COURT FILE NO.: FC1607/18

DATE: December 16, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Andrew LiSanti

Erin M. O’Leary, for the Applicant

Applicant

• and -

Bettina LiSanti (Schnotz)

William R. Clayton, for the Respondent

Respondent

HEARD: October 12, 13, 14, 17, 18 and 19, 2022

TOBIN J.

Introduction

[1] The parties are before the court requesting orders related to parenting of their child, child support and spousal support.

[2] The parties resolved issues related to property and a change of the child’s name just before the trial started. Counsel agreed to provide a consent regarding these and any other issues they have agreed upon. However, they have not done so yet. The remaining issues for which a consent is expected can be dealt with when counsel are ready by making arrangements through the trial coordination office.

[3] One of the issues that animated this case for as long as it has been outstanding – over three and a half years[^1] – was the mother’s request to relocate with the child to Germany, her country of origin and where she has family. Shortly before the trial started, the mother withdrew her request to relocate because it is now her intention to remain in Canada. Even with relocation no longer being an issue, the parties were not able to resolve their remaining differences.

[4] This trial requires the court to make difficult decisions about the future care of, and responsibility for, the parties’ child. As was observed by the court in N. v. F., 2021 ONCA 614, 158 O.R. (3d) 481 when parties are unable to resolve their differences, it is the trial judge who is parachuted into a family, made privy to its most intimate details and charged with determining the best course for the child’s future in the face of the parents’ opposing viewpoints (para. 1).

[5] In these reasons, the applicant will sometimes be referred to as “the father” and the respondent as “the mother” for the sake of clarity.

Issues

[6] The issues to be decided in this case are:

1. What decision-making responsibility order is in the child’s best interest?

2. How should parenting time be allocated?

3. What child support should be ordered?

4. What, if any, further spousal support should the father pay to the mother?

5. Has there been an overpayment of child support and spousal support since the separation and, if so, should any overpayment be reimbursed?

Facts

[7] The father is now 37 years old. He is employed on a full-time basis as a physical rehabilitation therapist.

[8] The mother is now 36 years old. She works part-time as a bookkeeper.

[9] In 2015, the mother, who is from Germany, came to Canada as a tourist. After spending some time in Montreal, she travelled to the London area, where she attended a workshop and worked in trade.[^2] It is here that she met the father. They began dating one another.

[10] The mother’s tourist visa was due to expire in October 2015, so she had to leave. Her next destination was Mexico to help a friend manage a yoga retreat. On the way there, she spent some time with the father at his residence in Brampton and then travelled to Washington D.C. before going to Mexico.

[11] Once she was in Mexico, the father and mother communicated by way of Skype. The father travelled to Mexico to see the mother. From Mexico, the mother returned to her home in Germany.

[12] Shortly afterwards, the father followed the mother to Germany. While in Germany, their plan was to return to Canada, buy a mini-van, and travel.

[13] While they were in Germany, the parties found out that the mother was pregnant. Their plans then changed. Their new plan was to work and start travelling the next spring. After the child was born, they were going to travel from the east coast of Canada to the west coast and then south.

[14] They returned together to Canada and from March 3, 2016 until June 2016, they stayed with the father’s mother, Leah Upton (paternal grandmother), and stepfather, Rick Upton (paternal step-grandfather). While living with the father’s parents, it became apparent to the mother and paternal grandmother that they had different ideas about what constituted respectful behaviour and appropriate diet. These differences led to the parties moving from the Upton residence.

[15] After moving from the Upton residence, the parties resided together in an apartment in London.

[16] The father sponsored the mother’s application to become a permanent resident so that she could stay in Canada. As part of this sponsorship application, the father undertook to “provide for the [mother]’s basic requirements” for a period of three years.

[17] Also, once back in Canada, the parties’ travel plans changed again because the mother discovered that the father had debts of approximately $50,000. This meant they could not afford to travel as planned.

[18] The parties then considered moving to Nova Scotia for an opportunity where they would be given some land in exchange for working at a market. After investigating this opportunity, they opted not to pursue it because the anticipated income was not enough for them.

[19] On August 16, 2016, the mother and father married.

[20] Their child, Oliver-Jade LiSanti, was born at home on August 30, 2016. The father was present for the birth and took a two-week parental leave from his employment. The father’s work schedule was flexible in that he set the times for his client appointments, and after he returned to work, this flexibility allowed him the opportunity to participate in childcare.

[21] The mother remained at home with the child.

[22] A number of months after the child was born, the parties’ relationship began to deteriorate. The father described there being “more conflict overall”. A concern of his was that he did not like how the mother kept the home.

[23] The parties came to realize that their fundamental values did not align and this caused “lots of clashes”.

[24] The mother wanted to travel while the father wanted to settle.

[25] Their conversations became “heated at times” and they would “butt heads”. The father acknowledged that “things were not nice”.

[26] The mother described the father’s behaviour as emotionally and psychologically abusive. He did not always appreciate her work. He would yell at her. He called what she did sloppy and said that she had to get her “shit together”. He called her a slob.

[27] In response, the mother would raise her voice or cry. The mother claimed the father would call her a “bitch” though he denies this.

[28] The effect of all this upon the mother was that she felt unappreciated, that she was not good enough. It caused her to question herself.

[29] The parties separated on March 1, 2018, when the father left the matrimonial home and moved to the Upton residence.

[30] The parties’ version of events leading to their separation are similar. However, they characterize these events differently. The father was of the view that they engaged in normal arguments. While that may have been normal to him, it was not normal to the mother.

[31] I accept the mother’s version of events leading to the separation where they differ from the father’s. I also accept her characterization of its effect on her.

[32] As stated, the father described the disagreements as normal. However, his evidence is that he moved from the matrimonial home because events caused him to become “physically sick” and he experienced anxiety and stress. He acknowledged criticizing the mother’s housekeeping.

[33] I also take into account that the uncontroverted evidence of the mother is that she needed and attended counselling to deal with the father’s behaviour towards her.

[34] The parties’ description of how their conflict affected them is more consistent with the mother’s version than the father’s characterization of the arguments being normal.

