Herbert v. Warsame Nur, 2022 ONSC 4614

COURT FILE NO.: FC-19-2292

DATE: 2022/08/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aisha Marie Herbert, Applicant

-and-

Ali Warsame Nur, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Cynthia Squire, for the Applicant

Respondent, Self-Represented

HEARD: Trial Heard Dec 3, 6, 7, 2021 by Videoconference

ENDORSEMENT

Overview

1The main issues in this trial are the Respondent father’s parenting time, child support, and spousal support.

2The parties were married in an Islamic religious marriage on July 11, 1999. The marriage was not registered with the state. The parties did not enter into a civil marriage. The parties began cohabiting on July 11, 1999. They separated 19 years later, in August 2018. After separation, the parties lived separate and apart under the same roof in the family home until the Respondent father moved out on November 3, 2019.

3The parties have six children – A., age 22; S., age 20; A.Y., age 17; A.B., age 14; A.D., age 8; and S.A., age 6. The oldest child left the family home in 2016 to live with the maternal grandparents. The five other children resided with the mother after the Respondent moved out of the family home.

4This proceeding was commenced on November 22, 2019. On March 16, 2020, on an interim without prejudice basis, the Applicant mother was granted sole decision-making for the four younger children¹, and the Respondent father was granted limited parenting time.

5This Application seeks parenting orders under the Children’s Law Reform Act and child and spousal support under the Family Law Act.

6Some issues in this proceeding were determined on consent. The February 9, 2021, Order of Justice Kershman provides that, on consent, there are final orders as follows:

1. The mother shall have primary residence of the children A.Y., A.B., A.D. and S.A. (S. is over 18.)

2. Neither party will remove the children from the City of Ottawa save and except for extracurricular activities. Such extracurricular activities shall only be for the day.

3. The father shall register the children on his medical and dental plan should he become eligible to be on one.

7The Applicant served a Request to Admit on the Respondent on September 7, 2021². The Respondent did not respond, meaning he is deemed to admit the facts requested (Rule 22(4)). The Respondent did not seek to withdraw these admissions at trial (Rule 22(5)).

8The issues to be determined are:

1. What order concerning decision-making is in the children’s best interests?

2. What parenting time with the Respondent father is in the children’s best interests?

3. What other parenting orders should be made in the children’s best interests?

4. What child support is payable by the Respondent?

5. What orders incidental to child support should be made?

6. Is the Applicant entitled to spousal support? If so, what order for spousal support should be made?

Issue 1: What order concerning decision-making for the children is in the children’s best interests?

9The Applicant mother seeks sole decision-making for the children under 18, S.A., A.D., A.B., and A.Y. The Respondent father seeks joint decision-making.

10The orders regarding parenting fall under the Children’s Law Reform Act (CLRA). The language of this legislation was amended effective March 1, 2021. Section 76 of the Act sets out several provisions for transition to the new legislation. Still, it does not address whether the amendments should be applied to cases started but not determined before March 1, 2021.

11Neither party took issue with the new wording under the legislation applying to the determination of this matter, even though the Application was commenced before the changes came into force. This is consistent with several court decisions that have found the changes to be procedural and not substantive.

12I have applied the provisions of the CLRA that came into force on March 1, 2021. My decision would not be different if I used the previous wording.

13The only consideration in making a parenting order under the CLRA is the child’s best interests (s.24(1)). In determining the best interests of a child, the court shall consider all factors related to the child’s circumstances, including those set out in section 24(3). In doing so, the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being (s.24(2)).

14In determining what is in the child’s best interests, the court shall not consider the past conduct of any person unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact concerning the child (s.24(5)).

15I find that it is in the children’s best interests for the mother to have sole decision-making for the children. This is based on the following:

• The mother has had de facto sole decision-making since the parties’ separation and, since March 16, 2020, sole decision-making under the interim without prejudice order of Associate Justice Kaufman. There is no evidence that she has misused this decision-making authority contrary to the children’s best interests or to minimize the father’s role in the children’s lives.

• The father acknowledges that the mother is a good parent. He sought joint decision-making because, he said, he is the children’s father. I do not find that the fact that the father is the children’s other parent warrants an order for joint decision-making given the other circumstances detailed herein.

