Court File and Parties

COURT FILE NO.: FC120/22

DATE: June 9, 2022

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Jonathon Paul Downs, applicant

AND:

Bryar Jillian Downs, respondent

BEFORE: MITROW J.

COUNSEL: Paula Downs for the applicant

Robert A. Haas for the respondent

HEARD: May 24, 2022

ENDORSEMENT

INTRODUCTION

[1] Both parties bring urgent motions for various relief, including interim parenting orders, interim child support and also interim spousal support being claimed by the respondent mother.

[2] The urgent motions initially came before Sah J. on March 29, 2022. Sah J. noted that the respective motions of the parties sought 16 terms of relief and 13 terms of relief, that there was insufficient time for the motions to proceed and that, on consent, the motions were converted to a conference. Also, a case conference had been scheduled for April 13, 2022.

[3] Sah J. made a consent order permitting the respondent mother to retrieve her personal belongings from the matrimonial home, an order for OCL involvement and adjourning the motions to May 24, 2022 on the issues of interim decision-making responsibility, interim parenting time, interim child support and spousal support.

[4] On April 13, 2022, Price J. conducted a case conference and made orders, including requiring the parties to provide various financial disclosure within 60 days.

[5] On the return of the motions before me on May 24, 2022, I declined to hear the respondent mother’s request for interim spousal support on the basis that the respondent mother had not filed any notices of assessment or income tax returns for 2019, 2020 and 2021. Also, no Spousal Support Advisory Guideline (SSAG) calculations were provided to the court. It appears that counsel intended to produce SSAG calculations during the hearing.

[6] The practice of “handing up” SSAG calculations during a hearing, including a virtual hearing as this one was, is to be discouraged. It is inefficient and affords the responding party and the court no opportunity to review calculations prior to the hearing.

[7] For reasons that follow, the respondent mother shall have interim primary care of the child and interim sole decision-making responsibility for the child, the applicant father shall have interim parenting time as specified in the order, the applicant father is ordered to pay child support on an interim interim basis, various ancillary parenting orders are made and the balance of all remaining claims on the motions are adjourned as set out in the order.

RELEVANT BACKGROUND

[8] The applicant (at times referred to as “the father”) and the respondent (at times referred to as “the mother”) were married in July 2012 and separated in the latter part of 2021 as discussed below.

[9] The parties have one child, B., age nine (“the child”); she will be age ten in approximately two months.

[10] Both parties grew up in Glencoe, Ontario. The parties agree they met in Glencoe in 2010. The father adds that the parties “got together” following his release for five to six weeks detention following his third impaired driving conviction. The father speaks of abusing substances periodically – alcohol and cocaine – until he was “about 30.” The father now is age 43. As discussed later, the mother has serious concerns that the father’s alcohol abuse remains an ongoing issue.

[11] The parties began dating soon after they met. The mother deposes that the father was working in Alberta at the time.

[12] The mother moved to Alberta in March 2011. Subsequently, the parties purchased a home and were married in Edmonton.

[13] Soon after moving to Alberta, the mother obtained full-time employment with a mattress manufacturer. The mother took a one-year leave of absence when the child was born in 2012.

[14] The mother deposes that the father was employed in Alberta from approximately 2005 as a heavy equipment operator. The father does not dispute this evidence.

[15] There is agreement between the parties that, in 2019, they purchased, in joint names, their current matrimonial home, which is in Glencoe, Ontario, where the paternal grandparents also reside. Following the sale of their Edmonton property, the mother and child relocated to Glencoe in approximately September 2019 to reside in the matrimonial home while the father remained in Alberta to work.

[16] The mother deposes that she informed the father on November 6, 2021 that their relationship was over. In December 2021, the father returned to Glencoe and quit his employment in Alberta. More about that later in these reasons.

[17] The parties continued to reside “separate and apart” in the matrimonial home until the mother was able to obtain her own residence in Glencoe. Although the mother, in her reply affidavit, does not indicate when she obtained that residence, the mother does not dispute the father’s evidence as to his understanding that the mother obtained her current rental residence effective March 1, 2022.

