal of $1,500.00. In the absence of more precise information, I find the fairest outcome is to assume the Respondent’s account increased by approximately $5,000.00 from the date of marriage to the date of the $32,172.49 transfer. Therefore, the Respondent will be credited with $27,172.49 on the date of marriage.

[164] The remaining items in the parties’ NFP statements are not in dispute. Based on my findings above, and as set out in Schedule B, I conclude that the Respondent owes the Applicant a payment of $29,928.94, which includes the amount owed by way of resulting trust in the BitCoin.

Post-Separation Adjustment

[165] The Applicant claims a post-separation adjustment relating to her payment of the mortgage and utilities on the matrimonial home during July and August 2019, even though the Respondent was collecting the rental income from the home during this period. The Applicant claims a post-separation adjustment of $3,054.00 for these payments. The $3,054.00 represents the rental income the Respondent collected from the home. The Respondent states that he paid the property taxes during this period.

[166] I accept that the Respondent paid the property taxes for July and August, though I was not able to locate the specific bank statement showing this. The Applicant paid $972.61 for property taxes in September, but it is not clear whether this was a monthly amount. In any event, the Applicant’s contributions for mortgage and utilities totaled over $3,000.00 per month. Taking these amounts into account, her total claimed post-separation adjustment of $3,054.00, which represents the rental income the Respondent collected, is reasonable even assuming the Respondent paid property taxes that covered the summer months. Therefore, the Respondent is required to pay the Applicant a post-separation adjustment of $3,054.00.

Severing Property and Life Insurance

[167] The Applicant seeks an order severing the parties’ life insurance policy. She is agreeable also to severing the property insurance policy on the matrimonial home. The Respondent did not object to these orders and both orders are granted.

Sale in Event of Default

[168] The Applicant has included in her draft Order a request that, in the event the Respondent fails to satisfy this judgment pertaining to equalization, retroactive support. s. 7 expenses, resulting trust, and costs, then the investment property shall be listed for sale. The Respondent did not provide submissions on this point. I am not prepared to make this order in advance without knowing the specific circumstances of any default.

[169] I have included in my order the parties’ consent for each of them to take title to one of the properties they jointly own, on the terms set out in their signed consent dated February 2, 2022.

Costs

[170] I see from the Bills of Costs that have been filed that the parties have agreed to cap their claimed costs at $60,000.00. Particularly in view of this co-operative approach, I encourage the parties to reach an agreement on the costs of this trial. If they are not able to do so, within 30 days the Applicant may file costs submissions of no more than 5 pages double-spaced, not including attachments. The Respondent will have 15 further days to provide responding submissions with the same restrictions on length. The parties may include in their materials any offers to settle with respect to costs.

Order:

I order as follows:

Pursuant to the Divorce Act:

Parenting Time

The children’s (i) ARN and (ii) MRN (the “children”) primary residence shall be with the Applicant.
The Respondent shall have parenting time with the children as follows:

a. Week one: From pick-up after school Friday to Sunday at 5:00 p.m.

b. Week two: Wednesday from pick-up after school to 7:30 p.m.

The Respondent’s parenting time while in the home, both regular and holiday shall be supervised by either his mother, Azar Yekrang and/or his aunt, Azam Yekrang. His parenting time spent outside the home need not be supervised.
The Respondent’s mother or aunt shall pick-up and drop the children off at the home of the Applicant, except for transfers that happen at the children’s schools, or as otherwise agreed to between the parties in writing.
The Respondent shall not have a right of first refusal to care for the children when the Applicant is not available to do so during her parenting time.
The Respondent shall not physically discipline the children.
The Respondent shall not cut the children’s hair during his parenting time.

