Court File and Parties

COURT FILE NO. : FC-20-1516 DATE: 2023/03/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

A. G. Applicant – and – T. E. Respondent

Counsel: Self-represented for the Applicant Eric Letts for the Respondent

Heard: January 30, 31, February 1, 2, 3 and 6, 2023

Reasons for Judgment

SHELSTON J.

1The applicant (“father”), and the respondent (“mother “), are the biological parents of one child of their relationship namely, K.G. (also referred as the “child”), 3 years old. She currently resides in the primary care of the mother, with the father having parenting time two times per week.

2The issues for this trial are which parent should have decision-making responsibility; determining a parenting time schedule; the mother’s request to move to Welland, Ontario, imputation of income to mother, table child support and section 7 expenses, the mother’s entitlement to spousal support, including its commencement date, quantum, duration, and costs.

Background

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Background

The father is 36 years of age, bilingual in French and English and he is employed on a full-time basis as a Parliamentary Protection Officer. He lives in a three-bedroom townhouse in Ottawa. The father has another child born from a prior relationship namely, R., 13 years of age. Since 2018, that child resides primarily with him, while the biological mother sees him every second weekend and pays table child support in the amount of $225 per month. In 2016, a psychoeducational assessment diagnosed R. with having an Attention-Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”).

4The mother is 35 years of age, her primary language is English and has five other children, by three different men, who were, at the date of the trial, 14, 11, 9 ,7, and three-months old. She is currently receiving approximately $3,400-$3,500 per month from the Canada Tax Benefit, plus HST credit of approximately $100 per month and child support of $400 per month for two of her children. She is supposed to receive $835 a month from the father, according to an interim order, but he has not been consistent in paying that amount. She has worked as a dog groomer for many years.

5The parties met online in late 2017. The relationship became more serious and in early 2019, the mother became pregnant with K.G. The father and R. moved in with the mother and her four children on July 1, 2019. Within a short period of time of moving in, the situation in the house became chaotic as a result of tantrums made by R. and screaming arguments between him and his father, where the mother and her other children would stay in their rooms or leave the house. The maternal grandmother testified that R. conflicted with the other siblings, had temper tantrums and was very difficult to calm down. Furthermore, she testified that the relationship between the parties was very argumentative. The mother started to criticize R. and would send him to his room or grounded him, as a result of the emotional outbursts. This conflict only grew worse as the relationship continued. The mother tried to help R.’s by improving his reading and by arranging for her family doctor to care for R.

6The parties’ biological child, K.G., was born in the fall of 2019. After the birth of K.G., the father took paternity leave from October 2019 until May 25, 2020 during which time, the father took care of the newborn during the day, while the mother was at work, and he assumed household duties. The maternal grandmother and her husband, who had moved in with the mother in 2018, were present to assist both the mother and father with the newborn.

7On May 1, 2020, the parties moved to a five-bedroom home in the Stonebridge area of Ottawa. By that time, with the onset of the Covid-19 pandemic, the mother was home schooling her children.

Separation

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Separation

On June 22, 2020, the mother and R. had an argument when he refused to allow her to read his personalized journal that he was required to maintain as recommended by his counselor. The situation escalated resulting in R. coming into the kitchen, grabbed a knife and said that he wanted to kill himself and wanted to die. The father grabbed R. and wrestled him to the floor. The father testified that the mother asked R. what he would do if K.G. said she wanted to kill herself. R. said that he would give her the knife, tell her to go forward and that he would kill himself afterward. The mother testified that R. said he would kill K.G. then himself. The situation was very chaotic. In any event, the parties agreed that R. needed to go to the hospital the father and R. went to the Children’s Hospital of Eastern Ontario (“CHEO”).

9That night R. was seen by a psychiatrist at CHEO, who diagnosed him with having an unspecified depressive disorder, provisional diagnosis, likely secondary to complex psychosocial stressors in context of genetic predisposition and perpetrated by cycle of insults to confidence due to ADHD and a learning disability. R. told the psychiatrist that he has disappointments from limited visitation to his biological mother, loss of his grandmother, death of his dog and loss of his home when he and the father moved to Ottawa. The child described becoming a new member of the existing family as a traumatic event. The doctor concluded that R. had an increased baseline risk of accidental or intentional harm to himself, but he did not have a prior suicide attempt or a history of psychotic or major affective disorder amongst other factors. The child did have suicidal thinking and behaviour and impulsivity associated with ADHD, as well as a major lifestyle change when moving into a new home with a new family. The doctor concluded that there were no reasons to admit R. to the hospital and he was discharged in his father’s care. The doctor was aware that R. was seeing a psychologist through Turning Corners Psychological Services the next day. The father was directed to contact the family doctor to check on R.’s mental status and safety the next week. The father decided not to return to the family residence and moved with R. to his mother’s home. At this point the parties separated. The Children’s Aid Society of Ottawa (“CAS”) received a referral from CHEO and opened a file.

10When the parties separated, K.G. was eight months old and was still being breast-fed every four hours. Soon after, the father asked to see K.G. but the mother refused to allow him to see the child if R. was present. From June 22 to the end of July 2020, the mother allowed the father parenting time with K.G. approximately six times in her home under supervision by the maternal grandmother and her husband but without R. The father testified that the mother created barriers preventing him from seeing K.G., such as insisting that he needed to isolate for two weeks for Covid-19. Then, she insisted that if he wanted to take K.G. out of her home, he had to sign over custody to her and if he refused, he would have supervised parenting time in the mother’s home. The father refused and he was permitted to only have supervised access with his child.

11By text message dated August 11, 2020, the mother insisted that any parenting time between the father and K.G. would have to be supervised by the CAS. Furthermore, the mother indicated that she did not accept the finding of the psychiatrist or social workers at CHEO with respect to R. but the mother refused to contact the psychiatrist to speak to the doctor herself. She did admit that she spoke to the doctor the night R. was in the hospital but denied making light of his circumstances. At this juncture, there was no set schedule for parenting time by the father and his child.

12By letter dated August 20, 2020, the CAS advised that they had closed their file because they did not verify allegations that R. was a victim of emotional abuse by the mother and did not verify that the father failed to protect him. The CAS had no concerns about the father’s ability to care for his children in a safe way.

13On September 6, 2020, the father and R. moved into the father’s own rented townhouse. On September 23, 2020, counsel for the father emailed the mother a request for parenting time with K.G. The father testified that the mother wanted him to sign a document that she had custody and that his eldest son R. would never be around or with K.G., which he refused. On September 24, 2020, the mother texted the father the following: “All you had to do is sign a piece of paper then all of it goes away”.

Litigation

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Litigation

On September 30, 2020, the father commenced this application. The father continued to have very limited parenting time with the child. In October 2020, the mother permitted him to have one hour of parenting time supervised by the mother. In November 2020, the father was only permitted to have parenting time with his child on three occasions at the mother’s home supervised by her. On November 26, he had three hours of supervised parenting time with his child at his home. In December 2020, the father had supervised one parenting time at the mother’s home and on two occasions at the father’s home. The mother scheduled a parenting time for the father on December 17, 2020, when he was scheduled for work. However, the father used part of his vacation leave to see her.

15The father had proposed mediation in August 2020. By December 2020, after the failure of mediation, the mother determined that the father would have parenting time on Thursdays irrespective of the father’s work schedule. To see his child when he was scheduled to work, he used part of his vacation time.