Post-separation

[35] After separation, the child remained in the mother’s care. The father began to pay support and sought parenting time with the child. He started this case by application issued December 18, 2018.

[36] A divorce order was granted on June 21, 2019.

[37] The father’s current parenting time with the child was set by the order of Price J. dated June 8, 2021. The bi-weekly schedule in place since September 8, 2021 is as follows:

1. In week 1, the father has parenting time with the child on Wednesday overnight until the start of school on Thursday, and from Thursday after school until 7:00 p.m. that night;

2. In week 2, his parenting time is from Monday after school, overnight, until the start of school on Tuesday, Wednesday from after school until 7:00 p.m., and Friday from after school until the start of school the following Monday.

Parenting Orders

(i) Legal considerations

[38] In Barendregt v. Grebliunas, 2022 SCC 22, at para. 8, Karakatsanis J., for the majority, identified that the determination of best interests involves choosing between competing and often compelling visions of how to advance the needs and interests of a child.

[39] At para. 9 of that decision, the Court noted that the law relating to best interests has long emphasized the need for individualized and discretionary decision-making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure the court’s decision.

[40] In cases under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), the framework and factors are set out in ss. 16 and 16.1

[41] In making a parenting order under the Divorce Act, the court must only consider the best interests of the child: Divorce Act, s. 16(1).

[42] The primary considerations and factors to be considered when determining best interests are set out in ss. 16(2), (3) and (4), which are formulated as follows:

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

Factors relating to family violence

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

(a) the nature, seriousness and frequency of 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[43] A parenting order is comprised of two components: decision-making responsibility and the allocation of parenting time.

[44] In McBennett v. Danis, 2021 ONSC 3610, at para. 97, Chappel J. provided a comprehensive summary of factors that assist in determining the issue of decision-making responsibility in the best interests of the child, as follows:

[97] A rich body of caselaw evolved over the years regarding the factors that the courts should consider in formulating decision-making regimes that support the best interests of children. The important considerations that were identified are now generally reflected in the provisions of the Divorce Act discussed above in relation to the best interests analysis. However, the caselaw respecting the determination of appropriate decision-making frameworks remains relevant and should continue to guide the courts in addressing this issue. The following principles remain pertinent in determining whether it is in the best interests of the child to order joint decision-making responsibility in all or some areas respecting the child’s well-being:

1. There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (C.A.); Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 (C.A); Rubinov-Liberman v. Liberman, 2014 ONSC 5700 (S.C.J.); Palumbo v. Palumbo, 2017 CarswellOnt 236 (S.C.J.); Jackson v. Jackson, 2017 ONSC 1566 (S.C.J.)).

2. Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children. (Kaplanis; T.E.H. v. G.J.R., 2016 ONCJ 156 (O.C.J.), at para. 446).

3. In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement (Kaplanis; Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.), reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct.)).

4. The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making (Berman v. Berman, 2017 ONCA 905 (C.A.), at para. 5).

5. The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children. As Quinn J. remarked in the often-quoted case of Brook v. Brook, 2006 CarswellOnt 2514 (S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.” The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord (Grindley v. Grindley, 2012 CarswellOnt 9791 (S.C.J.); Sader v. Kekki, 2013 ONCJ 605 (O.C.J.), at para. 115).

6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis, at para. 11; Ladisa). The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the turmoil reasonably well and make decisions in the child’s best interests when necessary, an order involving joint decision-making may be appropriate (Ladisa). The issue for the court’s determination is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.); Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).

7. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication (Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.);Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)). Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party (Alqudsi v. Dahmus, 2016 ONCJ 707 (O.C.J.); Liu v. Huang, 2020 ONCA 450 (C.A.)). Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions (Habel v. Hagedorn, 2005 ONCJ 242, 2005 CarswellOnt 3863 (O.C.J.); Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (O.C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (Ont. C.A.); R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (Yuk. S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (O.C.J.); Sinclair v. Sinclair, 2013 ONSC 1226 (S.C.J.); Caverley v. Stanley, 2015 ONSC 647 (S.C.J.); Ferreira v.Ferreira, 2015 ONSC 2845 (S.C.J.); T.E.H.; Levesque).

8. However, where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.); Kaplanis; Ladisa; Graham v. Bruto, 2008 ONCA 260 (C.A.)). This principle applies even where both parties are attentive and loving parents (Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.), at para. 504). In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order that includes elements of joint decision-making responsibility (Kaplanis). There must be a clear evidentiary basis for believing that joint decision-making would be feasible (Iannizzi v Iannizzi, 2010 ONCA 519 (C.A.), at para. 2).

9. The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate (Milford. v. Catherwood, 2014 CarswellOnt 7879 (O.C.J.)).

10. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint decision-making order to issue. The determination of the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests (Kaplanis, at para. 10).

11. A party’s failure to financially support their children in a responsible manner may militate against an order for joint decision-making responsibility, as this reflects poor judgment and an inability to prioritize the child’s interests and needs (Jama v. Mohamed, 2015 ONCJ 619 (O.C.J.); L.B. v. P.E., 2021 ONCJ 114 (O.C.J.)).

12. In some cases, the parties are clearly able to cooperate and jointly support the best interests of the child in some areas of decision-making but have a pattern of conflict and lack of collaboration in other specified areas. In these circumstances, a hybrid type of decision-making structure that provides for joint decision-making in the areas that have never been problematic but that allocates the remaining areas out to each party for sole decision-making may be the most appropriate outcome.

13. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint decision-making arrangement will be particularly pressing in such circumstances (Kaplanis, at para. 11).

14. The wishes of the child will also be relevant to the determination of the appropriate decision-making disposition in cases involving older children. Although a child’s wishes in such circumstances may not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” (Kaplanis, at para. 13).

15. Evidence as to how an interim parenting order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime.

[45] Regarding the allocation of parenting time, s.16(6) of the Divorce Act provides:

In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[46] In Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721, the court in addressing the allocation of parenting time issue noted that the maximum contact principle does not necessarily require equal parenting time: para. 30.

