Overview

[1] This 11-day trial concerned mobility and parenting issues, family violence, and resolution of the parties’ financial affairs.

[2] The parties were married on May 14, 2003 in California and separated on September 11, 2019 in Toronto, a marriage of 16 years. The parties have a son, X, now 5, born April 29, 2018.

[3] The applicant husband seeks joint decision making and a 2/2/3 equal time parenting arrangement. The respondent seeks sole decision making and an order permitting her to move with X to New Brunswick where her family resides.

[4] The respondent alleges that the applicant was violent and abusive during the marriage. She is concerned that the applicant is not capable of controlling his anger and will ultimately behave in an abusive manner towards X, reproducing a pattern of abuse that the applicant’s father inflicted on the applicant when he was a child. She concedes that, to date, the applicant has not abused X, but fears that he may do so. She also concedes that there have been no incidents of violence between the parties since the date of separation.

[5] The respondent also seeks $150,000 in damages under the new tort of family violence established in Ahluwalia v. Ahluwalia, 2022 ONSC 1303, 161 O.R. (3d) 360 for the physical and mental abuse that she suffered over the course of the relationship. At the time of writing, Ahluwalia is under appeal.

[6] The applicant acknowledges that the parties had a toxic relationship during their marriage which sometimes got physical. However, he claims that his conduct was defensive and that the parties’ conflicts arose from disputes associated with the respondent’s anxiety and severe Obsessive-Compulsive Disorder (“OCD”). The applicant opposes the respondent’s request for an order to move with X to New Brunswick.

[7] The parties also seek resolution of their financial affairs. The respondent claims child support, spousal support, and equalization of net family property. The applicant does not oppose paying child support and spousal support, but submits that his income is much lower than the income that was imputed to him in an interim support order by Nishikawa J. He also wants the respondent to be imputed a minimum wage.

[8] For the reasons that follow, I find that:

a) X, the parties’ child, should remain in Toronto and the respondent’s relocation request is denied.

b) The applicant engaged in family violence against the respondent.

c) I decline to make a ruling on the respondent’s claim for damages pending the outcome of the Court of Appeal for Ontario’s decision in Ahluwalia, at which time I shall request further submissions from the parties if they have been unable to resolve the respondent’s damages claim.

d) Parenting time should move to a 2/2/3 equal parenting time schedule.

e) Decision making responsibility should be divided. Where the parties are unable to agree, the applicant should have sole decision making in the areas of health care and education; and the parties should have joint decision-making responsibility in the areas of religious, cultural upbringing, and extra-curricular activities.

f) The parties’ income post-separation is as follows:

Year	Applicant	Respondent
2019	$76,370	$0
2020	$43,137	$0
2021	$46,093	$0
2022	$76,370	$31,000

g) On a without prejudice basis, from January 1, 2023 and every month thereafter, the applicant shall be required to pay child support of $712 per month based on his Guidelines income of $76,370 and, to the extent he has overpaid child support, he shall receive a credit.

h) The applicant shall be credited in the amount of $7,013 in respect of his overpayment of child support up to and including September 2022.

i) Commencing October 1, 2022, the parties shall pay for the child’s section 7 expenses proportionately based on their income, with the applicant assuming 71% and the respondent assuming 29%.

j) On a without prejudice basis, from January 1, 2023 and every month thereafter, the applicant shall be required to pay spousal support of $0 per month which reflects a middle range entitlement from the SSAGs that is based on his income of $76,370.

k) The applicant shall be credited with the amount of $27,560 in respect of his overpayment of spousal support up to and including September 2022.

l) The applicant owes the respondent an equalization payment of $49,567.63.

m) No order is made in respect of post-separation adjustments given the limited evidence presented at trial.

n) An order of divorce is granted.

Facts

[9] The applicant, 45, was born on September 1, 1977 in India, and completed high school there. He moved to San Francisco, California in 1995 to train as a commercial pilot. His parents lent him money to do the training. He then moved to Los Angeles in 1998. Subsequently, the applicant decided that he did not want to complete the flying hours that were necessary to obtain his commercial pilot’s license. He is now self-employed, operating a business in the stock market technical analysis space.

[10] The respondent, 42, was born on June 3, 1980 in New Brunswick and completed high school there. She moved to California when she was 21 to live somewhere warmer.

[11] The parties started cohabiting on December 14, 2001 in Los Angeles. They had a number of minimum wage jobs at the time they got married in 2003. In 2007, as neither party had permanent landed status in the U.S., they decided to move to New Brunswick with the intention of moving back to the U.S. By this time, the applicant was trying to launch a number of start-ups in the financial sector. Neither party wanted to stay in New Brunswick, so they moved to Toronto in September 2008.

[12] The parties separated on September 11, 2019. On that day, the applicant received a letter from respondent’s counsel advising of the respondent’s intention to separate. The parties continued to live together for a few days. On September 19, 2019, the respondent advised the applicant that her father was driving from New Brunswick to help the respondent move out of their residence. The applicant interpreted this as the respondent relocating imminently to New Brunswick with X. On September 20, 2019, the applicant contacted the Toronto Police Service and told the police of his intention to leave the matrimonial home with X. The applicant moved with X to a friend’s place. The respondent claims that the applicant kidnapped or absconded with X who was still being breastfed. The applicant acknowledges that he panicked, but claims his leaving with X was the only way to prevent the respondent from moving with the child to New Brunswick.

[13] Subsequently, the respondent contacted Peel Regional Police and made historical allegations of abuse. The applicant was charged with numerous offences, including assault and uttering threats. X was returned to the respondent’s care. By late November 2020, all criminal charges against the applicant had been withdrawn and the applicant had entered into a six-month peace bond.

Procedural History and Orders to Date

[14] The application was commenced on October 4, 2019. The parties were represented by counsel for most of the proceeding, but were self-represented at trial.

[15] In the Fall of 2019, the applicant brought an urgent motion for parenting time with X. On October 17, 2019, the motion was adjourned by Diamond J. and the applicant agreed, on a without prejudice basis, to supervised parenting time for 12 hours each week. Diamond J. also requested the assistance of the Office of the Children’s Lawyer (“OCL”). The OCL provided a Report pursuant to section 112 of the Courts of Justice Act, R.S.O. c.C-43, dated July 29, 2020.

[16] On February 4, 2021, following a parenting motion brought by the applicant, Nishikawa J. ordered that the applicant was entitled to unsupervised parenting time on a gradually increased basis. Nishikawa J. also ordered that, beginning August 1, 2020, the applicant pay spousal support at the mid-range of the Spousal Support Advisory Guidelines (“SSAGs”) (Ottawa: Department of Justice Canada, 2008) at $1,739 and child support of $855 per month on an interim basis, based on the applicant’s 2018 reported line 150 income of $93,035.

[17] Subsequently, on May 27, 2021, O’Brien J. expanded the applicant’s parenting time including with respect to overnights. At the time of trial, and as per O’Brien J.’s order, the applicant exercises parenting time every Monday from 11:00 a.m. to Tuesday at 8:00 p.m. and every Friday from 11:00 a.m. to Saturday at 2:00 p.m.

[18] In an endorsement dated August 19, 2021, Kimmel J. dismissed the respondent’s interim motion to relocate with X to New Brunswick. The dismissal was without prejudice to the respondent’s rights at trial. On December 10, 2021, the respondent’s motion for leave to appeal the order of Kimmel J. to the Divisional Court was dismissed.

[19] At the exit-Trial Management Conference (“exit-TMC”) on August 31, 2022, Faieta J. declined the applicant’s request to adjourn the September 12, 2022 start date of trial based on the unavailability of Mr. De Groot, the applicant’s counsel of choice. Faieta J. noted that if the trial was adjourned, given its proposed length, it would be adjourned for approximately one year, to September 2023.

[20] At the exit-TMC, Faieta J. also:

a) Permitted the respondent to amend her Answer to add a claim for damages for family violence based on the tort of family violence recognized in Ahluwalia.

b) Permitted the parties to supplement their direct viva voce evidence with an affidavit to be filed by September 7, 2022.

c) Removed Rosalie Ricupati, the respondent’s Domestic Violence Counsellor from the respondent’s witness list as the respondent had not provided a copy of Ms. Ricupati’s file to the applicant as required by the Trial Scheduling Endorsement Form (TSEF).