16For the Christmas holidays 2020, the mother proposed that the father have parenting time from December 25 to December 27, during which time the father was scheduled to be working. The father proposed that he have unsupervised access with his child from December 23 from 12:00 pm to 6:00 pm. The mother refused because the father intended to bring his child R. with him. In the end, the mother decided that she was going to allow the father a video call with the child on Christmas morning. The mother did not advise the father that she planned for this contact until the father received the video call at 8 AM on Christmas Day.

17Starting on January 7, 2021, the father had unsupervised parenting time with his daughter that continued on January 14 and 21, 2021. In February 2021, the father was granted four hours of unsupervised parenting time on February 4, 11, 18 and 25, 2021.

18At a case conference on February 26, 2021, the Office of the Children’s Lawyer (“OCL”) was appointed. In addition, the court made orders for disclosure, ordered the father provide the mother copies of the risk assessments completed by CHEO and Crossroads for his son R., to provide confirmation of the medication prescribed to address R.’s behavioural issues and a current clinical report from his therapist/counselor describing any behaviours or concerns and the corresponding treatment plan within. The mother was ordered to provide a financial statement and proof of her income for the past three years and the court acknowledged that the father was paying $700 per month voluntarily as child support.

19On March 18, 2021, the day after being served with the motion materials by the father for parenting time, the mother expanded the father’s parenting time by agreeing that he could have the child on Tuesdays and Thursdays from 9:00 am to 4:00 pm and alternating Saturdays when the father’s child R. was with his mother.

20On March 24, 2021, the father advised the mother that R. was displaying symptoms of Covid-19 and that he had to self isolate as a precautionary measure. The father advised that he would voluntarily suspend his parenting time with K.G. during this time. He advised the mother that both he and R. tested negative for Covid but refused to provide her with a copy of the negative result. On March 31, 2021, the father was contacted by the Ottawa Public Health who told him that R. had possibly been in contact with someone who tested positive for Covid-19 and that he should isolate himself until April 7, 2021. On April 15, 2021, the father brought an urgent motion arguing that the mother was arbitrarily withholding his parenting time and using the Covid-19 pandemic as a pretext to deny his parenting time with K.G. Associate Justice Kaufman denied the urgency and found that the father’s own behaviour had limited his parenting time with K.G. because it was unreasonable for him not to forward R.’s negative Covid-19 test. He found it was reasonable for the mother to request the test results after being told that R. had been in contact with a person who tested positive. Furthermore, Associate Justice Kaufman indicated that more than two weeks had lapsed since the notification from the Ottawa Public Health on March 31, 2021, and that the father’s parenting time should resume immediately. The father’s parenting time resumed on April 17, 2021, from 9:00 am to 4:00 pm.

21On June 29, 2021, the parties proceeded to a motion for temporary relief. On July 8, 2021, the court ordered that a copy of the affidavit material filed in the motion be forwarded to CAS and requested that they report to the court as to whether they were aware of the alleged death threat by R. or had K.G. been exposed to a violent confrontation. Furthermore, the court renewed the order made at the case conference requesting an investigation by the OCL and adjourned the motion on terms and expanded the father’s parenting time on a temporary and without prejudice basis. The court ordered that the mother would have temporary care and control of the child, subject to the parenting time allocated to the father, the father to continue to have all rights to information regarding the child and to be consulted on any major decisions including health, education, religious upbringing and dietary restrictions, the parties to enroll in Our Family Wizard (“OFW”), or other similar agreed-upon parenting application to communicate information regarding the child and that he would be entitled to spend at least two full days with K.G. each week, including two overnights to be agreed upon between the parties and on the following terms:

a) Parenting time will take place providing the father does not have the care of his son, R., during that time. b) If the father has care of R. during his parenting time and there is no other responsible adult present, then the parenting time will be limited to four hours each of the days and overnights parenting will not take place. c) Provided another responsible adult is present, then the parenting time will take place even if the father also has the care of R. Alternatively, if the CAS reports there are no protection concerns and approves longer term access and overnight parenting, the father will be entitled to the parenting time. The name and contact information for the responsible adult will be provided to the respondent mother on OFW. d) Any incidents that take place involving R. and which negatively impact the child during the applicant father’s parenting time shall be reported to the respondent mother using OWF and shall be reported to the CAS. e) The applicant father shall make the disclosure previously ordered by Justice Summers. f) Both parties shall make their financial and other disclosure required by the FLR and their financial statement within the next 30 days. g) Leave is granted for questioning of up to two hours for each party. h) The balance of the motion is adjourned to a date to be fixed by the court at the request of either party. i) The matter is referred to the Local Administrative Judge for possible case management.

22Despite the court order, the mother refused to implement its terms and indicated that she was working on an appeal. The father continued to request parenting time without success. By letter dated July 23, 2021, CAS wrote to the court and advised:

a) The investigation concerned primarily the mother’s alleged emotional abuse towards R. and the father’s inability to protect R. from the mother’s actions. b) The CAS received a referral from CHEO after R. appeared in crisis with suicidal ideations. c) Both parents independently shared concerns that R. could hurt himself or someone because of the escalation of his behaviour and threats were made during the incident of June 22, 2020. d) The mother expressed concerns about the safety of her children, she disapproved of R.’s behaviours and the father’s parenting of R. e) The CAS did not find R. to be an immediate risk to himself or others but he continued to need support for coping his emotional skills. The intensity of this escalation appeared isolated, triggers were identified and appropriate follow-ups or actions. f) The CAS concluded that the father made a safe decision to relocate himself and R. to a different home to protect his well-being giving the dynamics in the home, as it was confirmed by the parties that there were constant arguments between them, mostly regarding R. g) The CAS advised that they were not aware of the direct threat to kill his younger sister, but rather of behaviour and comments during the time of crisis that could have posed a risk if the situation was not addressed, and triggers had not been recognized. h) At the time of the closure of the file by the CAS, the parties were in the process of separation and the CAS determined that both children were safe. i) The CAS did not confirm that the mother’s behaviours were the direct cause for the child’s condition, as it was alleged. They found that the conflict with respect of R. did appear to be the most significant trigger and complicating factor of their separation.

23Despite receiving the letter from the CAS, the mother did not change her position and only agreed that for the entire month of July 2021, the father could have the child on July 26, 2021, from 9:00 am to 7:00 pm. On July 29, 2021, the parties appeared before Justice Engelking, who was appointed as case management judge, because of the mother’s refusal to implement the father’s parenting time as ordered by the court. Justice Engelking found that the father had provided the disclosure from the service providers regarding R., including reports from Crossroads, Le CAP, Turning Corners, a letter from R.’s family’s physician and the lengthy report from CHEO. Justice Engelking ordered on an interim and go forward basis that the father shall provide the mother with his eight-week work schedule, at the beginning of every second month, commencing in August 2021. The mother shall then review the schedule and within two days of its receipt, she shall notify the father which two days per month out of his available days for the father to have his parenting time with K.G.

24On September 8, 2021, K.G. started to attend daycare five days a week. The mother did not consult the father before enrolling the child or did not advise him of the cost. On September 27, 2021, the father sent his 8 week work schedule to counsel for the mother. On September 29, 2021, the mother proposed that the father have parenting time every second Friday to Monday. The father rejected the proposal because the mother was proposing parenting days when he was working and as such, the proposal did not comply with the order of Justice Engelking dated July 29, 2021.