• The mother described a history of the father being verbally abusive towards her and physically abusive towards the children. The father vehemently denied that he was ever abusive to anyone, but I do not find him credible on this point. The father did not challenge the mother’s evidence detailing the history of abuse on cross-examination. Her evidence described several instances of physical discipline against the children. The mother’s evidence, which I found credible, was also supported by Ms. Pearce, who testified that the father admitted to slapping S. in the fall of 2019. These factors relating to family violence are critical when determining the father’s parenting time, dealt with below, but they also weigh in favour of the mother’s sole decision-making.

• The father has had limited and irregular contact with the children since separation. In the fall of 2019, he told Ms. Pearce that he was not pursuing access to the children. The father testified that this was because he was confused and under pressure at the time, but this supports that he did not pursue parenting time after moving out of the family home. He did not see the children from November 3, 2019, to March 2020. At the initial case conference on March 16, 2020, the father asked to see the younger children for two hours a week at the mosque, to which the mother agreed. This parenting time was interrupted shortly after that because of the COVID-19 pandemic lockdowns. In April, May and June of 2020, he saw A.B. or A.Y. for a few minutes, once per month, when he insisted on delivering the mother’s child support cheque by handing it to the children. At the end of June of 2020, he requested to see the three younger children for one or two hours a week at a nearby park, to which the mother agreed. This continued to December 6, 2020, when the father stopped the visits because of the weather, although the father also frequently cancelled visits due to poor weather or other reasons. The father’s visits recommenced in March of 2021, again for one or two hours at a nearby park. Similarly, the father again frequently cancelled visits

• There was no evidence at trial that the father sought to have the children in his care for additional periods. The mother’s evidence was that she was only comfortable with the children being with the father if in a public place or with others present because she was concerned about his parenting, but the father also acknowledged that he did not want to have parenting time at his residence because he had a roommate and wanted to keep the location of his home a secret.

• There was no evidence that the father communicated with the mother during the periods when he did not have contact with the children to find out how the children were doing or to seek to be involved in decisions about their wellbeing. The father’s evidence was that he rarely communicated with the mother and preferred to communicate through the children.

• The father’s evidence is that he has had minimal communication with the mother concerning the children. He prefers to communicate with her through the children, despite her requests that he does not do so. The father’s explanation for this was that the mother is negative, and he prefers to be positive, so he does not want to communicate with her. This includes communicating through the children concerning his child support payments, when he will see the children and when he won’t, his plans for his time with the children, and his dental benefits.

• There is no evidence before me that the father made an effort to communicate with the mother since separation to cooperate concerning decision-making. For example, the father admits that he has not made any inquiries about the children’s health. His evidence was also that, despite having dental coverage for the children’s dental expenses since September 2020, he did not tell the mother of this until the week before the trial and then did so by telling his son to tell her.

• The father is secretive and does not want to share information with the mother that would help develop a cooperative co-parenting relationship. For example, he does not want the mother to know where he lives and refuses to provide this information at trial. He admitted that he had told A.Y. (age 17) but insisted that A.Y. not tell anyone where he lives.

• Most concerning, I was struck by the father’s evidence that he has little insight into why communicating information through the children, or refusing to communicate information, impacts the children’s wellbeing.

• My impression from the father’s evidence is that he does not see why he should communicate with the mother or, generally, comply with court orders, and that he will continue to act as he wishes by communicating directly with the children about what information he decides to share.

• I have considered the children’s cultural and religious upbringing. The children have been raised in the Islamic faith. Both parents practice the Islamic faith. The father is from a Somali Muslim cultural background. The mother is French Catholic Irish cultural background but converted to Islam in October of 1998. Both parties support the children’s religious upbringing. The father did not raise any cultural factors as a reason why he should have joint decision-making. The mother’s only reference to this factor was that the father disparaged her family, which appears to relate to the oldest child leaving the family (the mother says this was due to the father’s abuse, the father says it was because of conflict with the mother).

16Given the above, there is no basis upon which I can find a reasonable prospect that the parties will be able to make joint decisions in the future based on the children’s best interests. There is no history since the separation of them doing so.