PARENTING ISSUES

A. Status Quo – Jurisprudence

[18] The parenting issues are to be decided on an interim basis. In Phillips v. Voutselas, 2021 ONSC 2514 (S.C.J.), at para. 22, I adopted the discussion by Tobin J. in relation to status quo:

22. In Phillips v. Beauchamp-Voutselas, supra, I adopt the discussion by Tobin J. in relation to status quo, at paras. 18-20:

[18] The motions before the court are cast as requests for interim custody. The legal principles to be applied on this type of motion are well settled.

[19] In Perchaluk v. Perchaluk, 2012 ONCJ 525, the court held, at para. 28:

In considering [the best interest factors under s. 24 of the Children’s Law Reform Act] at a temporary stage in the proceedings, the most relevant factor the court must keep in mind is the principle of maintaining the status quo pending trial. Temporary orders are by their nature based on limited evidence without the scrutiny of cross-examination and are only intended to provide a reasonable acceptable solution to a difficult problem until trial. After a full investigation of the facts, a trial judge may very well come to a different conclusion.

[20] In Grant v. Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.), the court held, at para.15, that:

… generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children's best interests. This is so, whether the existing arrangement is de facto or de jure: See McEachern v. McEachern (1994), 1994 CanLII 7379 (ON SC), 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v. Papp (1969), 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 (Ont. C.A.).

[19] Also to the same effect in relation to status quo and interim parenting orders are the following cases: Purvis-David v. Roussy, 2022 ONSC 793 (S.C.J.), at para. 9 (confirming that there is a presumption in favour of status quo absent compelling reasons to change the status quo); C.C. v. I.C., 2021 ONSC 6471 (S.C.J.), at paras. 46-48 (indicating that “best interests” is often determined by maintaining the status quo); Bonas v. Houston, 2021 ONSC 2116 (S.C.J.), at para. 61 (indicating that it has been long established that status quo will be maintained on an interim motion for custody and access unless the best interests of the child dictate otherwise); and Gray v. Canonico, 2020 ONSC 5885 (S.C.J.), at paras. 39-40 (indicating that status quo is to be maintained in the absence of compelling reasons to the contrary).

[20] In relation to identifying the status quo when dealing with interim parenting motions, I rely on the following summary of jurisprudence by Chappel J. in Batsinda v. Batsinda, 2013 ONSC 7869 (S.C.J.), at para. 28:

28 In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by "the status quo." The courts have clarified that the phrase "status quo" with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 1986 CanLII 6303 (ON SC), 3 R.F.L. (3d) 403 (Ont. H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (see, for example, Howard v. Howard (1999), 1999 CanLII 35009 (ON SC), 1 R.F.L. (5th) 375 (Ont. S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp [(1969), 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331, 8 D.L.R. (3d) 389, 1969 CarswellOnt 963 (Ont. C.A.)] regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties' separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.

[21] The foregoing principles in identifying status quo have been endorsed in subsequent cases: see, for example, Gray v. Canonico, supra, at paras. 48-52; and C.C. v. I.C., supra, at para. 49.

B. What is the status quo in the present case?

[22] For the period of approximately twenty-six months immediately prior to separation (September 2019 to November 2021), there can be no dispute that the mother was the child’s primary caregiving parent as the mother and child lived in the matrimonial home in Ontario, while the father continued to live and work in Alberta, returning home on occasions.

[23] The father, in his evidence, focuses on the period of time starting in December 2021 when he quit his job and returned to Ontario. During this period, the parties lived in the matrimonial home “separate and apart under the same roof” until the mother moved out. The father portrays the mother as being a disinterested parent, spending little time with the child and focusing instead on her personal life and her relationship with her new partner.

[24] The mother, however, has a very different narrative regarding this time period.

[25] The mother recites a history of being subjected to “regular verbal and emotional abuse” during the parties’ relationship. After the father’s return to Ontario, the mother describes the father as being very intimidating, refusing to leave the matrimonial home and refusing to permit the mother to have parenting time with the child.

[26] The mother recites the father’s high-pressure tactics in December 2021 demanding to purchase the mother’s interest in the matrimonial home, telling the mother what the parenting arrangements would be – that she would have the child on weekends. The mother recites, in her affidavit, the vulgar names that the father called her. The mother describes the father as having been drinking.