25On October 26, 2021, the father brought his second urgent motion seeking various claims for relief, including an order compelling the mother to abide by the July 8 and July 29 court orders, scheduling an expedited date for the return of the adjourned motion, an order that the mother provide full financial disclosure required of self-employed litigants, an order for makeup time with the child, an order for questioning of one hour and costs. The gist of the complaint by the father was that the mother was not complying with the terms of the order of Justice Engelking, as she unilaterally scheduled his parenting time on days he is working. Furthermore, the parties argued about whether the child should attend the daycare on the father’s parenting days. Associate Justice Kaufman denied the request for urgency, as there was a case management conference set for December 14, 2021, and that the adjourned motion was scheduled for February 3, 2022, Finally, the father was ordered to pay the mother’s costs of $850 with respect to this motion.

26In October 2021, the father had parenting time on four overnights; in November 2021, four overnights and in December 2021 six overnights. On December 14, 2021, at the request of the father, the parties attended a case management conference with Justice Engelking to address the mother’s failure to comply with the father’s parenting time set out in the order dated July 8, 2021 and July 29, 2021. As there was a motion already set for February 3, 2022, the court encouraged the parties to attempt to resolve the issue and gave them directions on moving the matter forward to a settlement conference and completing the trial scheduling endorsement forms.

27On February 1, 2022, the mother gave notice of termination of the parties’ lease for the rental home in Stonebridge to her landlord.

28On February 10, 2022, the adjourned motion proceeded before Justice MacEachern who ordered that the child should remain in the primary care of the mother pending trial, that commencing January 1, 2022, the father shall pay temporary child support to the mother in the amount of $835 per month, based on an annual income of $90,178 and reserved the claim for child support from the date of separation including section 7 expenses to trial. The father was ordered to request his employer to accommodate a work schedule so he could have regular parenting time and he was ordered to provide confirmation of his current work schedule. If the father took the position that his employer would not allow him to release confirmation of his work schedule to the mother, he was to provide, within 30 days, proof from his employer that this was the case. The court granted the father parenting time as follows:

a) Week 1: Wednesday after childcare to Thursday morning before childcare. b) Week 2: Friday after daycare to Monday morning before childcare. c) Week 3: Saturday at 10:00 am to Monday morning before childcare. d) Week 4: Friday after childcare to Sunday at 6:00 pm. e) Week 5: Wednesday after childcare to Friday morning before childcare. f) Week 6: Wednesday after childcare to Friday morning before childcare. g) Week 7: Wednesday after childcare to Friday morning before childcare, but only if he is not working during this period. If he is working, the parenting time would not occur and that would be no make-up time. h) Week 8: Wednesday after childcare to Friday morning before childcare, but only if he is working during this period. If he is working, the parenting time will not occur, and there will not be any make-up time.

29The mother did not advise Justice MacEachern or the father at the motion that she had given notice to terminate her lease on February 1, 2022. On February 25, 2022, unbeknownst to the father, the mother signed a lease with her great aunt, Ms. Rena Johnson, for the rental of the home in Welland, Ontario, with occupancy as of April 1, 2022, with a monthly lease cost of $2,500 per month.

30On February 21, 2022, the father wrote to his employer requesting a regular schedule on a two-week rotation. On February 28, 2022, a representative of his employer responded why the eight-week rotation needed to be changed. That same day, the father forwarded the email to counsel for the mother. The mother never replied but insisted that the father comply with the court order.

31On March 2, 2022, the OCL clinician learned from K.G.’s daycare provider that the mother intended to move with all her children to Welland at the end of March 2022. That day, counsel for the mother sent a form 35.1 affidavit from the mother to the OCL clinician setting out her reasons for moving including her dire financial situation, her inability to afford a home in Ottawa, threats of eviction by the father, the maternal grandmother moving to Buffalo and allegations of abusive behaviour by the father. That same day, the clinician advised the father that the mother was planning on moving to Welland, Ontario.

32On March 3, 2022, all three fathers brought an urgent motion that the children should not be relocated from the jurisdiction of Ottawa, pending the hearing of the motion. The court granted that order and scheduled the motion for March 16, 2022. On March 16, 2022, fifteen minutes before the motion, all three fathers received responding materials from the mother, which confirmed that she intended to relocate to Welland. This was the first time that any of the father’s had received formal notice of her intention to relocate. The court adjourned the matter because the mother’s proposed plan was incomplete and the fathers had not been able to respond and consequently, the matter was set to proceed on March 24, 2022.

33The mother’s notice of relocation, dated March 15, 2022, indicated that she was planning to relocate with all her five children to Welland to a specific address with the expected relocation date being May 14, 2022. She proposed that all five children including K.G. have regular parenting time with the fathers every second weekend from Friday at 6:30 pm, through Sunday at 5:00 pm, with the exchanges taking place at the Chapters Bookstore in Peterborough, Ontario. During July and August, the father would have parenting time the first 10 days of July with exchange taking place at Chapters Bookstore starting on June 30 at 3:00 pm until July 10 at 3:00 pm, and the first 10 days of August with exchanges taking place at Chapters Bookstore, starting on August 1 at 3:00 pm, until August 10 at 3:00. Furthermore, the father would have parenting time from December 25 at 3:00 pm, through January 2 at 3:00 pm and other parenting times can be arranged within Welland, as agreed upon by the respective parties.

34On March 30, 2022, Justice Doyle granted the father’s motion to prevent the mother from relocating with K.G. to Welland. The mother testified she had become aware of the order of Justice Doyle on March 30, 2022, as she was loading a moving truck to move to with all her children to Welland. Based on the decision, the mother contacted her great aunt, Ms. Rena Johnson, for the rental of the home in Welland, Ontario, with occupancy as of April 1, 2022, with a monthly lease cost of $2,500 per month. The mother subsequently moved in with her great aunt and since April 2022, the mother has been residing with all six of her children, including the newborn, in a three-bedroom home. The great aunt has one bedroom, the mother and the baby have a second bedroom, the three girls sleep in one bedroom while the three boys sleep in the living room. The great aunt plans to retire to Jamacia once the moves to Welland.

35On August 2, 2022, the father brought a motion seeking a finding that the mother was in contempt of court for failure to comply with five separate and previously made orders, including her failure to complete a trial scheduling endorsement form within the time frame ordered by Justice Engelking. Justice Carter declined to deal with contempt allegations, other than the mother’s failure to provide the trial scheduling endorsement form as ordered and granted the father the right to pursue the other allegations of contempt in the future. The court found that the mother had provided the signed form and opted not to make a finding of contempt of court against her.

36On October 4, 2022, the father of two of the mother’s children, sought a declaration of urgency permitting him to bring a motion requesting that his two children attend this school year in Ottawa. The mother brought a cross-motion on the basis of urgency seeking permission to move to Welland with all her children. The mother’s counsel had served the two other fathers with a copy of the notice of motion and all parties were present before Justice Trousdale to address the issue of urgency. The court found that the father of the two children’s motion was urgent on the issue of schooling, while finding that the mother’s motion for permission to move her residence to Welland was not urgent. The mother was ordered to pay the father $100 in costs to be deducted from the outstanding cost awards owed by the father to the mother. On November 10, 2022, the court ordered the mother to enroll the two children in school in Ottawa forthwith.

37On December 16, 2022, Justice Audet conducted a trial management conference. At that time, the mother sought to add the two fathers of the other four children as parties to this litigation. That request was denied.

Legislative and Jurisprudential Framework

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Legislative and Jurisprudential Framework

Section 24 of the Children’s Law Reform Act, 1990, R.S.O. 1990, c. C.12 (“CLRA”) provide:

24(1) Best interests of the child 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.