17There is no basis to find that a joint decision-making model would be in the children’s best interests.

18The mother is the children’s primary caregiver. I find she has been their primary caregiver since birth and also their primary decision-maker. The father did not raise any criticism of the mother’s parenting, and I find that she has exercised her sole decision-making, which has been the status quo since November of 2019, in a manner consistent with the children’s best interests. This should continue.

Issue #2: What parenting time with the Respondent father is in the children’s best interests?

19The criteria for determining parenting time are also governed by the Children’s Law Reform Act, including the best interest factors at s.24. In addition, in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests. (s.24(6)).

20The mother seeks an order that the father has parenting time with A.B. (if A.B. wants to attend), A.D. and S.A. every Sunday from 1 to 5 pm, with the location of the parenting time at the park or in the community. If the father’s brother consents, the mother proposes that the father may have his parenting time at the brother’s home.

21The father does not want parenting time at his current residence because he has a roommate and wants to keep his home a secret. He seeks parenting time every Saturday and Sunday once he establishes his residence. Until then, he seeks parenting time at his brother’s home every Saturday and Sunday from 1 pm to 5 pm.

22The parties agree that A.Y., now 17, can determine when he wishes to spend parenting time with the father.

23As indicated above, I preferred the mother’s evidence on the father’s parenting history, including incidents of verbal and physical abuse/violence against herself and the children. The father did not offer any evidence at trial that addressed these concerns. The father’s only response was a general denial, which I did not find credible. I find the mother’s position that the father’s parenting time should be exercised in the community, in the park, or at the brother’s house if the brother agrees, to be reasonable and in the children’s best interests.

24The issue then is whether it is in the children’s best interests to see the father on Saturday and Sunday, from 1 pm to 5 pm, or just one of these days – Sunday from 1 pm to 5 pm. I find that it is in the children’s best interests for the father to have parenting time every Sunday, from 1 pm to 5 pm, because:

a. The father’s limited parenting time to date.

b. Even though his parenting time was limited to one or two hours a week, the father frequently cancelled this time for reasons other than the weather.

c. I am concerned with the father’s ability to parent the children over an extended period, given his history of physical discipline (abuse) and his lack of parenting since November 2019.

d. I am concerned that the father is derogatory towards the mother, the children’s relationship with the mother, and the oldest sister, S. He believes S. “teamed up” with the mother to make false accusations against him. The father has not demonstrated insight into appropriate communication with a child (for example, telling A.Y. to keep his residence a secret, passing child support through the children, and making plans directly with a child without advising the mother).

Issue #3: What other parenting orders should be made in the children’s best interests?

Travel

25During the trial, the mother said she would like to change the final order made on February 9, 2021, preventing her (and the father) from removing the children from the City of Ottawa. I am not prepared to do this in this trial. The mother will need to bring a motion to change seeking this change.

26The father sought a similar change in the orders that he sought, presented in his closing submissions. He seeks an order to allow him to travel to Toronto with the children. For the same reasons as above, I am not making this order. The parties may wish to engage in discussions to try to resolve their mutual desire to be able to travel with the children. Right now, a final order requires the others’ consent to travel outside of the City of Ottawa. If they seek to change that order, they will need to bring a motion to change.

Communications

27The father seeks an order that he make parenting time arrangements with A.Y. (17) and A.B. (14). The mother does not object to him doing so, as long as the parenting time arrangements pertain to A.Y. and A.B. and not to the other children. I agree and so order. Arrangements concerning parenting time with S.A. and A.D. shall be made between the parties only through text or email and shall not be made through the other children.

28The parties agree that each may access information regarding the children from third parties. This is subject to any right of privacy that the child may have regarding their personal information when they reach an age of competency to have such a right.

29The parties agree that the mother shall retain possession of the children’s official documents.

Issue #4: What child support is payable by the Respondent?

30The mother seeks an order requiring the father to pay child support for five children from January 1, 2020, to the end of October 2020, and then for four children from November 1, 2020, to the present and ongoing. She seeks to impute income to the father of $42,570 per year for child support.