[27] The mother describes that, on December 27, 2021, the applicant’s father, a lawyer, met with the mother to outline to her the terms of a proposed separation agreement, similar to what was suggested by the applicant. Later, at the end of 2021, the applicant gave the mother a draft separation agreement signed by the applicant and witnessed by the applicant’s father. The mother deposed that the applicant told her it was not necessary to exchange financial documentation. The mother advised that she would take the agreement to a lawyer. She describes the applicant on this occasion as being loud, angry, heated and threatening.

[28] The mother has Crohn’s disease and colitis and underwent a medical procedure in 2007. The mother deposes that her condition makes her sensitive to stress and pressure situations.

[29] The mother deposes that the stress, pressure and intimidation that she was being subjected to when the father returned to Ontario led to a “Crohn’s attack,” requiring her to be admitted to hospital on January 7, 2022 and to spend the weekend there. She deposes that she was in acute pain, required morphine and had to undergo treatment.

[30] While there is no medical evidence tendered by the mother to link her hospitalization to the conduct of the father, it is quite apparent that the mother was being subjected to a “full court press” to get her to sign a separation agreement. The fact that the mother would have felt pressured and intimidated by this conduct is a reasonable conclusion to make on the evidence. The mother deposes that she cannot be in the same house as the father, that he verbally berates her and calls her vulgar names.

[31] As a consequence of the toxic situation at the matrimonial home following the father’s return, the mother’s evidence is that she had chosen to stay away from the father’s abuse. Her evidence is that she would stay in her room. She would not pressure the child to engage with her. The mother deposes that she did so in order to avoid any confrontation with the father, for the child’s sake, so as not to expose the child to the father’s abusive conduct.

[32] While the father disputes the mother’s evidence that he was verbally or otherwise abusive to the mother, it is not possible on the conflicting evidence to make any finding that there were consensual parenting arrangements made after the father’s return to Ontario in December 2021. Rather, on the evidentiary record before the court, the status quo is that which existed prior to separation.

[33] For the portion of the parties’ relationship prior to the mother relocating with the child to Ontario in 2019, the evidentiary record supports a finding that the father worked long hours and that the mother was the de facto primary caregiving parent. There is reference later in these reasons to an admission in the father’s factum that the mother, until December 2021, was the child’s primary caregiving parent.

[34] The father does not dispute the mother’s evidence that he typically worked away from Edmonton, on construction sites. In the mother’s reply affidavit, the mother deposes that, because the father did not have a driver’s licence, that she would sometimes have to put the child in the car and drive up to five hours to take the father to and from his construction sites.

[35] For the purpose of the parenting motions, I find the status quo is that the mother was the child’s primary caregiver. Further, during the approximate twenty-seven months ending December 2021, the mother was solely responsible for all aspects of the child’s care and parenting as the father was in Alberta.

DISCUSSION – INTERIM PARENTING ORDER

[36] This is a divorce proceeding. The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), applies in relation to interim parenting orders.

[37] I must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing: s. 16(2). I must consider the factors set out in s. 16(3) in determining the child’s best interests.

[38] Although the father denies the allegations of verbal and emotional abuse, the allegations are present and cannot be ignored for the purpose of the motions.

[39] “Family violence” is defined in s. 2(1) and includes psychological abuse and harassment. The mother’s allegations, if accepted at trial, would constitute family violence.

[40] The fact that the applicant’s father entered the fray, to meet with the mother and suggest to her what should be in the separation agreement, during a meeting between the mother and the applicant’s father in the kitchen of the matrimonial home, corroborates the mother’s evidence as to the unwanted pressure and intimidation that she felt. It is noted that the mother’s description of the meeting between herself and the applicant’s father, who attended with handwritten notes, telling the mother “This is what we propose,” was uncontradicted. No affidavit was filed by the applicant’s father.

[41] Also noteworthy, and corroborative of the mother’s allegations of pressure and intimidation, is that there was no evidence of any financial disclosure being provided by the father when the mother was presented with the signed separation agreement, the contents of which were apparently prepared in the absence of any usual good faith negotiations “on an even playing field.”

[42] The separation agreement included no provisions for child support or spousal support.

