COURT FILE NO.: FC388/19
DATE: December 19, 2022
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Paul David Gilks, Applicant
AND:
Jodi Elizabeth Margaret Duval, Respondent
BEFORE: SAH J.
COUNSEL: Kenneth V. Duggan for the Applicant
HEARD: October 11, 12, 13, 14, 17 and 18, 2022
ATTENDANCES: Parties and Applicant’s counsel
REASONS FOR JUDGMENT
[1] The parties cohabited from the fall of 2013 to January 2019, during which time three children were born, CEG, born in 2013 (“C”), LEDG (“L”) and DPG (“D”), twins born in 2015 (collectively referred to as the “children”).
[2] After living separate and apart under the same roof for approximately three months, the respondent mother vacated the home after being charged with mischief for property damage. The applicant father remained in the home with the children.
[3] The respondent mother seeks equal parenting time and a joint decision-making regime. She requests that child support obligations be fulfilled by each party purchasing what is needed for the care of the children. She also seeks spousal support from the applicant father.
[4] The applicant father requests sole decision-making responsibility and a parenting schedule that provides the respondent mother with parenting time on alternate weekends and a mid-week visit. He requests ongoing and retroactive child support to January 1, 2020. He concedes the respondent mother's entitlement to spousal support but requests that the quantum be set at zero.
[5] For the reasons set out below, it is in the children’s best interest for the applicant father to have sole decision-making responsibility after consultation with the respondent mother. Further, it is in the children's best interest for the respondent mother to have a defined parenting time schedule which maximizes her time with them while considering the realities of her employment. The respondent mother has an obligation to pay child support in accordance with the Child Support Guidelines, O Reg 391/97 (“Guidelines”). Her claim for spousal support shall be offset by retroactive child support owing.
Issues for Determination
[6] The issues to be decided are:
What parenting time regime is in the children’s best interest?
What decision-making regime is in the children’s’ best interest?
Are child support arrears owed to the applicant father and, if so, in what amount?
What income should be imputed for ongoing support and what obligations flow?
Is the respondent mother entitled to spousal support and, if so, what is the appropriate quantum and duration?
Credibility Assessment
[7] The credibility and reliability of the parties are important considerations when a request is made that the court accept one version of events over the other.
[8] To provide a few examples, each party challenged the other’s credibility on: i) the respondent mother’s parenting time after March/April 2020, ii) whether the applicant father informed the respondent mother of details of the children’s extracurricular activities, social commitments, and medical issues, iii) whether the respondent mother provided a copy of her employment schedule to the applicant father to confirm parenting time, and iv) whether the applicant father abused, or is abusing, alcohol while in a caregiving role.
[9] As articulated by Jarvis J. in Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28:
… the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,
…the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence [Citations omitted.]
[10] I note the following about the evidence of each party.
[11] The applicant father testified that the respondent mother did not have any contact with the children from March 2020 until approximately Mother's Day 2021. The respondent mother maintained that she had regular and consistent parenting time with the children during that time. However, she was unable to produce evidence to support her position. In fact, the Talking Parents printouts, entered as an exhibit at trial, did not support that she was following the court-ordered parenting time set out by Leach J. in his order dated October 30, 2019.
[12] To date in 2022, the applicant father testified that the respondent mother had parenting time with the children a total of six times: twice in January 2022, twice in July 2022, and once in August and September. The respondent mother maintained her position that she had consistent parenting time with the children but was unable to provide any evidence to support her position, even when directed to the Talking Parents printouts after testifying that those records would support her position.
[13] The respondent mother maintained that the applicant father has not kept her informed about the children, including their social and extracurricular needs.
[14] She testified that there was an order to provide such disclosure and information and that he has failed to comply with same. On cross-examination, she was unable to direct the court to any such court order to support her position. Indeed, after a thorough review of the entire court record, I was unable to locate such a court order.
[15] The Talking Parents printouts included examples of the applicant father notifying the respondent mother of the children’s involvement in hockey. While he did not provide her with a copy of the schedule, he informed her where to find it.
[16] The Talking Parents printouts also included examples of the applicant father informing the respondent mother, on July 11, 2022, of a birthday party the children had to attend during her scheduled parenting time, the weekend of July 23, 2022.
[17] Considerable evidence was tendered at trial regarding the respondent mother’s parenting time and her current employment commitments as a personal support worker (“PSW”).
[18] Despite her testimony that the applicant father was aware of her inability to parent the children due to her work commitments, the respondent mother was unable to point to any entry in the Talking Parenting printouts confirming that her work schedule was provided. There is evidence of her informing him of her inability to care for the children in accordance with the court-ordered schedule, but the timing of those entries coincides with the start of parenting time or shortly before the commencement of same.
[19] The respondent mother also testified that the applicant father historically abused and continues to abuse alcohol while the children are in his care. She testified that she witnessed the applicant father stumbling across the street once when she was dropping off the children with her brother. She testified that she has known him for six years and she knows that he was drinking. She claims to have contacted the police to perform a welfare check.
[20] On cross-examination, the respondent mother confirmed that she does not have video proof or any objective evidence to support her allegations about the applicant father’s demeanour. She did not produce police records. She did not call the police officer or her brother as a witness.
[21] Documentary evidence is important, particularly when each party's credibility is challenged. The respondent mother's evidence did not follow the documentary evidence presented at trial.
[22] The respondent mother’s claim of her parenting time, her work schedule, information sharing, and alcohol are not supported by the evidence, are not reliable, and impact her credibility.
[23] Where her evidence conflicts with the applicant father, I accept his.
Issue #1 – Parenting Time
Position of the Parties
Applicant father
[24] The applicant father requests that the children’s primary residency remain with him. He suggests the respondent mother have liberal and generous parenting time with the children, to include alternate weekends, a midweek overnight visit, two weeks in the summer, and equal sharing of all other holidays.
Respondent mother
[25] The respondent mother is content that the children's primary residence remains with the applicant father. She seeks an equal shared parenting regime on a weekly basis, with exchanges to occur every Sunday. She also seeks equal sharing of holidays.
Legal Principles
[26] In allocating parenting time, I am required to give effect to the principle that C, D, and L should have as much time with each parent as is consistent with their best interests: see s. 24(6) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[27] In fact, their best interests are the only requirement the court is to consider: see s. 24(1) of the CLRA.