[47] A child-focused approach to achieving as much parenting time as possible with each parent is the objective. How much time is in the child’s best interests, whether it be equal or not, depends upon the circumstances of each case: Knapp, at para. 34.

(ii) Best Interests Considerations

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

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

[48] The child is now six years old. He is a happy and affectionate child who has met his developmental milestones.

[49] At present, he is in grade one at Victoria Public School.

[50] Both parents describe the child as intelligent, smart, curious, and he loves the outdoors. With his father, he likes to explore the woods near his home. With his mother, he likes to paint, has become fluent in understanding German, and is working on increasing his proficiency in speaking this language. He also likes indoor rock-climbing.

[51] The AFCC Ontario Parenting Plan Guide notes that children of this child’s stage of development engage with more people outside of their family. They benefit from experiences that help develop a sense of competence. I find that the parents recognize these needs and both are acting in a way to meet them.

[52] The parents have provided the child with stability. He is familiar with, and comfortable in, their respective homes and the expectations both have of him. The current parenting time arrangement has also been in place for almost a year and a half and affords the child a sense of stability.

[53] The father submits that the mother’s desire to send the child to the Waldorf School was a flaw in her plan. I decline to make that finding. The mother researched the Waldorf School, and with her experience as a trained educational assistant and teacher, determined that school’s program could be beneficial for the child. As well, the change to public school would have been made at the start of grade one.

[54] Justice Price ordered that the child continue in public school because “leaving him in his current school pending the trial [which was expected to start in January 2022] is the least disruptive option at the time and does not presuppose the trial’s outcome.”

[55] The father also submitted that there is uncertainty for the child because of the mother’s intention to begin living with her partner. However, the mother’s evidence, which I accept, is that she is introducing her partner to the child in a sensitive and child-centered manner. I accept the mother’s counsel’s submission that the mother makes “realistic and reasonable” decisions regarding the child.

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

[56] Both parents have a positive relationship with the child.

[57] Both parents engage in appropriate activities with the child.

[58] Both parents see the child as affectionate and attached to themselves.

[59] The paternal grandmother and paternal step-grandfather have been helpful to the parties, both before and after the separation, in caring for the child and providing logistical support when needed. However, the child’s relationship with them is a distant one. There is no doubt that these grandparents love and care for the child. But this is not equally reciprocated by the child. The child likes the paternal grandmother to stay at a distance from him. The paternal grandmother, as she states, “gets to enjoy watching” the child and the father.

[60] The child’s relationship with his maternal grandparents is close and loving: “like a normal child”, according to the maternal grandmother. Though the child does not see his maternal grandparents as often in person, there is regular electronic communication between them.

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

i. The ability and willingness of each parent in respect of whom the order would apply to communicate and cooperate on matters affecting the child

[61] I find that the mother does support the father’s relationship with the child.

[62] The father submits that because the mother wanted to move with the child to Germany, she was not supportive of his relationship with the child. With respect, I do not draw that conclusion. The mother had rational reasons for wanting to move. She was the child’s primary caregiver. In Germany, she had family support and could use her credentials and experience to be economically self-sufficient. In London, she did not have her family’s hands-on support, and her credentials are not recognized here. As part of her plan, she proposed significant time for the father with the child. In this regard, the mother was sensitive to the father’s relationship in making her proposal. In making these findings, I do not suggest that the mother would have been granted leave to relocate. Rather, these findings address the mother’s view of the father’s relationship with the child – she views it as important.

[63] The father’s evidence demonstrates that he fears not being involved in the child’s life because of decisions the mother has or may make. I find that this fear is overstated and not warranted. The mother’s proposal to move to Germany, which is no longer an issue, made generous provisions for the father’s involvement. In addition, the mother has informed the father of appointments she made for the child. She accepted the father’s position and is now agreeable that the child continue in public school.

[64] Another matter of concern to the father was about a disclosure the child made to the mother.

[65] Subsequent to the separation, the child told the mother about certain inappropriate and possibly sexual behaviour he experienced while in the father’s care. As a result of this information, the mother contacted her counsellor, the Children’s Aid Society, and police. She briefly withheld the child from the father while the concern was investigated. She did not immediately tell the father about this disclosure.

[66] In not immediately telling the father about the disclosure, the brief involvement of the Children’s Aid Society and police, she was following advice given to her.

[67] The child’s disclosure was not verified, and the father’s parenting time resumed. The evidence in this trial does not support a finding that the father was inappropriate with the child.

[68] There was another incident of the mother not consulting with the father regarding the child. At some point, the mother observed the child masturbating. I do agree with the father that when the child exhibited this behaviour, the mother should have informed him. However, her explanation satisfied me that her reasons for not doing so were not to diminish the father’s role. Given her experiences with the father and the paternal grandmother, she had reason to fear that they would shame the child when addressing his behaviour.

[69] Throughout the trial, the father equated his needed involvement with the child with equal parenting time. It appears to me that anything less than being granted equal time with the child means to the father that his role with the child is not being respected. I do not accept this submission. He has been afforded and has assumed an important role in the child’s life, one that has been in the child’s best interests.

[70] I find that both parents are willing to support the other’s ongoing relationship with the child.

d. The history of care of the child

[71] The mother has been the child’s primary caregiver. This has been the case before and after the parties separated.

[72] The father worked during the day and was then unavailable. When home, the father did actively participate in all aspects of the child’s care prior to the parties separating.

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

[73] There is no evidence of the child’s views and preferences. This is understandable as the child is six years of age. I will infer that, as there is no evidence of the child having difficulty going to or coming back from either parent, he is comfortable in the care of both parents.

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

[74] The child has both Canadian and German heritage. It is through the mother he is able to develop and maintain his dual culture and heritage. The father supports the child taking German language lessons.

g. Any plans for the child’s care

[75] The father asks that he be granted decision-making responsibility for the child. He proposes that he consult with the mother on all important decisions and will seek her input. Regarding parenting time, he asks that the child live equally with both parents and share holiday times. The father’s plan allows for the mother to have some extended time with the child so as to be able to travel with him to Germany.