24(2) Primary consideration 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 well-being.

24(3) Factors 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, (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.

24(4) 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.

24(5) Past conduct 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.

24(6) Allocation of parenting time 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.

39The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Furthermore, the only consideration is the best interests of the children in any custody decision: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 28.

40No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence: see Wilson v. Wilson, 2015 ONSC 479.

41In Kaplanis v. Kaplanis, 2005 ONCA 1625, 2005 CarswellOnt 266, the Court of Appeal found that a joint custody order was not inappropriate where there is no evidence of historical cooperation and appropriate communication between the parents.

42In McBennett v. Danis, 2021 ONSC 3610, at para. 97, Chappel J. provides an excellent list of factors for the court to consider in deciding which parent should have decision-making responsibility. The court is mandated to consider the best interests of the children and all possible frameworks and proposals made by the parties. Furthermore, Chappel J. identified factors such as whether the parties can communicate effectively, is the communication sufficiently functional, is one parent the major source of conflict between the parties, the quality of each party’s past parenting, and one party’s failure to financially support the children.

43In deciding the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties: see Chomos v. Hamilton, 2016 ONSC 5208; Jackson v. Mayerle, 2016 ONSC 72; Ruffudeen v. Coutts, 2016 ONSC 3359; McBennett v. Danis.

44Parallel-parenting orders can take the form of “divided parallel parenting”, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, “full parallel parenting”, where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent: see Hensel v. Hensel (2007), 2007 ONSC 45911, 46 R.F.L. (6th) 343 (Ont. Sup. Ct.); Izyuk v. Bilousov, 2011 ONSC 6451.

45Parallel parenting was ordered instead of final decision-making authority for one parent in a joint custody case where the facts disclosed a history of conflict but both parties were capable parents: see Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356. In Roloson v. Clyde, 2017 ONSC 3642, the court warned against the parallel parenting order because it could create a breeding ground for further power struggles and discord. In Newstead v. Hachey, 2018 ONSC 1317, the court indicated that attempting to ensure formal equality of influence between the parents is not in and of itself sufficient grounds to order divided parallel parenting.

46In McBennett v. Danis, Chappel J., at para. 98, indicated that parallel parenting is appropriate where both parents have been involved and are competent parents, and the child would benefit from both having a say on important matters. However, the conflict between the parties in this case is such that a traditional joint decision-making responsibility order, or an order for sole decision-making responsibility in favor of one parent, would not be in the children’s best interests. Furthermore, Chappel J. found that the parallel parenting regimes give both, the child and parents, the benefits of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. The court found that parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental discord. The court listed 13 relevant factors that should be considered in making parallel parenting orders including if both parties played a significant role in the child’s life on all levels, where one parent is clearly more competent, responsible, and attentive than the other, then a sole decision-making order is more appropriate. Finally, the ability of the parents to put the children’s interest above their own is often a very compelling consideration for the court.

Report of the Office of the Children’s Lawyer

[47]

Report of the Office of the Children’s Lawyer

The OCL report was completed on May 13, 2022. Neither party sought to cross examine the clinician on her report and the report was filed as an exhibit. In her report, the clinician reviewed reports from the Ottawa Police Service (“OPS”), the CAS, the child’s doctor and the daycare provider. She found that there were no contacts with the OPS with either party of relevance in her investigation. She was aware of two contacts with the CAS on June 22, 2020, which did not verify that the mother was verbally and emotionally abusive to R. to the point that he was suicidal. The clinician noted that the father was very involved and responsive to his child’s needs and there was a plan in place to ensure his safety. In response to a letter from the CAS indicating that they did not feel that R. was a risk to K.G. on July 26, 2021, the mother contacted the CAS as she was not in agreement with their conclusions and did not feel that they had assessed whether R. posed a risk to K.G. The CAS did not open a new investigation as there were no details/concerns provided that had not previously been assessed.

48The clinician interviewed the father on October 13, 2021, and February 16, 2022, and the mother on November 2, 2021, and March 4, 2022. She had an observation visit with K.G. and each party. She found that both parties easily interacted with the child and no concerns were raised about the interactions. The daycare provider indicated that she had no concerns with either party and that the father wanted to be involved with the child and had demonstrated an interest.

49She concluded that both parties have played a significant role in the child’s life and that both parents can provide for her safety and care. However, she concluded that the parties are in high conflict and that the lack of productive communication demonstrates that the parties cannot effectively communicate to focus on her best interests. Consequently, she found that a joint decision-making responsibility order was not appropriate especially considering that both parties do not trust each other and do not value the role that each party can contribute to the child. Furthermore, the clinician found that if the mother was granted sole decision-making responsibility, it would grant her more power and control which would further compound the conflict.

50On mobility, the clinician interviewed the mother on March 4, 2022. She reported that the mother said that she was leaving by March 31, 2022, and no one could stop her as it was her “human right” to move if she wanted to. She did not disclose she had rented a home. The mother maintained that she had no choice to move to Welland because the father was threatening to have her evicted, he was not paying child support and she could not afford another suitable home in Ottawa. Her mother was moving to Buffalo, New York and she had no supports for herself or children. After the interview with the mother on March 4, 2022, the clinician discovered that the mother had, in fact, rented a specific home in Welland and that she was planning to move in by April 1, 2022. The clinician was concerned that the mother acted unilaterally in her decision to relocate and assume primary decision-making responsibility and reducing parenting time for the father all in the midst of family court proceedings with no final parenting order in place.

51The clinician found that the mother’s plan requires that the child travel ten to eleven hours every alternate weekend and reducing the father’s parenting by half would not be in her best interests. Furthermore, the clinician concluded that the mother’s plan was vague, little consideration was given to the father’s parenting time, no consideration for daycare, cultural affiliations and the mother’s plan did not include suitable parenting time for the father or any plans to maintain contact with the paternal extended family.

52With respect to the father’s child, R., the clinician founded him to be well supported by professionals in his life and the allegations raised by the mother as to his threat to the safety of K.G. was not verified by the CAS and the CHEO. She interviewed R. who confirmed that he had a difficult relationship with the mother, he loved K.G. and since the parties’ separation, he is calm and happy. She found that there are no further reports of any significant behaviour difficulties with the child since separation. She concluded that there was no present data to suggest that R. posed a risk to K. G.’s safety and welfare as he has had unsupervised time with her since the summer of 2021.

53In her report, the clinician made the following recommendations:

a) The father be granted sole decision-making responsibility for the child. b) The child to remain in the primary care of the mother for the next six months with the 60/40 split, increasing to three overnights per week to the father, as per his work schedule. In October 2022, the father’s parenting time to increase to 50/50, preferably on a 2/2/3 split. Once the child attains nine years of age, the parenting time to be split on a week about basis. c) The parties to continue to use a formal method of communication with respect to the child and to respond by 4:00 pm, the following day, or sooner. d) The parties to attend the Parenting through High Conflict Separation and Divorce Program through Family Services Ottawa or New Ways for Family through the Catholic Family Services. e) The child not to be exposed to cigarette smoke at any time. f) Both parties be listed as an emergency contact for the child. g) Neither party, nor extended family members, to speak negatively of each other while in the presence of the child. h) Both parties to provide for similar home environments and routines and should make an effort to exercise similar parenting styles. i) Both parties shall insure for the child’s safety and well-being at all times while in their care. j) The child shall not be moved from the Ottawa region, unless both parties are in agreement.