The Trial

[21] At the commencement of trial, I denied the applicant’s renewed adjournment request. I noted that the applicant was still unable to confirm whether, if the trial were to be adjourned by a few weeks or months, his counsel would be available. I noted that the respondent strongly opposed the adjournment, and that the trial had been set since November 2021. Given that the mobility issue has been outstanding for 3 years, I ruled that it would be highly prejudicial to the respondent to adjourn the trial, possibly for another year, which would result in the applicant obtaining indirectly, that which he sought directly, to keep X in Toronto for the foreseeable future.

[22] The applicant’s evidence in chief was provided by way of his viva voce testimony. The applicant did not file a trial affidavit. The respondent’s evidence in chief was provided by way of her viva voce testimony supplemented by a voluminous 572-page affidavit (81 pages of narrative and 491 pages of exhibits). Each party cross-examined the other.

[23] The applicant called the following persons as witnesses:

• Usha Kohli, his mother

• Rahul Aurora, his friend and former business partner

• Danielle Halladay, an individual who supervised his parenting

[24] The respondent called the following persons as witnesses, all residents of New Brunswick.

• Paul Thom, her father

• Andrew Thom, her brother

• Verna Bernard, her aunt (her mother’s sister)

• Carole Bradford, another aunt (her mother’s other sister)

[25] Gabrielle Zazzorino, a clinician who prepared a report for the OCL also testified.

[26] Each witness was cross-examined.

The Applicant’s Evidence

[27] The applicant believes that the parties are getting along better now that it has been approximately 3 years since separation. He claims that communication between the parties is much better, although there is room for improvement. He cites, for example, that the parties went together with X to Canada’s Wonderland, a local amusement park, 11 times in the summer of 2022.

[28] The applicant seeks the following orders:

• That the respondent be prevented from moving X to New Brunswick

• Joint decision making, albeit providing him with final say if the parties cannot agree

• A “2/2/3” equal parenting time schedule

• Child support payments consistent with his actual income, not the much higher figure used in the interim separation order

• Spousal support payments whereby the respondent is imputed a minimum wage income

• Equalization of Net Family Properties (NFPs) recognizing, inter alia, various loans made by his parents to him

[29] The applicant testified that the parties initially met on-line, then in person in California in 2001. Their relationship started unusually in that the respondent called the applicant to “rescue” her as she claimed that she had been sexually assaulted by a friend M. The respondent moved into the applicant’s residence and, a few weeks later, the parties confessed their feelings for each other. The applicant claimed that, years later, the respondent recanted her allegations of sexual assault by M.

[30] Following a year in New Brunswick in 2007/08, the parties moved to Toronto in September 2008. The applicant was employed as a restaurant manager at a Marriott Hotel near the Toronto airport in 2008-09, and then employed again as a restaurant manager at a restaurant, Le Gourmand, in 2009. Subsequently, he had a consultancy business fixing computers. In 2011, he started a business, Aequitas International Inc., with two friends. The company only reported income in 2015. He ceased doing any work for Aequitas in 2016, as his business partner wanted to take the company in a different direction.

[31] The applicant had previously incorporated a business, Trilateral Management Inc. (“Trilateral”), in 2007. The applicant revived the company in 2017, and worked with his brother Vishal Kohli, a software developer in India, to provide stock market technical analysis. The applicant produced his personal and corporate tax information for certain years at trial.

[32] The applicant described the parties’ relationship during their married life as toxic. He testified that the respondent was prone to extreme interpretations of events and the parties often fought over the correct way to characterize their behaviour during fights. The applicant described the respondent as having a “narcissistic personality disorder” wherein an individual insists that you must agree with their version of events.

[33] The applicant provided several examples of the respondent’s challenging behaviour driven by her extreme OCD:

a) When the parties were arguing in the car and the applicant turned the music up, the respondent described this as a form of torture.

b) When the applicant reached for a shawl while the respondent was driving, she described this as “violently snapping the shawl.”

c) The respondent was either unwilling or unable to do laundry as it required using community or apartment facilities that had been touched by other people. If you touched something, the respondent insisted that you needed to have a shower and/or change the clothes worn.

d) The respondent had a belief that older people were dirty as they could not properly clean themselves. If the applicant visited an older friend, upon his return home, he had to wash the clothes that he wore and/or take a shower and then, because he used a towel, he had to have another shower.

e) The respondent became upset if the applicant’s aunt, who was visiting from India, came to visit because the aunt was living with an older individual. The applicant had to hide the fact that his aunt from India was visiting the parties’ residence.

f) After X was born, the parties bought a large playpen for the child, but the box remained sealed because the respondent had to go through a number of rituals before opening the box. So it remained unused, while X could have benefitted from its use.

g) The respondent left X strapped to his car seat or carrier for more than an hour indoors. The respondent claimed that this was in response to X falling off his bed and as a way to keep him safe, but the unopened playpen could have been used for this purpose.

[34] The applicant denied the respondent’s allegations of domestic abuse but conceded that things became physical in the context of defending himself. The applicant produced photos of bruises to his cheeks under his eyes caused by the respondent’s aggression. The photos purportedly date from May 2013, others are from April 2016. The applicant claimed that the respondent got violent with him, laying on her back on the bed and kicking him with her legs “like a horse.”

[35] The applicant described the respondent in the latter part of their relationship as living her entire life in her bedroom, like a hoarder, with food rotting on the bed, sheets not changed for months. In response to the respondent’s allegation that he violently threw her items off her dresser in a rage, he responded that the items were falling off the dresser.

[36] The applicant described himself as a caged animal. The respondent would continuously argue with him such that he could never de-escalate. He had learned, through completing a course in anger management in California, that it was important to simply walk away at times, but this was not possible with the respondent. He testified that the respondent stood on the steps leading up to the rest of the house blocking his access to the upstairs bedrooms. At times, the respondent chased him to his car and to his office, or would wake him up yelling and screaming. As a result, the parties’ conflicts became very heated.

[37] The applicant denied that he ever threatened to commit suicide or to “cut up and eat” the respondent as she claims. He suggested that these allegations were the product of the way the respondent interprets everything in an extreme and bizarre manner. The applicant testified that he had “thousands of hours” of verbal recordings of their fights, but chose not to use everything at trial as it “just added to the filth of the whole thing.”

[38] The applicant stated that the Children’s Aid Society did two full investigations in 2019 and 2020 that were triggered by police complaints. The police were called on six occasions, four times by the respondent, and twice by the applicant. The applicant called the police in an attempt to avoid false allegations of abuse or to diffuse the situation.

[39] The applicant made a point of the fact that he was not required to do the Partner Assault Response Program (PARS), and that it was never a condition of the withdrawal of his criminal charges that he do so.

[40] The applicant attempted at trial, to put the letter of his therapist, Stephanie Swayne, MSW, into evidence without calling her as a witness. I did not permit him to do so as the letter would be a form of hearsay evidence and the respondent had no way of cross examining the therapist on the basis of her conclusions. I nevertheless accept as a fact that that the applicant has been attending counselling.

[41] X was not born until 2018, some 17 years into the parties’ volatile relationship. The applicant testified that, after X’s birth, the parties’ domestic situation grew worse as the respondent took far longer to complete activities as she felt compelled to follow certain rituals dictated by her OCD. The bedroom where X slept was so cluttered that one of the police officers who did a wellness check commented that there was a suffocation hazard for the child.

[42] Many of the parties’ fights were about the respondent’s threats that if the applicant did not comply with her rules, she would move with X to a shelter.

[43] The applicant testified that the respondent rarely left X unattended such that he was not permitted to bathe or sleep with his own son. The first time he slept with his son was post-separation in the summer of 2021 after the parental supervision order was lifted. Video was produced at trial concerning the applicant loudly screaming that he could not bathe his son. Fights also ensued when the applicant wanted to take his son to the park.

[44] The applicant testified that, contrary to the respondent’s allegation that the applicant recorded the parties’ daily activities as a means of control, he started to record their disputes on video to defend himself.

[45] The applicant filed the post-separation supervisory notes from Brayden Supervision Services indicating that there was no issue with his parenting of X.

[46] The applicant also filed a dispute to the OCL’s 2020 Assessment Report that recommended sole custody (now decision-making) be granted to the respondent, and that she be allowed to move X to New Brunswick. The OCL’s involvement is discussed below.