[43] The parenting plan set out in the separation agreement was that both parents shall have “custody” of the child from January 1, 2022 until the father quits his job in Alberta (expected to be in April or May 2022). At that time, the father shall return to the matrimonial home and have custody of the child from Monday to Friday and the mother shall have custody of the child from Friday night to Sunday night at 8 p.m. (It is noted that the separation agreement uses the term “custody,” despite the fact that that term has been rendered obsolete by statutory amendments to federal and provincial legislation.)

[44] The parenting provisions in the separation agreement bore no resemblance to the status quo. The separation agreement itself, signed by the father, I find, corroborates the mother’s evidence as to being intimidated by the father when he told her “how things will be.”

[45] The mother raises the issue of the father’s alcohol consumption. She deposes that the father is an alcoholic. Her evidence includes recent occurrences, since the father’s return to Ontario, where she alleges that the father was often drinking, angry and upset. She includes photos of empty beer cans on the floor beside the father’s bed taken the morning of December 20, 2021 according to her. The mother’s description of the father’s drinking habits in paragraph 43 of her affidavit[^1] is concerning.

[46] The father provides no specific response to these detailed allegations, except to deny that he is an alcoholic.

[47] The father has a criminal record that includes three convictions for drinking and driving offences, as disclosed in his criminal record check that was provided by his counsel shortly after the motions were argued.[^2]

[48] The mother deposes that in 2011, the father was charged with his fourth impaired driving offence and was convicted for the third time. She adds that the father lost his licence for ten years and that he regained his driver’s licence in 2021. The mother deposes also that the father will be unable to obtain an Ontario driver’s licence unless the father agrees to an ignition interlock system for a period of six years.

[49] Notably, the father does not dispute this evidence. Further, on the hearing of the motion, the father’s 35.1 affidavit was blank as to his criminal record, with a notation that he has been convicted of numerous offences, mainly impaired driving, and that he will obtain a police report and that he has had no convictions in more than ten years.

[50] The father’s criminal record that was produced discloses three drinking/driving convictions – 1999 (impaired driving), 2000 (impaired driving) and 2009 (blowing over). The last of those convictions indicated that the disposition was 83 days and a driving prohibition for three years. The last conviction shown in the criminal record was in April 2010, in Edmonton, Alberta, for failing to comply with a recognizance.

[51] The criminal record discloses no conviction in 2011, nor a ten-year driving prohibition, as was outlined in the mother’s evidence.

[52] While the criminal record does not corroborate the mother’s evidence, neither did the father take issue with the mother’s evidence. This creates confusion and this confusion rests with the father for his failure to provide a properly completed form 35.1 affidavit and a criminal record check prior to the hearing.

[53] Further, there is evidence from the mother that the father was involved in two recent accidents, in October 2021 in Edmonton and, on December 17, 2021, on his return to Ontario, with the child being in the vehicle. There was no indication of any injuries in either accident.

[54] The mother expressed concern that the father had been drinking on both occasions. While the father acknowledges being involved in those two accidents, which in his description were minor, he denies that the had been drinking. The accident in Edmonton, according to the father, was reported to police and no charges were laid. The father deposes that the second incident involved him hitting a parked car and that no police were involved.

[55] During submissions on the hearing of the motions, the mother alleged that the father has no valid Ontario driver’s licence and that he should have obtained an Ontario driver’s licence within 60 days of his return to Ontario. The father’s counsel was not prepared to make submissions on the “60 day” requirement, and understandably so, as this specific issue was not raised in the mother’s material.

[56] The evidence, I find, is sufficient to raise a serious concern that the father may have an unresolved issue of alcohol abuse. This issue impacts on the child’s safety.

[57] Despite admitting that he has a history of substance abuse, the father self reports that he has no ongoing issues and he produces no independent report from any medical professional to corroborate his evidence.

[58] Accordingly, the order below imposes alcohol consumption prohibitions on the father prior to and during his parenting time. The order also includes banned substances.

[59] Also of concern is whether the father has a valid driver’s licence in conformity with the Highway Traffic Act, R.S.O. 1990, c. H.8. That Act exempts a person, moving to Ontario with a drivers’ licence from another jurisdiction, from the requirement to have an Ontario driver’s licence, but the exemption only applies for a period of 60 days after the person becomes a resident of Ontario.[^3]

[60] The issue as to the status of the father’s legal right to drive in Ontario is a concern that impacts on the child’s safety and that issue is addressed in the order below.