Parenting Time – Holiday Schedule

The children will stay with the Applicant on Family Day weekend in even-numbered years. In odd-numbered years, the Respondent shall have parenting time from Friday pick-up after school until Monday at 5:00 p.m.
If the children are not otherwise with the Applicant on Mother’s Day weekend, their parenting time with the Respondent on Mother’s Day will end at 10:00 a.m.
If the children are not otherwise with the Respondent on Father’s Day, he will have parenting time with the children on Father’s Day from 10:00 a.m. to 4:00 p.m.
The children will stay with the Applicant on Easter weekend on odd-numbered years. In even-numbered years, the Respondent shall have parenting time from pick-up after school Thursday until Sunday at 5:00 p.m.
If the Persian New Year falls on a day where the children do not have school, and are otherwise not in the care of the Respondent, the children shall be in the Respondent’s care from 3:00 p.m. until 9:00 p.m. If the Persian New Year falls on a school night, the children shall be in the Respondent’s care from after-school until 9:00 p.m.
The children’s one-week March Break shall commence on the Monday immediately following the children’s last day of school and shall end on the Friday five days later. During March Break on even-numbered years, the Respondent shall have parenting time from 10:00 a.m. the Monday of March Break until 5:00 p.m. the Wednesday of March Break. During March Break on odd-numbered years, the Respondent shall have parenting time from 5:00 p.m. the Wednesday of March Break until 5:00 p.m. the Friday of March Break.
With respect to the children’s summer vacation, the Respondent shall have one week in July and one week in August during which he shall have parenting time from Friday at 5 p.m. to Tuesday at 5 p.m. and then subsequently during the day from 10:00 a.m. to 6:00 p.m. for the remainder of the week.
During the summer, the Applicant shall have the children in her care for two consecutive weeks.
Both parties may travel with the children for vacation purposes. However, any travel by the Respondent with the children must be supervised.
At all other times, the regular parenting schedule shall be followed during the summer.
The children will stay with the Applicant on Thanksgiving weekend in even-numbered years. In odd-numbered years, the Respondent will have parenting time from after-school Friday until Monday at 5:00 p.m.
The children’s winter break shall commence on the Saturday immediately following the children’s dismissal from school and shall end on the Friday immediately preceding the children’s return to school. The first week of the winter break shall commence on the Saturday immediately following the children’s dismissal from school and end on the following Saturday, whereupon the second week of the winter break shall commence and shall end on the Friday immediately preceding the children’s return to school.
The children shall be in the care of the Applicant for the first week of the break in even-numbered years and the second week of the break in odd-numbered years.
For the first week of the break in odd-numbered years and the second week of the break in even-numbered years, the children shall be in the care of the Respondent: (i) from 10:00 a.m. Saturday to 6:00 p.m. Tuesday; and (ii) from 10:00 a.m. to 6:00 p.m. for each day Wednesday to Friday.

Decision-Making

The Applicant shall have sole decision-making with respect to major decisions concerning the children, but, with respect to non-urgent decisions, only after complying with the following procedure: She shall contact the Respondent through an agreed-upon third party to seek his input regarding any major non-urgent decision. The Respondent shall have seven days to respond. The Applicant is required to take the Respondent’s input into account in good faith but is authorized to make the final decision herself if there is no agreement.
The Applicant shall be entitled to enroll the children in extra-curricular activities that occur during her parenting time without consultation with the Respondent. She shall not enroll them in extra-curricular activities during the Respondent’s parenting time, other than one activity per child on the weekend. For these weekend activities, the Applicant shall engage in the consultation process described above.
The Applicant may apply for passports and other government issued identification for the children without the consent of the Respondent.
The Applicant shall be permitted to travel with the children during her parenting time without the consent of the Respondent. Prior to travel, she shall provide the Respondent with a minimum of 30 days’ notice of the trip.

Child Support and Section 7 Expenses

Commencing April 1, 2022, the Respondent shall pay the Applicant table child support for the two children in the amount of $2,207.00 per month based on an annual income of $160,859.00.
The Respondent’s arrears of table child support shall be fixed at $28,238.00, which shall be paid to the Applicant in a lump sum within 30 days of this order.
Commencing April 1, 2022, the Respondent shall pay to the Applicant $545.00 per month toward the children’s s. 7 expenses, representing his proportionate share of those expenses.
The Respondent’s arrears of s. 7 expenses shall be fixed at $842.48, which shall be paid to the Applicant in a lump sum within 30 days of this order.
If and when the children attend post-secondary education, the parties shall share the cost of the children’s education proportionate to their respective incomes.
The parties shall share the cost of any uninsured medical/dental/orthodontic expenses proportionate to their incomes, with the Respondent paying 33% and the Applicant paying 67% after deducting for any insurance coverage.
The Respondent shall provide the Applicant with information regarding his insurance coverage for the children so that she can make claims directly to his insurer on the children’s behalf.
The Respondent shall obtain and maintain a life insurance policy in the amount of $500,000.00 and shall designate the children as beneficiaries and the Applicant as trustee for the benefit of the children. He shall provide proof of the insurance policy to the Applicant within 90 days.

