Lamacchia v. Carullo, 2022 ONSC 687

NEWMARKET COURT FILE NO.: FC-19-58090-00

DATE: 20220131

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Alessandra Marie Lamacchia, Applicant

AND:

Joseph Anthony Carullo, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: R. Radley, Counsel for the Applicant

C. Baker, Counsel for the Respondent

HEARD: September 29, 2021

rulings on motions

1Before me today were two motions heard separately. In the first motion brought by the Respondent father, he sought the following relief:

1. The Orders below for the parenting of the child of the relationship, Stefano Antonino Carullo, born April 27, 2018, shall be for an interim period of the earlier of 12 months or the trial of this Application and they hereby vary the Minutes of Settlement (“MOS”) and Order of Justice Kaufman dated October 16, 2019.

2. That during this interim period, the care schedule shall be a two-two-three rotation with Stefano being in the care of the Respondent father for each Monday and Tuesday and with the Applicant mother for each Wednesday and Thursday and the rotating of weekends (being Friday, Saturday, and Sunday) to each parent every other weekend.

3. In the alternative, in accordance with the AFCC Ontario Parenting Plan Guide recommended schedule for pre-schoolers aged 3-5, a two-three-two-two-three-two.

4. Each parent shall relocate their residence from their temporary residence with family to a long term residence in and around the Woodbridge area.

5. That if the Applicant mother choses to relocate into one of her parents' residences within the Woodbridge area, she choose the residence closest to the father.

6. That each parent shall continue the work with their individual therapist/counselor, specifically to focus on their capacity to communicate effectively and to function well as an individual within a challenging parenting relationship.

7. That parents shall retain a Parenting Coach/Counselor to assist them with improving their communication and parental relationship, which may be either a lawyer from Krol and Krol, or Shely Polak, or Family Matters Mediators and Counselors, or such person as the mother may put forth in advance and is acceptable to the father.

8. That all exchanges shall be done through the school or daycare where the child is scheduled to attend, and the daycare/school is open and operational. At all other times, including holidays, PA days and days the school is closed or whenever there is a disagreement about the transfer location, it shall take place at the Tim Hortons located at 2606 Rutherford Road, which is the mid-point of the parties' residences.

9. That the mother shall parent Stefano on Christmas Eve to Christmas Day at 1:00 p.m., whereupon the father shall parent him until Boxing Day at 7:00 p.m., at which time the parties' regular parenting schedule shall resume.

10. Such further and other relief as counsel may advise and this Honourable Court may permit.

11. Costs of this motion on a substantial indemnity basis.

2In the second motion, brought by the Applicant mother, she sought the following relief:

1. An Order that commencing October 1, 2021 and on the first of each month thereafter, on a temporary without prejudice basis subject to retroactive and prospective adjustment, the Respondent, Joseph Anthony Carullo ("the Respondent") shall pay table child support to the Applicant, Alessandra Lamacchia ("the Applicant") in the amount of $1,016 per month based on his income of $113,389, for the child of the relationship, Stefano Antonino Carullo, born April 27, 2018 ("Stefano").

2. An Order that commencing October 1, 2021 and on the first of each month thereafter, on a temporary without prejudice basis subject to retroactive and prospective adjustment, the Respondent shall pay 83% of Stefano's daycare and uniform expense at Glen Cedar Montessori.

3. An Order for costs of this motion on a full recovery basis.

4. Any further Order as this Honourable Court deems just.

3Although not approved by the Trial Coordinator, the Applicant has also filed a cross-motion in response to the Respondent’s motion in which she seeks the following relief:

5. An Order dismissing the Respondent's motion returnable September 29, 2021 at 9:30 a.m. in its entirety.

6. An Order that the Interim Parenting Schedule set out in Justice Kaufman's Temporary Order, dated October 16, 2019, continue as modified below, with Stefano to reside with the Respondent as follows:

Week 1:

i. Thursday from pickup at Stefano's daycare at Glen Cedar Montessori in Woodbridge at 4:00 p.m. until 7:00 p.m., with drop off taking place at Glen Cedar Montessori;

ii. Sunday at 9:00 a.m. from Glen Cedar Montessori until Tuesday at 8:00 a.m. drop off at Glen Cedar Montessori;

Week 2:

iii. Thursday from pickup at Glen Cedar Montessori at 4:00 p.m. until Friday at 8:00 a.m. drop off at Glen Cedar Montessori;

iv. Sunday at 7:00 p.m. until Monday at 7:00 p.m., with pickup and drop off taking place at Glen Cedar Montessori.

7. An Order that all pickups and drop offs take place at the Glen Cedar Montessori in Woodbridge (11 Sonoma Boulevard, Woodbridge, ON L4H 3C4) at the noted times above, irrespective of whether Stefano is attending Glen Cedar Montessori that day or not.

8. An Order for costs of this motion on a full recovery basis.

9. Any further Order that counsel may request and this Honourable Court deems just.

Parenting Motion

Background

4The parties never married. They are the parents of Stefano Carullo born on the 27^th day of April, 2018. They commenced cohabitation, according to the Respondent, in April 2018 and according to the Applicant, in May, 2016. They seemingly agree that they separated on January 31, 2019. At that time, Stefano was nine months of age. The Respondent argues that the Applicant departed the residence with the child, without the Respondent’s consent.

5This case was initially case-conferenced on July 23, 2019. The parties then appeared before me on a scheduled motion on October 16, 2019 wherein they entered into a consent Order based on their Interim MOS, as more particularly referenced below. Their Settlement Conference was held on June 14, 2021. The next step was to be a Trial Scheduling Conference to be arranged by the Trial Coordinator. It does not appear that it has been scheduled as of this date.

Current Arrangements

6Pursuant to the terms of the Without Prejudice Interim MOS (“MOS”) filed on October 16, 2019, the Respondent received the following parenting time:

1. Commencing on October 24, 2019, for a period of four weeks to transition the child:

a) Thursday from pick-up at Glen Cedar Montessori until Friday morning return to daycare;

b) Sunday at 2:00 p.m. until Monday at 7:00 p.m. with both transfers to take place at King City Fire Station.

2. Commencing on November 21, 2019, the schedule shall be modified to the following:

Week 1:

a) Thursday from pick up at daycare around 4:00 p.m. until 7:00 p.m. with the exchange occurring at the Respondent’s sister residence in Vaughan;

b) Sunday at 9:00am from the King City Fire Station until Tuesday morning return to daycare.

Week 2:

a) Thursday from pick-up from Glen Cedar Montessori until Friday morning return to daycare; and

b) Sunday at 7:00 p.m. until Monday at 7:00 p.m. with both transfers to take place at the King City Fire Station.

7Additional terms of the MOS provided for rights to information of the child, rights to first refusal of parenting time and the right to the Respondent of first refusal of parenting time on days when the daycare is closed if the Applicant was unable to care for the child during that time. Further, when the transfer location is silent, including the holiday schedule, it will be at the King City Fire Station unless the parties agree otherwise.