[61] The father raises concerns regarding the child’s significant speech and language delays. The school records do confirm that the child has significant delays.

[62] In his factum, the father concedes (at paragraph 33, clause 2) that much of the child’s rearing and decision-making was made by the mother because the father was working in the oil fields in Alberta for approximately ten years until December 2021.

[63] The father then blames the mother, as the child’s primary caregiver, for having failed to implement sufficient therapy for the child to deal with the child’s speech and language delays.[^4]

[64] The mother denies neglecting the child’s special needs. She deposes that the child has a learning disability with respect to reading and writing. The child has been diagnosed with apraxia as well as a form of high functioning autism according to the mother.

[65] In her reply affidavit, the mother recounts the substantial efforts that she made throughout many years, starting when the child was approximately age three. This included working daily with the child’s speech issues, working with therapists, meeting with teachers and speech specialists at school, dealing with the child’s behaviour problems as a consequence of having speech issues, and enrolling the child in various activities to help the child with her socializing.

[66] The mother deposes that the father did not help or participate when asked.

[67] After moving to Ontario, the mother deposes she continued to work with the teachers and with the child on her schoolwork.

[68] While the mother corroborates the father’s complaint that he recently arranged for a therapist to see the child and that the mother cancelled the appointment, the mother deposes that the father made this arrangement without consulting with the mother and without the mother’s knowledge.

[69] Although it would have been preferable for the appointment to have proceeded, I am not persuaded that the mother is unable to meet the child’s special needs.

[70] Overall, based on the evidence, I find there is little, if any, merit to the father’s criticism of the mother’s attempts over the years to meet the child’s special needs. The father’s complaints ring hollow. He is after all the father. His finger-pointing at the mother seems somewhat disingenuous.

[71] It is clear that the child does need therapy. The order below deals with that issue.

[72] The inference I draw from the evidence is that when the father returned to Ontario, he “took over”. He asserted control over the child. He subjected the mother to intimidation, as discussed earlier. The mother’s allegations, particularly in her reply affidavit, as to how the father controlled and monopolized the child’s life on his return to Ontario, are concerning.

[73] There is no believable, clear or compelling evidence adduced that would justify a rejection of the status quo.

[74] Both parties filed proposed draft orders. The father proposed interim joint decision-making responsibility with the regular parenting schedule to be a week-about.

[75] The mother proposed that she have interim sole decision-making responsibility and interim primary care of the child.

[76] I conclude it is in the child’s best interests that the mother have primary care and sole decision-making responsibility for the child. This also reflects the status quo.

[77] I also consider the intimidation of the mother, as discussed earlier, coupled with the allegations of family violence which, although disputed, cannot be ignored, as previously noted. I find that the father’s proposal for joint decision-making responsibility, at this juncture, is not in the child’s best interests, nor does it reflect the status quo.

[78] The mother proposes that the child’s regular parenting time schedule with the father should consist of alternate weekends, from Friday pickup at school until Monday morning drop-off at school plus every Wednesday from after school until 7:30 p.m.

[79] The father’s parenting time, as detailed in the order below, is in the child’s best interests. It is somewhat more expansive than the mother’s proposal. However, I find that a week-about is not in the child’s best interests nor is it consistent with the status quo.

[80] The order below also includes a provision for summer vacation to both parties for 2022.

CHILD SUPPORT

[81] The father shall pay table amount of child support starting June 1, 2022. The actual parenting time schedule since the mother moved is not clear on the evidentiary record, therefore the order below reserves the issue of child support prior to June 1, 2022 to be dealt with by the trial judge or on motion. The issue is whether there should be income imputed to the father at this time.

[82] The father describes himself as having been diagnosed with delayed language development when he was about age four. He did not finish school. He left high school during grade twelve to work in a factory. Between April 2011 and December 2021, he mainly worked on the pipelines in Alberta.

[83] The father deposes that he made a choice to quit his job in Alberta so that he could take care of the child.

[84] The father further deposes that obtaining “gainful, lucrative” employment in Ontario for a “43-year-old high school dropout” is a challenge. However, the father was able to obtain employment full-time as a heavy equipment operator quickly after arriving in Ontario in December 2021.