[47] The applicant was not entirely critical of the respondent. He considered her a loving and caring parent. He described her as the smartest person he knew and implied that she had applied, or should apply to MENSA (the high-IQ society), and that, in other circumstances, he would pay to consult with her.

Respondent’s Evidence

[48] The respondent testified that she was brutally abused by the applicant throughout the course of their relationship. She claimed that the respondent is a master manipulator who has caused her immense emotional harm from many years of physical and emotional abuse since she was 21 years old. She stated that the applicant lived a double life throughout their relationship – charming on the outside, but abusive behind closed doors. She acknowledged that her OCD was severe at times, but claims that it was her crutch to deal with the extreme abuse that she suffered.

[49] The respondent testified that the applicant constantly gaslit her, blaming her for what he inflicted, and making her question her self-worth. The abuse became normalized during their relationship. After 17 years of pervasive abuse and following X’s birth, she finally opened up to the police about the violence. The respondent also alleges that the respondent was financially abusive, threatening to hire a legal shark in the family proceedings so that it would drain her and her parents’ life savings.

[50] The respondent testified that the parties stopped sleeping in the same room as of December 24, 2018, and they separated on September 11, 2019 when X was about 16 months old.

[51] The respondent claims that there were red flags from the beginning of their relationship such as the applicant punching a cement wall or yelling at strangers for an innocent thing like knocking on their door. She had fears due to the applicant’s road rage, especially in California where many individuals carry guns.

[52] The respondent testified that the applicant threatened to kill himself in disturbing ways such as flying a plane into a mountain. She stated that he also forced her to watch him play with a large two-pronged dagger for a long period of time while threatening to stab himself with it. He then proceeded to violently stab couch cushions over and over with a dagger in a fit of rage. The applicant’s threats included threatening her with murder, body mutilation, and cannibalism (eating her body after dismembering it).

[53] The respondent claims that she suffers from PTSD as a result of all that she has endured in the relationship. The respondent provided a lengthy trial affidavit citing examples of physical and mental abuse that she has endured. I have reproduced a few examples:

2003: One time late at night he had beat me up so hard that I lost hearing in one of my ears. However, my hearing seemed to have recovered to normal by morning so I did not go to the hospital like I planned to do.

2006: I was sunburnt and could not even wear a bra strap without it hurting. He came for me and just grabbed my burnt arms hard and held them then pushed me, and despite the fact that that is all he had done that time, I felt like I could not take any more with the burns.

2008-2011: There was a lot of abuse during this time that I remember taking place on the bed in our apartment as I had a bad back from my job and would often beg him for mercy while in a rage hitting me because I was so much more vulnerable to being hurt as my ability to protect myself was often compromised due to my back. Sometimes it would happen late at night after a hard day of work with my back so I would beg him to just let me recover before any more beatings would take place.

2013: On May 5-6, 2013, there was a fight in the living room and the living room doors were closed because we were separating our cats after a recent cancer diagnosis of our oldest. He used all his strength and pushed me so hard through the closed doors which flung open resulting in me being thrown onto the hallway wall, hitting it so hard that I slid down the wall and I landed in the litter box below…

2015: In February/March 2015, in New York City, I remember him being violent with me in the hotel room overlooking Times Square and me wanting to try to flee even though I was not properly dressed.

2016: In August 2016 in Miami, one day during the day he was physically abusive with me and I just remember I kept ending up on the bedroom floor during the episode. At another time late at night, he was hitting me on the bed of that same room and already by the next morning I had plenty of new bruises everywhere and I remember my legs were completely covered from that night.

2017: On June 2, we were in our hotel (in LA) and he got into another rage and started bashing the back of my head while I was sitting in a chair, unable to escape. He hit me about 20 times and didn’t stop until I was dizzy. I was too dizzy to move and had to stay in the chair for some time and asked if he would leave since I couldn’t move and just wanted peace so I could recover.

2018: Despite knowing that I’d been pregnant for over a month, Vick, with his sneakers on, tried kicking me straight in my belly. I was able to block his kick with my elbow and a huge black bruise soon resulted. About a week later he commented on the bruise because it was still so conspicuous.

2018: In April 2018, when I was more than 7 months pregnant with a back problem that left me bed-ridden…[details omitted] I just remember him taking his boot and beating my leg that I had the sciatica in, hitting it over and over while I screamed in pain. The furniture assembler was in the living room and would’ve have heard the loud ordeal so the Applicant got embarrassed and immediately left, leaving me stranded there for hours after the guy left, while he knew I didn’t have a phone and was in my 3rd trimester of pregnancy.

[54] In addition to physical abuse, the respondent also testified to frequent and extreme verbal abuse. She presented documentary and video evidence of the applicant repeatedly calling her “bitch” and “fucking c**t” in texts and emails.

[55] The respondent presented a series of photographs showing handprints on her thighs caused by what she described as the applicant striking her on her legs.

[56] The respondent testified that the applicant was controlling as well. She needed permission to leave with X and was only allowed to take him out for necessities like food/ Walmart/and the Dollar Store.

[57] Aside from her evidence of family violence, the respondent described her parents, family and friends in New Brunswick and her parents’ properties in the Saint John area. She explained why she wishes to move with X to New Brunswick and how the move is in the best interests of the child. She also refuted the applicant’s suggestion that X’s Indian heritage would not be supported by a move to New Brunswick.

[58] I deal with the parties’ evidence on the mobility and financial aspects of the case below.

Summary of Witnesses

Danielle Halliday

[59] Danielle Halliday supervised the applicant’s post-separation parenting for 3 hours approximately 3 times a week from April 2020 to February 2021. She testified that the applicant was a dedicated and engaged parent who constantly encouraged X to learn through play. She did not have any concerns with his parenting and did not see any red flags during his parenting time. Ms. Halliday described the parties as loving parents, and X as happy to see both parents.

Usha Kohli

[60] The applicant’s mother, Usha Kohli, 68, lived most of her life in India, but now lives in Toronto with the applicant. She retired about 14 years ago. Over the years, she has made a number of trips to Canada. Her most recent visit to Canada began in February 2020 and, due to COVID-19 and other reasons, she has not returned to India. She testified that she now has a group of friends from India who have settled in Canada that she meets up with. She also testified that while she plans to spend her retirement between Canada and India, she can maintain frequent contact with her other son, Vishal, virtually as he is in India. Mrs. Kohli’s sister Renu, whose husband is Canadian, visits Canada often.

[61] Mrs. Kohli spoke in glowing terms about the applicant as a model son, brother, and father. She described the parties’ relationship as “very good”, albeit the couple had “experienced a lot of hardships in their marriage”.

[62] She confirmed that she and her husband had given around $65,000 to the applicant which he was expected to return. Post-separation, she had also given the applicant around $200,000, some of it which had gone towards legal fees for this proceeding.

[63] In cross-examination, Mrs. Kohli denied that the applicant’s father “hit” him, but claimed that the father “tapped” him when the applicant was being unreasonable. She denied remembering anything about the respondent telling her that she had experienced physical abuse for 14 years. She acknowledged that her two sons were scared of their father “because of what was going on between” the parents.

Rahul Arora

[64] Mr. Arora is a friend of the applicant and his former business partner. Since 2005, he has worked in residential real estate. He has known the applicant since 2011. He testified that he did not get to know the respondent very well but was told by the applicant that the respondent had anxiety issues. He was aware that there was some conflict in the relationship. Mr. Arora and the applicant started a company, Aequitas International Inc. (“Aequitas”), in 2011 a few months after they met. However, the company did not generate any revenue until 2014. The two parted ways in December 2016 over a disagreement over the direction of the company. Mr. Arora bought out the applicant’s interest in the business in 2017. Mr. Arora confirmed that the applicant has played no role in Aequitas since December 2016.

[65] Mr. Arora testified about the period immediately after the parties’ separation in September 2019 when the applicant arrived on Mr. Arora’s doorstep with X and ended up living with Mr. Arora from about November 2019 to March 2020. X was returned to the respondent’s care, but the applicant had supervised parenting time with X at Mr. Arora’s residence. Mr. Arora spoke in positive terms about the applicant’s parenting with X such as the applicant ensuring that X met his developmental benchmarks.