31The father did not contest the period for which child support is sought or the number of children for whom child support should be paid. This Application was issued on November 22, 2019. The child support the mother seeks does not include child support retroactive to a date before the Application was commenced. The start date of January 1, 2020, reflects that the Respondent paid the rent for the family home (which he stated was $500 per month) for November and December of 2019.

32It is not contested that the oldest daughter, S., graduated from college at the end of October 2020. This is in the Applicant’s request to admit, to which the Respondent did not respond, and therefore the Respondent is deemed to admit this fact. The Respondent did not seek to withdraw this admission or file any evidence to counter this.

33Therefore, the only issue in dispute concerning child support is the Respondent’s income. The mother seeks that he pay child support based on an annual income of $42,570 for past periods and going forward. The father states that his current income is $25,980 and that ongoing child support should be based on this amount. The father does not state his position on his income for past support. I infer from this that his position is that past child support should be based on what was ordered under the interim without prejudice order, dated March 16, 2020. That order requires the father to pay child support of $400 per month, which is the table amount for five children based on the father’s income being approximately $20,000 per year.

34I find that the father’s income, for child support purposes, should be imputed to be $42,589 per year. This is based on the following:

a. Section 19 of the Child Support Guidelines provides that a court may impute income to a parent as it considers appropriate in the circumstances. These circumstances include where a parent is intentionally under-employed or unemployed; the parent has failed to provide income information when under a legal obligation to do so; and where a parent derives significant sources of income from sources that are taxed at a lower rate than employment or business income.

b. The onus is on the person seeking to impute income to establish an evidentiary basis for such a finding. I find that the mother has met this onus to establish a prima facie case to impute this income, which the father has not dislodged.

c. The father has a history of working and an ability to work. He did not deny working. This is consistent with the history of the marriage, where the father was the sole income earner during their relationship, working in construction, assembly for a technology company, and as a janitor.

d. The mother’s $42,570 per year figure is based on the evidence of what the father earned in 2019.

e. In 2019, the father earned $30,002.38 in employment income as a janitor at the local school board³. He paid union dues of $613.48, which I have deducted from his income for child support purposes⁴. In addition, the father’s evidence was that he was paid $1,100 per month from working as a janitor for the Islamic Society and did not report this income on his tax return. This totals $42,589 and is, in my view, generous to the father as it does not add additional income due to him not reporting the income from the Islamic Society on his tax return and therefore not paying income tax on that income⁵.

f. In 2020, the father earned $25,980.58 in employment income from the school board and paid union dues of $531.17⁶.

g. The father provided paystubs from the school board, with the latest being October 15, 2021, that showed a total income of $18,692 for the year to date. This appears to be similar to the income he earned on one of his T slips from the school board in 2020 (he previously received 2 T slips, so I infer this continues), from which I infer that his income from the school board in 2021 would be similar to what it was in 2020 from the school board.

h. The father’s income from the school board is based on a part-time income. In 2019, he testified that he worked 5 to 6 hours daily, or 25 to 30 hours weekly. In 2020, he testified that he had a different position, working 5 hours daily. He is paid by the hour.

i. The father’s evidence was that he had never applied for full-time employment with the school board or made any other efforts to find full-time employment. He was ordered to provide supporting documents for his full-time employment but provided nothing.

j. Despite the father having worked at the Islamic Society (which was 1 to 3 hours per week) and the school board for 25 to 30 hours per week in 2019, the father testified that, after 2019, he did not want to work full-time hours, or any additional hours, because he has a difficult life, and needs time to relax and look after himself. At several points, the father suggested in his evidence that he could not work full-time hours because he needed time to look after himself. However, the father did not provide further details on these issues, stating that he wanted to keep the information private. He also failed to provide medical records to support his inability to work full- time, despite being explicitly ordered to do so on April 16, 2021.

k. The father’s income from the school board in 2020 and 2021 is similar, although slightly less than in 2019.

l. It was not contested at trial that the father voluntarily left his position with the Islamic Society, which paid him $1,100 a month for 1 to 3 hours of caretaking work per week. Again, the father explained that he needed time to look after himself because no one was looking after him.