[85] The father also suggests that the parties had planned for him to work in Alberta for three years, until spring of 2022, as the parties had purchased a home in Glencoe in 2019, as discussed earlier.

[86] The notices of assessment appended to the father’s financial statement show his line 15000 (or line 150) income for the years 2018, 2019 and 2020 as follows, respectively: $96,807, $91,547 and $75,927. The father’s financial statement fails to disclose his 2021 income.

[87] A letter from the father’s current employer dated January 12, 2022 confirms that the father’s gross income will range from $2,000 to $2,200 bi-weekly. This translates to a range of $52,000 to $57,200 annually.

[88] The father provides no evidence as to the extent of his work search in Ontario prior to quitting his job in Alberta, which I find was done in a precipitous matter on the eve of separation. The father provides no evidence regarding the potential of working overtime, including during the summer.

[89] While I do consider the fact that the parties are separated and that there is evidence from the father that he was planning to return in any event to Ontario in the spring of 2022, I also note that some financial disclosure is still outstanding, that leave for oral questioning has been granted and that there is no agreement from the mother as to when it was planned that the father would return to Ontario.

[90] At this point, there is a dearth of evidence from the father suggesting that he made all reasonable attempts to obtain employment in Ontario that provided him with the maximum income he is capable of earning in Ontario.

[91] I reject the father’s suggestion that he had to quit his job in Alberta to look after the child. That was not the case as the mother had care of the child in Ontario since approximately September 2019, as previously discussed. There is a strong inference to be made that the father quit his job, when he did, to avoid or reduce his obligation for interim spousal support and interim child support.

[92] In the circumstances, the order for table amount of child support is being made on an interim interim basis pending further disclosure, and perhaps oral questioning, and is based on an imputed income of $75,000.

[93] In relation to s. 7 expenses, the mother’s financial statement fails to include a schedule of s. 7 expenses. She does show $333.25 per month for before and after-school expenses, which includes a portion for summer expenses. No other details are provided. For the child’s activities, the mother shows $35 per month. It is not known what those activities are.

[94] The father does include, attached to his financial statement, a schedule B showing s. 7 expenses as follows: dance lessons ($20 per week), reading support ($40 per week) and after-school care ($461 per month).

[95] The father, in his proposed draft order, includes no claims for interim child support including s. 7 expenses. The mother’s proposed draft order includes a generic paragraph requesting that the father pay to the mother his proportionate share of s. 7 expenses. There is no detail as to the amount of the expense or what the expense is for in the proposed draft order.

[96] It is also unclear as to what extracurricular activities the child is actually enrolled in at the present time.

[97] Given the lack of sufficient evidence, including the lack of financial disclosure by the mother, the order below deals only with before and after-school expenses and expenses in relation to the child’s speech therapy, on an interim interim basis.

[98] The mother has appended to her financial statement sworn February 7, 2022 some income disclosure for 2017 and 2018, none of which is helpful on the present motions. The mother has included an earnings statement from her employer for the pay period ending December 25, 2021, showing a gross year-to-date income of $48,030.

[99] The mother’s financial statement, on page 2, states that her gross income last year was $36,726, which is not correct. The mother discloses a current income of $36,726. It is unclear where that figure comes from. The mother continues to work for the same employer.

[100] For now, I impute to the mother an income in the amount of $48,000 annually. Using the father’s imputed income of $75,000, the proportionate shares of s.7 expenses for the mother and father are, respectively, 39% and 61% rounded.

AFFIDAVIT MATERIAL

[101] The state of the evidentiary record deserves a brief comment given the unfortunate trend in this court, where litigants are filing motion material that is prolix, voluminous, unnecessary and unhelpful to the court.

[102] The reply affidavit of the respondent’s mother, sworn March 20, 2022, filed on behalf of the respondent, substantially exceeded the bounds of proper reply. It was largely an attempt by the respondent to split her case.

[103] In turn, that improper reply affidavit spawned two “reply” affidavits on behalf of the father – one from the father and one from Joanna Parnell.

[104] The father had no right of reply: see r. 14(20). Both of these affidavits, responding to a largely improper reply affidavit, did not assist the court.