[66] In cross-examination, Mr. Arora testified that he tried not to meddle in the applicant’s personal affairs and that the applicant had advised him that the respondent had made some historic domestic violence charges. He denied that he had ever seen any evidence of physical abuse of the respondent.

Gabriella Zazzorino

[67] Ms. Zazzorino, MSW, RSW, is the clinician who authored the section 112 OCL Assessment Report dated July 29, 2020 that was filed with the court. The report confirms that the OCL assessment occurred when X was 27 months old. In addition to the parties, the clinician spoke to Mr. Arora, the applicant’s friend, and the applicant’s mother. The clinician conducted observational visits with the parties on or around January 2020, and she reviewed a large number of collateral reports from third parties and court documents.

[68] Some key findings of the report are that:

a) The respondent reported being physically, verbally, and emotionally abused throughout the marriage. The respondent provided several examples to the clinician.

b) The applicant denied abusing the respondent but claimed that the respondent was often abusive towards him. He expressed concerns about the respondent’s untreated mental health conditions in relation to her parenting of X.

c) The respondent has been diagnosed with Anxiety and OCD and has not been taking medications since 2010.

d) According to X’s pediatrician, X is physically healthy, meeting gross and fine motor skill development, but is on the 3rd percentile of the growth chart for his weight. X is unvaccinated as per his mother’s request. X appeared to have a close and comfortable relationship with both his parents, and appears to have a relationship with his paternal grandmother.

e) The applicant described having a difficult relationship with his father who was abusive and a functional alcoholic. The applicant mended his relationship with his father before his death. The applicant delayed having a child because “he wanted to be sure that he can trust that he would not repeat his father’s abusive ways.”

f) While living in California, the applicant attended anger management counselling in 2006 with an organization called Anger Coach. Since separation, the applicant has attended counselling with Stephanie Swayne, MSW, and attended parenting groups through Families in Transition.

g) The applicant reported that the Children’s Aid Society (CAS) has been involved with the family three times in 2019, often when the police called the CAS. The CAS cautioned the parties and closed the file. Subsequently, the CAS advised it was closing its file as the matter was before the courts.

[69] A key passage in the OCL report states:

Given her reported experience of abuse throughout their relationship, Ms. Thom is skeptical of Mr. Kohli’s ability to avoid being aggressive and/or exposing X to aggressive behaviours. The information gathered from collaterals and through interactions by this writer, did not reveal any concerns or indicators that Mr. Kohli presented as aggressive or hostile to X. Information obtained from Mr. Kohli’s therapist, Ms. Swayne, indicated that Mr. Kohli did not present with any red flags or concerns upon an anger assessment. Further, she stated that she did not have any concerns that Mr. Kohli will act out violently, nor did she have any concerns for him regarding homicidal or suicidal tendencies. Rather, Ms. Swayne described Mr. Kohli as thoughtful, reflective, calm, and focused on resolving the issues. During interview with Mr. Kohli; he remained respectful of Ms. Thom, described her as a good mother, and spoke about his concerns regarding Ms. Thom’s mental health as separate from who she is as a parent and person. Moreover, Mr. Kohli presented as motivated to attend counselling, motivated to ensure X’s reaching developmental milestones, and eager to increase his involvement in X’s caretaking.

[70] The OCL indicated that it was unable to assess the applicant’s “propensity to commit a murder-suicide,” as the respondent alleges, and was unable to assess risk of future behaviour.

[71] Ultimately, the report’s recommendations included that:

• The respondent have full custody of X.

• The applicant have 12 hours per week of supervised parenting time.

• The respondent be permitted to move with X to New Brunswick.

• The parties have independent access to information about X from third parties.

• The applicant continue to participate in counselling to address any unresolved issues, including anger management.

• The respondent participate in counselling to address her personal anxiety, OCD, and her experience of abuse.

[72] In cross-examination, Ms. Zazzarino confirmed that, at the time of the OCL’s assessment, there was a non-contact order in place between the parents which would be an important, albeit not determinative, factor in the OCL’s recommendations. Ms. Zazzarino clarified that the report’s recommendations are based on the information available to the OCL at the time and are not considered to be indefinite.

Paul Thom

[73] Mr. Thom is the respondent’s father. He and the respondent’s mother come from large families and are each one of six siblings. Mr. Thom described his residence, where X and the respondent would stay if they moved to New Brunswick, as a big, four-bedroom house with a large backyard that opens into the wilderness. The property has a large playhouse that Mr. Thom has restored. Mr. Thom also described his cottage/country property by the river adjacent to other family member’s properties. He has a boat and a number of recreational items available to enjoy the water.

[74] Mr. Thom testified that X is his only grandchild and he and his wife have not had much of an opportunity to spend time with him. He also reflected on what he had learned from his own grandfather. He confirmed that he would be prepared to support the respondent as she picks up her life after separation. He spoke highly of his daughter as a parent, calling her dedicated and wanting to do the right thing for X, feeding him only organic and healthy foods. Ultimately, Mr. Thom testified that he has a legacy in New Brunswick that he would like to pass on to X.

[75] In cross-examination, Mr. Thom advised that, since 2019, he has visited Ontario four times. He was here in the Fall of 2021 for about 7 weeks, previously for 2 to 3 weeks at a time.

[76] He testified that the respondent’s OCD has cleared up since the parties’ separation, but conceded that previously there were occasions where she was hard to get along with.

Andrew Thom

[77] Mr. Thom is the respondent’s brother. He is a Fire Protection Systems Specialist for the Énergie NB Power nuclear power plant. He testified that the benefits of the respondent and X moving to New Brunswick would be the more affordable standard of living and the large family presence there.

[78] He described the respondent as an amazingly strong and supportive mother for X. He spoke to one incident in November 2016 when he and the parties were in Santa Monica, California. He could not remember the exact words used, but the parties were on the other side of a door and appeared to be arguing. He did not like the tone that the applicant used and told him that. He could not remember whether he was concerned about the respondent’s safety but “something did not feel right.”

[79] He described X as “an amazing little guy” who calls him “Funcle Andy,” the fun uncle who makes him laugh.

[80] In cross-examination, he conceded that he has seen X in late May or early June 2022 when X would have been around 4 years old, which is the one time he has seen X since the parties separated in September 2019. Prior to separation, he saw X on two occasions when he visited Toronto in June 2018 and August 2018. He testified that, since separation, he has not seen evidence of the respondent’s OCD. He believes that when the parties were together, the combination of the respondent’s OCD and the parties’ relationship made things difficult.

Verna Bernard

[81] Ms. Bernard is the respondent’s aunt, one of her mother’s younger sisters. She is now retired. She testified about the benefits of X moving with the respondent to New Brunswick. She has grandchildren X’s age. One of her neighbours moved from Ontario and has two children, 4 and 6, who could be playmates with X. Ms. Bernard spoke of the beach and nature trails near her residence. She testified that she would be prepared to support the respondent and X. Ms. Bernard is now an empty nester. Ms. Bernard stated that the large family on the respondent’s maternal side gets together often and misses the respondent. She has not seen X since he was 3 months old. She has neighbours, the Bs, who are vegan and keen on meeting the respondent and X who are also vegan.

[82] Ms. Bernard spoke of the relationship that the respondent and Jerrod, her son, had and her affection for the respondent. She has not seen X in Ontario. Ms. Bernard lives about 15 minutes by car from the respondent’s parents, within the city limits of Saint John.

Carole Anne Bradford

[83] Ms. Bradford is another one of the respondent’s aunts, also one of her mother’s younger sisters. She testified that X would benefit from moving to New Brunswick “because of the great programs here.” By programs, she referenced greater diversity in the Saint John area. She spoke positively about the rich cultural heritage of New Brunswick. She spoke of her three sons and how they grew up having parents and grandparents close by so that they could all live together.

[84] Ms. Bradford spoke of a newcomer’s program that one of her sons was familiar with. A number of new immigrants have moved to Millidgeville, a community close to the University of New Brunswick in Saint John. She explained that Millidgeville is attracting a number of doctors and IT professionals. She testified a number of physicians from India are coming to the community, attracted by the University of New Brunswick. She stated that “we love the newcomers and have made great relationships with them.” She also spoke of some personal relationships with persons of Indian origin.