[28] In determining their best interests, I am required to consider all factors related to the children’s circumstance and, in doing so, must give primary consideration to their physical, emotional and psychological safety, security, and well-being: see s. 24(2) of the CLRA.
[29] Further, in determining what is in the best interests of the children, I must not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of the person’s parenting time with respect to the children: see s. 24(5) of the CLRA.
[30] The legislation sets out various factors to consider, and each, to the extent relevant to the facts of this case, will be analyzed below.
Analysis of Evidence and Findings
C, D, and L’s needs, given their age and stage of development
[31] The children were five, three, and three years old when the parties separated. They are now nine, seven, and seven years old. Over the course of the last four years, they have had the stability and security of having their primary residence with the applicant father where their needs have been met.
[32] The evidence supports the following findings:
- The children’s dental needs are adequately addressed by the applicant father.
- C and D’s mild attention deficit hyperactivity disorder (ADHD) is being managed by the applicant father who is responsible for obtaining and administering prescription medication.
- The applicant father followed recommendations from London Health Sciences Centre, participated in medical genetics testing and completed bloodwork and a family history questionnaire to help better assess the disorder.
- When C and D were kicked out of a YMCA camp, and C was caught stealing from his peers at school and destroying property, the services of Vanier Children’s Mental Wellness (“Vanier”) were sought while the children were under the care of the applicant father, and they were referred to a paediatric psychologist.
- C participated in 12 sessions with Vanier.
- In September 2021, the applicant father advised Vanier that he is interested in family services for the three children as well as for himself.
- The children’s school records from June 2022 reveal that C, in grade three, earned mainly Cs and Bs, with occasional As. D, in grade one, earned mainly Cs and Bs, and occasional Ds. L, also in grade one, earned mainly Bs, with one C and the occasional A.
- All three children are enrolled, and actively participate, in hockey in the winters and soccer in the summers.
[33] The children’s dental, academic, medical, and recreational needs are being met by the applicant father.
[34] Despite the respondent mother's attempts to discredit the applicant father by raising issues of alcohol abuse and verbal abuse, she admitted that the applicant is not a bad father.
[35] The children require a detailed parenting schedule, a consistent routine, and a level of predictability.
The nature and strength of C, D, and L’s relationship with each parent
[36] There is no dispute that the respondent was a stay-at-home parent when the children were first born. The applicant father testified he had no issues with the children in her care at that time.
[37] Both the respondent mother and her corroborating witness confirmed that the children were in her primary care and control until the parties separated in March 2019.
[38] The parties’ separation was tumultuous. The events that led to the parties’ physical separation on March 30, 2019 resulted in criminal charges being laid upon the respondent mother and a no contact order.
[39] After the respondent mother vacated the home, the applicant father secured day care for the three children. Such day care and before and after-school care was required to ensure that he continued to have the ability to work. He was responsible for their primary care.
[40] The extent of the respondent mother’s parenting time with the children post-separation will be further addressed below.
[41] The mother expressed a great desire to have a close and loving bond with the children. I find her desire for a strong bond with her children is genuine. I do not know, however, if she is aware that the bond is created and sustained by regular and consistent contact.
[42] On one recent visit, D and L did not wish to go with the respondent mother, only C went for the visit.
[43] On several occasions throughout the trial, the respondent mother mentioned that she left the applicant father, not the children.
[44] The children have a significant relationship with both parents. As outlined below, I conclude that the children have spent more time with the applicant father, as compared to the respondent mother, and this has likely contributed to a greater comfort level and stronger bond.
Each parent’s willingness to support the development and maintenance of C, D, and L’s relationship with the other parent
[45] The applicant father testified that he wishes to maximize the children's time with the respondent mother. The difficulty he has with the historical parenting time has been the inability for there to be predictability and routine given the respondent mother's work schedule.
[46] The respondent mother disputes the father's willingness to support the development and maintenance of the children’s relationship with her. She testified that he gives her a hard time when she requests parenting time, suggesting that they are busy. She claims that, on one occasion, he referred to them as “his” children not “their” children. She further claims that he stopped printing off the children's activity schedules when asked.
[47] I accept the applicant father’s wish to maximize the children's time with their mother. The practical difficulties presented throughout the trial regarding her work schedule have been the main barrier to increasing her parenting time. The parenting time as ordered by Leach J. on October 30, 2019 did not always occur as further detailed below.
[48] The respondent mother describes the applicant father as an abuser and a functioning alcoholic. Despite her assertions, there is no evidence to support either of these allegations. Notwithstanding, the children have been primarily in his care for years.
[49] I find the mother has significant animosity towards the applicant father. This, in my view, acts as a barrier to developing and maintaining the children's relationship with their father.
The history of care of C, D, and L
[50] Following the birth of the children, the respondent mother stayed home. She did not work outside the home. During this time, the applicant father worked, first at CP Rail, then, after losing his job, at Granite Canadian.
[51] The respondent mother was the primary caregiver for the children until March 2019 when she was arrested and forced to vacate the family home.
[52] From April 2019, the respondent mother had the children in her care almost every day. She did not have overnight parenting time because she did not have room for them to sleep but she cared for them daily, including on weekends. During this time, some of the children were in and out of day care.
[53] In September 2019, the twins started junior kindergarten and C was in grade one. The mother then had the children on PD days, when they were sick, and because she started a job at the Ramada Inn, on alternate weekends.
[54] She admits that the applicant father would call her to take them more often, but she declined due to her work schedule.
[55] On October 30, 2019, the respondent mother brought a motion to have the three children returned to her primary care. The applicant father brought a cross-motion seeking confirmation of the children's primary residence with him, with a defined expanded parenting time schedule for the respondent mother.
[56] The respondent mother's motion was dismissed. Leach J. ordered the children to remain in the primary care of their father, with defined parenting time to their mother to occur alternating weekends from Friday at 5:30 p.m. until Sunday at 5:30 p.m., to be extended to Monday at 5:30 p.m. if it was a long weekend. The children were to be in the care of their mother every PD Day during the school year and every Thursday from 5:30 p.m. to the return to school on Friday at 9:00 a.m.