8The holiday schedule provided for the child to be with the respective parent on Father’s Day and Mother’s Day from 10:00 a.m. to 7:00 p.m. The child was to alternate between parents on Christmas Eve, Christmas Day, and Boxing Day by being with the Applicant from Christmas Eve until 1:00 p.m. Christmas Day and with the Respondent from Christmas Day at 1:00 p.m. until 7:00 p.m. Boxing Day in even years and alternating in odd years. The child was to spend his birthday in even years with the Respondent and in odd years with the Applicant, from 10:00 a.m. until 7:00 p.m. unless the parties agree otherwise.

9The MOS also provided a catch-all phrase that there would be added parenting time as agreed to by the parties. The holiday schedule was to be revisited entirely pending the section 30 assessment recommendations.

10The MOS also provided for a communication protocol with communication facilitated through Our Family Wizard.

11The parties further agreed that the child would remain at Glen Cedar Montessori with the Applicant paying the full costs associated with the child’s attendance and before care for one year. If the Respondent required after care, it would be at his expense. The parties agreed that the child’s registration at the daycare shall be an issue to be reviewed by the assessor and that the selection of the chosen daycare was an interim without prejudice decision that will not be regarded to created a status quo in favour of either party.

12The MOS provided for the parties to retain Mr. Daniel Wesley Musselman, MSW to conduct a section 30 assessment of the child with the costs to be shared equally.

The Respondent’s Submissions

13A synopsis of the Respondent’s submissions reveal the following:

(a) the Applicant has unilaterally denied him parenting time without justification on the basis of illness (her, the child, or her relatives) or Covid concerns. From February 23, 2021 to July 4, 2021 he was denied 10 weeks of parenting time because of her use of Covid as an excuse;

(b) they had discussed a shared parenting schedule around the date of separation;

(c) prior to separation while on maternity leave, the Applicant would leave the child with the Respondent on an overnight basis and go to her parent’s home;

(d) the assessor has made interim recommendations for a period of six to twelve months. These recommendations, dated May 25, 2021 include:

i. a 2-2-3 parenting time rotation with the child with the Respondent each Monday and Tuesday, with the Applicant each Wednesday and Thursday and alternating weekends rotating;

ii. there were no specific recommendations made for holidays and vacations;

iii. that each parent relocate their temporary residence with family to a long-term residence within the community in and around the Woodbridge area;

iv. each party would continue their work with their individual counsellor/therapist with a view to focus on their capacity to communicate effectively and to function well as an individual within a challenging parenting relationship;

v. the parties would retain a Parenting Coach/Counsellor to assist with improving their communication and parental relationship;

vi. the parties would engage with their lawyers and perhaps seek the assistance of their Parenting Coach/Counsellor to address the problematic aspects of their MOS to reduce the conflicts and misunderstandings;

vii. part of the work will include a dispute mechanism to assist the parents with a structured approach to dealing with disagreements;

viii. all exchanges will be done through the school or the daycare;

ix. that the receiving parent will transport the child for the exchanges; and

x. that before or at the end of the interim period, if the parents agree that the interim period has been successful they will make a final agreement regarding the Parenting Plan. If one or both parents decide that the interim plan had not been successful then they may request that the Assessor provide an updated Assessment and final recommendations.

(e) the Respondent is prepared to accept the recommendations of the Assessor including his proposed parenting schedule. Alternatively, he proposes to resort to the AFCC Ontario Parenting Plan Guide in a situation where both parents have been equally involved in the child’s care that recommends minimizing a child of Stefano’s age from being away from either parent for more than three days;

(f) the Applicant is unwilling to accept any of these recommendations and proposes nothing by the way of compromise other than adhering to the MOS currently embodied in the consent, without prejudice order entered into before me in October 2019;

(g) the Respondent submits that all of the Applicant’s complaints regarding him and his parenting ability were never raised until after the Applicant received the Assessor’s recommendations;

(h) since receiving the recommendations, at every opportunity, the Applicant blames the Respondent for all of her personal issues that she is encountering;

(i) since receiving the recommendations of the Assessor, the Applicant has made allegations of bias against the Assessor;

(j) it is part of her modus operandi that when disagreed with, she makes allegations of bias or that she has been bullied or harassed or mistreated;

(k) he is of the belief that a shared parenting arrangements is in the best interests of the child. He is hopeful that such plan will result in a better parenting relationship;

(l) he acknowledges that he and the Applicant lack good communication and flexibility;

(m) he is prepared to engage a Parenting Coach/Counselor to get their recommendations to resolve disputes between the parents as they may arise;

(n) he maintains that he has been equally involved in the child’s care and is able to provide for all of the child’s physical, emotional, and psychological needs;

(o) he has moved close to the Applicant’s residence (9 km. from her current residence) in accordance to one of the Assessor’s recommendations but fears that the Applicant may move her residence to frustrate the Assessor’s recommendations. His new accommodation is more than able to meet the child’s needs. The Applicant has been unwilling to respond to inquiries concerning her intended residence;

(p) the Respondent maintains that he has the benefit of numerous relatives and friends residing nearby his new residence who can all assist him with childcare if required including his retired mother and siblings;

(q) he also submits that he has received a new position within the OPP that affords him a four-day, 40 hour work week with no nightshifts, weekends, or overtime. About 80 percent of his schedule is working from home and his daily schedule is also flexible. He anticipates further flexibility if required;

(r) prior to entering into the MOS, his parenting time was restricted by the Applicant who also unilaterally changed the exchange times and locations. She would not negotiate any parenting arrangements;

(s) the Applicant has taken the child to medical appointments without his knowledge and requested that he not attend such appointments;

(t) when she is unable to care for the child, she will call upon her parents rather than the Respondent notwithstanding his flexible work schedule with the OPP;

(u) she ignores the maximum contact principle and the concept of a right of first refusal;

(v) the parties communicate though Our Family Wizard. The Respondent provides daily log sheets and the Applicant does not;

(w) he believes that creates difficulty in communicating with him. He cites as an example her refusal to amend the MOS regarding the place where the child is exchanged on transfers between the parents notwithstanding the inconvenience to both of them in maintaining the exchanges in accordance with the MOS;

(x) the Applicant refuses to divulge the nature of her disability that prevents her from working. The Respondent’s alleged concern regarding the parenting issue is whether or not there is a mental health issue;

(y) notwithstanding all of the above concerns, the Respondent expresses a desire to nurture the child’s relationship with his mother. Her response is to deny him any vacation time or added time even when the daycare was closed due to the pandemic. She has also denied extra time at Christmas and Easter and even denied a request for one extra day during March Break 2020; and

(z) the Respondent brings this motion regarding parenting time and is prepared to argue the issue of decision-making at a later stage (absent resolution).