[85] Ms. Bradford testified that she believes that X will have many opportunities to celebrate his heritage in New Brunswick. Her son D has met several friends from India – at the YMCA. She also spoke of her own Acadian heritage and anticipated that X would have a rich culture to celebrate on both his parents’ sides.

[86] The last time that she saw X in person was in 2018, when he was perhaps a month or two old. Ms. Bradford lives about 30 minutes away by car from the respondent’s parents.

Applicant’s Position on Trial Issues

[87] The applicant resists the respondent’s mobility request to New Brunswick for the following reasons:

a) X is born and raised in Toronto. The parties have lived in Toronto for 14 years. Beyond establishing that her family resides in New Brunswick, the respondent has failed to submit any realistic plan for X’s life in New Brunswick. The respondent has not identified any school there for X.

b) The respondent’s move to New Brunswick is entirely dependent on the goodwill of her parents, who she and X would live with. She has not identified any source of employment for herself. She has not lived with her parents for many years, let alone with a child, so her plan is entirely speculative.

c) X is biracial, being partly of Indian background. He has brown skin. The Saint John area, where the respondent proposes to move, is predominantly White. While Saint John has some families of Indian origin and an immigrant community, it cannot be compared with Toronto which, according to the 2016 census, had almost a million (995,125 exactly) persons of South Asian origin.

d) X has a close and loving relationship with his paternal grandmother, Usha Kohli. Mrs. Kohli has decided to live in Canada for most of the year, returning to India for two months during the Canadian winter. X is learning Hindi and important Indian cultural traditions from his grandmother. It would be very disruptive for X to lose his bond with his grandmother if he were to be forced to move with the respondent to New Brunswick.

e) Both parties are vegan and consider it important that X be raised as a vegan. Toronto offers far more options for a vegan lifestyle than a smaller community such as Saint John, NB.

[88] The applicant also seeks joint decision making, citing the following concerns about the respondent and her parenting.

(a) The applicant claims that the respondent is intentionally not facilitating X, 4-1/2, being potty trained. The applicant reasons that, for as long as X is not potty trained, the child is unable to attend school, and if he is unable to attend school, X will not develop any attachments to his local school, friends or community in Toronto. This, the applicant fears, will be used by the respondent to argue that the disruption to X, if he is moved to New Brunswick, will be minimal.

(b) X’s teeth were showing signs of decay. The applicant claims that the respondent was not brushing X’s teeth with a toothbrush but was using sponges. Apparently, the respondent was concerned that toothbrushes have plastic, and that X would be exposed to plastic.

(c) For the longest time, X did not have a pediatrician, until the applicant raised the issue in the context of a 2019 motion before Diamond J. The applicant is concerned that the respondent has a distrust of traditional medicine and X was only seeing a naturopathic doctor through the Canadian College of Naturopathic Medicine (pediatric wing).

(d) X has not received any vaccines for a child of his age because the respondent is opposed to them or, in the alternative, vaccine hesitant.

(e) The respondent is inclined to seek out physicians who will align with her idiosyncratic beliefs. For that reason, and notwithstanding that the respondent and X live in Etobicoke, X’s pediatrician is in Scarborough “on the other end of town.” The respondent insists on a pediatrician who practices “integrative medicine,” meaning traditional medicine integrated with a naturopathic perspective.

(f) Naps: The applicant believes that the respondent makes too big an issue of X getting in his naps. The applicant believes that, now that X is older, the respondent’s insistence that X nap all the time is actually detrimental to X, as the child is being forced to nap when he is wide awake.

(g) Breastfeeding: X is 4-1/2 years old, but is still breast feeding. The applicant feels that X will likely get teased if he goes to school and is still breastfeeding. The applicant adds that he is not against breast feeding per se, but believes that, given X’s age and stage and the fact that he is old enough to walk, he should not still be breastfeeding.

(h) The respondent has done nothing to better her own circumstances. The last time that she worked was with Loblaws, a grocery store, between Fall 2008 to July 2011. It is common ground that the respondent has not applied for any jobs, nor has she sought out a course of study that would lead to employment. She has not prepared a resume or networked to look for employment. She has not sought out any course of study at a college or university either here in Ontario, in New Brunswick or anywhere.

(i) Despite being separated for three years, she has not made any friends or acquaintances, joined any social or sports activities or organizations. She stated that she took X to a number of libraries and pools that have a child-friendly area.

(j) Beyond claiming that she has a bad back, the respondent has not identified any evidence of her inability to earn a minimum wage income.

(k) The respondent is over-housed. She continues to live with X in the matrimonial home, a 3-storey house with 3 bedrooms and 4 bathrooms, paying over $3,000 in rent when, in the same west area of Etobicoke, two-bedroom apartments can be rented for $1,700 a month.

The Respondent’s Position

[89] The respondent concedes that the parties’ relationship has improved recently, however, she submits that the applicant is extremely manipulative and has gone out of his way to improve his behaviour prior to and during the trial. Overall, the respondent testified that she cannot really talk to the applicant without him getting upset with her and blaming her for something.

[90] The respondent submits that moving to New Brunswick, where she will be surrounded by loving and supportive family members, will give X and her the fresh start that the family needs as she recovers from a violent, abusive, and toxic relationship.

[91] The respondent acknowledges that she had severe OCD and PTSD which she claims was a response to the abuse she suffered for most of the marriage. She did not have family support around her and did not even have the emotional capacity to have friends. She claims that she was not clinically depressed but “situationally depressed.” Her self-esteem was so low that the last time she worked was at Loblaws in 2011. She would like to reestablish her life in New Brunswick with X.

[92] The respondent submitted that it is in X’s best interests that he be permitted to move to New Brunswick for the following reasons:

(a) Her plan for X’s schooling in New Brunswick is straightforward. She plans for X to enroll in public school, hopefully in a French immersion program.

(b) There is no reason why X cannot continue to be vegan in New Brunswick. The respondent has a friend there whose family is totally vegan. The Saint John area has the same restaurant and grocery chains as the rest of Canada. All restaurants are now offering vegan options on their menus.

(c) The cost of living in Saint John, NB is much more affordable than Toronto. Since 2021, the applicant’s landlord has been trying to evict him. In New Brunswick, the family would not face the potential of eviction. The respondent’s family members are able to offer accommodation. Real estate and rent in the Saint John area are a fraction of the price in Toronto. Having more disposable income would benefit the entire family.

(d) In New Brunswick, X would live in the respondent’s parents’ home which has ample living space and a large backyard. Her father also has a country property about 40 minutes away by car which has a country house, access to a private beach, boat, with All Terrain Vehicle (ATV) trails. The original property, owned by the respondent’s grandfather was 45 acres that was split amongst 6 families. The area is called “Tomtown.” It is a short walk from one cousin’s property to the other, and X could benefit by growing up in an environment surrounded by nature, rather than living in a concrete jungle.

(e) The respondent recognizes and celebrates X’s Indian heritage and acknowledges that there is a very large Indian community in Toronto. However, X does not need to be surrounded by “one million Indians” to know and understand his culture, which can also be transmitted by his father and paternal grandmother, should they move to New Brunswick. The Saint John area is attracting a lot of immigrants, including many professionals of Indian origin, to the community.

(f) While X may present with a darker skin tone than certain “white” Canadians, the respondent knows of French Acadians who have darker skin. The respondent does not want to focus on skin colour, but rejects the suggestion that Saint John is a racist place where X will feel unwelcome.

(g) X’s heritage on his mother’s side is no less important than his father’s side and must also be taken into account. The respondent’s mother is Acadian, speaks fluent French, and her father is Scottish. Both parents are proud of their customs, cultures and traditions and moving to New Brunswick will foster these aspects of X’s heritage.

(h) The applicant’s only real ties to Canada are that he has an aunt in India whose Canadian husband has some property in the Mount Forest area (about a 2-hour drive northwest from Toronto); and his mother’s claim that she has chosen to live here most of the year.

(i) The applicant has exaggerated X’s attachment to his Hindu religion and temples as these were not important to the applicant prior to separation.

(j) The applicant works from home and can effectively run his business from anywhere that he has a computer and a phone.