[76] The mother asks that she be granted decision-making responsibility and primary care of the child. She proposes that the father’s parenting time remain substantially as it is now but in a less confusing schedule. During the summer and on other holidays, she wants the child in her care for extended periods so that she will be able to travel to Germany.

[77] Neither party wants the other to significantly change the routine and circumstances of the child.

j. Any family violence and its impact…

[78] The Divorce Act s. 2 defines family violence as:

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

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

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

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

(f) psychological abuse;

(g) financial abuse;

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

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

[79] In this case, the events leading up to the separation did constitute an attempt by the father to engage in controlling behaviour as described earlier in these reasons. After the separation, the father’s actions in going to the mother’s home to see the child whenever he wanted, and on some occasions peering into the windows of her home, resulted in the mother experiencing a loss of her privacy. But, this behaviour did not last very long. It was short-lived during the period leading up to and until shortly after the separation.

[80] The consideration of family violence is crucial in parenting cases. The court must consider the facts found regarding family violence and its impact on:

1. the alleged perpetrator’s ability to care for and meet the needs of the child and,

2. the parties’ ability to cooperate on issues affecting the child.

[81] The issue of family violence is not a current factor in this case. Subsequent to the separation, the parties – with some effort, and on occasion, some failures – have been able to resolve important issues concerning the child, such as school attendance, choice of dentist and mother’s travel plans. On occasion, some issues have had to be resolved through court order.

[82] I also reiterate that the father remains able to care for the child and that his past behaviour, as described, does not affect his current ability to care for and meet the needs of the child.

[83] In considering the impact of family violence in this case, I also take into account that in the mother’s s. 35.1 affidavit sworn January 14, 2019 when this case was started, the mother deposed that the father was emotionally abusive towards her. However, while the mother has engaged in counselling to deal with sequelae arising from the separation and the father’s behaviour, in her s. 35.1 affidavit sworn December 13, 2021 (in anticipation of the trial starting January 2022), there is no longer any mention or reference to family violence being an issue.

(iii) The Section 112 Investigation and Report

[84] By order dated August 12, 2019, McArthur J. requested the involvement of the Children’s Lawyer. The case was assigned to Marsha McHardy as the clinical investigator on September 24, 2019. She was a well-qualified and experienced social worker and clinical investigator.

[85] Ms. McHardy met with the parties individually once in October and once in November 2019. Ms. McHardy observed the child with each parent at a home visit.

[86] A disclosure meeting was held on December 11, 2019 with the parties and their respective counsel.

[87] Ms. McHardy’s report recommends sole custody and primary residence of the child to the father with parenting time to be shared equally.

[88] The report of Ms. McHardy is one piece of evidence. It is to be carefully considered when determining the weight to be given it as part of the determination of parenting issues. The courts often give great weight to s. 112 reports because the Children’s Lawyer employs highly trained and experienced persons to conduct them: Maharaj v. Wilfred-Jacob, 2016 ONSC 7925, at para. 67.

[89] However, a court is not required to accept the clinician’s recommendations because “they are just that: recommendations”: Knapp v. Knapp, at para. 20.

[90] One reason that may cause the court to give little or no weight to the information relied upon or recommendations made by the clinical investigator is that the report is outdated. If outdated, the conclusions reached have been made unreliable because of events transpiring since the report was released: Maharaj, at para. 67.

[91] In this case, I put little weight on the recommendations made by the clinical investigator. The report is outdated. Circumstances for the child have changed considerably since the report was released. The child was then three years of age and not yet in school. Today the child is six years old, at a different developmental stage, and is in grade one. He is a happy and well-adjusted child who has thrived in the current parenting arrangement.

[92] At the time the report was prepared, the mother’s plan was to move with the child to Germany. This was an important consideration for Ms. McHardy in making the recommendations she did. By moving the child to Germany, Ms. McHardy concluded that the mother failed to consider the father’s role with the child as an “active participant” and would become that of a “visitor”.

[93] Now that the mother is not asking to relocate with the child, this is not a factor that is relevant at this time.

[94] In her evidence, Ms. McHardy stated that the report was a “snapshot at the time of the facts and information” she collected. She acknowledged in cross-examination that with the passage of three years, her report was now “very outdated”.

[95] Another conclusion reached by Ms. McHardy was that the parties had no history of amicable conflict resolution and decision-making. That was no doubt the case shortly following the separation and when the investigation was undertaken. However, as detailed in these reasons, the parties have found a way to resolve some important parenting issues.

[96] Ms. McHardy also considered what the mother would do if not permitted to relocate to Germany. This consideration gives rise to the double bind problem for the parent asking to relocate. Under the Divorce Act, s. 16.92(2)[^3], this is a factor that is not to be considered.

[97] Also, another finding that was made by Ms. McHardy has changed. She found that the mother’s decisions and actions did not suggest flexibility or a willingness to fully and truly nurture the child’s relationship with the father. That is not what the evidence which has been referred to in these reasons demonstrates now. The mother supports the father’s relationship with the child.

[98] There are some aspects of the report that remain relevant and consistent with the evidence presented at trial. The child continues to thrive and do well. He does well while in the care of both parents. Both parents are capable and loving parents.

Conclusions Regarding Parenting

[99] It is abundantly clear from the evidence that both parents love their child and are devoted to ensuring his wellbeing. They have some different views about how that may be achieved.

(i) Decision-making responsibility

[100] Despite both wanting sole decision-making responsibility, I find that it is in the child’s best interests that the parties have joint decision-making responsibility regarding the child. However, in the event of a dispute the mother is to have final decision-making responsibility, subject to some limitations described below. In making this finding I take into account the following

− Both parties have the ability and willingness to make decisions regarding the child in a child-focused manner.

− I am satisfied that both parents are fit and able to meet the general needs of the child.

− The parties have demonstrated that despite their differences and with some challenges, and only occasionally without success, they have been able to resolve important parenting issues. In Warcop v. Warcop, 2009 CanLII 6423 (ON SC), [2009] O.J. No. 638 (Ont. S.C.J.), at para. 94, the court also addressed the nature of the communication that would indicate whether it would be in a child’s best interests to make an order for joint custody, as follows:

The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.