The Applicant’s Responding Submissions

14A synopsis of the Applicant’s ’s submissions reveal the following:

(a) on the day of separation, she did not return home due to safety concerns. She immediately retained family counsel who expressed the Applicant’s experiences of physical, mental, and emotional abuse at the hands of the Respondent;

(b) the Applicant maintains that she has been the primary caregiver of the child since his birth. By way of example, she notes that in the year of the child’s birth, the Respondent worked 766 hours in overtime in addition to his regular shift while she maintained the large home, cared for the child, and attended to all of his material needs, cooked, cleaned and did laundry. She took the child to all of his medical appointments because the Respondent was rarely at home. On rare occasions, when she ran short errands, she left the Respondent to care for the child;

(c) the Applicant notes that during the onset of Covid-19, she did not act unilaterally but followed all of the local health guidance recommendations. On each occasion that the Respondent claims to have been denied his parenting time with the child, the child showed symptoms reflected of the Covid virus and required medical care and, on one occasion, attendance the Hospital for Sick Children. She intimates that the Respondent chose not to meet her at the hospital. She states that the Respondent was always offered ample make-up time for missed visits and was provided regular Skype calls;

(d) the Applicant is disputing the Assessor’s Report. She claims that only the Respondent was provided a copy of the Assessor’s Report, that she never received a copy of the Interim Report and only obtained a copy from the Respondent’s counsel;

(e) the basis of the Applicant’s dispute is that the Assessor has displayed clear signs of bias during his investigation. He did not review relevant court materials, did not speak to relevant collaterals such as the child’s doctor and did not review the correspondence displayed on Our Family Wizard. She states that the Report minimized her concerns and the effect of the Respondent’s conduct on her. He also did not request any police reports or videos;

(f) the Applicant also maintains that the Assessor only considered the Respondent’s busy work schedule after the disclosure meeting took place which is relevant to his ability to provide care for the child. She submits that she has still not received a copy of the Respondent’s work schedule or written confirmation that his schedule has been changed to accommodate a shared parenting plan;

(g) she further provides exchanges of correspondence between her counsel and the Assessor which clearly reflects difficulties in receiving a breakdown of services and copy of the Report and the Assessor’s file;

(h) the Applicant only received a copy of the Assessor’s file three days prior to when her responding materials were due for this motion despite making her initial requests months earlier. She did not receive a copy of the CAS file nor did the Assessor comment on the CAS file or CAS involvement in his Report. She did not receive copies of video clips or PDF files that the Assessor received from the Respondent and which were the subject matter of part of his Report. As of the date of delivery of her responding Affidavit to this motion, the Applicant had still not received the Assessor’s entire file;

(i) the Applicant comments upon what she depicts as lax Covid compliance by the Respondent which caused her and her entire household to have to quarantine pending her receipt of the results of her Covid test. She was requested not to attend with the child at an appointment while in quarantine only to be criticized by the Assessor for not attending the appointment while he made no comment on the apparent breach of Covid protocols by the Respondent;

(j) her explanation of requesting that the Respondent not attend at the child’s medical appointments was to avoid arguing with him or respond to his requests for money, in the presence of the child, at the appointments attended by both of them. She comments now that the physician’s practice is to only allow one parent to be present at a time to reduce the conflict in the presence of the child and due to Covid precautions. She notes that the Assessor has not spoken with the child’s physician;

(k) the Applicant claims there to be a power imbalance between the parties, something not pursued by the Assessor. She submits that he failed to contact her doctor, her therapist or her mother who allegedly witnessed her bruises caused by the Respondent. She states that he also neglected to request police Reports regarding allegations of abusive behaviour caused by the Respondent;

(l) the Applicant maintains that the Respondent insists on her being physically present during every exchange of the child, that she physically exit her vehicle to enable him to see her and that he will not allow the maternal grandmother to receive the child even when she is accompanying the Applicant. He has notified the child’s daycare without her consent that only a parent can pick-up the child which precludes her receiving assistance from family members when required. He continues to take photographs at the exchanges. She notes that none of these concerns were investigated by the Assessor;

(m) as a result of all of the above, she wishes to cross-examine the Assessor on his recommendations prior to the court adopting these recommendations without them being tested;

(n) the Applicant believes that the temporary MOS, in effect since November 21, 2019 should be maintained without adjustment. She states that this 3-year old child requires stability and that the parties agreed upon the MOS which provides the Respondent with adequate parenting time to develop his parenting skills while accommodating his busy work schedule. She feels the child is too young and not ready for a 2-2-3 schedule, let alone a 2-2-5 schedule requested by the Respondent in his motion;

(o) the Applicant emphasizes that when the parties consented to an interim parenting schedule on October 16, 2019, it did not contemplate variation upon the completion of the section 30 assessment;

(p) the Applicant comments on the changes in the Respondent’s circumstances since the signing of the MOS. He no longer resides with his family which she suggests means that he no longer has their assistance when working long hours. She fears that the rigours of his work will interfere in his ability to care for the child on the suggested shared parenting plan. She refers to frequent incidents of the Respondent being unable to adhere to the current parenting schedule, leaving her waiting on exchanges for hours and returning the child to daycare late;

(q) to the contrary, the Applicant maintains that she can fully care for the child as she is on leave from work with her application for long-term disability pending. She is on stress leave which she attributes to the Respondent’s attendance at her workplace on January 9, 2020. She notes that the Assessor has confirmed to both parties that there are no capacity concerns which would affect her care of the child;

(r) in response to the Respondent’s references to the AFCC Ontario Parenting Plan Guide, the Applicant suggest that the Guide suggests that a 2-3-2-2-3-2 schedule is appropriate for situations where both parents were employed outside the home at the time of separation and were equally involved in the child's care. She submits that these are not the facts at hand. The AFCC-O guide states that the child should continue to reside with the parent primarily responsible for the child's care, with a possible plan of" step-up" care to gradually increase the involvement of the other parent in circumstances similar to what she alleges to be the case where she was always the child’s primary caregiver and the Respondent was focused on his work. She notes that she was on maternity leave at the birth of the child and at separation while the Respondent maintained his busy work schedule including overtime;

(s) she comments that since separation, she and the child have never been apart for more than two consecutive days. She states that any variation to the MOS should be an issue for trial;

(t) she notes that if there was any veracity to the Respondent’s allegations that she was always trying to restrict his parenting time, that this is undermined by the fact that she consented to the MOS;

(u) the Applicant also believes that the child requires a loving and supportive relationship with each parent. However, she believes the key determination is not what is in the Respondent's best interests, but what is in the child’s best interests. She asserts that the child has benefited so much from the stability, consistency, and routine that he has developed since the MOS were signed that there is no reason to disturb that on a temporary motion;

(v) she wished this court to tweak the MOS to better stipulate with precision, the time of exchanges whether between the parties or at the daycare. For instance, where the MOS stipulates that the child be returned in the morning, the Respondent interprets that to be at 11:59 a.m.;