[57] The evidence supports that the parties did not always follow this court-ordered schedule.
[58] The applicant father testified that the respondent mother did not have the children in her care Thursday overnight to Friday.
[59] Following the parties’ separation, the respondent mother began residing with her brother. When that relationship became strained, the respondent mother had nowhere to take the children when they were in her care.
[60] From March 2020, for approximately 14 months, the respondent mother did not see the children. She had telephone contact with them but, as the applicant father described, it was haphazard.
[61] The respondent mother could not dispute that she had no physical contact with the children during this time, claiming that she could not dispute something she could not recall.
[62] The applicant father attempted to suggest a telephone schedule to provide predictability and routine for the children. He proposed that the calls take place Wednesday evening and on Saturday. He testified that the respondent mother called regularly on Wednesdays but often missed the Saturday calls and would then call on Sunday. This change in schedule was due to her work schedule.
[63] After 14 months of not seeing the children, the respondent mother spent Mother's Day with them. She spent one day with them in May 2021.
[64] The applicant father testified that the respondent mother only saw the children four times in 2021 and that the visits occurred approximately every three months lasting a day or one overnight, Saturday to Sunday.
[65] The applicant father testified that the respondent mother saw the children five times in 2022: twice between January 2022 and June 2022, and once in July, August, and September.
[66] The applicant father claims that he never prevented the children from speaking with their mother. While she still maintained her telephone parenting time, she sometimes called when the children were engaged in an activity and did not want to speak with her. She usually called on Saturdays at 6:00 p.m.
[67] According to the applicant father, he has asked the respondent mother to take the children for extra time or to keep them longer, to which she responds that she is not his babysitter. He also testified that there were times when the children were sick and she was asked to care for the children, after which he received no reply or was told that she was busy working.
[68] The applicant father offered the respondent mother March Break with the children and he claims she declined.
[69] In July of 2022, the respondent mother asked to have the children for the weekend but made this request two to three days in advance. Because the children had plans, the applicant father refused. He testified that he would never otherwise refuse her request for parenting time.
[70] The respondent mother maintains that she had regular and consistent time with the children over the years. However, she admitted that she did not keep a calendar of her time with the kids. She claims to rely on the Talking Parents application which she says supports her position.
[71] The complete Calendar Record from the Talking Parents application for the period of January 2020 to October 2022 was filed as an exhibit at trial. In addition, the complete Message Record from the Talking Parents application for the period of January 31, 2022 to September 25 2022 was filed as an exhibit. A considerable amount of time was spent at trial reviewing these entries.
[72] Despite the assertions of the respondent mother, she was unable to produce any credible evidence to support her claim of having regular and consistent time with the children over the years.
[73] As a result, I conclude that the children have been in the primary care and control of the applicant father since separation and that the respondent mother's time with the children has been sporadic and inconsistent.
C, D, and L’s views and preferences
[74] No evidence was tendered on the children's views and preferences.
Any plans for C, D, and L’s care
[75] The respondent mother's plan of care is contingent on her being awarded 50/50 parenting time.
[76] It is her evidence that, should the court award a shared parenting regime on a 50/50 basis, she could care for the children and attend to their needs by working only a few 10:00 p.m. to 6:00 a.m. shifts, making her available to take the children to and from school and any activities they choose to partake in.
[77] The respondent mother did not provide any evidence about who would be caring for the children while she worked 10:00 p.m. to 6:00 a.m. shifts.
[78] The applicant father’s plan of care allows the children to remain in their current public school and in the before and after school program. He requests a parenting schedule that would provide the respondent with parenting time on alternate weekends from Friday to Sunday, with one Wednesday overnight visit, specified telephone parenting time, shared Christmas and March breaks, two weeks of non-consecutive parenting time in the summer, and Mother’s Day.
[79] There is unverified evidence before the court from the respondent that she is able to change her work schedule. The court prefers the plan of care that does not rely on an “if and when” scenario.
The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of C, D, and L
[80] The court has no doubt that the respondent mother has a desire and strong willingness to care for and meet the needs of all three children.
[81] The court questions the respondent mother's ability to do so given her work schedule. The court does not intend to penalize the mother for her work schedule and the uncertainties that come with same. She must be commended for her very impressive and difficult achievement of transitioning from stay-at-home mother to PSW graduate. However, the uncertainties presented at trial make it difficult to support a finding that it is in the children's best interest to be with her on a week-about basis
[82] The applicant father has demonstrated both the ability and willingness to care for and meet the needs of the children. He has done so consistently, notwithstanding the sporadic involvement from the mother in recent years.
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 C, D, and L
[83] There exists a significant level of distress between the parties. There is an inability to communicate effectively. The Talking Parent application entries demonstrated that there is a considerable amount of animosity and a failure to remain child focused.
[84] There is confusion regarding work schedules. The parties do not possess the ability, at least at this time, to communicate and cooperate on matters affecting the children. For this reason, they need a very detailed and defined parenting schedule.
Family violence
[85] The respondent mother testified that the applicant father was abusive, yelled at her, demoralised her, and behaved in an overall deplorable manner. She testified that he was an alcoholic who became enraged when she was not available to care for the children at his whim.
[86] Notwithstanding this evidence, her form 35.1 affidavit did not disclose any violence that the court should consider. She entered “N/A” when given an opportunity to describe incidents or episodes, or to provide any information about the nature of the violence or abuse, who committed the violence, and who the victim was.
[87] The respondent mother called a friend as a witness who testified about what she observed to be the applicant father’s aggressive behaviour in front of the children. This witness also testified that the applicant swore and yelled at her in the presence of the children. These events were historic and, notwithstanding same, the children remained in the primary care of the applicant father without any suggestion from the respondent that it was not in their best interest.
[88] This factor will not be considered in determining what is in the best interests of the children.
Disposition
[89] It is the court's hope that the defined schedule below will provide predictability and certainty for the children.
[90] The respondent mother has ample notice and can, hopefully, work with her employer to ensure that the court-ordered parenting time can be accommodated. The court orders the following:
[91] The children’s primary residence shall be with the applicant father.