− A joint decision-making order will demonstrate clearly to the parties and the child that both parents have an important role to play in the child’s upbringing.

− The child at 6 years of age, who is meeting his developmental milestones, is better able than he was when the parties separated to communicate his needs to both parents.

[101] In the event the parties are not able to make a significant decision concerning the child after meaningful discussion, it is in the child’s best interests that there be a mechanism that will allow for a timely and civil determination of the matter, short of having to return to court every time this occurs.

[102] In determining that it is in the best’s interests of the child that the mother have final decision-making responsibility, I take into account that:

− For the past three years, the child has been in the mother’s de facto primary care;

− The child has done well under this arrangement.

− The mother has demonstrated her ability to make decisions in a reasoned and child-focused manner. The father agreed in his evidence that this is the case.

− This decision-making plan will allow for a reliable mechanism for appropriate decisions to be made in an efficient, productive, civil, and timely manner: Rogers v. Proga, 2021 ONSC 4759, at para. 34.

(ii) Limitations in the mother’s decision-making responsibility

[103] The mother’s final decision-making responsibility shall be limited with respect to the child’s schooling in the following manner: the child shall remain enrolled in a public school located in the catchment area connected to the mother’s residence.

[104] Regarding decisions concerning the child’s health, the parties shall consult with and consider the advice and recommendations of the child’s medical doctor.

[105] Also, regarding the child’s health, the parties agreed that the child will receive further vaccinations as recommended by his medical doctor.

(iii) Parenting time

Factors to consider

[106] I find that the following allocation of parenting time to be in a manner consistent with the child’s best interests.

[107] The child’s primary residence should continue to be in the home of the mother. This has been and will continue to be his home base. His school is and will be in the mother’s catchment area. This is consistent with the status quo that has been in place since the parties separated. This has allowed the child to thrive.

[108] In this case, the child has had frequent and regular time in the care of both parents. Under the Price J. order of June 8, 2021, the father has some time with the child on nine of the 14 days in a two-week cycle. He has five overnights with the child during that period. I agree with mother’s counsel that the current two-week plan is complex. The father had difficulty describing it in his evidence.

[109] The father asks that weekly parenting time be shared equally, either on a 2-2-3 basis or on a week-about schedule.

[110] The mother asks that the father’s weekly parenting time take place on alternate weekends, from Friday after school until Monday morning and on Wednesdays overnight.

[111] Determining the most appropriate allocation of parenting time depends on many factors including: age of the child, child’s temperament, child’s stage of development, schedules of the parties and the child, proximity of residences, child’s ability to manage transitions, and school location. The schedule must accord with the child’s best interests. K. M. v. J. R., 2022 ONSC 111, at para. 373(c). I have considered these factors.

[112] A schedule that provides for fewer exchanges would present fewer opportunities or potential for stress for the child.

[113] The child has benefited from having regular and frequent contact with both parents.

[114] The exchanges have been working well recently.

[115] In the new year, the mother will begin an 18-month parental leave as she is expecting a child later this year. She will be at home full-time during this period. The father continues to work through the week but has flexibility in arranging his schedule.

[116] At present, the child is not enrolled in any extracurricular activities.

[117] In Ms. McHardy’s report, she recommended that parenting time be allocated equally. She did so on the basis that “neither parent should be denied the right to a fulsome role in their child’s life.” With respect, that analysis looks at the allocation of parenting time from the point of view of the father, not of the child. The existing allocation of parenting plan requires a number of exchanges and the child being in the father’s care for some brief periods. A plan that reduces the number of exchanges would be in the best interests of the child.

Conclusions regarding the allocation of weekly parenting time

[118] This is a close case in terms of which of the two parenting time plans are in the child’s best interests.

[119] Both plans have aspects that commend themselves. Both provide for a regular and predictable weekly parenting time allocation. Both will allow the child’s relationship with the parents to be maintained, develop, and flourish. Both parents will have the opportunity to provide guidance, care, and love to their child.

[120] I remain mindful that the court must give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests.

[121] When I consider the two plans, I find that it is in the child’s best interests to order the mother’s proposed weekly parenting allocation.

− This plan maintains the mother as the child’s primary caregiver. This has been the case throughout the child’s life. This has allowed the child to thrive.

− This plan will allow the child to maintain his home base with the mother and soon-to-arrive sibling.

− The father will have five overnights over a 14-day cycle. He will have some contact with the child on eight of the 14 days. This allows the father to be significantly involved in the child’s day-to-day upbringing. The father and child will have extended alternate weekends and one overnight each week together.

− This will provide a predictable and regular schedule for the child.

Conclusion regarding the allocation of vacation and holiday parenting time

[122] The parenting time allocation must take into account the mother’s request that she be able to travel with the child to Germany. I find that it is in the child’s best interest to continue to develop his ongoing relationship with his maternal extended family through in-person contact. Trips of this nature will need to be for extended durations.

[123] In 2023, the mother requests that she be allowed to take the child to Germany for three weeks commencing Thursday before Easter and for three weeks during the summer. I find that it is not in the child’s best interests to be removed from school for three weeks in the middle of the school year. I find that the mother’s proposal that the child be able to experience a “German Easter celebration” should not require the child to miss that much time from school. I would not grant that request.

[124] During the child’s summer vacation from school, the mother will be permitted to travel with the child for a period of five weeks. She is to advise the father of the five weeks she chooses by May 15 of each year. During those five weeks, the father and child shall have video contact twice a week for up to one half-hour on each occasion.

[125] During the child’s summer vacation from school, the father shall have three weeks of uninterrupted parenting time with the child. He will advise the mother of the three weeks by June 1 of each year. During those three weeks, the child shall have video contact with the mother once a week for up to one half-hour on each occasion.

[126] The summer vacation from school means that it starts the day after the last day of the school year and ends the Monday of the Labour Day weekend. This will allow the child to be settled in the mother’s home before the first day of school each year.