(w) regarding the allegation that she refuses the Respondent’s requests for vacation with the child, she notes that she does not believe it is in the child’s best interests to be away from her for a weeklong vacation during a global pandemic when the Respondent is regularly in contact with others due to his work. Once the pandemic has cleared and a parenting plan is in place, she believes that the child should be able to spend time on vacation with both parents;

(x) regarding the suggested change of location for the exchanges of parenting time, the Applicant suggests that the child's daycare be maintained as a place of exchange as it has a dedicated pickup and drop off area which is monitored by security cameras. It is a location familiar and comfortable for the child. She notes that even the Assessor’s interim recommendation stated that all exchanges should take place through the school or daycare. The Respondent’s residence is only 12.8 km away from the daycare and is easily accessible. The Applicant also notes that it was this judicial officer who encouraged the parties to change the location of the exchanges away from the police station and also comments that the suggested Tim Horton’s location is a busy parking lot;

(y) the Applicant continues to reside with her parents in Woodbridge close to the child’s daycare. She states that all of her funds from the sale of the former family residence are tied up in trust and that she cannot afford to relocate. She contests the Respondent’s ability to choose where he wants to reside and yet control her choice of location of her residence on a temporary motion, knowing that her funds are being tied up. She maintains that her ultimate decision will be based on where she can afford to reside; and

(z) in response to the Respondent’s evidence regarding public schools and the Fraser Institute School Ratings, she disputes the relevance for the purposes of this motion and believes that the child should remain at the current Montessori until ready to attend Catholic School, noting that the child was baptized in a Catholic Church attended by the parties prior to separation.

Analysis

15Section 24 of the recent amendments to the Children’s Law Reform Act¹ reads as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Factors

(3) Factors related to the circumstances of a child include,

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

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

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

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence --- In considering the impact of any family violence under clause (3) (j), the court shall take into account,

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

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

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

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

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

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

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

(h) any other relevant factor.

Past conduct

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

with respect to the child.

Allocation of parenting time

(6) 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 best interests of the child.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

16I commence my analysis of the issue before me by stating the obvious, that the parties’ affidavits view the events since the signing of the MOS differently. There are some minor credibility findings that I can make at this stage but none sufficiently to make absolute findings of credibility where required. At the Settlement Conference on June 14, 2021, Justice MacPherson noted that the matter needed to be placed on the road to trial and that the parties should request a Trial Scheduling Conference. That has yet to be done and as a result of the shutdown of in-court proceedings and an incomplete judicial complement, dates for such conferences are months away.

17The Ontario Court of Appeal has stated that where there are competing affidavits and the court must make significant credibility findings, a trial is necessary to decide the issue.² This is more so when there has not been questioning on the parties’ affidavits or Financial Statements that might otherwise assist the motions Judge.

18The parties are to forthwith contact the trial coordinator. Under the circumstances of this case and because of the anticipated delay until a trial can be scheduled, I am requiring the next event to be a Trial Management Conference. The parties are to exchange the following documents:

(a) the completed Trial Scheduling Endorsement Form with both parties completing the anticipated time required to cross-examine the named witnesses of the opposing party;

(b) revised Financial Statements with Income Tax Returns available for each year since separation including all attachments and NOA’s for each year;

(c) proof of year to date income for the month ending prior to the hearing of the TMC;

(d) a draft Trial Record Index;

(e) a draft proposed Joint Document Book Index, if available and if not, then individual indexes for each party; and

(f) an Opening Statement.

19I am aware that there was a pending motion involving the Assessor. I have no knowledge of its outcome. The Applicant may require leave to bring a motion to question the non-party Assessor unless the questioning proceeds on consent. The Respondent may wish to arrange an Independent Medical Examination of the Applicant, especially in the absence of an expert Report concerning her disability. The parties may wish to conduct questioning of each other. The Applicant may request a critique of the Assessment filed with the court. It is highly unlikely that this matter can proceed in the 2022 May trial Sittings, but every effort should be made to have it ready for the sittings commencing November 21, 2022.

20The trial coordinator should be requested to provide a TMC for the month of October 2022. If this date cannot be provided by the end of February 2022, then the parties shall appear at the next Assignment Court for pressing matters scheduled for April 21, 2022. If I am incorrect in my understanding of the timelines and the parties believe that this case can be made trial ready for the May 2022 sittings, then this information should be conveyed to the trial coordinator immediately to enable her to determine if judicial resources can accommodate the TMC.

21In view of the anticipated delay until a trial can be conducted, the issue is then what, if any change should be made to the MOS. In the motion before me, the Respondent is requesting a 2-2-3 parenting schedule that equates to shared parenting. The Applicant in her cross-motion that is improperly before me is essentially seeking that the MOS continue until a trial but seeks a definitive time for the return exchange of the child and that all exchanges occur at the daycare. The Applicant wants a return to the daycare at 8:00 a.m. whereas the Respondent wants the return at 11:55 a.m. to maximize the limited time that he has with the child.

22The Applicant also states that the MOS did not anticipate a change in parenting time upon completion of the Assessor’s Report. The MOS did envision a revisiting of vacation time at the completion of the Assessor’s Report so it is somewhat disingenuous to suggest that the parenting time throughout the year cannot be revisited but that vacation time can be.

23Courts have noted that matters proceeding under section 29 of the CLRA should not change temporary Orders as a matter of course. One court noted as follows:³

“This is a matter under the Children’s Law Reform Act, R.S.O., 1990 c. C.12 [“CLRA”] as the parties were never married. Section 29 of the CLRA provides that a court shall not make an Order varying an Order in respect of custody or access unless there has been a material change of circumstances that affects or is likely to affect the best interests of the child.

Case law makes clear that there is a significant difference between applying to vary an interim Order versus a final Order. In general, an interim Order is intended to continue until trial. Interim Orders are most commonly varied only in “compelling” or “exceptional” circumstances. See for example Thom v. Thom, [2014] O.J. No. 2115, 2014 CarswellOnt 5708, in which the court stated as follows regarding the variation of interim Orders:

Given that interim Orders are ‘meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial,’ requests to change them should be rare. [emphasis added]

See also Lonsdale v. Smart, 2018 ONSC 3991, in which the court held that “compelling reasons” are required for an interim variation under the CLRA.”

24Extenuating circumstances should exist before a temporary Order is varied. The jurisprudence describes necessary circumstances as being material, substantially important or compelling reasons.⁴

25The test for determining parenting time is what Order is in the best interests of the child. In making this determination, the court has considered the “best interests” factors set out in the amendments, as well as all other relevant considerations.

26The child should have maximum contact with both parents if it is consistent with the child’s best interests.⁵.