m. The father did not provide an updated financial statement within 30 days of trial, despite being required to do so under the Family Law Rules and the Trial Scheduling Endorsement Form.

n. The father did not provide information for his income for the year to trial in 2021 until midway through the trial when he provided paystubs from the school board.

o. It was not contested that the father failed to provide other significant disclosure related to his income despite being ordered to do so⁷. The father failed to confirm his income from the Islamic Society, except for a copy of one cheque in April 2020. The mother also received a copy of the May 2020 cheque, because the father passed it to her through the children in error. The father did not provide a letter from the Islamic Society confirming when he ended his employment, just a letter dated February 2021 that he no longer worked there⁸. The father did not provide copies of his bank account statements, although he admitted to having a bank account.

35Given the above factors, I find that the father is voluntarily underemployed because he voluntarily gave up his work at the Islamic Society and could work more hours by making reasonable efforts, either at the Islamic Society, the school board, or at other employers. It may also be that the father is earning additional income that he has not reported, given his history of making income at the Islamic Society that he did not report on his tax return and that he refused to provide his bank statements⁹. I do not accept any reasonable basis for the father not to work additional hours given his lack of evidence to support why he cannot work more hours, including medical evidence to support any suggested medical disability.

36Based on the evidence, I find it t is appropriate to impute income to the father for child support purposes of $42,589 per year.

37The mother seeks an order requiring the father to contribute to s.7 expenses in proportion to income. For this purpose, the father is deemed to admit that the mother was unemployed for the period in issue to the date of trial. The mother’s income is limited to social assistance and child tax benefits. The child tax benefit is excluded from income for child support purposes. Therefore, I find that the mother’s income for the purpose of sharing s.7 expenses is $13,064 per year¹⁰.

38I have made the order below requiring the father to contribute to s.7 expenses in proportion to his income, which is consistent with the Child Support Guidelines.

Issue #5: What orders incidental to child support should be made?

39The mother seeks an order requiring the father to maintain dental coverage for the children. The father does not oppose this order, so I have made it.

40I am concerned about enforcement. The father was ordered to provide extensive disclosure related to child support in several orders but failed to do so. This included that on March 16, 2020, and again on April 16, 2021, he was ordered to provide details of his medical and dental benefits available to him through his employment. At trial, the father produced a letter from his insurer confirming that he has had family dental coverage since September 2020. The father’s evidence was that he told the mother that he had this coverage the week before the trial by asking his son to communicate this to her. This is in the face of several orders requiring him to produce this information dating back to March 16, 2020.

41The father also failed to provide other disclosure that had been ordered and did not demonstrate insight into the importance of complying with court orders. To be clear, I want to highlight to the father that it is essential for him to comply with all court orders and that if he fails to do so, the court has several tools it can use to attempt to compel compliance (see Rules 1(8), 26, 31). The court does not want to use these tools – it wants him to comply with the orders.

42I say this here because I am concerned that the father will not comply with the orders below regarding his dental coverage. The wording of the order is intended to ensure that he complies. He must comply. This is not a suggestion. I am ordering him to do so. But, if he fails to comply, he is on notice that the Applicant may bring a motion under the Rules concerning enforcement of this order, which does not require her to have a case conference first, and which may include seeking an order permitting her to deal directly with third parties (on proper notice to them) to obtain needed information or other steps.

43The mother did not seek an order requiring the father to maintain life insurance to secure child support. The father did not serve or file an updated financial statement before trial, despite being required to do so under the Family Law Rules and the Trial Scheduling Endorsement Order of April 16, 2021. Evidence was not introduced about whether the father has life insurance available to him. If the father does have life insurance available to him through his employment or otherwise, he must immediately disclose this to the mother. If the mother learns that the father has life insurance available on his life at a reasonable cost, this will constitute a material change upon which the Applicant may seek an order requiring the Respondent to secure his support obligations (child and spousal) through life insurance.

44The mother seeks an order requiring the father to provide annual disclosure of his income. I have made the order below requiring annual disclosure between the parties – the father’s income is relevant to the determination of table child support and s.7 expenses; the mother’s income is relevant to sharing s.7 expenses.

Issue #6: Is the Applicant entitled to spousal support? If so, what order for spousal support should be made?