Child Support

[127] Based on the allocation of parenting time ordered, the father is required to pay child support to the mother pursuant to the Federal Child Support Guidelines, SOR/97-175, s. 3(1)(a).

[128] The father is employed at DMA Rehabilitation. His income from this employment is $65,000 per year. He also provided evidence that he expects to earn income from a cleaning and landscaping business he started in August 2022. In September 2022, he earned $500 from that business and next year he expects to earn approximately $1,000 per month.

[129] I will not order the father to pay child support on this business income at this time. The business is new and the income projections seem speculative, more like a hope. Child support will be based upon the income of $65,000 per year. If he earns additional income, child support can be adjusted and paid upon the father providing his annual disclosure of income.

[130] Based upon the applicable table, the child support to be paid by the father to the mother for the support of the child is $605 per month.

[131] There are no special or extraordinary expenses (s.7 expenses) being incurred at this time. Should either party seek a contribution towards a s.7 expense from the other, notice of this request shall be made.

Spousal Support

(i) Legal considerations

[132] The issues to be determined regarding spousal support are entitlement and then quantum and duration.

[133] Under the Divorce Act, ss. 15.2(4) and (6), the court is required to consider the following enumerated factors and objectives regarding spousal support:

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:

a) The length of time the spouses cohabited;

b) The functions performed by each spouse during cohabitation; and

c) Any order, agreement or arrangement relating to support of either spouse

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[134] All of the factors and objectives are to be considered, however, no one objective predominates. All four objectives need to be balanced in the context of the particular case: Fisher v. Fisher, 2008 ONCA 11, at para. 34.

[135] Once it is determined that a party is entitled to spousal support, the issue of quantum and duration is to be considered. The Spousal Support Advisory Guidelines (SSAG) will be considered at this stage of the analysis. It was referred to by the parties.

(ii) Application of legal considerations

(a) Entitlement

[136] The father acknowledges that the mother was entitled to spousal support. However, the father argues that the mother is no longer entitled to spousal support because any disadvantages she suffered have been addressed.

[137] The parties cohabitated from the winter of 2016 until March 30, 2018 – a period of 26.5 months according to the father.

[138] While cohabiting, the mother was the child’s primary caregiver. The father remained employed and financially supported the family. He assisted in childcare when he was not at work.

[139] The mother was not allowed to be gainfully employed until January 2018 because of restriction imposed as part of her immigration application.

[140] In January 2018, the mother did obtain part-time employment at a local kombucha plant. She remains employed by this company. She was initially hired as a salesperson to work 6 hours a week on Sundays, when the father could look after the child. She wanted to help out financially and was the family’s secondary earner. She then worked as a production worker two days a week.

[141] The mother remains the child’s primary caregiver. She now works part-time as a bookkeeper for the company. She is paid $22.50 per hour and works approximately 20 hours per week. In this employment, she has health benefits but no pension or profit share. She works when the child is in school.

[142] The mother is now pregnant and anticipates taking a parental leave of 18 months beginning December 2022. She remains the six-year-old child’s primary caregiver.

[143] The father remains employed as a rehabilitation specialist and case manager earning $65,000 per year. He is also attempting to start a profitable cleaning and landscaping company.

[144] I find that the mother is entitled to spousal support on a compensatory basis. There are economic disadvantages to the mother arising from the marriage and its breakdown. Throughout most of their cohabitation, the mother was not able to work because of her immigration status. Once the child was born, she was at home with him and was primarily responsible for his care. When she did gain employment, she was the secondary wage earner. The mother wanted to help the family out financially.

[145] The father was able to continue with his employment unencumbered by childcare responsibilities. He participated in childcare when he was home from work.

[146] After the parties separated, the mother was primarily responsible for the child. Her hours of employment are limited by her childcare responsibilities. Her responsibilities as the child’s primary caregiver will continue. Her hours of employment will be affected by these childcare responsibilities. This constitutes ongoing and future disadvantages to the mother.

[147] The mother remains in Canada with the child. She is not in a position to return to Germany. She is unable to rely on her German education, qualifications, and experience as an early childhood educator and teacher to obtain employment. Her qualifications are not recognized in Canada. The mother does not have the financial resources to retrain and obtain matching Canadian qualifications.

[148] There is also a modest needs-based entitlement to spousal support. The respondent’s part-time income of $23,400 per year[^4] is less than her expenses as disclosed in her financial statement and as compared to the income available to the parties when they cohabited. There has been a reduction in her economic standard of living as compared to the father’s since the separation.

[149] Self-sufficiency in this case may yet be attainable when the mother’s childcare responsibilities are fewer, and she can devote more time to training and employment.

(b) Amount and duration

(i) The SSAG

[150] The SSAG is a helpful tool in determining the amount and duration of spousal support once entitlement has been established: see MacEachern v. MacEachern, 2020 ONSC 31, at para. 29.

[151] The father submits that duration of spousal support means “the period of and end of entitlement.” He relies upon Sharpe v. Sharpe, 2018 ONSC 3673, at para. 63. In this decision, the court notes that the SSAG provides a range of duration using a formula that sets the minimum duration as one half of the length of the relationship and a maximum duration of the length of the relationship: para. 63.

[152] However, the length-of-marriage test is not the only test for duration under the SSAG. The other test for duration is the age-of-children test. This test is more important for shorter marriages. This test provides that the low end of the range is the time the child starts full-time school. The upper end of the range is when the child finishes high school. The Revised User’s Guide also states that when considering the two tests, the longer of the two tests applies to determine duration at both the low and upper ends of range (page 43). This means that in this case, the low end of duration is four years, and the maximum duration is 17 years.

[153] The father points out that he has paid spousal support for approximately 58 months, or 4.8 years. He argues that the low end of duration is the proper one because the mother is pregnant with a new partner and will be taking an 18-month parental leave. The consequences of that, he submits, should not affect him.

[154] I return to the Revised User’s Guide. The authors state that the “with child support formulas are fundamentally compensatory, which means that most time limits should fall towards the higher end of the range, not the lower end.”: page 43.