Pursuant to the Family Law Act:

Within 30 days of this order, the Respondent shall pay to the Applicant $29,928.94 in full satisfaction of her claims to equalization and resulting trust.
Within 30 days, the Respondent shall pay to the Applicant $3,054.00 in full satisfaction of post-separation adjustments.
On consent, within 30 days of the Respondent satisfying all provisions pertaining to equalization of net family property, retroactive support and s. 7 expenses, resulting trust, and costs (including the costs order of Hood J. dated February 5, 2021) that he is liable for, the Applicant shall transfer her interest in the investment property, 30 Dunboyne Court, North York, Ontario M2R 2B7 to the Respondent such that the Respondent shall be solely on title to the investment property. Following the transfer of title, the Respondent shall be solely responsible for all running expenses on the investment property, including but not limited to mortgage, utilities, and repairs, and the Respondent shall be the sole landlord of the property. The Applicant shall have no liability or responsibility with respect to the debts, encumbrances, or tenancies of the investment property.
On consent, in the event that the Respondent is unable to secure financing for the investment property so as to enable the Applicant to come off title and for title to be transferred solely into the Respondent’s name, the investment property shall be listed and sold. The Respondent shall be responsible for all costs of disposition, and any net proceeds from the sale of the investment property shall be paid solely to the Respondent.
On consent, within 30 days of this order the Respondent shall transfer his interest in the matrimonial home, 47 Regatta Crescent, Toronto, Ontario, M2R 2X7 to the Applicant, such that the Applicant shall be solely on title to the matrimonial home. Following the transfer of title, the Applicant shall be solely responsible for all running expenses on the matrimonial home, including but not limited to mortgage and utilities. The Applicant shall be the sole landlord to the matrimonial home and the Respondent shall have no liability or responsibility with respect to the debts, encumbrances, or tenancies of the matrimonial home.
On consent, in the event the Applicant is unable to secure financing for the matrimonial home so as to enable the Respondent to come off title and title to be transferred solely into the Applicant’s name, the matrimonial home shall be listed and sold. The Applicant shall be responsible for all costs of disposition, and any net sale proceeds from the sale of the matrimonial home shall be paid solely to the Applicant.
Within 14 days of this order, the Applicant shall sign and execute and take whatever other steps may be necessary to sever the parties’ life insurance policy under “La Capital MSP,” such that the Respondent shall have his separate insurance policy and the Applicant shall have her separate insurance policy. If the Respondent fails to sign or provide required documentation to give effect to this order, then any requirement of the Respondent’s signature shall be dispensed with.
Within 14 days of this order, the Respondent shall sign and execute and take whatever other steps may be necessary to sever the parties’ property insurance policy. If the Applicant fails to sign or provide required documentation to give effect to this order, then any requirement of the Applicant’s signature shall be dispensed with.
The Applicant’s request for an order requiring the Respondent to list the investment property for sale in the event of default is dismissed.

Pursuant to the Children’s Law Reform Act:

The Respondent shall not attend within 250 meters of the Applicant’s home, place of work, or any other place where she may reasonably be expected to be.
The Respondent shall not communicate directly or indirectly with the Applicant except through a mutually agreed upon third party.

Pursuant to the Family Law Rules:

Within 30 days, the Applicant may file costs submissions of no more than 5 pages double-spaced, not including attachments. The Respondent will have 15 further days to provide responding submissions with the same restriction on length. The parties may include in their materials any offers to settle with respect to costs.

O’Brien J.

Released: May 13, 2022

COURT FILE NO.: FS-19-12976

DATE: 20220513

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Juliana Kostrinsky

Applicant

– and –

Mohammad Hadi Nasri

Respondent

REASONS FOR JUDGMENT

O’Brien J.

Released: May 13, 2022

Kostrinsky v. Nasri, 2022 ONSC 2926

Case Summary

Overview

Issues and Brief Conclusions

Parenting Time

Holiday Time

Decision-Making

Restraining Order

Right of First Refusal

Imputation of Income and Child Support

Section 7 Expenses

Life Insurance

Equalization Payment

Post-Separation Adjustment

Severing Property and Life Insurance

Sale in Event of Default

Costs

Order:

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 3