[92] The respondent mother shall have parenting time as follows:
a) Alternate weekends from Friday after school, or 5:00 p.m. if school is not session, until Monday to the return of school or 9:00 a.m., to be extended to Tuesday at 9:00 a.m. if Monday is a holiday;
b) Every Wednesday after school, or 5:00 p.m. if school is not in session, to Thursday at the return of school, or 9:00 a.m. if school is not in session;
c) Each Mother’s Day from 9:00 a.m. to 5:00 p.m.;
d) Alternating March breaks, for the entire week, commencing in 2023 and during each odd numbered year to follow;
e) Two non-consecutive weeks during the summer, one in July and one in August, with the respondent to notify the applicant of her selected weeks on or before May 1st of each year;
f) Christmas holidays as follows,
i) commencing in 2023 and during each off numbered year to follow, from December 25 at 2:00 p.m. until December 26 at 2:00 p.m., and from December 28 at 2:00 p.m. until January 3 at 5:00 p.m.;
ii) commencing in 2024 and during each even numbered year to follow, on December 20 at 5:00 p.m. to December 25 at 2:00 p.m. and from December 26 at 2:00 p.m. to December 28 at 2:00 p.m.
g) Any holiday parenting as set out above shall override the regular schedule in the event of a conflict;
h) Such further and other times as the parties may agree to in writing.
[93] Whichever party has the children in their care shall take the child/children to their extracurricular activities. If they are unable to do so, they shall notify the other party who may pick the child/children up one hour before the commencement of the activity and return the child/children no later than one hour after the end of the activity.
Issue #2 – Decision Making
Position of the Parties
Applicant father
[94] The applicant father seeks an order for sole decision-making responsibility. He does not believe that the parties are able to communicate effectively to allow for joint decision-making.
Respondent mother
[95] The respondent mother seeks an order for joint decision-making. She does not wish to be cut out of the children’s lives and wishes to be consulted before decisions are made.
Legal Principles
[96] As noted above, s. 24(2) of the CLRA provides that the courts must give primary consideration to the child’s physical, emotional and psychological safety, security, and well-being when determining the best interests of a child.
[97] Section 24(3) of the CLRA sets out a list of factors relating to circumstances of a child for a court to consider.
[98] The rights and responsibilities bestowed on a parent entitled to decision-making responsibility must be in the best interests of the child and must be exercised in the best interests of the child: CLRA ss. 20(2) and 33.1(1).
[99] This includes the responsibility to protect any child from conflict arising from the proceeding: CLRA s. 33.1(2).
[100] Decision-making responsibility is defined as: responsibility for making significant decisions about a child’s well-being, including with respect to a) health, b) education, c) culture, language, religion and spirituality, and d) significant extracurricular activities: CLRA s. 18(1).
[101] Section 28(c) of the CLRA lists additional orders the court may make as it considers necessary and proper in the circumstances.
[102] Section 28(8) of the CLRA provides that a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable law, to receive information about the child’s wellbeing from any person who is likely to have such information.
Analysis of Evidence and Findings
[103] The children are young and have not been involved with many extracurricular activities to date except for hockey in the winter and soccer in the summer.
[104] Two of the children have been diagnosed with mild ADHD. This requires medical attention and care.
[105] The respondent mother claims that the applicant father has not kept her advised of all activities.
[106] He disputes this, suggesting he advised her that their hockey schedule is posted on the London Bandits website. The applicant father is a qualified trainer for both teams. He spends a considerable amount of time on the ice with the children.
[107] According to him, the respondent mother attended one skate last winter.
[108] The evidence supports that the applicant father directed the mother to the website where she can find the information about the schedule. This did not satisfy her as she wished to be provided with a calendar or a schedule.
[109] The respondent mother devoted much of her evidence to discredit the applicant father. As set out in the credibility assessment above, I prefer the applicant father's evidence where it conflicts with the respondent mother’s.
[110] Further, as set out above, the Talking Parents printouts included examples of the applicant father notifying the respondent mother of the children’s involvement in hockey and informing her of a birthday party the children had to attend during her scheduled parenting time.
[111] There are also examples contained in the Talking Parents printouts of information shared regarding the children's medical appointments.
[112] There exists neither trust nor respect between the parties. I have no reason to believe that such trust and respect will be established in the near future. I am also not confident that their communication skills will improve.
[113] The applicant father has been making most decisions regarding the children's education, health, and extracurricular activities. He has done so likely in large part due to the respondent mother's notable absence.
[114] I am not of the view that the consultation process that would flow with a joint decision-making order would be in the children's best interest. It will likely create conflict and possibly delays with their registration in extracurricular activities or in the administration of medical care.
[115] The evidence of historical communication between the parties is dismal. I make this conclusion after reviewing the text messages entered as exhibits at trial and the Talking Parent printouts.
[116] Both parents have good intentions but the court cannot make an order based on the hope their communication will improve.
[117] The children are young, and it is likely that significant decisions will be made regarding their care for the foreseeable future.
[118] The respondent mother had absolved herself of any input into many day-to-day decisions affecting the children since separation, leaving the decision-making to the applicant father.
[119] The applicant has been able and willing to care for the children's medical needs, including ADHD treatment and registering them for counseling. He has also demonstrated the ability and willingness to provide for their extracurricular needs by registering them in soccer and hockey, and finding subsidies as needed.
[120] The respondent mother has clearly expressed a desire to be informed of all the issues involving the children. She should be provided with that opportunity. She should also be consulted, when possible, regarding the children’s extracurricular activities, medical care, and education.
[121] However, when or if an impasse occurs, the applicant father should have sole decision-making. He has demonstrated the ability and willingness to make decisions in the children’s best interests, the ability and willingness to communicate with the respondent mother regarding those decisions, and has a longstanding history of being sole decision-maker.
Disposition
[122] The applicant father shall have sole decision-making responsibility for any and all decisions impacting the children, including, but not limited to, decisions relating to their health, education, religion, and extracurricular activities. The applicant shall consult with the respondent about the children's health, education, religion, and extracurricular activities. If, however, the parties are not able to reach an agreement on these issues, the applicant shall have final decision-making authority.
[123] The applicant father shall inform the respondent mother of any decisions made regarding the children's health, education, religion, and extracurricular activities immediately after the decision is made.
[124] The respondent shall be listed as the second contact at the children's school, after the applicant.