54On June 13, 2022, the mother filed a dispute to the OCL report. On July 13, 2022, the OCL dismissed the mother’s dispute finding there were no factual errors, and the recommendations were supported by the information obtained by the clinician during her investigation.

Decision on decision-making responsibility

[55]

Decision on decision-making responsibility

I find that both parties are fit and competent parents to care for this child. The father has been the primary parent of R. He has ensured that R. is receiving mental health assistance. The father has a stable and responsible job and is employed on a full-time basis. Prior to meeting the father, the mother was the primary parent of her four children. She worked as a dog groomer and cared for her children.

56After K. G.’s birth, both parents were involved in caring for the child. The father was on paternity leave from the child’s birth until May 2020. Both parties went to the medical appointments, as both of them were at home. The mother had no difficulty in leaving the child in the primary care of the father while he was on paternity leave and she returned to work part-time.

57I find that neither party has challenged the parenting ability of the other. The mother has been complementary to the father prior to separation such as when on June 21, 2020, the mother sent a text to the father which said: “Happy Father’s Day!! You are an amazing dad”. The father admitted that the mother is a good cook, has exposed K.G.to her Jamaican culture and is very good at coordinating school and activities with her four children.

58I find that the incident of June 20, 2020, caused an irreparable break in the parties’ relationship. I find that initially the mother’s concern about K.G. being in proximity with R. was justified based on the chaotic events of June 20, 2020. However, the evidence provided by the father to the mother from CHEO, the CAS and third-party health providers for R., supported a finding that the child was not a risk to K.G. I reject the mother’s submission that the third parties based their conclusions solely on information received from the father.

59I find that rather than maintain and foster the child’s close relationship with the father, the mother restricted the child’s contact and insisted on supervised parenting time. I find that there was no valid reason to insist on supervision or restricting the father’s parenting time. The mother was aware of his work schedule and that he had significant time off. I find that the mother sought to dictate the father’s relationship which was not in the child’s best interests.

60The father’s work schedule as a Parliamentary Protection Officer is shiftwork set out in an eight-week schedule. I find that he initially requested the proper information from his employer regarding a change in his schedule but that his insistence that the mother justify why the eight-week schedule could not be accommodated, was misdirected. The issue was whether the father’s schedule could be altered. I find the father has not complied with that part of the order and that the issue as to accommodations by his employer remains an unanswered question. I find that it is evident that the father has many alternatives regarding his work schedule such as switching dates with coworkers, taking vacation time and personal time permitted through his employment.

61I find that the mother was aware that the father’s work schedule changed every week of the eight-week rotation. After the order of July 8, 2021, on July 15, 2021, the mother delivered a notice of motion for leave to appeal the order. On July 19, 2021, the mother sent a text message to the father, which included the words, “I’m working on an appeal” in his response for parenting time request. Despite, the mother never proceeding with the motion, by emails exchanged on July 19 and 20, 2021, the mother insisted that the father have access to K.G. without R. The mother’s position was contrary to the order which required the father to have a responsible adult present if the parenting time with K.G. took place while the father had the care of his son.

62I find that the mother’s parenting proposal dated September 29, 2021, did not comply with the order of Justice Engelking dated July 29, 2021. The order required the mother to review the father’s schedule and to accommodate his parenting time based on his schedule. I find the father is partially to blame because when he sent the schedule on September 27, 2021, he failed to advise that he was in week seven of the eight-week rotation. In any event, the mother’s proposed schedule included days when the father was working.

63I reject the mother’s evidence that the father is vindictive, is on a power trip and does not work with her. I find that he has an eight-week work schedule and has been advocating parenting time with K.G. according to that schedule and three temporary orders have considered the reality of that schedule in granting a parenting schedule.

64I find that it was unreasonable for the father not to pay the full child support of $835 per month and the costs owing to the mother. In 2021, the father earned $102,648 and is estimated to have earned $106,000 in 2022. Despite having a TFSA in the amount of $2,582, the father refused to use that sum to pay the costs of $3,890 owing since March 2022 because if he sold the investment, he would have done so at a loss.

65Prior to separation, both parties attended medical appointments for the child. Since separation, despite the conflict, the parties were in agreement regarding the child’s health. The mother would take the child to the appointments and would text the father the results. However, he was unaware that, on one occasion, the child had been taken to the hospital to have an x-ray on her leg. The mother’s action is troubling and does not recognize the father’s role as a parent and his right to be informed.

66The father proposes that the child attend Jean Robert Gauthier Elementary school in September 2023, which is the same school where K.G.is currently attending daycare. The mother has registered all her children in a French Catholic school in Welland where she proposes that K.G attend starting in September 2023. At trial, the mother did not address the father’s choice of school as she was planning on moving to Welland.

67The father was raised in French and seeks to ensure that his child continue to be exposed to the French language. I accept that the mother has had all her children attend school in the French system and that she supports the child being exposed to the French language and culture.

68Unfortunately, despite the OCL report recommending that both parents attend the Parenting through High Conflict Separation and Divorce Program through Family Services Ottawa or New Ways for Family through the Catholic Family Services, neither have done so.

69Despite the mother alleging that the OCL clinician failed to focus on the racial and culture because she is of mixed race being black, Caucasian and French, the mother did not seek to cross examine the clinician at trial. The mother testified that the child’s hair must be taken care of a specific way and she must be exposed to the Jamaican culture. She indicated that when K.G. returns home after having parenting time with the father, she has to wash her hair and re-braid them and that the father does not care about the child’s hair. I accept the father’s evidence that he tries to wash and braid her hair but apparently not to the mother’s satisfaction.

70The father has a high school diploma and works full-time as a Parliamentary Protection Officer. He has the full-time care of his son and has acted very appropriately in addressing his needs. He has taken counselling courses through the Canadian Centre for Men and Families. He has crafted his draft order regarding the child, taking into consideration the AFCC-Ontario recommendations for a 3 ½ year old child.

71Both parties submit that they should be granted sole decision-making responsibility. The father proposes that he have sole decision-making responsibility after prior consultation with the mother but in the event of a disagreement, he would have the final decision. The mother proposes that she have sole decision-making responsibility with a consultation process.

72However, I find that both parties have an important role to play in the future of this child. I have considered the strained relationship between the parties, the recommendation of the OCL, each parties relationship with the child and the actions of the parties postseparation, especially the mother. I find that the mother has acted selfishly by attempting to control the father’s relationship with the child. I find that when I consider her attempts since separation to restrict the father parenting time coupled with her failure to advise the father that she terminated her lease and signed a lease planning to move by April 2020, the mother’s only interest is her own. I agree with the OCL report that if the mother was granted sole decision-making responsibility, she will simply eliminate the father’s role. On the the other hand, the father has acted appropriately regarding his child.