27An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments, and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child.⁶

28On one hand the Respondent seeks a shared parenting arrangement that is materially different from the current arrangements. Clearly, the current arrangements are not viewed by this court as a status quo as the MOS are labelled “without prejudice.”⁷ However, the court cannot overlook the very relief being sought by the Respondent wherein he seeks Orders restricting the mobility of the Applicant (with knowledge that her funds are being tied up in trust pending the outcome of the financial and property issues). He also seeks Orders mandating the parties to meet with their individual therapists to focus on their capacity to communicate effectively and to function well in a challenging parenting relationship. He wishes the parties to be required to retain a Parenting Coach/Counsellor to improve their communication and their parental relationship. These requested Orders are acknowledgements by the Respondent of the difficulties that would undermine a shared parenting relationship. Maybe one day such a relationship may be possible but that day is not today.

29On the other hand, the MOS were entered into when the child was nine months old. He is now three years of age. If the Applicant’s position prevailed, the child would be at least four years old and then some before there would be a judicial determination at trial. The Applicant has raised legitimate concerns about the Assessment Report. There are answers to which she is entitled based on the expressed concerns. I am not able to determine at this stage that the Applicant’s concerns are just part of her modus operandi. It is speculative to anticipate how a trial Judge might interpret her actions after cross-examination.

30I also accept the Applicant’s submissions that as a general rule, where parties have relied on assessment reports on interim motions, courts have traditionally held that caution should be exercised in relying on conclusions and recommendations set out in untested assessment reports at interim motions before trial. Caution must be exercised when considering whether or not to implement recommendations at a temporary motions stage. As Justice Chappel quotes from Justice Pazaratz: “The rationale for this approach is that there is no opportunity at the motion stage to undertake a thorough analysis and evaluation of all aspects of the assessor’s report, including the assessor’s credentials, methods, observations, findings, theories, and recommendations.”⁸

31In Jonczyk v. Tilsley,⁹ Justice Mackinnon was recently tasked with deciding whether to make a temporary Order implementing recommendations from an assessment or to defer consideration of those recommendations until trial. Justice Mackinnon notes at the outset that this is a fact driven inquiry, and that each case must be examined based on its particular facts: “It must be cautioned that the existence of an assessment report should not make it ‘open season’ for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.”

32In considering whether to make a temporary Order implementing recommendations from an untested assessment, Justice Mackinnon sets out four factors to consider in lieu of requiring exceptional circumstances:

a. How significant is the change that is being proposed as compared to the interim status quo?

b. What other evidence is before the court to support the change?

c. Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?

d. Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the Assessor? ¹⁰

33The Applicant submits that the change being sought is substantial in nature. Although I disagree that the absence of wording in the “without prejudice” MOS precludes me from changing the Order, I have already determined that a shared parenting arrangement is, at best, premature and really, a non-starter.

34The Applicant also suggest that the status quo be maintained as being consistent with the best interests of the child. I have already indicated that the “without prejudice agreement” does not create a status quo. The fact that both parents agree that the child is flourishing is acknowledged but it is also in the child’s best interests to have a strong relationship with both parents.¹¹

35I also am unable to overlook the fact that the Applicant as of the date of her affidavits before the court, had still not viewed the Assessor’s entire file. Under the circumstances of this fact scenario, I am unable to place significant weight on the Assessor’s Report. If correct, the Applicant notes that the Assessor did not observe her with the child. I am able to distinguish this fact situation from the cases relied upon by the Respondent in his submissions.¹² I am unable to rely on a Report that has not been provided to one of the parties. I have already indicated my concerns with the omissions to the Report cited by the Applicant. Whereas I can accept portions of the Report as reflecting a beneficial relationship between father and child, I am unable to place sufficient weight on it to justify what is a drastic change to the parenting.

36Regardless of whether or not I can rely on the Report for the relief being requested by the Respondent, I am satisfied that the MOS that worked for a nine month old can be expanded upon for the benefit of a child now beyond three years of age and that such expansion would add to the quality of the father/child relationship consistent with the best interests of the child.

37There will be a temporary Order as follows:

1. In week one, the Respondent shall have the child from Thursday at 4:00 p.m. until Friday morning return to daycare at 8:30 a.m. and from Sunday at 9:00 a.m. until Tuesday return to daycare at 8:30 a.m.

2. In week two, the Respondent shall have the child from Thursday at 4:00 p.m. until Friday morning return to daycare at 8:30 a.m. and from Sunday evening at 7:00 p.m. until Monday evening at 7:00 p.m.

3. The parties shall maintain a record, confirmed on Our Family Wizard reflecting the time that the child was picked up and returned. The times set out above are not suggestions and are expected to be adhered to enable the trial Judge to gauge compliance.

4. All parenting time exchanges shall take place at the child’s current daycare unless otherwise agreed upon in writing.

5. During the summer school vacation (from June 30, 2022 until September 6, 2022) and in subsequent years to be determined from the last day of school until Labour Day, the Respondent shall be entitled to an additional two days contiguous to his regular weekend parenting time (not including a long weekend) or two added days not contiguous to his weekend parenting time (but not on a weekend) in the periods from June 30-July 22, July 25-August 8 and from August 12-September 5 for a total of six days. Such vacation time is to be compliant with Covid-19 Guidelines then in place as recommended by the Ontario Government and its medical advisors. If the Respondent plans to be away from his home base, he shall provide information to the Applicant, in writing on Our Family Wizard at least 48 hours beforehand detailing his destination. This information is to be maintained for judicial scrutiny at trial. The requested added days are to be agreed upon in writing by April 1, 2022 and on the same day in subsequent years pending a trial decision.

6. During the school March Break, the Respondent shall have added parenting time commencing on a weekday at 12 noon until the following weekday at 7:00 p.m. If the child is scheduled to be with the Applicant on the weekend at the conclusion of the Break, he shall also be with her on the Friday. The requested dates are to be agreed upon by February 14, 2022, in writing, confirmed on Our Family Wizard.

7. The Respondent shall have added parenting time during the school Christmas Break commencing on a weekday at 12 noon until the following day at 7:00 p.m., not contiguous to a weekend parenting time and not to be on December 24, 25 or 26 unless otherwise agreed upon in writing. The chosen days are to be agreed upon in writing, on Our Family Wizard, by December 1 each year until this Order is changed.

8. Whenever the child is with the Respondent for more than three consecutive days, on the evening of the third day at 6:00 pm (or such other time as agreed upon in writing), the Respondent shall facilitate a virtual contact between the Applicant and the child.

38It is my belief that this added parenting time which totals one extra overnight every two weeks and nine days in the calendar year is consistent with the best interests of the child based on his stated age and development. The added vacation time will enable the father and child to create added memories for the child and strengthen the child/father bond.

39Other than as changed herein, the MOS continue to prevail unless otherwise agreed upon between the parties from time to time to benefit the child and to enable him to participate in random family celebrations that may occur. All records of communication regarding added time or requests for flexibility are to be documented in writing on Our Family Wizard and preserved for Judicial scrutiny at trial.

40The relief requested by the Respondent regarding relocation of residence, ongoing parental counselling and retaining a parenting coach are dismissed.