[155] With respect to short marriages with young children, the authors also state that time limits will only rarely be the right outcome at an initial hearing. The vast majority of these orders should be “indefinite (duration not specified)”. Often, a review will be required of these indefinite orders: page 44.

(ii) Conclusion regarding the quantum of spousal support

[156] Taking into consideration the Divorce Act factors and objectives as discussed in these reasons and the length of time spousal support has been paid, the father shall pay spousal support to the mother in the amount of $150 per month starting December 1, 2022, on an indefinite (duration not specified) basis.

[157] The amount of spousal support is based upon the father’s employment income of $65,000 a year and the mother’s employment income of $23,400 per year. I was not provided with the mother’s anticipated income while she is on a parental leave. In any event, I would not consider any reduction in income during her maternity leave in determining the quantum of spousal support to be paid by the father. Applying these figures to the DivorceMate calculation provided by counsel at my request results in a range of spousal support as follows: low $0 – mid $37 – high $265. The amount of monthly spousal support of $150 is mid-way between mid and high amounts. I have taken into account that the father will have much time with the child and that the flexibility in his work schedule may allow him to support the mother when needed. A determination of spousal support in this amount reflects primarily the ongoing and future compensatory basis for the entitlement.

[158] A termination date is not appropriate in this case at this time for the reasons set out above. However, given the relatively short duration of the relationship, a review order is warranted. A review may take place once the mother secures full-time employment or there is a significant change in her income. In any event, spousal support may be reviewed after November 1, 2025. This is similar to the approach taken in Zivic v. Zivic, 2014 ONSC 7262, at para. 195, and Dupuis v. Desrosiers, 2013 ONCJ 720, at para. 88.

[159] A review is necessary in light of the uncertainty of the mother’s financial situation, her potential for self-sufficiency and future needs even after this short marriage.

Retroactive Readjustment of Child Support and Spousal Support

(i) The claim

[160] The applicant asks for an order that he be repaid $8,734 on account of his overpayment of child support and spousal support from January 1, 2021, to October 1, 2022.

[161] By order of the court dated September 26, 2019, which gave effect to without prejudice minutes of settlement, the father was required to pay child support to the mother in the amount of $570 per month based upon his projected income of $61,400. He was also required to pay spousal support of $430 per month based upon his projected income and the mother’s income of $15,600. The total amount to be paid under the order was $1,000, which was consistent with the amount the father had been paying to support the mother and child previously. These support provisions under the order were made explicitly on a without prejudice basis.

2021

[162] The father’s income was $57,382. The mother’s income during that same year was $18,545.

[163] The father’s annual child support was therefore $531 per month.

[164] In 2021, the father overpaid the child support in the amount of $468.

[165] Based on these income figures, the range of spousal support under the SSAG was a $0 – $72 – $282.

[166] The father claims he should have paid the middle value of $72 and therefore overpaid spousal support by $4,296.

[167] The total overpayment he claims for 2021 is $4,767.

2022

[168] From January to October 2022, the father claims to have overpaid child support and spousal support by $3,970. He bases this calculation on his income being $57,383 and the mother’s being $18,545.

(ii) Discussion regarding the overpayment claim

[169] There are two problems with the father’s calculations:

1. They do not take into account that the father received and remains entitled to tax relief on account of the spousal support paid. In his 2021 income tax return, the payment of spousal support caused his net income to be reduced by $5,160[^5]. This does not appear to have been factored into the father’s calculation.

2. For 2022, I determined that the parties’ respective incomes are in amounts different than those relied upon by the father in his calculation.

[170] The mother requests that there be no adjustment of support. She argues that if support is to be recalculated, the analysis should start earlier than 2021. She refers to the years 2018 to present. She argues that if there was an overpayment, it was slight. Also, she asks the court to consider the means and circumstances of the parties during the period of 2018 to the present.

[171] The problem with the mother’s position is that,

1. She has not provided her calculation to establish that the overpayment, if any, is slight.

2. She relies upon legislation and caselaw that deals with a repayment of support upon or following termination of a support obligation. That is not the case here.

(iii) Conclusion regarding the reimbursement claim

[172] The provisions of the order which requires the father to pay child support and spousal support were made on a without prejudice basis (see paras. 6 and 7 of my order dated September 26, 2019).

[173] I infer from this wording that the parties expected that support could be readjusted when this case was finally dealt with. They did not intend that the court first require a finding that there had been a material change in circumstances: see Colucci v. Colucci, 2021 SCC 24, at para. 113(1).

[174] In 2021, the father overpaid child support in the amount of $460. In 2022, the father underpaid child support based on his income being $65,000. The underpayment has been $35 per month for a total to October 2022 of $352.

[175] Therefore, the father is entitled to a credit of $118 on account of child support overpayment since January 1, 2021.

[176] I would not give effect to the father’s request for credit for overpayment of spousal support that he may have made when having regard to the SSAG calculations. The amount of spousal support paid in excess of the mid-point between the mid value and the high value of spousal support calculated having regard to the SSAG is better addressed as part of the restructuring analysis that may be undertaken when spousal support is reviewed. The father will be entitled to have the total amounts he paid to date factored into the determination of the appropriate duration of spousal support.

Order

[177] For these reasons, an order shall issue under the Divorce Act, as follows:

Decision-making Responsibility

1. The Applicant and the Respondent shall have joint decision-making responsibility with respect to the child, Oliver-Jade Lisanti, born August 30, 2016.

2. The Applicant and the Respondent shall consult and confer with each other before making significant decisions about the child’s wellbeing, including in respect of health, education, culture, language, and significant extracurricular activities. In the event the parties are not able to reach an agreement after having meaningful discussion, whether in person, virtually, or electronically, the Respondent shall make the final decision and keep the Applicant informed.

3. The Respondent’s responsibility to make final decisions shall be limited as follows:

a) The child shall continue to be enrolled in and attend a public school within the Respondent’s catchment area until further court order or unless the parties agree otherwise in writing;

b) Regarding decisions concerning the child’s health, the parties shall consult with and consider advice and recommendations of the child’s medical doctor;

c) The child shall receive such further vaccinations as are recommended by the child’s medical doctor.