[125] Both parties shall be permitted to obtain information directly from those involved with the children, including their school, doctors, or any other professionals. The applicant father shall, within 14 days, provide the respondent mother with a list of those involved in the children's care and shall sign any consent required to ensure that the respondent mother has access to information from these third parties.
[126] The applicant father shall retain all government issued identification for the children and shall provide to the respondent mother, within 30 days, notarial copies of all documents.
[127] While in the care of either party, if any of the children becomes ill or suffers an accident which requires medical attention or intervention, that party shall notify the other party as soon as reasonably possible.
[128] Both parties shall keep the other informed of all of the children's activities, medical, social, religious, academic, and extracurricular.
Issue #3 – Child Support Arrears and Ongoing Support
Position of the Parties
Applicant father
[129] The applicant father seeks child support retroactive to January 1, 2020. He requests that the support obligations for the year 2020 be based on the respondent mother’s 2020 income as set out in her 2020 income tax return.
[130] For the year 2021, he requests the respondent mother have her income imputed at $19,858 per annum, which is consistent with what is disclosed on her financial statement, as she did not produce or disclose her 2021 income tax return.
[131] For the 2022 calendar year, the applicant father provided the court with four options for the imputation of income, proposing $36,000, $42,889, $40,000, or $19,858.
[132] The applicant father has not requested the respondent mother’s contribution towards retroactive section 7 expenses.
Respondent mother
[133] The respondent mother claims that despite earning income in 2020, she could not afford to pay support. She acknowledges working and earning money in 2021. She also acknowledges that she is currently earning money. She does not dispute her failure to provide appropriate financial disclosure.
[134] She maintains that both parties should support the children by paying their own expenses and splitting school costs.
Legal Principles
[135] Section 31 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), sets out that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her eligible children.
[136] Subsection 31(7) of the FLA sets out that an order for the support of children should recognize that each parent has an obligation to provide support for the child and should apportion the obligation according to the Child Support Guidelines.
[137] Subsection 31(11) of the FLA states that a court making an order for the support shall do so in accordance with the Guidelines.
[138] Subsection 34(1)(f) of the FLA provides a court with the jurisdiction to order that child support be paid in respect of any period before the date of the order.
[139] Any support claimed after an application is issued is prospective support, not retroactive: see Mackinnon v. Mackinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (Ont. C.A.).
[140] The Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24, at para. 114, set out the framework to be used for applications to retroactively increase support:
a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
[141] Courts have held this framework is also be applied, with necessary modifications, for an original request for retroactive support: see M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.
[142] Here, there is no requirement to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci.
[143] First, the court must determine the presumptive date of retroactivity as described in Colucci.
[144] Second, the court must determine if it should depart from the presumptive date of retroactivity where the result would otherwise be unfair.
[145] Third, the court must quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the Guidelines.
[146] Subsection 3 (1) of the Guidelines states:
Presumptive rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is:
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
[147] Section 2 of the Guidelines provides that “income” means the annual income determined under sections 15 to 20.
[148] Where the parties do not agree on what the payor’s income is, section 16 of the Guidelines states that “Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.”
[149] Where a party fails to comply with their disclosure obligations as provided for in s. 21 of the Guidelines and provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them: see Gray v. Rizzi, 2016 ONCA 494; Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.
Analysis of Evidence and Findings
[150] The applicant father commenced his Application in the Superior Court of Justice, including his claim for child support, in April 2019. He seeks retroactive support commencing January 1, 2020.
[151] He is not asking for retroactive support to the date of separation or to the application date because of the income levels of the respondent mother. The proposed date is fair, and the court will not interfere with the request made.
| Year | Applicant father | Respondent mother |
|---|---|---|
| 2019 | $46,302 – per Line 150 on Notice of Assessment | $7,547 – per Line 150 Partial Information Return for Electronic filing |
| 2020 | $38,618 – per Line 150 on Notice of Assessment | $32,262.41 – per partial Income Tax Return Summary (union dues- $233.65) |
| 2021 | $37,014 – per Line 150 on Notice of Assessment | $19,858 – No Income Tax Return filed, based on income disclosed on Financial Statement sworn October 12, 2022 |
| 2022 | $64,932 – Total gross annual income on Financial Statement sworn October 7, 2022 (includes self-employment income, interest and investment income, and child tax benefits). | Hourly rate at current employer - $20.62 – per her evidence. The pay stub for pay ending August 6, 2022, is illegible. |
[152] Turning now to the quantification of the proper amount of support for each year since January 1, 2020, calculated in accordance with the Guidelines. The following chart summarizes the evidence relative to the parties’ incomes for the years in question:
[153] For 2020, I accept the respondent mother's income as stated on her partial Income Tax Return Summary. I note that she paid union dues in the annual amount of $233.65. Her income, net of union dues in 2020 is $32,028. This would generate a child support payment, pursuant to the Guidelines, in the amount of $661 per month, or $7,932 annually.
[154] For 2021, I accept the applicant father’s request to use the respondent mother's income as stated on her sworn financial statement dated October 12, 2022. Her income of $19,858 would generate a child support payment, pursuant to the Guidelines, in the amount of $354 per month, or $4,248 annually.
[155] For 2022, the applicant father presented four options for the court’s consideration.
a) First, he proposed using the respondent mother’s 2021 income of $19,858, this being the most up-to-date documentary evidence before the court.
b) Second, he proposed imputing her income in the amount of $40,000.
c) Third, he proposed to multiply the respondent mother’s stated hourly rate of $20.52 by the 40 hour she testifies she works per week, multiplied by 52 weeks a year for the total amount of $42,889.
d) Fourth and finally, he proposed taking the respondent mother’s net income (obtained from her bank statement) of $1,292, grossing it up by 30% to achieve her gross income of $1,679, multiplied by 26 pay periods for the total amount of approximately $43,600.
[156] The respondent mother testified that her weekly hours are unknown and could vary depending on the number of shifts offered at work. She testified that she works at least six shifts per month with each shift being eight hours.
[157] She testified that some of the information on her financial statement may be inaccurate. She claimed that she was unfamiliar with the forms as a self-represented litigant.
[158] The respondent mother has failed to comply with section 21 of the Guidelines, in particular subsection 21(1)(c) which requires her to produce a recent statement of earnings indicating total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the employer setting out that information including her annual salary rate or renumeration.