41I would be remiss in not commenting upon the nature of this motion. It was not a one-hour motion and should not have been scheduled as such. Judicial resources are already stretched. Counsel, in confirming a one-hour motion, greatly miscalculated their time estimate. Counsel, in bringing a cross-motion without the approval of the court and seeking relief thereunder, added to the problem that is not isolated to this one case. I direct counsel to the comments of Justice Kurz:¹³

This court is strapped for time to deal with all of the cases that seek resolution in these difficult times. Among the issues that this court deals with each day are the best interests of vulnerable children whose parents separate and the right to have criminal charges adjudicated within a reasonable time. Civil jury trials may be put off for years. To cite a double-negative, this court's resources are not unlimited.

When parties (and the moving party here is not the first), elbow their way into the queue, demanding audience on a regular motion list when they know or should know that they should be placed on a long motion list, they harm all of the other parties seeking the same audience. Ultimately, they harm the administration of justice.

The practice of scheduling long motions by claiming that they will take "59 minutes" must end. If a party finds itself confronted with such a motion, they should consider requesting a conference call with a judge of this court to raise the issue, and resolve it before time, money, and the ability of other parties to properly use them time are wasted or lost.

Support Motion

Applicant’s Submissions

42The Applicant seeks child support based on the Respondent’s imputed income of $111,801 (although this amount differed from the requested amount in the motion material, in argument, this is the amount I was asked to consider) which equates to Guideline support of $1,004. She acknowledges the Respondent’s T-4 income for 2020 in the sum of $110,280.14 but alleges that he has the ability to work overtime and that he traditionally banks overtime hours. She maintains that as of December 31, 2021, the Respondent had banked overtime hours with a value of $3,108.69. and that it is within his sole discretion whether or not to cash in these hours.

43She requests that the support commence on October 1, 2021 and that it be without prejudice as to the quantum and commencement date.

44The Applicant also comments that the Respondent did not pay any child support following the separation of the parties and that, thereafter, he unilaterally determined the amount that he would pay notwithstanding that it was less than the Guideline amount.

45She also suspects that he has other income available to him. This suspicion arises from his refusal to provide details of his disposal of an interest in a not-yet built condominium project despite receiving a Request for Information in that regard.

46The Applicant also requests that the Respondent contribute towards the costs of the child’s daycare and uniform, with his proportional contribution being 83 per cent of the total expense.

47She maintains that the court consider her income to be the same as in 2020 when she earned a total of $23,642.83 from a combination of Employment Insurance, income from employment (short term disability), RRSP income and CERB.

48She resists any suggestion that she be imputed with an income of $50,000 and states that she is disabled following the incident at her office when she was allegedly confronted by the Respondent on January 8, 2020 that has precluded her from working since then. She has had her claim for long-term disability outstanding since September 2020 without a determination as to her entitlement. She has not filed any medical reports in support of her claimed disability.

49Regarding the reasonableness and necessity of the daycare expense, the Respondent states that the daycare was agreed upon by the Respondent and that the child’s attendance was also agreed upon in the MOS with the understanding that she would be solely responsible for the payment in the first year other than any after-care expense on Thursdays that would be the Respondent’s sole responsibility. The child started at the daycare at aged 16 months.

50Although the Applicant has challenged the Assessor’s Report, she suggests that as the Assessor did not mention any issues about the daycare, nor did he mention that the child should be removed. She implicitly suggests that as the Assessor recommended that the child-exchanges take place at the daycare, that he was supportive of the child continuing. Further, as the Respondent was prepared to accept the totality of the Assessor’s Report, he is also agreeing to the child continuing at the Montessori daycare.

51She is currently paying a monthly sum of $1,225.75 for the child’s daycare enrolment as well as the sum of $186 for a uniform.

Respondent’s Submissions

52The Respondent acknowledges child support arrears in the sum of $4,368 which he proposes to repay within 30 days from September 14, 2021, the date of his affidavit.

53He maintains that his current income is $110,532.24. He rejects any suggestion that he has unilaterally chosen to reduce his overtime, claiming that his new and current position was pursued after the Applicant suggested that he work less to spend more time with the family. He is required to work 40 hours per week without any requirement for working nights or weekends.

54Although he concedes that he did not pay any child support directly to the Applicant following separation, he suggests that this comment is technically incorrect as he was solely responsible for the payment of the carrying costs of the former family residence from separation until it was sold. He submits that he was unable to afford both the carrying costs of approximately $4,100 per month as well as child support. Following the completion of the sale, he commenced payment of $936 per month based on his 2019 income.

55He proposes to pay ongoing support based on his stated income in the sum of $980 per month.

56Regarding daycare, he submits that enrolling the child was a unilateral decision by the Applicant, one that was made over his expressed objections. He states that he only agreed to the child attending Glen Cedar Daycare until the completion of the section 30 assessment. He suggests that it was anticipated that the assessment would be completed after the completion of the child’s first year of attendance which was paid for by the Applicant.

57The MOS stated as follows:

15. Stefano shall remain at Glen Cedar Montessori. Alessandra shall pay the full costs associated with Stefano) attendance and before care for one year (If after care is required on Thursdays, Joe shall pay the full cost for this.

16. The tuition and daycare receipt from Glen Cedar Montessori shall be split in accordance with what each party actually paid.

17.· If either party emails the daycare about Stefano, they will copy the other parent. Both parties will ask the staff of the daycare to ensure that both parents are copied on all emails from the daycare to either parent.

18. Both parties acknowledge that Stefano's registration at the daycare shall be an issue to be reviewed by the assessor and that the selection of this one was an interim without prejudice decision that will not be regarded to have created a status quo in favour of either party.

58The Respondent acknowledges that he is not currently paying any daycare expenses. He notes that the Applicant is refusing to provide her Income Tax Returns and advise of any government subsidies she is receiving on account of the child.

59He is of the belief that as the Applicant is not working, the child does not need to attend daycare as it is unnecessary. He opines that if the Applicant is not gainfully employed, is caring for the child and he is paying child support that there is no reason why he should be required to contribute to this expense.

60He feels that there are many other ways to socialize children without daycare including parenting groups and activities within the community. He would have assisted but he has been denied more parenting time.

61If he is ordered to contribute to the daycare expense, he believes that his proportional share should be calculated after imputing the Applicant with an income of $50,000 per year. He notes that she has declined to provide any evidence of disability such as her disability file or a medical report.

62The Applicant disputes that she should be imputed with this income but has not disputed that the suggested amount is inconsistent with what she earned prior to her departure from her employment.

Analysis and Determination

63The issues before me are:

(a) what is the income of the Respondent for the purposes of calculating child support?

(b) should the Respondent’s banked vacation time be utilized in the determination of his income?

(c) should the Respondent be required to contribute to the child’s daycare costs? and

(d) should the Applicant, for the purposes of this motion, be imputed with an income of $50,000?