45The mother seeks an order that she is entitled to spousal support, although she acknowledges that no spousal support would be payable based on the amount of child support. She seeks an order that clarifies that a change in child support shall constitute a material change in circumstances to change spousal support.

46The father’s position is that the mother is not entitled to spousal support. He provided little evidence in support of this position. He argued that they are no longer married under Islam, so she is not entitled to spousal support.

47An order for spousal support should,

a. recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

b. share the economic burden of child support equitably;

c. make fair provisions to assist the spouse to become able to contribute to their own support; and

d. relieve financial hardship, if orders have not done this under Parts I (family property) and II (matrimonial home).¹¹

48I find that the mother is entitled to spousal support on a compensatory and needs basis. This is based on the following:

• The mother is 45 years old, and the father is 60. At the time of separation, the mother was 41 years old, and the father was 56.

• The mother has two university degrees, a Bachelor of Arts in Psychology from Carleton and a Bachelor of Education from Nipissing. The mother completed her Bachelor of Education degree during their relationship in 2011/2012. She hopes to become a teacher but has had difficulty finding employment because of the gap between completing her degree and searching for work due to child-rearing.

• The father has a high school diploma.

• The parties cohabitated for 19 years, during which the mother did not work outside of the home except for a brief period in 2011/2012 when she completed her practicum for her teaching degree.

• During the parties’ cohabitation, the father worked outside the home. At the same time, the mother remained in the home, primarily responsible for child rearing and home care related to their family, including six children.

• Since the parties’ separation, the mother’s only income has been Ontario Works, the child tax benefit, and the child support she has received under the interim order ($400/m).

• The father does not contest that the mother is on social assistance, did not work throughout their relationship, and her history of parenting, which was that she was primarily responsible for child-rearing.

• I accept the mother’s evidence that she could not pursue her career due to child-rearing obligations. The father suggested that this was the mother’s choice to stay home and raise their six children, to which he simply agreed. I find that this was a family decision that resulted in an economic disadvantage for the mother, who did not otherwise pursue her career outside of the home, and an economic advantage for the father, who did pursue work and experience outside of the house.

• The mother was able to attend Nipissing University for eight months in 2011/2012 to obtain her teacher’s degree. This is an advantage to her, but the benefit to her of this was countered by the fact that, upon completing her degree, she became pregnant with her fifth and then sixth child, which were difficult pregnancies, and which I accept prevented her from pursuing her teaching career at that time.

• The mother’s evidence is that she is now attempting to enter the workforce by applying for teaching positions. Her evidence is that she is making efforts to find teaching positions, but this is difficult because of the amount of time that has passed since she earned her degree. The evidence of her efforts to obtain employment was not contested or countered. I find that the mother is making reasonable efforts to find work. She will, of course, be required to continue to make reasonable efforts to earn income, as will the father. Still, those issues will be related to whether a material change occurs in the future to vary spousal support.

49Child support is given priority to spousal support¹². Because of this, under the Spousal Support Advisory Guidelines (SSAGs), no spousal support is payable even in the high ranges if the father is paying child support of $1,028 per month for the support of four children, based on his income being $42,589 per year. Accordingly, even though I have found the mother is entitled to spousal support on a compensatory and needs basis, given the amount of child support ordered and that child support takes priority over spousal support, I find that there is no quantum of spousal support, other than the notional amount ordered below, payable at this time. This is less than the amount of spousal support that I would have otherwise ordered if child support was less.

50The mother seeks a notional spousal support order of $1 per month. Although in my view, a notional amount is not required to confirm her entitlement, I will make an order of $1 per year to confirm that the father has a support obligation to the mother. I also note that other than objecting to the mother’s entitlement to spousal support, the father did not take issue with a nominal award if entitlement was found.

51To clarify, the order for spousal support is based on the mother’s compensatory and needs-based entitlement to spousal support, as found above. Still, given the parties’ current respective incomes (the mother having no income other than Ontario Works, the child tax benefit and child support, the father’s income being imputed to be $42,589 per year), the child support order of $1,028 per month for four children, and that child support takes priority to spousal support (section 38.1 FLA), no spousal support is payable other than a nominal award. This is less than the amount of spousal support that I would have otherwise ordered if child support was less. If child support is changed, including upon child support no longer being payable for a child, this shall constitute a material change in circumstances to change spousal support (section 38.1 (3) FLA).