Allocation of Parenting Time

4. The child’s primary residence shall be with the Respondent.

5. The Applicant shall have parenting time with the child as follows:

a) On alternate weekends from Friday when school ends (3:30 p.m.) until Monday morning when school starts (8:30 a.m.). If, on the Applicant’s alternate weekend, Friday is a professional development day or the child is not otherwise expected at school, then the Applicant’s parenting time shall start on Thursday after school ends (3:30 p.m.). If, on the Applicant’s parenting time, Monday is a holiday from school for the child, then the Applicant’s parenting time shall end on Tuesday morning when school starts (8:30 a.m.)

b) Every Wednesday from after school (3:30 p.m.) until Thursday morning when school starts (8:30 a.m.)

c) On any occasion the school is not involved with the pickup or drop-off of the child, the parenting time exchanges shall take place at a neutral location as arranged by the parties.

6. Notwithstanding the schedule provided for in para. 5 above,

a) During the child’s March Break:

(i) In odd numbered years, the child shall be in the Respondent’s care from Monday to Friday, extending to include her regularly scheduled weekend;

(ii) In even numbered years, the child shall be in the Applicant’s care from Monday to Friday, extending to include his regularly scheduled weekend;

(iii) In odd numbered years, if requested by the Applicant for the purpose of her travelling to Germany with the child, the Applicant’s March Break weekend with the child will be suspended and made up on the first weekend after the March Break.

b) Easter:

(i) In odd numbered years, the child shall be in the care of the Respondent during the Easter weekend from Thursday after school until the return to school on Tuesday.

(ii) In even numbered years, the child shall be in the care of the Applicant during the Easter weekend from Thursday after school until the return to school on Tuesday.

(iii) The Respondent’s request to travel to Germany during Easter with the child for a three-week period in 2023 is denied.

c) Mother’s Day: If the child is not otherwise in the Respondent’s care on the Mother’s Day weekend, he will be in her care from Sunday at 9:00 a.m. until the start of the school on Monday.

d) Father’s Day: If the child is not otherwise in the Applicant’s care on the Father’s Day weekend, he will be in his care from Sunday at 9:00 a.m. until the start of the school on Monday.

e) Summer vacation from school:

(i) Summer vacation from school means the day after the last day of the school year until Monday at 5:00 p.m. of the Labour Day weekend, when the child shall be in the mother’s care.

(ii) The Respondent shall be permitted to have the child in her care for a period of 5 consecutive weeks if she intends to travel to Germany with the child. She is to advise the Applicant of the travel weeks by May 15 in each year. During those 5 weeks, the Applicant and child shall have video contact twice a week for up to one half hour on each occasion.

(iii) If the respondent travels to Germany with the child, the Applicant shall have three weeks of uninterrupted parenting time with the child. He will advise the mother of these three weeks by June 1 in each year. During those three weeks, the mother and child shall have video contact once a week for up to one half hour on each occasion.

(iv) If the Respondent does not travel with the child to Germany, the parties shall have the child in their respective care on a 2-week about schedule, or as they otherwise agree.

f) Christmas:

(i) In odd numbered years, the child shall be in the care of the Respondent on December 24 until December 25 at noon and with the Applicant from December 25 at noon until December 26 at 7:00 p.m.

(ii) In even numbered years, the child shall be in the care of the Applicant on December 24 until December 25 at noon and with the Respondent from December 25 at noon until December 26 at 7:00 p.m.

(iii) The balance of the child’s Christmas break from school shall be shared equally. In odd numbered years, the child shall be in the Respondent’s care for the first half, and for the last half in even numbered years. In even numbered years, the child shall be in the Applicant’s care for the first half, and for the last half in odd numbered years.

g) Such further and other time or times as the parties may agree to in advance and in writing.

7. The Applicant shall provide the Respondent with a signed travel consent letter to accommodate trips to Germany with the child within 7 days of the request being made.

Child support

8. The Applicant shall pay child support to the Respondent for the child in the amount of $605 each month starting December 1, 2022 and on the first day of each subsequent month based on:

a) Clause 3(1)(a) of the Child Support Guidelines, and

b) The Applicant’s 2022 income of $65,000.

Spousal Support

9. The Applicant shall pay spousal support to the Respondent in the amount of $150 each month starting December 1, 2022 and on the first day of each subsequent month.

10. A review of spousal support may take place once the Respondent secures full-time employment or there is a significant change in her income. In any event, spousal support may be reviewed on or after November 1, 2025. The Respondent shall forthwith advise the Applicant when she secures full-time employment or if there is a significant change in her income.

Overpayment Claim

11. The Applicant is entitled to credit of $118 on account of his child support overpayment since January 1, 2021.

12. The Applicant’s claim for a credit on account of spousal support paid since January 1, 2021 is dismissed. The amount of spousal support actually paid from January 2021 may be considered on any review of entitlement to and quantum of spousal support.

Costs

13. If the parties are not able to resolve the issue of costs, the Respondent may make written submissions within 10 days of the release of these reasons. The Applicant will have 10 days after the receipt of the Respondent’s submissions to respond. The submissions shall be no more than three pages, double-spaced, and a minimum of 12-point font, together with any offers to settle and a Bill of Costs. The party opposing a claim for costs shall include in their submission documentation showing their own fees and expenses: see Family Law Rules r. 24(12.2)

“Justice B. Tobin”

Released: December 16, 2022

COURT FILE NO.: FC1607/18

DATE: December 16, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Andrew LiSanti

Applicant

• and -

Bettina LiSanti (Schnotz)

Respondent

REASONS FOR JUDGMENT

TOBIN J.

Released: December 16, 2022

[^1]: This case was delayed in part because of the effect the COVID-19 pandemic had upon the court’s schedule.

[^2]: Work in trade was described by the mother as an arrangement whereby a person works in return for room and board.

[^3]: Divorce Act s.16.92(2) provides in deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[^4]: $22.50 per hour x 20 hours per week x 52 weeks per year

[^5]: See lines 2200 and 23400.