64For reasons that follow, the responses to the above issues are as follows:

(a) for the purposes of this motion, the Respondent’s income shall be $111,801 and he shall pay the monthly amount of $1,004 commencing October 1, 2021 with credit being given to him for any voluntary amounts paid to the Applicant of $936 that the Applicant acknowledges receiving since December 2019. This sum is without prejudice to the quantum and commencement date of child support and further without prejudice to better evidence being produced at trial that would refute the Respondent being imputed with his vacation pay that remains in his discretion to cash out. The Respondent shall also receive credit if he has paid to the Applicant the arrears of $4,368 which he indicated would be paid within 30 days of September 14, 2021. If paid, the Applicant shall be responsible to notify FRO immediately. Receipt of those funds is also without prejudice to the Applicant establishing a larger amount owing at trial. I make no findings about the Respondent’s condominium investment and whether or not he has or will derive any benefit from the sale of that property. I further understand that the payment of the $4,368 predates the commencement date for payment sought by the Applicant in this motion. Nevertheless, if funds have been paid and received, there should be an accounting when the funds are paid with the correct adjustment, if any, to follow at a later date;

(b) as noted above, the banked vacation pay has been included in the determination of the Respondent’s income.

I also think it is important for the parties to start focusing on a costs analysis of their litigation behaviour. They should consider the time and legal fees expended on the issue, argued at a temporary motion, regarding the imputation of income to the Respondent in respect of his banked overtime. Both parties seem inclined to litigate each and every possible issue that has arisen in this case. They should appreciate that the difference between their respective positions equates to $276 per year. The lawyers should keep this number in mind when making costs submissions;

(c) the Respondent shall be required to contribute to the daycare costs commencing October 1, 2021. He shall pay his contribution directly to the daycare and receive a tax receipt for those payments. He shall also be entitled to ascertain if the child has been receiving any subsidies since his enrolment in 2019 and whether those subsidies are still being received by the Applicant. A timely receipt of this information will allow for an easy determination of the Respondent’s contribution. The Respondent is forewarned that any delay in making his payment that might jeopardize the child’s enrolment at the daycare will have a strong impact on the trial Judge in assessing the ability of the Respondent in being able to meet the needs of the child and comply with a court Order.

There will also need to be an accounting between the parties once the true cost of the daycare is ascertained as the Applicant is entitled to be reimbursed for the months preceding the release of this Ruling and once she is reimbursed, the Respondent is entitled to receive any income tax credit for 2021 to which he is entitled; and

(d) for the purposes of this motion, the Applicant shall be imputed with an income of $50,000 and she shall be responsible for 31 per cent of the daycare expense and the Respondent shall be responsible for 69 per cent of the daycare expense. In calculating the arrears owing by the Respondent for the months of October, November, and December, 2021, he shall be provided with the after tax cost of the daycare expense by the Applicant. Once determined, the amount owing for those three months shall be payable within 30 days. The Respondent shall be at liberty to have those arrears paid from the remaining funds being held in trust from the sale of the family residence.

Respondent’s Income Determination for Support Payments

65Section 19 of the Child Support Guidelines¹⁴ (“Guidelines”) provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse

(e) the spouse’s property is not reasonably utilized to generate income.

66The Applicant alleges that historically the Respondent has cashed in his vacation pay and that there is no need to bank it based on the generous benefits available to the Respondent in the event of illness. Having preferred the evidence of the Applicant on this issue recognizes that each parent has an obligation to provide support for the child and that the presumptive amount is based on the totality of income available to the payor from all sources. It was open to the Respondent to disprove the historical allegations. He has not done so.

67Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children.¹⁵

68By analogy, there is an abundance of caselaw where self-employed individuals have the discretion of how to distribute their income and courts have routinely added into income so that the income better reflects the funds available to support one’s child.¹⁶

Daycare

69The child will turn four years of age this April. This entitles consideration for the child to potentially attend Junior Kindergarten in September 2022. For the purposes of this motion, the Applicant is seeking contribution for the child to continue in the Montessori daycare in which he has been enrolled since aged 18 months. The child attended this facility with the agreement of his parents as evidenced by their MOS. It may well be that the parties anticipated that the Assessor would opine on this topic but he did not. I have reviewed the Assessor’s Report in its entirety. I see that the Assessor had a telephone call with the daycare and I see that the parties discussed the daycare issue with the Assessor under the heading of “the Fourth issue” wherein there is a notation that the Respondent provided a chart that he had a preferred daycare to that advanced by the Applicant. There is a further notation that “Stefano was currently in a Montessori School but will be moving over to a regular school at some point.” There was a further comment regarding the location of that future school in relation to where the parents may eventually reside with the inference being somewhere in the Woodbridge area. Unfortunately, there was no discussion recorded regarding the duration of the child’s attendance at the daycare.

70I might add that I am using the Report solely as a reference to the discussions of the parties with the Assessor without opining on the weight to be given to the Report in view of the position being advanced by the Applicant regarding it.

71There may also be an argument advanced that the child was to continue in the current daycare setting until the completion of the Report by the Assessor. Given that he made recommendations of an interim nature, designed to last 6-12 months, one could argue that the Report has not been completed.

72The Respondent wished to rely upon the Assessor’s Report. There is a mention that he had another suggestion for the child’s daycare and yet he has not presented any evidence in that regard while maintaining that daycare was not needed. That is a topic better explored at trial.

73My last comment notes that the parties have not agreed on where the child will attend school with the Respondent promoting public schools and the Applicant promoting Catholic schools. At this juncture of the case it appears that they are unable or unwilling to agree on the time of day. That is most unfortunate for little Stefano who is caught up in the middle of his parent’s dispute with no end in site short of a trial. It seems that there could be a compromise by which the parents come to an agreement as to where the child will attend school in September 2022 which would limit the daycare dispute to the period of October 1, 2021 to the end of the school year.¹⁷

74The relevant section of the Guidelines is section 7 dealing with special or extraordinary expenses. It reads as follows:

1. The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances. O. Reg. 391/97, s. 1; O. Reg. 25/10, s. 1.

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

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

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2; O. Reg. 32/21, s. 2.

Definition, “extraordinary expenses”

(1.1) For the purposes of clauses (1) (d) and (f),

“extraordinary expenses” means

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

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

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

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

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

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

(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2).

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. O. Reg. 159/07, s. 2.

75The court is required to take into account the necessity of the daycare expense taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child.

76The child was initially enrolled at a time when the Applicant was working. As noted, the parties disagreed on the choice of daycare but the MOS were signed. The child has excelled in his development. Perhaps some of that is attributable to the parents but it can also be assumed that the Montessori daycare has been of benefit to him and his development, both from an educational view and also a social aspect. He is with other children his own age, learning how to play and how to learn together. The notes of the telephone call between the Assessor and the daycare reflect the improved behaviour and development of the child from where he was at the beginning. It may well have improved his vocabulary beyond that of a typical three-year old child.