[159] The respondent mother tendered as an exhibit a pay stub for the pay period ending August 6, 2022. This was not recent relative to the start of trial, and it was largely illegible. At the request of the applicant father, she produced her bank statement to assist the court in determining what her net income received was.
[160] In the circumstance, the court has the option of imputing income to her in such amount that it considers appropriate: see s. 19(1)(f) of the Guidelines.
[161] This is not a situation where the respondent mother is intentionally underemployed or unemployed.
[162] An analysis of her annual income is made challenging due to her failure to provide reliable disclosure and it is appropriate to draw an adverse inference against her.
[163] The respondent mother had not provided income tax returns for 2021 and only filed one Financial Statement earlier in these proceedings. At the start of trial, a request was made for an updated financial statement. The respondent mother did so but admitted that it contains inaccuracies.
[164] The respondent mother testified her current hourly rate is $20.62. She was unable to provide the court with an average of hours worked per week, stating that it fluctuates greatly. She started her current employment on May 18, 2022.
[165] She testified that she has a minimum number of guaranteed shifts per month and suggested that she could have worked seven days a week in the month of October but did not because the trial was called. This creates a significant range in potential hours worked and income.
[166] Relying on her evidence of the minimum shifts provided, her annual income would be at least $11,877.12.
[167] I accept the approach taken by the applicant father in his proposal but do not accept the pay periods should be multiplied by 26 given the commencement date of employment.
[168] Taking the respondent mother’s net income as set out on her recent bank statement of $1,292 and grossing it up by 30% achieves a gross income of $1,679 for pay period.
[169] While there are generally 26 pay cheques per year with a biweekly pay schedule, the respondent mother testified that the hourly rate reflected in this bank statement only took effect following her probationary period, and she only commenced employment in the middle of the fifth month of the calendar year.
[170] Accordingly, it would be more appropriate to multiply the determined gross income for one pay period by 13 months. This yields an income of $21,827. However, based on the respondent mother’s evidence that she has the potential of working seven days a week, I shall increase this amount and impute her income to $30,000 per annum.
[171] Her imputed income of $30,000 would generate a child support payment, pursuant to the Guidelines, in the amount of $621 per month.
[172] For the purpose of apportioning s. 7 expenses, I accept the applicant father's income as set out in his financial statement sworn October 7, 2022. He is self-employed, running a business out of his home known as “Handyman Happ”. His total income from all sources, as set out in his Financial Statement, is $64,932.
Disposition
[173] The respondent mother’s child support obligations, retroactive and ongoing, are as follows:
a) for the 2020 calendar year, arrears are fixed at $7,932;
b) for the 2021 calendar year, arrears are fixed at $4,240;
c) for January 1 to November 30, 2022, arrears are fixed at $6,831;
d) Commencing December 1, 2022 and payable on the first day of each month thereafter, the respondent mother shall pay to the applicant father child support for the benefit of the three children, CEG, born in 2003, LEDG, born in 2015, and DPG, born in 2015, in the amount $621/month.
[174] The parties shall share future s. 7 expenses and children's activities in proportion to their respective incomes, with the applicant father paying 68% and the respondent mother paying 32% of any expense agreed upon in writing, prior to it being incurred.
[175] Commencing May 31, 2023 and by May 31st of each year thereafter, the parties shall exchange their Income Tax Returns and Notices of Assessment from the previous taxation year and such further financial disclosure as required by s. 25 of the Child Support Guidelines.
[176] The parties shall readjust table child support and s. 7 expenses yearly with the adjustment occurring on July 1st and going forward to the following June 30th.
[177] Unless this Order is withdrawn from the Director’s Office at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the recipient. Where sufficient deductions are not being made by support deduction Order, payments may be remitted to the Director of the Family Responsibility Office.
[178] For as long as child support is paid, the payor (and recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with s. 24.1 of the Child Support Guidelines.
Issue #4 – Spousal Support
Position of the Parties
Applicant father
[179] The applicant father acknowledges the respondent mother is entitled to spousal support. However, he claims that he does not have the means to pay support. He attributes this to the financial burden he bears in caring for the children without contribution from the respondent mother. In the alternative, he argues that the quantum of support should be zero, given her lack of need and the fact that the respondent mother's income is greater than his.
Respondent mother
[180] At the conclusion of the trial, the respondent mother advised the court that the issue of spousal support was less important to her when compared to the issues involving the children. She went so far as to state that she did not care about spousal support, and she just wanted her children 50% of the time. In her draft order, she requested support in the amount of $550 per month. She first requested spousal support in her Answer and Claim by Respondent.
Legal Principles
[181] Section 30 of the FLA provides that every spouse has an obligation to provide support for themself and for the other spouse, in accordance with need, to the extent they are capable of doing so.
[182] Subsection 33 (8) of the FLA cites the purposes of spousal support. Subsection 33 (9) lists considerations for the determination of the amount, if any, and duration of spousal support.
[183] Before applying the Spousal Support Advisory Guidelines (“SSAG”), entitlement to support must first be established: see Fisher v. Fisher, 2008 ONCA 11.
[184] The court must determine all grounds for entitlement, as the basis for entitlement may have a significant impact on quantum and duration of spousal support: see Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81 at para. 64.
[185] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship: see: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102.
[186] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses: see Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337.
[187] The word “need” is not limited to one’s basic needs. It can be interpreted to cover situations where a spouse suffers a significant decline in the standard of living he or she enjoyed during the relationship: see: McIntyre v. Winter, 2020 ONSC 4376; Nixon v. Lumsden, 2020 ONSC 147.
Analysis of Evidence and Findings
[188] The parties did not focus their evidence, nor their submissions, on this issue.
[189] The applicant father confirmed that entitlement to spousal support existed but did not specify whether the basis for entitlement was compensatory or non-compensatory.
[190] When asked specifically about quantum and duration, the applicant father stated six years of duration was appropriate and that quantum should be zero because he could not afford to pay for the children and spousal support. He claimed he had no means to pay, and the respondent mother had no need.
[191] Neither party produced SSAG calculations.
[192] I agree with the applicant father that entitlement to support exists having regard for the roles assumed by the parties during the relationship and their economic interdependence.