Disposition

52For the above reasons, I make the following orders:

Under the Children’s Law Reform Act:

1. The Applicant, Aisha Marie Herbert, shall have sole decision-making responsibility for S.A.W. (Born * *, 2016), A.D.W. (Born * *, 2013), A.B.W. (Born: * *, 2007) and A.Y.W. (Born * *, 2004) until each child turns 18 years of age.

2. The Respondent shall have parenting time with the children as follows:

(a) Every Sunday from 1:00 pm to 5:00 pm, the Respondent shall have parenting time with A.B. (if he would like to attend), A.D. and S.A. at Millennium Park on Trim Road or in the community. The parties may change the location for the Respondent’s parenting time due to inclement weather or other reasons; however, they shall agree on the new location in advance of drop-off.

(b) Subject to the Respondent's brother's consent, the Respondent may have his parenting time at his brother's home at *****, Ottawa, Ontario, *** ***. The Respondent shall provide the Applicant with his brother's telephone number in advance of his parenting time so that Applicant may contact the children at this location and so that the Applicant may contact the Respondent's brother in advance of the Respondent's parenting time to confirm his consent.

(c) The Applicant shall drop the children off at 1:00 pm at Millennium Park on Trim Road (or other location as agreed upon by the parties as per the paragraphs above). She shall pick the children up at 5:00 pm at Millennium Park on Trim Road (or other location as agreed upon by the parties as per paragraphs (a) and (b) above).

(d) The Respondent and A.Y. may arrange parenting time between themselves.

(e) The Respondent may communicate directly with A.B. regarding whether A.B. wishes to attend parenting time with the Respondent.

(f) Any discussions regarding the Respondent’s parenting time with A.D. and S.A. shall be between the Respondent and the Applicant, through text or email, and shall not be conducted through any of the children.

(g) The Respondent shall not have parenting time at his home with any of the children unless and until he provides the Applicant with his full address and the name of all other persons living in the house.

(h) Any other parenting time as may be agreed upon between the parties.

3. The parties shall communicate via email or text message. The Respondent shall not communicate with the Applicant via their children, including but not limited to giving the children documents, cheques or other items to provide to the Applicant and making arrangements for parenting time with A.D. and S.A..

4. The Applicant shall keep the children's documents in her possession for safekeeping until the children are of the age that they may hold their documents. This includes but is not limited to the children's birth certificates, Health Cards/OHIP Cards, Passports, legal documents, or health assessments.

5. Both parties may access to any information or documentation to which a child’s parent would otherwise have a right of access, including by making inquiries and being given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children, subject to any right of privacy that the child may have regarding their personal information when they reach an age of competency to have such a right.

Under the Family Law Act:

6. The Respondent’s income is determined to be $42,589 per year under the Child Support Guidelines. This is based on imputed income.

7. Commencing January 1, 2020, and continuing on the first day of each subsequent month until and including October 1, 2020, the Respondent shall pay child support to the Applicant for S.A.W. (born * *, 2016), A.D.W.(born * * , 2013), A.B.W. (born * *, 2007) A.Y.W. (born * *, 2004), and S.W. (born * *, 2001) of $1,178 per month, being the table amount payable for five children based on the Respondent’s imputed income of $42,589 per year.

8. Commencing November 1, 2020, and continuing on the first day of each subsequent month until changed by further court order, the Respondent shall pay child support to the Applicant for S.A.W. (born * *, 2016), A.D.W. (born * *, 2013), A.B.W. (born * *, 2007) and A.Y.W. (born * *, 2004) of $1,028 per month, being the table amount payable for four children based on the Respondent’s imputed income of $42,589 per year.

9. The child support paid by the Respondent under the interim order dated March 16, 2020, shall be credited to the child support owed under the above paragraphs.