[93] With respect to issues around decision-making, the respondent submitted that:

(a) She is not an “anti-vaxxer.” She described herself as a “free-rider” which means that, whereas in some situations she would allow X to be vaccinated, such as a deadly respiratory outbreak, in other situations she would take advantage of any exception to vaccinations that the school or public authorities could provide. She testified that, in New Brunswick, there is a simple one-page objection form. She believes that so long as there is sufficient herd immunity and everyone around the child is vaccinated, that “the minimal risk posed by vaccines outweighs the extra benefit” to that individual. She believes that the decision not to have X vaccinated may not be the best for the community, but is in best interests of X.

(b) She did not resist using a toothbrush for X due to an aversion to plastic. Rather, the issue was that X could not spit out after using toothpaste so she used a sponge to clean his teeth and could see that this technique was successful in removing plaque and buildup. Any cavities or tooth decay were attributable to the lack of flossing, not her use of sponges.

(c) She has not shopped around for doctors who will align with her medical views. She chose X’s pediatrician based on her being one of the top pediatricians in Toronto. She felt that she could work with this doctor whereas the other doctors were dismissive of her.

[94] In response to the applicant’s accusation that she has not fostered any social relationships for X, she testified that within 6 months of separation, the COVID-19 pandemic ensued which limited any social interaction. As the COVID-19 situation has improved, X has attended swim lessons this past summer.

[95] The respondent conceded that she had not taken X to any playdates or social outings with other children. She claimed that she had looked into certain programs at recreational centres. X was never away from her for more than 3 hours. She believes that the applicant leaving with X when he left on September 20, 2019 was a traumatic experience for X that likely set his development back.

[96] She claims that “X has shown no interest in other children” and testified that, once in New Brunswick, “I have plans to rehabilitate him with people I know.”

[97] Regarding spousal support, for the foreseeable future with her high school education and her bad back, she cannot earn an income. If she works, she would have to pay for child care. She submits that she is eligible for spousal support at the high end of the SSAGs.

[98] Regarding NFP equalization, the respondent disputes that the “loan” claimed as a debt by the applicant to his parents (now mother, as his father is deceased) needs to be paid back.

[99] With respect to the family violence, the respondent testified that she considers the applicant as someone who needs help with his issues. Behind closed doors, the applicant was exceptionally physically and verbally abusive. He has two sides. She acknowledges that there have been no incidents of violence since the parties’ separation in September 2019.

[100] The respondent clarified that the reason that the parties did not ultimately get mental health assessments completed for trial was financial. She was advised that the cost of such assessments was between $5,000 to $15,000 and Legal Aid was not prepared to provide such funding.

[101] The parties attended marriage counselling on three occasions in the 2014 to 2017 period. They disagreed as to why it was not successful, with the applicant suggesting that at least one counsellor recommended that the respondent should first get help for her OCD, and the respondent suggesting that she was not able to open up to the counsellor about the family violence.

[102] The respondent conceded that she has not sought out any low-income support programs, and is not taking any medications for her back.

LEGAL PRINCIPLES

Blended Approach to Best Interests of the Child

[103] As the Saskatchewan Court of Appeal noted in Chapman v. Somerville, 2022 SKCA 88, at para. 12:

When a parent wishes to relocate, a dilemma arises when it comes to expressing their position at trial. If the parent testifies that they would move regardless of whether the child is permitted to go with them, an adverse inference might be drawn about their commitment to their self-interest, as opposed to their dedication to the child’s best interests. If they say they will not move unless the child can also go with them, the weight given to the benefits of their relocation plan could be diminished and the court may view preservation of the status quo as a relatively more attractive option. This lose–lose situation is known as the classic double bind: Barendregt v Grebliunas, 2022 SCC 22 at paras 137–140, 469 DLR (4th) 1 [Barendregt]; Bourke v Davis, 2021 ONCA 97 at para 46, 53 RFL (8th) 70 [Bourke]; Olfert v Olfert, 2012 SKQB 301 at para 178, 402 Sask R 71, aff’d 2013 SKCA 89; Hejzlar v Mitchell-Hejzlar, 2011 BCCA 230 at para 27, 334 DLR (4th) 49; and Spencer at para 18. I note that the non-moving parent could also be subject to related negative inferences.

[104] In 2019, the Divorce Act was amended to address the “double-bind” problem and section 15(2) came into effect which stated:

15(2) In deciding whether to authorize a relocation of the child, the court shall not consider whether the person who intends to relocate the child would relocate without the child if the child’s relocation was prohibited.

[105] In Chapman, the Saskatchewan Court of Appeal also endorsed a “blended approach” to determining the best interests of a child in respect of mobility applications, rather than the “sequential analysis” used by some courts that would require a court to first determine the appropriate parenting arrangement with no consideration to the mobility aspect, and then address mobility. The court stated:

[41] I note that this type of sequential analysis, with an intermediary determination of best interests after step one, has generally not been utilized in other jurisdictions in Canada – or has been outright rejected – when adjudicating on a final decision regarding parenting arrangements. In other provinces, although not without exception, the trial courts tend to conduct one overall, cohesive analysis of all the factors before making a final determination of a child’s best interests. This is particularly true for cases decided after the introduction of the legislative prohibitions on considering the double bind: see, for example, Murray v Harrison, 2022 BCSC 423; A.J.L. v J.G.L, 2021 BCSC 2429; Joseph v Washington, 2021 BCSC 2014; LMS v CES, 2021 ABQB 708; Ting v Ting, 2022 ABQB 229; JYL v TLL, 2021 ABQB 680; Rinetti v Kent, 2022 ABQB 1, 66 RFL (8th) 209; Credland v Cymbalisty, 2022 ONSC 433, 68 RFL (8th) 74; A.E. v A.B., 2021 ONSC 7302; Springstead v Springstead, 2022 ONSC 1906; Droit de la famille – 211795, 2021 QCCS 3938; J.D. v R.D., 2021 NBQB 186; Waite v Waite, 2021 PESC 12, 55 RFL (8th) 332; J.B. v E.D., 2018 NSFC 8; Williams v Power, 2022 NSSC 156; A.C. v G.B., 2019 NSSC 133, 24 RFL (8th) 359; and Bourke.

[106] Springstead, one of the cases referenced in Chapman, is an Ontario decision that bears similarities to the within case. In Springstead, the mother wanted to move with the parties’ two children to Halifax, Nova Scotia to regain her emotional, physical, and mental health with the support of her family and friends. The father, whose family was from Southern Ontario, opposed the relocation as he claimed that he had always been involved in the children’s lives and, if the children relocated, it would severely limit his parenting time. The trial judge concluded that the various factors weighed against the relocation of the children to Nova Scotia. One notable difference is that, in Springstead, the trial judge did not find that family violence was a factor.

Statutory Provisions

[107] Section 16(1) of the Divorce Act provides that the best interests of the child is the only consideration in parenting and contact orders. It must be assessed in keeping with the factors set out in s. 16(3) of the Divorce Act.

[108] Section 16(2) of the Divorce Act provides that when considering the factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security, and well-being.

[109] The factors to consider in s. 16(3) of the Divorce Act are:

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.

[110] Section 16.9 of the Divorce Act deals with relocation. The additional factors to be considered in the child’s best interests’ analysis are found in s. 16.92(1) of the Divorce Act:

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 a pending application for a parenting order 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 complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

e) the existence of an order, arbitral 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 parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

[111] Because there is no order, arbitral award, or agreement, in accordance with s. 16.93(3) of the Divorce Act, the parties to the proceedings have the burden of proving whether the relocation is in the best interests of the child.

[112] In May 2022, the Supreme Court of Canada released Barendregt v. Grebliunas, 2022 SCC 22, which reconsidered its 1996 decision Gordon v. Goertz,[^1] and established a new legal framework for relocation cases:

[148] More than two decades ago, this Court set out a framework for relocation applications in Gordon: paras. 49-50. It applies to relocation issues that arise at first instance and in the context of applications to vary existing parenting orders.

[149] Since then, our jurisprudence has refined the Gordon framework, and, subject to two notable exceptions, the Divorce Act has largely codified it. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre‑existing parenting order, award or agreement: s. 16.93. And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis: s. 16.92(1)(a).

[150] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did not arise in Gordon. Section 16.92(2) now provides that trial judges shall not consider a parent’s testimony that they would move with or without the child. Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child.

[151] In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows.

[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.

[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and 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. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider:

• the reasons for the relocation;

• the impact of the relocation on the child;

• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.