73Despite the mother’s actions, I find that it is in the best interests of the child that a parallel parenting decision making responsibility regime be implemented with the mother assuming responsibility for health care, as she has done since birth but with conditions and that the father assume responsibility for education and extra-curricular activities. I make the following order with respect of decision-making responsibility:

a. I grant the father sole decision-making responsibility with respect to the child’s education and extracurricular activities with an obligation to consult with the mother prior to making a final decision. The father is to advise the mother by CLOSEAPP of any decision regarding these issues prior to making a final decision. The mother is to respond within seven days failing which, the father may make the decision. In the event of an emergency, the mother is to respond as soon as possible. b. I grant the mother sole decision-making responsibility with respect to the child’s medical care with an obligation to consult with the father prior to making a final decision. The mother is to advise the father by APPCLOSE of any decision regarding these issues prior to making a final decision. The father is to respond within seven days failing which the mother may make the decision. In the event of an emergency, the father is to respond as soon as possible. c. Each parent may make day-to-day parenting decisions during their own parenting time, as long as such decisions do not impact the other party’s parenting time with the child. When minor decisions do impact the other party’s time with the child, then the parties will participate jointly in the decision-making. d. The parties are to communicate using the shared parenting application APPCLOSE, unless there is an emergency, and the cost of such expense are to be shared equally. In the event of an emergency, the party with the child shall attempt to reach the other parent before making emergency medical decisions for the child. e. The father shall apply for and retain a Canadian passport for the child. He will keep the passport. It shall be given to the mother when she travels outside of Canada and shall be returned promptly after traveling. f. The father will retain the child’s birth certificate and SIN documents. He shall provide the mother a certified copy of these documents within 30 days of this order. g. The mother shall schedule all regular health and dental care appointments after consultation with the father. These appointments shall not be scheduled when the father is working unless in the case of an emergency. Both parties may attend such appointments. The child’s health card will travel with her between the parties’ homes. h. Neither party shall be permitted to travel outside of Canada/United States with the child without the written consent of the other party or court order. A party proposing to travel in either Canada or the United States for vacation involving the child shall provide the other party with full particulars at least 60 days prior to the intended travel, including the destination, accommodations, method of communication and date of return. i. Both parties will provide each other with their email addresses, current addresses, and a telephone number where they can be reached at all times. j. The child will be permitted to take any personal items, toys, gifts, or articles of clothing between the parties’ homes. k. Both parties may attend all school functions. The parties will attend parent-teacher meetings individually or together, with both parties’ consents in advance in writing via APPCLOSE. Each party will obtain their own school calendar and school notices. With respect to school field trips or classroom events, a party will only attend field trips and participate in classroom events when K.G.is in that party’s care according to the schedule. If one party is unable to attend, that party will immediately notify the other via APPCLOSE, who may attend instead. l. The parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counselors or others involved with the children. The parties shall have access to any information or documentation to which a parent of a child would otherwise have a right of access. The parties will cooperate and execute any required authorization or direction necessary to enforce the terms of this order. m. Neither party shall be permitted to relocate outside of the city of Ottawa without the prior written consent of the other parent or court order. n. Neither party may change the child’s name. o. Neither parent may post videos or pictures of the child on any public forum/website. p. Each party shall be entitled to two consecutive weeks of summer holidays to be taken during the child’s summer school break. The father shall have the right to select his two consecutive weeks of summer vacation and advise the mother by May 1 in odd-numbered years and the mother shall have the right to select her two consecutive weeks of summer vacation and advise the father by May 1 in even-numbered years. q. The father will have the child during her March break holiday in even-numbered years from the end of school on Friday until the Monday returning to school and the mother will have the March break holiday for the same period of time in odd-numbered years. r. The father will have the child during the first week of her Christmas school break and the mother will have the child during the second week of her Christmas school break in odd-numbered years. The father will have the child during the second week of her Christmas school break and the mother will have the child during the first week of her Christmas school break in even-numbered years. s. Any other parenting time as agreed by the parties.

Relocation

[74]

Relocation

The mother testified that she had no choice but to move to Welland because the father was threatening to have her evicted from their rental unit, he was not paying child support, she could not afford another suitable home in Ottawa, her mother was moving to Buffalo, New York , she had no supports for herself or children and he had harassed her boss and made it difficult for her to obtain a job. The mother testified that she wanted a better life with the support of her family, as she is being left alone with her children, that she wanted to purchase a hobby farm in the future and that her children are adventurous and are used to long road trips. She apologized for the delay in advising the father and indicated that she did not know she had to give him 60 days notice. The mother indicates that it would be unfair if she was not permitted to move as K.G. would not have her mother’s family support. She has no accommodations in Ottawa and her daughter has a close relationship with her siblings. The mother admitted that she signed the lease on February 25, 2022, for one year and all of the children’s clothing was moved to the rental accommodations in Welland. She had to purchase new clothing for the children in Ottawa as a result of that decision.

75The father opposes the mother’s relocating with the child as it will dramatically interfere with his relationship with K.G. He testified that he has always had a close and loving relationship with the child and such a move would forever reduce his involvement with her. He does not trust the mother’s reasons for moving.

76Sections 39.1 and 39.4 of the Children’s Law Reform Act, 1990, R.S.O. 1990, c. C.12 (“CLRA”) provide:

39.1(1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child's residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

(2) The notice shall be in writing and shall set out, (a) the date on which the change is expected to occur; and (b) the address of the new residence and contact information of the person or child, as the case may be.

(3) On application, the court may in any circumstance provide that subsections (1) and (2) do not apply, or apply with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence.

39.4(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as, (a) the reasons for the relocation; (b) the impact of the relocation on the child; (c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons; (d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement; (e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside; (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and (g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.

Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.

Burden of proof

(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.

Analysis

[77]

Analysis

In arriving at my decision, I have considered the testimony of the witnesses, the OCL report and the provisions of the law. Since July 2021, three courts have granted the father parenting time that recognizes his work schedule and results in the child seeing her father weekly. I find that the father has a close and loving relationship with K.G. I find that if the mother is permitted to move, this relationship will undoubtedly be seriously affected.

78I find that the mother’s plan to maintain the father’s relationship makes little sense. The uncontradicted evidence is that the commute from Welland to Ottawa is 570 kilometers by motor vehicle. The mother proposes that she would leave school at 3:00 pm every second Friday, with the child (in fact with all her children) drive for three hours to meet the father in Peterborough at 6:30 pm, then the father and the child would drive to Ottawa arriving at 9:30 pm. The child is currently 3 ½ years of age. Then on Sunday, the father will be required to leave Ottawa at approximately 2:00 pm to drive to Peterborough for the 5:00 pm. Then the child will have another three-hour drive back to Welland. I find it reasonable to assume that by the time the child arrives in Ottawa Friday around 9:30 pm, she will either be asleep or ready for bed. Then the child will have to leave Ottawa around 2 pm on Sunday resulting in the father having the child from Friday at 9:30 pm to Sunday at 2 pm. Another issue is travelling 570 kilometers in the winter. This will undoubtedly take more time.

79I do not accept the mother’s reasons for leaving:

a) I do not find evidence to support the mother’s allegation of the father threatened to evict her from the rental property. I find that he did threaten to take her to the Landlord and Tenant Board to transfer the lease to her but there is no evidence he threatened to have her evicted. b) On the issue of not paying support, I find that from August 2020 to October 2021, the father paid to the mother $700 per month. In November 2021, he paid less than $700, no support for December 2021, and two payments totaling $700 in January 2022 and of $250 transferred in February 2022 prior to the motion. I reject the mother’s submission that she was required to move because the father was not paying child support. Finally, despite alleging financial difficulties, on March 7, 2022, the mother transferred $5,000 to her landlord in accordance with her lease for the premises in Welland. c) I find that the mother has not provided any explanation as to why she has not sought social assistance to address her financial difficulties. The mother testified that she has earned a little bit of income in 2022 working part time as a dog groomer but provided no information as to where she was working and how much money she earned. In her affidavit dated January 28, 2022, the mother indicated at para. 34 that from separation to September 2021, she was receiving social assistance. However, in her affidavit dated March 15, 2022, at para. 72, she indicated that she did not qualify for E.I. and did not want to go on welfare. d) With respect to the allegation that the father was abusive to the mother, I reject that submission. I accept the mother’s evidence that the father threatened to report her to the Canada Revenue Agency, he threatened to report the mother’s current counsel for misconduct for allegedly providing false information to the OCL clinician and that he sought costs against the mother’s previous lawyer for misconduct in the motion before Justice MacEachern. The father did not pursue the threat to report the mother to the Canada Revenue Agency or her current lawyer for misconduct. Justice MacEachern dismissed the father’s allegations against the mother’s previous counsel. I agree with the mother that the father can be difficult, overbearing and that he could send multiple messages the same day making threats of contempt of court and other ramifications for failing to comply with the court orders. However, I do not find that these messages rise to the level of being abusive. Furthermore, the mother took no action to address her allegations of abuse against the father. e) The mother alleges that the father harassed her former employer making it difficult to get a job. I find that the email from the employer indicated that she did not want to hear from either the mother or the father.