[193] In 2012, the respondent mother met the applicant father when she was hired by him as a nanny for his two children from a previous relationship. Three months into this arrangement, they started a relationship, and she began staying over in his home. Their first child was born in the year they began cohabiting and the twins were born two years later.
[194] The respondent was a stay-at-home mother. She was primarily responsible for caring for the household and the children while the applicant father worked outside of the family home. He was the primary income earner.
[195] Following the parties’ separation, the respondent mother could not maintain the lifestyle she had grown accustomed to. After the parties tried living separate and apart but under the same roof, the respondent vacated the home after being charged with mischief for property damage.
[196] The respondent mother then began living with her brother. She had no job and no money. She was on Ontario Works. She has changed residences three times since 2019.
[197] She started working as a housekeeper at Henley where she was employed for two months. She then began working, again in housekeeping, at the Ramada Inn where she was employed from September 2019 to March 2020. She was let go due to the pandemic and the hotel reducing staff.
[198] A co-worker suggested that she go back to school and train to become a PSW.
[199] To her credit, the respondent mother enrolled at Westervelt College and graduated as a PSW. Her sworn financial statement suggests that she has student loans of approximately $6,101.
[200] She commenced employment at Westmount Gardens Long Term Facility on May 18, 2022.
[201] I accept that the respondent mother experienced a significant decline in her standard of living following her separation from the applicant and in the years 2019, 2020 and 2021.
[202] She began residing with her current boyfriend in 2022. She did not complete the portion of her Financial Statement that sets out his income or the amount he contributes towards monthly household expenses. Therefore, it is difficult determine her current need.
[203] In 2019, the applicant father’s income was $46,302. The respondent mother's income was $7,547. The applicant did not seek child support from the respondent during this time. The SSAG calculation, without support, suggests a range of support as follows: $291 (low end), $339 (mid range), and $388 (high end).
[204] I have considered the factors set out in section 33(8) and (9) and find that the respondent is entitled to support in the high range in 2019.
[205] The parties separated in January and therefore entitlement of support spans 11 months in 2019. The applicant father’s spousal support obligation for 2019 amounts to $3,729.
[206] In 2020, the applicant father’s income was $38,618 and the applicant mother's income for support purposes was $32,028. The “custodial payor” SSAG calculation yields a range of support as follows: $41 (low end), $48 (mid range), and $55 (high end).
[207] During this year, the respondent mother obtained employment but was laid off due to the pandemic. She did not have the capacity to support herself and continued to be economically disadvantaged. She was living with her brother and acquaintances. I find that she would be entitled to receive the high range of support.
[208] The applicant father’s spousal support obligation for 2020 amounts to $660.
[209] In 2021, the applicant father’s income was $37,014 and the respondent mother’s income was $19,858. The “custodial payor” SSAG calculation yields a range of support as follows: $81 (low end), $94 (mid range), and $108 (high end).
[210] The respondent mother did not commence her studies at Westervelt College until the summer of 2021 with an anticipated completion date of March 2022. Although attempting to become self-sufficient, she was not. She was not residing with her boyfriend at the time, and I find her to be entitled to receive support in the high range.
[211] The applicant father’s spousal support obligation for 2021 amounts to $1,296.
[212] For 2022, I have accepted the evidence of the applicant father as set out in his Financial Statement and his income of $64,932. I have imputed the respondent mother’s income at $30,000. The “custodial payor” SSAG calculation yields a range of support as follows: $167 (low end), $195 (mid range), and $233 (high end).
[213] The respondent mother graduated this year and did not start her employment, which she describes to be part-time, until May 2022. I find that she continues to be entitled to support in the high range. The applicant father’s spousal support obligation for 2022 is $2,676.
[214] Having dealt with retroactive spousal support, I now turn to future support payments.
[215] The applicant father submitted that a duration of six year was appropriate. Given the length of the parties’ cohabitation and the respondent mother’s age at separation, I agree. This would result in two further years of entitlement to spousal support.
[216] The Ontario Court of Appeal’s decision in Davis v. Crawford, 2011 ONCA 294, expanded the scope of a court’s ability to order lump sum spousal support. The court has broad discretion to make lump sum orders, after weighing their advantages and disadvantages. The SSAGs should be used in calculating the lump sum.
[217] Here, the parties would benefit from a clean break on this issue. While neither party devoted significant time on tendering evidence or making submissions on spousal support, the issue remained live at trial and needs the court’s careful consideration.
[218] The short-term nature of the parties’ cohabitation results in a corresponding short-term duration of support. This warrants the clean break that comes with ordering lump sum support. While parenting issues and child support will persist, removing spousal support as an issue will serve to streamline and focus the parties on what matters most.
[219] While the applicant father may not have the means to pay a lump sum of support, or potentially the retroactive support ordered, his spousal support obligations can be offset by the child support obligations owed to him by the respondent mother. This will reduce the financial burden to him, and to her.
[220] Using the parties’ incomes accepted by the court for 2022, the net present value lump sum spousal support amount for the remaining two years of entitlement, at the midpoint of the after-tax cost and after-tax benefit, is $2,524 at the low end, $2,938 at the mid range, and $3,353 at the high end.
[221] Four years after the parties’ separation, the respondent mother has reached a level of self-sufficiency. Not only has she graduated as a PSW, but she secured employment as of May 2022. To her credit, she has come a long way from being on Ontario Works in 2019 following the parties’ separation. Her needs will gradually reduce as does the strength of her claim for non-compensatory support. As such, I find that it would be appropriate to order lump sum support in the mid range.
Disposition
[222] The applicant father shall pay to the respondent mother spousal support for the 2019 year fixed in the amount of $3,729.
[223] The applicant father shall pay to the respondent mother spousal support for the 2020 year fixed in the amount of $660.
[224] The applicant father shall pay to the respondent mother spousal support for the 2021 year fixed in the amount of $1,296.
[225] The applicant father shall pay to the respondent mother spousal support for the 2022 year fixed in the amount of $2,676.
[226] The applicant father shall pay to the respondent mother a lump sum of spousal support in the amount of $2,938, after which no further support shall be owing.
Calculations of Child and Spousal Support
[227] Having reviewed the financial position of each party, I acknowledge that the retroactive child and spousal support ordered will result in significant financial difficulty. I conclude that it is appropriate to offset each party's support obligation. The outcome of which is the overall reduction of the respondent mother’s retroactive child support obligation.