[155] As I have explained, several pillars underlying the Court’s reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors. These refinements leave us with a clear framework going forward.

DISCUSSION

Issue #1 - Is it in X’s best interest to relocate from Toronto, Ontario to Saint John, New Brunswick?

[113] To answer the relocation question, I now consider the relevant parenting factors identified in section 16(3) of the Divorce Act.

[114] I have chosen to address the issue of family violence first, and out of order in the list of factors under section 16(3) of the Divorce Act. The presence, extent, nature, and impact of family violence in the parties’ relationship was heavily contested.

[115] Section 2(1) of the Divorce Act states that:

family violence means 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;

[116] Under section 16(3), when considering the best interest of the child in making a parenting or contact order, one of the factors that the court must consider is:

s.16(3)(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;

[117] The respondent alleges that the applicant was violent and beat her regularly during their relationship. The respondent also alleges that, behind closed doors, the applicant was extremely verbally abusive and controlling. The applicant denies the respondent’s allegations of domestic abuse but concedes that things became physical in the context of him defending himself from the respondent’s aggression. The applicant claims that the respondent would not back down when disagreements occurred and continued to hector him which resulted in heated exchanges.

[118] For the reasons that follow, I find that the applicant engaged in family violence by beating the respondent over the course of many years. I find that the violence became normalized. The applicant largely blamed the respondent for the abuse he inflicted upon her even as he regretted his conduct and claimed that he was working to change it. While on balance, I find the respondent more credible than the applicant on the issue of family violence, it is the applicant’s own words that I rely on to find that he engaged in violent and abusive conduct.

[119] In a text conversation between the parties dated 2/8/15 (either August 2 or February 8, 2015) when they were in Florida, the respondent alleged that the applicant kicked her back “like a raging lunatic” and that her phone was totally cracked. The applicant replied, “Yeah when the reason I lost it, which I shouldn’t have anyway, was the psycho that spent ALL DAY on and off looking for hotels, including most of the drive to Clearwater AND the whole evening we’ve been here since after 8 to finally get a fucking hotel at past midnight deserves a YOU TOO I would say.”

[120] In an email exchange on June 14, 2017 at 2:42 p.m., the parties stated:

Applicant: No, I only get a word in edge wise by emails. YOU are too much. Not one word in there is a lie, it’s describing YOU and what you’ve done, THAT is too much.

No wonder you keep getting me to fucking hit you (yeah I said it, it’s the truth and no matter how much you try to make me afraid to say it I won’t stop)

Respondent: Wow I get you to hit me? Im sure usha got suri to hit her too?

Applicant: Just because both cases involve hitting does not mean both had the same causes. My father got drunk and took his frustration out on us – I was there. Most time we wouldn’t even talk to him all evening. You are the dictionary definition of ‘talking out of your ass.”

[121] In another email exchange on June 14, 2017, the parties stated:

Respondent: Telling me youre (sic) going to get help to stop PHYSICAL VIOLENCE and the SWITCHING to not even acknowledging it

Applicant: When did I switch?

Respondent: On multiple times today you said you hit me because of ME, NOT because you have an anger problem, THAT is switching!

Applicant: For the millionth time I am going to get help for it even after I’ve dumped your ass.

[122] Later in that same text chain, the applicant stated, “I know I have a problem.”

[123] On June 18, 2018 at 11:30 p.m., the respondent called police to report that she was in an abusive relationship. She refused to provide information, but the police did a trace on her cell phone to get the address. At that time, the police recorded that “the argument was verbal, and there were no allegations of assaults or threats.” Victim services were offered to the respondent, but they were refused.

[124] I accept the respondent’s overall narrative that the applicant physically abused her throughout the course of their relationship. The nature of this abuse was verbal and physical. I accept as true the respondent’s contention that the applicant lived a double life throughout their relationship – charming on the outside, but abusive behind closed doors. A review of the parties’ extensive written text and email correspondence reveals a highly toxic relationship where, on the one hand, the applicant claimed that he was always on the cusp of turning his life (and his abusive behaviour) around yet, on the other hand, blaming the respondent’s unrelenting criticism of him for his abusive behaviour.

[125] While I find that the applicant engaged in family violence, section 16(3)(j) of the Divorce Act requires that I focus on: (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.

[126] I am mindful that research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497: Barendregt, at para. 143: McIntosh v. Baker, 2022 ONSC 4235, at para. 18.

[127] Still, given the specific facts of this case, including the fact that X was 16 months old when his parents separated, and that there have been no further incidents of violence against the respondent post-separation, I am satisfied that there is little risk to X experiencing physical, emotional, or psychological harm when he is being cared for by the applicant. I do not find that the family violence that has occurred in the parties’ marital relationship would affect the ability and willingness of the applicant to care for and meet X’s needs, considering the totality of the evidence before me.

s. 16(3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[128] At the time of trial, X was 4-1/2 years old. He had not received any of the vaccinations recommended by public health authorities for children of his age. I find, as the OCL noted, that the respondent is responsible for X not being vaccinated. I find that even if she considers herself a “free-rider” and not an “anti-vaxxer,” the impact of her decision is the same.

[129] X does not attend school or daycare. Again, I find the respondent responsible for this decision as the evidence is that the respondent does not feel that X is ready for this step. In any event, without being vaccinated, it is unlikely that X can be enrolled in school or in a daycare.

[130] The parties did not produce X’s updated medical information at trial. I know, from the OCL report, that when X was just over 2 years old, he was physically healthy, meeting gross and fine motor skill development, but was only on the 3rd percentile of the growth chart for his weight. The applicant appeared more concerned than the respondent that X is underweight. The parties are nevertheless aligned in their views that X should remain vegan.

[131] The parties separated more than 3 years ago on September 11, 2019. The respondent has had the majority of parenting time with X. From October 19, 2019 to February 4, 2021, the applicant only had supervised parenting time of 12 hours a week. From February 4 to May 27, 2021, he had unsupervised parenting time on a gradually increased basis, and from May 27, 2021 to the present, he exercises about 60 hours a week of unsupervised parenting time. I calculate that X spends roughly 1/3 of the week with the applicant, and 2/3 of the week with the respondent.

[132] The respondent acknowledged that there have been no instances of physical or psychological abuse between the applicant and X since his birth. However, she remains concerned about the applicant’s anger and the potential of abuse. I note that, notwithstanding the respondent’s concerns, over the summer of 2022, the parties went together with X to Canada’s Wonderland 11 times. The respondent did not have any concerns about those outings.

[133] X is still being breastfed. The respondent concedes that this is more a source of comfort than nutrition for X. The parties have different views on whether, at this stage, X should still be breastfeeding. The applicant believes that X is too old to be breastfed.

[134] The applicant is self-employed and, partly due to COVID-19, has largely worked from home. The evidence is that he would normally travel 6 to 7 times a year. I do not find the applicant’s potential travel schedule an impediment to his ability to consistently parent X. The applicant lives with his mother, 68, who has a close relationship to X, and is able to offer support. The respondent has no family support in Toronto, but would have significant family support in New Brunswick.

[135] The respondent is unemployed. She has not looked for any work for many years. She did not identify any course of study or training that would lead to employment. She testified that, once in New Brunswick, she has plans to rehabilitate herself and X.

[136] The applicant successfully brought two motions for unsupervised and expanded parenting time. The supervisor Danielle Halliday had no concerns with the applicant’s parenting. Neither did the applicant’s friend Mr. Arora or the OCL clinician.

[137] As of the time of trial, neither party is in a new relationship. The parties agree that their marital relationship was toxic, but also agree that it has improved recently. The respondent considers the applicant highly manipulative and is extremely concerned about the aftermath of trial. She still claims that she cannot communicate effectively with the applicant without him controlling her. I address the parties’ ability to communicate below when I deal with decision-making.

[138] X was born and raised in Toronto. He is starting to make a few friends his age in Toronto. I find that the applicant has initiated this. The respondent has not taken X to any playdates or social outings with other children. She claims that X is not particularly interested in other children.

[139] I approach the first parenting factor by asking what are X’s needs? He is approaching his 5th birthday. This is the post-toddler stage at which he is developing greater independence, self-control, and awareness of his environment. I find that he needs greater socialization, to have exposure to other children, either through school and/or day care, and to other adults in a controlled environment. I find that the applicant is the more prepared and better equipped parent to expose X to an environment outside the home.