[105] Further, the father apparently served an amended motion dated May 19, 2022 together with another affidavit of the father sworn May 19, 2022. That material was late. There was no right to serve or file that material. That material was not made available to the court, it was not in One Drive and played no part in the motions.

[106] Finally, the extent of the father’s fixation and criticism of the mother’s alleged relationships as set out in his material is evidence that should form no part of the evidentiary record. That evidence is unhelpful, ill-advised, irrelevant and frivolous.

[107] The parties are given notice that if costs relating to the interim parenting order are dealt with by the court (rather than being settled), then the foregoing state of the evidentiary record is a factor to be considered by the court in relation to costs.

ORDER

[108] An order is granted as follows:

1. The mother shall have interim primary care of the child and interim sole decision-making responsibility for the child.

2. The father shall have a regular schedule of interim parenting time with the child over a four-week cycle as follows:

(a) Week One – Friday after school to Monday morning school time and on Wednesday from after school to 7:30 p.m.;

(b) Week Two – Tuesday after school overnight to Wednesday morning school time;

(c) Week Three – Friday after school to Tuesday morning school time and Wednesday from after school to 7:30 p.m.;

(d) Week Four – Tuesday after school overnight to Wednesday morning school time.

(e) When the child is attending school, all parenting time exchanges shall be at the school;

(f) When the child is not attending school, for the regular schedule, the exchanges when the father is picking up the child shall occur at 4:30 p.m. and the return of the child by the father shall occur at 9:00 a.m., unless the parties agree otherwise, and all exchanges shall occur at the mother’s residence, […];

(g) For all exchanges occurring at the mother’s residence, the father shall remain in his vehicle, the vehicle shall remain on the street, the child shall exit the vehicle and meet the mother at the front door of the residence, where the mother shall remain during the exchange;

(h) Notwithstanding the regular parenting schedule, the child shall be with the mother starting at 4:30 p.m. on the Sunday of the weekend immediately preceding the child’s return to school in September 2022;

(i) Notwithstanding the regular schedule, the child shall be with the father on Father’s Day in June 2022, from 10:00 a.m. to 7:30 p.m.;

(j) Week One shall start Friday, June 10, 2022, unless the parties agree otherwise.

3. For 2022, the father shall have two vacation weeks with the child during the period July 1st to September 2nd, non-consecutive, each vacation week to be from 4:30 p.m. Friday to 4:30 p.m. the following Friday. The father shall specify his vacation week choices in writing by June 22, 2022;

4. For 2022, the mother shall have two vacation weeks with the child during the period July 1st to September 2nd, non-consecutive, each vacation week to be from 4:30 p.m. Friday to 4:30 p.m. the following Friday. The mother shall specify her vacation week choices in writing by June 29, 2022;

5. If there is a conflict regarding vacation weeks, the father’s vacation week choices shall take precedence but only if he has complied with the deadline for choosing his vacation weeks;

6. The vacation time shall not interrupt the regular cadence of the four-week cycle for parenting time;

7. During a party’s vacation week, all in-person parenting time between the child and the other party is suspended;

8. Each party shall have reasonable telephone or video time with the child when the child is in the care of the other party, including during vacation time;

9. The father shall not consume alcohol or any banned substances 24 hours prior to his parenting time with the child and at any time during his parenting time.

10. Both parties shall serve and file within two weeks updated and fully completed form 35.1 affidavits.

11. The following terms and conditions shall apply regarding the father’s driver’s licence:

(a) Within two weeks of the date of this order, the father shall serve and file an affidavit that confirms whether he has an Ontario driver’s licence, whether he is in compliance with s. 34(2) of the Highway Traffic Act, and the affidavit shall attach as an exhibit the front and back of any valid Alberta or Ontario driver’s licence that the father has;

(b) The father, in his affidavit, shall attach a copy of his police record check provided to the court by his counsel, and the father shall state whether that police record check is accurate and if not, the father shall identify any inaccuracies, and the father shall confirm in his affidavit, that he has paid for and requested a new police record check, which shall be served and filed immediately on receipt;

(c) The father shall within two weeks provide the mother’s counsel with a notarial copy of the existing police record check, which confirms that the original police record check is embossed by the Ontario Provincial Police seal;