10. In addition to the above table child support, commencing January 1, 2020, the Respondent shall pay 76.5% of any special and extraordinary expenses incurred for the benefit of the children in accordance with s.7 of the Child Support Guidelines. This percentage is based on the Respondent’s imputed income of $42,589 per year and the Applicant’s income of $13,064 per year.

11. The Applicant shall provide the Respondent with receipts for the children's special and extraordinary expenses, and the Respondent shall reimburse the Applicant with his share within 14 days of receipt.

12. The Respondent shall maintain the children on his dental benefits and any extended medical benefits available to him through his employment for so long as these benefits are available to him at a reasonable cost and the children are eligible for such coverage.

13. Within 30 days, the Respondent shall provide the Applicant with a benefits card for his dental plan and any extended medical plan under which the children are eligible for coverage so that she can claim coverage directly at the dentist or medical provider.

14. Within 30 days, the Respondent shall provide the Applicant with all necessary information regarding the dental and extended medical benefits coverage available for the children and any cards or documents required for the children so that she can access the children’s benefits directly. The Respondent shall notify the Applicant of any changes in the children’s coverage forthwith, failing which he shall be solely liable for all costs or losses due to his failure to notify her of any changes.

15. The Respondent shall execute any documents necessary to allow the Applicant to submit insurance claims for the children directly, and to be paid directly for any reimbursement.

16. If the Respondent receives reimbursement for an expense paid by the Applicant, the Respondent shall immediately provide the Applicant with the insurance reimbursement once it is received with the insurance receipt, including a copy of the reimbursement form detailing how the reimbursement was calculated. The parties will then determine their proportional share of the expense as set out above.

17. Within 30 days. each party shall provide the other with disclosure of their income for 2021 as required by s.21 of the Child Support Guidelines, including a complete copy of their income tax return with all schedules and attachments and their notice of assessment.

18. Commencing in 2023 and continuing in each subsequent year until changed by further court order, before June 15^th in each year, the Respondent shall provide the Applicant with disclosure of his income for the previous year as required by s.21 of the Child Support Guidelines, including by providing a complete copy of his income tax return with all schedules and attachments and his notice of assessment.

19. Commencing in 2023 and continuing in each subsequent year in which the Applicant seeks contribution to s.7 expenses, before June 15^th in each year, the Applicant shall provide the Respondent with disclosure of her income for the previous year as required by s.21 of the Child Support Guidelines, including by providing a complete copy of her income tax return with all schedules and attachments and her notice of assessment.

20. Commencing January 1, 2020, the Respondent shall pay spousal support to the Applicant for $1.00 per year on January 1^st of each year. This is less than the amount of spousal support that would have been ordered if child support had been less. If child support is changed, including upon child support no longer being payable for a child, this shall constitute a material change in circumstances to change spousal support (Section 38.1 (3) FLA).

Costs

21. If the parties cannot agree on the costs of this trial, the Applicant may file cost submissions on or before August 26, 2022. The Respondent may file cost submissions on or before September 2, 2022. The Applicant may file a reply, if needed (proper reply only), on or before September 9, 2022. Cost submissions of both parties shall be no more than five pages in length (except for reply submissions, limited to 3 pages), plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

A copy of this decision will be released to publication with the children’s names and birthdates, and the brother’s address, redacted.

Footnotes

1. 1The second oldest child who also lived with the mother was 18 years old at the time of the March 16, 2020 interim order.
2. 2Exhibit E
3. 3Respondent’s 2019 Income Tax Return and 2019 T-slips
4. 4Union dues are deducted under Schedule 3 of the Child Support Guidelines
5. 5The father initially admitted not reporting the income from the Islamic Society on his tax return, and later stated that he did not know if he reported it. But his 2019 tax return and 2019 T slips confirm he only reported his school board income on his 2019 tax return.
6. 6Father’s 2020 Income Tax Return and Notice of Assessment
7. 7See, in particular, the April 16, 2021 order in the TSEF
8. 8The father’s evidence was that he thought he left his job with the Islamic Society in November of 2020.
9. 9The father was ordered to provided his bank statements on April 16, 2021
10. 10Mother’s 2020 income tax return and notice of assessment
11. 11Family Law Act, s.33(8)
12. 12Family Law Act, s.38.1