77If it is subsequently established at a future date that the Applicant is truly disabled, the child’s attendance at the daycare will be of benefit to not only the child but also the Applicant.

78This Order covers the current school year up to and including the month of August 2022. If a further motion is required in respect of ongoing contributions for the 2022/23 school year, it is expected that the affidavit material will reference the information regarding the choice of school for the child and when attendance at that school is to commence. If enrolment problems are contemplated because of space limitations, that is a dialogue that should commence now.

The Applicant’s Income for Purposes of Section 7 Expenses

79The Respondent seeks to have the Applicant imputed with an income of $50,000. Apparently commensurate with what she had earned and was capable of earning prior to her departure from employment in January 2020.

80The Applicant wishes the court to rely upon her income from all sources in 2020 which totalled $23,642.83.

81As noted, the Applicant has not provided the court (or the Respondent despite his apparent requests) with her disability file that exists in support of her claim for long-term disability which has been outstanding since September 2020. There has been no proof of her following up for a decision. There has been no medical information provided which one would have expected both from a family physician and from a specialist.

82The Ontario Court of Appeal in Drygala v. Pauli¹⁸ set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational, the needs of the child or reasonable health needs?

3. If not, what income is appropriately imputed?

First Question

83The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.¹⁹ However, in Graham v. Bruto,²⁰ the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

84Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking.²¹

85The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

Second Question

86Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way.²² As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income.²³

87The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job.²⁴

88The payor must prove that any medical excuse for being underemployed is reasonable.²⁵ Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work.²⁶

89Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations.²⁷

Third Question

90The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.²⁸

91I have already indicated that the Applicant has not refuted that she had capability of earning $50,000. It appears that she is set in her position that she was disabled from working and that the court had to accept what she earned in 2020 without providing more information such as her income in the preceding years before she took maternity leave. In the absence of this information, the court can only assume that the Respondent’s assertion was correct. Accordingly, that is the income to be imputed to the Applicant for purposes of this motion and her contribution to the daycare expense.

Costs

92If the parties cannot agree on costs, I will accept submissions on both motions separately although my Rulings are contained in the one document. The Respondent, as moving party on the parenting motion shall file his submissions on or before February 14, 2022 and the Applicant her responding submissions by February 28, 2022. On the Support motion, the Applicant shall file her submissions by February 14, 2022 and the Respondent his responding submissions by February 28, 2022. There shall be no right of Reply. All costs submissions are to be filed electronically. Casebooks are not required. In each instance, costs submissions are limited to three pages, double-spaced, 12 Font. The Bills of Costs are required but are not part of the page limit. I will also require copies of any Offers to Settle and a comparison of Offers. Upon filing of the costs submissions, counsel are requested to confirm filing with my Judicial Assistant: Nurit.suzana@ontario.ca.

Footnotes

1. 1RSO 1990, c. C.12, as amended.
2. 2Ierullo v. Ierullo, 2006 33301 (ON CA), [2006] O.J. No. 3912.
3. 3Lusted v. Bogobowicz, 2021 ONSC 269 at 24-26.
4. 4(McIsaac v. Pye, 2011 ONCJ 840; Bolotnov v. Moldavski, 2015 ONCJ 530 at paras. 22 and 24; Shotton v. Switzer, 2014 ONSC 843; Greve v. Brighton, 2011 ONSC 4996 at para. 24; Redmond v. Redmond, 2018 ONSC 4559 at paras. 15-16).
5. 5Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27; Rigillo v. Rigillo, 2019 ONCA 548.
6. 6Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962; L.B. v P.E., 2021 CarswellOnt 2629, 2021 ONCJ 114, 332 A.C.W.S. (3d) 299.
7. 7Button v. Konieczny, 2012 ONSC 5613, 2012 CarswellOnt 12353 (S.C.J.); Shaw v. Shaw (2008), 62 R.F.L. (6th) 100 (Ont. C.J.); Musheyev v. Gilkarov (2016), 89 R.F.L. (7th) 444 (Ont. S.C.J.); De Silva v. De Silva (2016), 78 R.F.L. (7th) 130 (Ont. S.C.J.); Rigillo v. Rigillo (2019), 31 R.F.L. (8th) 356 (Ont. C.A.); Hamilton v. Hamilton, 2021 CarswellOnt 161 (S.C.J.).
8. 8Batsinda v Batsinda, 2013 ONSC 7869 at paragraph 32.
9. 92021 ONSC 2546 at paragraph 10.
10. 10Supra, fn 9.
11. 11G. (D). v F. (A)., [2014] O.J. No. 2608, 2014 ONCA 436; Soares v. Kilgour, ONSC 2936 (SCJ).
12. 12Jonczyk, supra fn 9; Bos v. Bos, 2012 ONSC 3425 per Mitrow, J and Reif v. Reif, 2021 ONSC 3976 where the Court was able to find probative evidence in an OCL Report.
13. 132021 CarswellOnt 19136, 2021 ONSC 8291.
14. 14O. Reg. 391/97, as amended.
15. 15Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731, Ont. C.A.).
16. 16In Guignard v. Guignard, 2009 27828 (ONSC), the court added into income banked overtime hours, given that the payor had the ability to take those hours as pay. In Lenko v. Lenko, 2011 CarswellBC 44, the father was imputed with pension benefits income of $20,400 per year in addition to other income, even though the father was not receiving the pension, although entitled to it. In cases of retained earnings left within a corporation, there is an onus on the payor to explain why those retained earnings are not available for support purposes. See: Nesbitt v. Nesbitt, 2001 MBCA 113, [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32, [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61.
17. 17This comment is not to suggest that Stefano may not still attend the daycare or a summer camp during the summer of 2022. It is written to suggest that at some stage, the parents will appreciate that the financial expense of their ongoing dispute will far exceed the amounts over which they continue to disagree.
18. 182002 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.)
19. 19Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).
20. 202008 ONCA 260
21. 21Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
22. 22Riel v. Holland, 2003 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical. Hagner v. Hawkins 2005 43294 (ON SC), (Ont. S.C.) at paragraph 19.
23. 23Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).
24. 24Olah v. Olah 2000 22590 (ON SC), (2000), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien, 2001 28136 (ON SC), [2001] O.J. No. 2612, supra; Vitagliano v. Di Stavolo 2001 28202 (ON SC), (2001), 17 R.F.L. (5th) 194 (Ont. S.C.); Zagar v. Zagar, 2006 ONCJ 296, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047, 2011 ONSC 4047.
25. 25Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142 (SCJ.).
26. 26Cook v. Burton 2005 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen 2006 24124 (ON SC), [2006] O.J. No. 2902 (SCJ).
27. 27Cole v. Freiwald, [2011] O.J. No. 3654, paragraphs 140 and 141.
28. 28Lawson v. Lawson, 2006 26573 (ON C.A.).