[228] As such, an order shall issue that the respondent mother pay to the applicant father retroactive child support arrears up to and including November 30, 2022, fixed in the amount of $7,500.
[229] The following summary of amounts owed by each party demonstrates how I reached this conclusion:
[230] The applicant owes the respondent spousal support as follows:
| Year | Amount |
|---|---|
| 2019 | $3,729 |
| 2020 | $660 |
| 2021 | $1,296 |
| 2022 | $2,676 |
| Lump Sum | $2,938 |
| TOTAL | $11,299 |
[231] The respondent owes the applicant child support as follows:
| Year | Amount |
|---|---|
| 2020 | $7,932 |
| 2021 | $4,240 |
| 2022 | $6,831 |
| TOTAL | $19,003 |
I invite the parties to contact me, through my judicial assistant, if any errors are found with my SSAG calculations or arithmetic.
Orders
[232] Pursuant to the Children’s Law Reform Act, this court orders that:
The Applicant, Paul David Gilks, shall have sole decision-making responsibility for the children, namely Connor Ernest Gilks, born August 24, 2013, Lily Elizabeth Donna Gilks, born August 21, 2015, and Devin Paul Gilks, born August 21, 2015.
The children, namely Connor Ernest Gilks, born August 24, 2013, Lily Elizabeth Donna Gilks, born August 21, 2015, and Devin Paul Gilks, born August 21, 2015, shall primarily reside with the Applicant, Paul David Gilks.
The respondent mother shall have parenting time as follows:
a) Alternate weekends from Friday after school, or 5:00 p.m. if school is not session, until Monday to the return of school or 9:00 a.m., to be extended to Tuesday at 9:00 a.m. if Monday is a holiday;
b) Every Wednesday after school, or 5:00 p.m. if school is not in session, to Thursday at the return of school or 9:00 a.m. if school is not in session;
c) Each Mother’s Day from 9:00 a.m.to 5:00 p.m.;
d) Alternating March breaks, for the entire week, commencing in 2023 and during each odd numbered year to follow;
e) Two non-consecutive weeks during the summer, one in July and one in August, with the respondent to notify the applicant of her selected weeks on or before May 1st of each year;
f) Christmas holidays as follows,
i. commencing in 2023 and during each off numbered year to follow, from December 25 at 2:00 p.m. until December 26 at 2:00 p.m., and from December 28 at 2:00 p.m. until January 3 at 5:00 p.m.;
ii. commencing in 2024 and during each even numbered year to follow, on December 20 at 5:00 p.m. to December 25 at 2:00 p.m. and from December 26 at 2:00 p.m. to December 28 at 2:00 p.m.
g) Any holiday parenting as set out above shall override the regular schedule in the event of a conflict;
Such further and other times as the parties may agree to in writing.
Whichever party has the children in their care shall take the child/children to their extracurricular activities. If they are unable to do so, they shall notify the other party who may pick the child/children up one hour before the commencement of the activity and return the child/children no later than one hour after the end of the activity.
The applicant father shall have sole decision-making responsibility for any and all decisions impacting the children, including, but not limited to, decisions relating to their health, education, religion and extracurricular activities. The applicant shall consult with the respondent about the children's health, education, religion and extracurricular activities. If, however, the parties are not able to reach an agreement on these issues, the applicant shall have final decision-making authority.
The applicant father shall inform the respondent mother of any decisions made regarding the children's health, education, religion and extracurricular activities immediately after the decision is made.
The respondent shall be listed as the second contact at the children's school, after the applicant.
Both parties shall be permitted to obtain information directly from those involved with the children, including their school, doctors, or any other professionals. The applicant father shall, within 14 days, provide the respondent mother with a list of those involved in the children's care and shall sign any consent required to ensure that the respondent mother has access to information from these third parties.
The applicant father shall retain all government issued identification for the children and shall provide to the respondent mother, within 30 days, notarial copies of all documents.
While in the care of either party, if any of the children becomes ill or suffers an accident which requires medical attention or intervention, that party shall notify the other party as soon as reasonably possible.
Both parties shall keep the other informed of all of the children's activities, medical, social, religious, academic, and extracurricular.
[233] Pursuant to the Family Law Act, this court orders that:
Commencing December 1, 2022 and payable on the first day of each month thereafter, the respondent mother shall pay to the applicant father child support for the benefit of the three children, Connor Ernest Gilks, born August 24, 2013, Lily Elizabeth Donna Gilks, born August 21, 2015, and Devin Paul Gilks, born August 21, 2015, in the amount of $621/month.
The respondent mother shall pay to the applicant father retroactive child support arrears up to and including November 30, 2022, fixed in the amount of $7,500. This sum shall be paid at a rate of $100/month commencing July 1, 2023 and shall be payable monthly until paid in full.
The parties shall share future section 7 expenses and children's activities in proportion to their respective incomes, with the applicant father paying 68% and the respondent mother paying 32% of any expense agreed upon in writing, prior to it being incurred.
Commencing May 31, 2023 and by May 31st of each year thereafter, the parties shall exchange their Income Tax Returns and Notices of Assessment from the previous taxation year and such further financial disclosure as required by section 25 of the Child Support Guidelines.
The parties shall readjust table child support and section 7 expenses yearly with the adjustment occurring on July 1st and going forward to the following June 30th.
Unless this Order is withdrawn from the Director’s Office at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the recipient. Where sufficient deductions are not being made by support deduction Order, payments may be remitted to the Director of the Family Responsibility Office
For as long as child support is paid, the payor (and recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.
Costs
[234] If the Applicant seeks costs, he may submit written submissions, no more than four pages, typed in double space, excluding offers to settle and a cost outline, on or before January 20, 2023.
[235] The Respondent shall have up to January 27, 2023 to file her response to the Applicant's costs of submissions. Her submissions shall not exceed three pages, typed in double space, excluding offers to settle and a cost outline.
[236] If no submissions are received in accordance with the timelines set out above, it will be presumed that costs have been settled or one party chose not to file submissions.
“Justice Kiran Sah”
The Honourable Justice Kiran Sah
Date: December 19, 2022