80I find that the mother has failed to provide evidence as to what efforts she made to find alternative accommodations in Ottawa, including pursuing subsidized housing. I find that the mother’s unilateral decision to terminate her lease, enter into a new lease in another city without notification to the father and without the approval of the court, in the midst of a highly contested litigation regarding her child, indicates her selfishness and failure to consider the child’s relationship with her father. Even after appearing in court on March 24, 2022, the mother proceeded to load her belongings in a moving truck on March 30 only to be advised that the court ordered her not to relocate. The result is that all five children moved into her great aunt’s home with the boys living in the living room and all three girls living in one bedroom.

81Further despite the order of Doyle, J. dated March 30, 2022, denying her the right to relocate, in early October 2022, the mother attempted, in a proceeding with another father, to be granted an urgent motion to relocate with all her children. That request was denied.

82The mother admits that she has no family or friends in Welland and that her mother will be living in Buffalo, which is approximately 20 minutes away and her great aunt will be moving to Jamaica.

83The mother has failed to provide any information as to potential employment opportunities if she moves to Welland in any field, including being a dog groomer. Currently, the mother receives approximately $3,400 to $3,500 from the Child Tax Benefit, GST refund of $100, child support from the father as per the existing order of $835 as well as $400 from one of the other fathers, for a total of between $4,535 per month and $4,835 per month tax-free.

84The father testified that the mother may attempt to abscond with the child to the United States. In response, the mother indicated she has no intention of doing so and does not have a passport for any of her children. She admits that she has an American boyfriend, who is the father of the three-month-old child and that he may attempt to become a landed immigrant and join her in Canada. Finally, she indicated she has no ability to work and earn income in the United States. I do not find that there is evidence that the mother may abscond with the child to the United States and reject this submission from the father.

85The mother has testified that she is involved with her Jamaican heritage with the church and with her family. She testified that the OCL erred in not considering her Jamaican heritage in making the recommendations contained in the report. She testified during the trial that it was very important for the child to remain connected to her Jamaican heritage. Yet, when asked in cross-examination if there was a Jamaican community in Welland, she answered that this was irrelevant. In cross-examination, the mother testified as follows:

a. When asked if there was a Franco Ontarian, community in Welland, she answered, “I believe so.” b. She testified that she does not know how often she has been to Welland. c. She admitted that she thought that she had to give the father 30 days notice of relocation.

86I find that the mother’s plan is not related to seeking employment or moving because her partner has been transferred but is simply her request to relocate from Ottawa. She will not be seeking employment or pursuing education. She will be caring for her six children and receiving the same amount of income, slightly increased based on the father’s 2022 income. It appears the only reason that the mother is moving is because her mother lives in Buffalo, 20 minutes away. The mother’s plan does not consider the implications to the child’s relationship with her father. The transportation plan requiring the 3 ½ year old child to commute ten or eleven hours over 570 kilometers every second weekend makes no sense. In fact, according to the father, the child’s actual time when she will actually be awake to spend time with her father will be significantly reduced. Based on all these factors, the mother’s request to relocate is denied as it is contrary to the child’s best interests.

Parenting time

[87]

Parenting time

The father’s parenting time proposal was based on the mother not relocating with the child while the mother’s proposal was simply based on her being permitted to move with the child and the parenting time would be as set out in her notice of relocation dated March 15, 2022.

88The father proposes that the child be in his care based on an eight-week schedule that mirrors his work schedule. The father’s schedule starts with Monday to Sunday rather than following a calendar of Sunday to Saturday. The father works twelve-hour shift on a schedule that varies from week to week as follows

Week 1 He works Monday, Tuesday, Friday, Saturday and Sunday from either 6:00 am to 6:00 pm, or 7:30 am to 7:30 pm. Week 2 He works Wednesday and Thursday from either 6:00 am to 6:00 pm, or 7:30 am to 7:30 pm. Week 3 He works Wednesday, Thursday, Friday, Saturday and Sunday from either 7:00 am to 3:00 pm, or 10:00 am to 6:00 pm. Week 4 He works Tuesday, Wednesday and Thursday from either 6:00 pm to 6:00 am, or 7:30 pm to 7:30 am. Week 5 He works Monday, Tuesday and Wednesday from either 7:00 am to 3:00 pm or 10:00 am to 6:00 pm. Week 6 He works Friday Saturday and Sunday from either 6:00 pm to 7:30 am, or 6:00 pm to 7:30 pm. Week 7/8 The schedule is subject to change based on the father’s employment schedule during these weeks. The father proposes that he have the child for at least five overnights and on week eight he would have the child from Friday evening to Sunday evening 7:00 pm to 7:00 pm.

Analysis

[89]

Analysis

In cross-examination, the father indicated that when he is working and that he drops R. off on Sunday evening to his mother where R. has been picked up by school bus since September 2020. The father admitted that he uses his mother, brother and sister to support him when he is not able to care for the child because of his work schedule and that he has taken days off work to accommodate his son’s needs. He would use family days, sick days, vacation and the 35 hours per year that he is permitted for family issues.

90During the trial, the mother did not address a parenting schedule if she was ordered to stay in Ottawa. Her position was she was going to be moving to Welland and the only proposal made to the court was to offer the father parenting time every second weekend.

91The mother’s argument since September 2021 is that the father should have parenting time on alternate weekends from Friday to Monday. However, the father does not have every second weekend off during his eight-week schedule. Since July 2021, three different judges have awarded the father weekly parenting time with K.G.

92The mother raised an issue about the child being exposed to cigarette smoke when she is with the paternal grandmother. The mother and maternal grandmother testified that when K.G. returns from parenting time with the father, she smells of cigarette smoke because the paternal grandmother smokes. She is concerned about the health risk to her daughter The father did not deny that his mother smokes and he did not address this issue. I find that the child should not be exposed to cigarette smoke and that father should reduce the child’s exposure to cigarette smoke.

93I have also considered the relationship between K.G. and her siblings. I find that there is a strong relationship that should be maintained and encouraged. However, I find that the relationship with her father is more important than the relationship with her siblings at this stage of her development. The parenting plan will provide K.G. significant contact with her siblings.

94In the OCL report May 13, 2022, the clinician recommended that the child remain in the primary care of the mother for the next six months with the 60/40 split, increasing to three overnights per week to the father, as per his work schedule. In October 2022, the father’s parenting time to increase to 50/50, preferably on a 2/2/3 split. Once the child attains nine years of age, the parenting time to be split on a week about basis. The OCL report recommended an equal timesharing by October 2022. It is now March 2023.