(d) The father, in his affidavit, shall advise whether he was convicted of any drinking and driving offence in Alberta, whether his drivers’ licence while in Alberta was suspended for any period of time, and if so, for how long and when;

(e) The father, in his affidavit, shall advise whether his ability to obtain an Ontario driver’s licence is, or will be, subject to any conditions requiring the father to obtain an ignition interlock device on his vehicle, and if so, for how long;

(f) If the father fails to comply with subparagraphs (a) to (e), or if there is any evidence that the father does not have a valid driver’s licence pursuant to the Highway Traffic Act, the mother is at liberty to bring an urgent motion, on a date to be obtained from the trial coordinator, to seek any appropriate relief including an order, if appropriate, that the father shall be prohibited from driving a motor vehicle while the child is in the motor vehicle.

12. Neither party shall criticize or disparage the other party, nor permit any other person to do so, at any time including to, or in the presence of, the child.

13. All written communications between the parties shall be via OurFamilyWizard, unless the parties, through counsel, agree to use a different but comparable application.

14. The mother immediately shall ensure that the child is referred for appropriate speech therapy. The mother shall make those arrangements in consultation with the father. Both parties shall sign all necessary consents that may be required by the therapist.

15. Commencing June 1, 2022, the father shall pay to the mother interim interim child support for the support of the child in the amount of $700 per month based on an imputed income of $75,000 and pursuant to s. 3(1)(a) of the Federal Child Support Guidelines;

16. Commencing June 1, 2022 on an interim interim basis, and based on an imputed income to the mother in the amount of $48,000, the father shall pay to the mother 61% of the following s. 7 expenses for the child:

(a) the child’s before and after-school care costs;

(b) the child’s speech therapy expenses;

(c) any childcare costs incurred by the mother during the summer of 2022 while the child is not in school, as a result of the mother having to work, and day camp expenses while the mother is working are included in childcare costs;

(d) the mother shall provide full details and receipts to confirm the s. 7 expenses; and,

(e) the father’s contribution of 61% shall be applied to the net s. 7 expenses after taking into account any relevant tax savings to the mother, and after deducting any benefits available to both parties through their respective employer group insurance plans;

17. Any child support, whether table amount or s.7, alleged owing by either party to the other prior to June 1, 2022, is reserved to the trial judge, or may be dealt with on a motion after full financial disclosure has been made as ordered;

18. On an interim interim basis, the father shall designate the mother as sole beneficiary on all employer group life insurance benefits available to the father pending any further order of the court, and the father shall provide proof of the designation within fourteen days;

19. All other outstanding claims on both motions are adjourned to July 26, 2022 at 9:30 a.m. to be spoken to;

20. With the exception of costs in relation to the interim parenting order, all other costs on both motions incurred to date are reserved to the judge who deals with the balance of the relief sought on both motions;

21. All costs of both motions in relation to the interim parenting order, if not settled, may be dealt with in writing and all written submissions shall be served and filed through the portal in the usual manner. All costs submissions are limited to three pages (two pages for reply), minimum font 12, plus copies of any offers, bills of costs and time dockets, and all references to authorities shall be hyperlinked. The mother’s costs submissions are due within two weeks, the father’s are due two weeks thereafter, and the mother’s reply, if any, is due two weeks thereafter. If the costs are settled, the parties forthwith shall advise the trial coordinator via email.

22. This order is made pursuant to the Divorce Act.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: June 9, 2022

[^1]: Mother’s affidavit sworn February 7, 2022.

[^2]: The criminal record check is dated April 20, 2022 from the OPP and is described as a Criminal Record Check – Level I. No presence of the OPP seal on page 2 is discernible. The form indicates that it is only valid with the OPP seal affixed. The document has been uploaded and filed in OneDrive.

[^3]: The Highway Traffic Act provides as follows, in ss. 32(1) and 34(2):

32 (1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver’s licence issued to him or her under this Act.

34(2) Section 32 and any regulation made thereunder do not apply to a person for sixty days after he or she has become a resident of Ontario if during such period he or she holds a subsisting driver’s licence in accordance with the laws of the province, country or state of which he or she was a resident immediately before becoming a resident of Ontario.

[^4]: See father’s factum at page 10.