95I have considered the father’s parenting time since July 2021, the OCL recommendations, the father’s work schedule, the mother’s schedule and the close relationship between the child and both of her parents. I find that it is in the child’s best interests that she reside with both parents on the schedule set out below. I order that the father shall provide to the mother a copy of his eight-week work schedule sixty days prior to the commencement of his eight-week rotating schedule. The father shall advise the mother which week schedule is in place when the father’s parenting time starts in accordance with this decision. The parties shall then follow the parenting time schedule as set out below. The pickup and drop off for the child will be at the child’s daycare or the mother’s home unless the parties agree to another arrangement.

96The child shall reside with the mother except she shall reside with the father on the following schedule:

a) Week one, from Tuesday evening from daycare to Thursday evening to the child’s daycare. b) Week two, from Sunday at 7:00 pm at the mother’s residence to Tuesday evening to the child’s daycare and from Thursday evening from the daycare to the following Monday evening to the daycare c) Week three, from Wednesday evening from daycare to Friday evening to the daycare. d) Week four, from Sunday evening at 7:00 pm from the mother’s home to the child’s daycare at 5:00 pm and from Friday evening from the daycare to Sunday evening to the mother’s home at 7:00 pm. e) Week five, from Wednesday evening at the daycare to Friday evening at the daycare. f) Week six, from Tuesday evening from the daycare to Thursday evening to the daycare. g) Week seven, from Tuesday evening from the daycare to Thursday evening to the daycare. h) Week eight, from Tuesday evening from the daycare to Thursday evening to the daycare.

Table child support

[97]

Table child support

The mother seeks table child support starting in November 2020, based on a letter dated February 10, 2023, from her counsel which included a two-page submission with Divorcemate calculations for the years 2020 to 2023. During the trial, the parties made the following admissions regarding the father’s income:

a) Year 2020, $78,878.01. b) Year 2021, $102,648. c) Year 2022, anticipated $106,000.

98I find that the father has made the following child supports payments:

a) $700 per month from August 2020 to and including November 2021. b) December 2021, zero. c) January 2022, $700. d) February 2022, $250. e) March 2022, $875. f) April 2022, $335.89 g) May 2022, $385.39. h) June 2022, $250. i) July 2022, $350. j) August 2022, $200. k) September 2022, $600. l) October 2022, $500. m) November 2022, zero. n) December 2022, $400. o) January 2023, zero.

Analysis

[99]

Analysis

I find that the father owed the mother table child support effective November 2020, based on her filing her answer on November 16, 2020. At that point, the father was on notice that the mother was seeking table child support. With respect to the year 2020, I find that the parties admitted that the father’s income in 2020 was $78,878.01. Counsel for the mother has provided a Divorcemate calculation indicating that his income in 2020 was $90,997. I find that the mother’s calculations are incorrect based on her acknowledgement that the father’s income in 2020 was $78,878.01. I find that commencing November 1, 2020, and on December 1, 2020, based on an annual income of $78,878.01, the father owed the mother $735 per month as table child support for a total of $1470. I find that the father paid $700 for each of November and December 2020 for a total of $1,400 which should be credited against the support payable of $1470 leaving a balance outstanding of $70.

100I find that commencing January 1, 2021, and on the first day of each month up, to and including December 1, 2021, based on an annual income of $102,648, the father owed the mother $931 per month as table child support for a total of $11,172. I find that the father paid $700 per months for January to November 2021 totaling $7,700 which should be credited against the support owing leaving a some owing of $3,472.

101I find that commencing January 1, 2022, and on the first day of each month up to and including December 1, 2022, based on an anticipated annual income of $106,000, the father owed the mother $958 per month as table child support for a total of $11,496. I find that the father paid $4,846.28 as child support in 2022. The table child support for the year 2022 will be reviewed once the father has provided his 2022 income tax return at which point the balance of any amount owing will be calculated.

102I find that commencing January 1, 2023, and on the first day of each month thereafter, based on an anticipated annual income of $106,000 in the year 2023, the father shall pay to the mother $958 per month as table child support. This amount is to be reviewed once the father has provided a copy of his 2022 federal income tax return at which point the table amount of child support should be revised retroactive to January 1, 2023.

Imputing an income to the mother

[103]

Imputing an income to the mother

The father seeks to impute an income to the mother because she has previously worked as a dog groomer. In support of that submission, the father relies on an email dated February 3, 2020, from the owner of the dog grooming services which confirm that the mother had been employed on a full-time basis since 2017, and that her monthly income was approximate $3,200 per month or $38,400 per year. Furthermore, the father alleges that the mother has spent her money on tattoos, vacation, $2,500 per month for the vacant home in Welland and that she cannot pay these expenses without having undeclared income. He seeks to impute an income to the mother of between $40,000 based on the email from her former employer and her ability to work. The mother indicates that she did return to work in 2021, working part-time at the dog grooming service earning $13,755 and that she worked a bit in 2022 but provided no evidence of income earned.

104I accept the mother’s evidence that she asked her employer to provide the letter indicating she was making $3200 per month to allow her and the father to qualify for the rental of their dwellings. I do not find that the mother has ever declared an income of $40,000 and I cannot, on the evidence provided, conclude that she has been living a standard of living to support an income of $40,000. As such, I exercise my discretion to decline to impute an income to the mother of $40,000. I also note that the mother is currently caring for her youngest child born in November 2022 but that at some point, the issue of the mother’s income or imputing an income to the mother for child support purposes will have to be reviewed.

Daycare costs

[105]

Daycare costs

At the date of the trial, the father testified he was currently paying $621 per month for the child’s daycare. In her closing submissions, the mother made no submission with respect to daycare and in her draft final order, she did not claim any ongoing daycare contribution. In his draft order, the father indicated that the parties were to pay the section 7 expenses in a ratio determined by the court. As I have declined to impute an income to the mother, I order the father to continue to pay $621 per month for the child’s daycare, as it is to be reviewed once he has produced his 2022 federal income tax return and 2022 notice of assessment.

Extended medical coverage

[106] The father is employed on a full-time basis and testified he has full benefits of an extended health package as well as life insurance.

Extended medical coverage

I order the father to maintain K.G. as a beneficiary of any health and dental plan available through his employer.

Life insurance

[107]

Life insurance

The mother has requested that the father maintain his current life insurance policy with K.G. as the irrevocable beneficiary. The father did not provide any evidence as to the particulars of his life insurance and he was not cross-examined on this point during the trial. Consequently, there is no evidence as to the particulars of the life insurance such as the amount and the current beneficiary. The father has another child, R., who may be the beneficiary and may be entitled to life insurance protection. In the circumstances, I decline to make an order binding the father’s employment life insurance based on the lack of the particulars of his current policy.

Ongoing obligation of financial disclosure

[108]

Ongoing obligation of financial disclosure

By May 1 of each year, in which child support is payable, both parties shall deliver to each other a copy of their income tax return for the previous year. In addition, both parties shall, within 10 days of receipt, email a copy of their notice of assessment or notice of reassessment (if any).

109Based on the disclosure obtained, the parties shall determine the appropriate amount of child support and proportionate share of section 7 expenses. In the event the parties cannot agree, the matter shall be submitted to the Superior Court of Justice for adjudication.

Costs

[110]

Costs

I urge the parties to attempt to settle the issue of costs. If the parties are unable to resolve the issue of costs by April 11, 2023, the applicant shall provide his cost submissions, not to exceed three pages plus any offers to settle and a detailed Bill of Costs by April 17, 2023. The respondent shall provide her cost submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by May 1, 2023. There shall be no right of reply.