[140] The respondent portrayed herself as unable to make progress in her own life as she is a victim of family violence. Her overall position at trial was that she will recover once she moves with X to New Brunswick. I find her position to be speculative. The respondent did not produce evidence from any medical health professional about her physical or mental health. In particular, she did not present any medical or expert evidence about her long-standing diagnosis of anxiety and OCD. She did not adequately explain why some three years after separation she has not been able to provide a social circle for herself, or for X.

[141] The applicant, by contrast, identified some older family friends who act as a supportive network here in Toronto. I find the respondent’s position problematic in that she suggested that the applicant’s attempts to foster friendships for X in Toronto were “forced,” whereas her future plans to develop friendships in New Brunswick are “natural.” I agree with the applicant that the respondent appears to be reluctant to allow X to engage in activities or develop friendships in Toronto because she believes this is not warranted or detracts from her plan to move with X to New Brunswick. I find this is reflective of the respondent’s inability to separate her best interests from those of X.

[142] The respondent concedes that there has been no incident of violence against her by the applicant since separation. The respondent laid criminal charges and had a non-contact order in place for 6 months. She was represented by counsel for the bulk of the family litigation, albeit not at trial. The respondent is now 42. The last time that she worked was when she was 31 in 2011 with Loblaws. Since separation in September 2019, the respondent has not looked for a job, sought out training, nor a course of study that could improve her circumstances. She has not even prepared a resume. She has also not sought out any low income-support programs.

[143] Despite having a bad back, as of May 2022, she declined having an MRI as she was planning on seeking a reassessment when she moves to New Brunswick. She is not taking any medication for her back pain.

[144] I am concerned that, if the respondent plays the dominant or only parental role in X’s life, as would likely happen in New Brunswick, X’s needs for greater independence, socialization and better health outcomes would not be met. The respondent did not demonstrate to the court that she is currently taking appropriate steps towards X’s social, or educational development, or for that matter, her own. Her only plan appears to be to move to New Brunswick where her family will look after her and X.

[145] The evidence at trial left me concerned about the respondent’s ability to separate out what is in the best interests of X versus herself. Often at trial, the respondent testified in a definitive manner about how X was responding – negatively, for instance, after being supposedly “kidnapped” by the applicant – but the evidence does not support that characterization and this is simply the respondent’s subjective view projected on to X. I find that, during the marriage, the respondent was also insistent that only she could look after X. As an example, she either refused or was very reluctant to allow the applicant to bathe X. The respondent felt it necessary to be present at all times around X, acknowledging that she would never be out of X’s sight for more than 3 hours. If the applicant wanted to take X out to a park, this was a source of great stress for the respondent and caused conflict. I accept the applicant’s evidence that, at times, the respondent left X strapped in his baby-carrier rather than use a playpen. I accept the evidence that, either due to the respondent’s OCD or otherwise, the home environment was left cluttered, disorganized, and sometimes dirty. I do not find that this rose to the level of a safety hazard, but I find that X’s needs would not best be met if the respondent were the dominant or only person parenting him.

[146] With regard to X’s need for stability, on balance, Toronto is where X has been residing his entire life and where he would have the most stability. The applicant has had to bring two motions to expand his parenting time. If X were to move to New Brunswick, I find that it is likely that the respondent would continue to limit the applicant’s parenting time. In her closing submissions, the respondent proposed that, if she were to move with X to New Brunswick, she would consent to the applicant parenting X on the weekend between Saturday noon to Sunday at 9 p.m. She also proposed an hour-long video call between the applicant and X once a week. I note that this is less parenting time than the applicant has now.

[147] The respondent expressed the notion that X is not yet at the age that the applicant was when he started to be abused by his father. The respondent fears that when X reaches that age (it was unspecified), the applicant will revisit upon X the abuse that he suffered at the hands of his father. While I cannot disabuse the respondent of her fears, I am not prepared to put any weight on such speculative reasoning. I repeat that there is no evidence that the applicant has at any time, whether pre- or post-separation, physically or psychologically abused X.

s. 16(3)(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

[148] The evidence suggests that X has a close and loving relationship with each of his parents. The parties did not dispute this, the OCL report confirmed this, and no evidence was led to the contrary.

[149] X has a close relationship to his paternal grandmother who he sees at least twice a week during the applicant’s parenting time. X is learning Hindi, one of the principal Indian languages, from his paternal grandmother. She is also teaching X Indian cultural and religious traditions. Even accepting that the applicant is exaggerating the degree to which X is growing up in a religious household and visiting Hindu temples, I find that the paternal grandmother plays an important role in X’s life. I am troubled by the paternal grandmother’s condonation of the applicant’s family violence against the respondent, but I do not consider this so significant a factor that it negates her overall positive relationship with the child. I find it unlikely that the paternal grandmother would move to New Brunswick, which means that the close relationship between X and her would be severely compromised by a move to New Brunswick.

[150] With respect to the respondent’s father, brother, and aunts, all of whom who are in New Brunswick, I do not doubt their affection for X and their commitment to support him and the respondent. But their bond with X is based on seeing him during visits and over video. Over the course of X’s 4-1/2 years, the respondent’s father and brother have each spent time with X on approximately 4 or 5 occasions. Some of these visits have been longer, perhaps up to 6 weeks, but time spent together has typically been around two to three weeks at any given time. Although the respondent’s mother did not testify, based on Paul Thom’s testimony, I find that that the maternal grandmother has spent roughly the same time and has the same relationship with X as the respondent’s father.

[151] The interaction between X and his mother’s family has been affectionate and positive. However, the relationship is largely aspirational. The respondent’s family strongly supports the respondent and wants her to return to New Brunswick with X. But at the end of the day the test is about what is in the best interests of X, not the respondent. Also, while the respondent’s family members testified about their willingness to support her and X, I take note that the respondent has not actually lived with her parents for any extended period, let alone with X. With respect to the respondent’s brother and aunts, they too are very supportive of the respondent, but they would not be living with the respondent and X when she moves to New Brunswick. My order must be focused on what is in X’s best interests given the likely abilities of X’s parents and the living arrangements, and not on the respondent’s family members stepping into the role of the respondent once she moves to New Brunswick.

s. 16(3)(c) - each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

[152] The applicant has concerns about the respondent’s mental health and decision-making, but not so much so that he is not prepared to share equal parenting time with the respondent. He recognizes the respondent as a loving parent who should remain a strong presence in X’s life.

[153] The respondent also claims she is supportive of the applicant’s ongoing relationship with X, yet her parenting proposal for the parties in New Brunswick involves the respondent spending only Sunday at noon to Monday at 9 p.m. with X, and one-hour long video call during the week. Further, the respondent submits that, so long as the applicant is unable to be truthful about the family violence he has inflicted on the respondent, he is unable to improve and may remain a threat to X. The respondent also believes reducing the number of transitions between parents will reduce the stress on X and conflict between the parties.

s. 16(3)(d) - the history of care of the child

[154] The respondent has had the majority of the parenting time and considers herself the child’s primary parent. The applicant submits that a number of conflicts arose as the respondent refused to let him engage in typical parental activities such as sleeping beside the child, bathing him, or taking him out. Post-separation, the applicant has successfully brought two motions for greater parenting time and currently has two overnights per week with the child.

s.16(3)(e) - the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[155] X was 4-1/2 years old at the time of trial. The child is too young for this to be a factor.

s.16(3)(f) - the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[156] X has parents with different cultural, linguistic, religious, and spiritual backgrounds. Much time was spent at trial with the applicant submitting that X’s Indian heritage would not be properly supported in New Brunswick. Conversely, the respondent submitted that it would be, or that if X stayed in Toronto, her mother’s Acadian heritage would not be supported. I find that there is no doubt that different opportunities would be available in Toronto than in New Brunswick. For instance, linguistically, if X stayed in Toronto, given the presence of his paternal grandmother and the large Hindi speaking population here, he would more likely learn Hindi. If, however, X were to move to New Brunswick, given the significant Francophone population and his maternal grandmother’s Acadian side there, he would learn French. But this case is not about the court declaring one language, religion, or heritage more important than the other. Instead, this factor is about determining which setting will promote the best interests of the child including any aspects of his background.

[157] I find that this factor is a rather minor consideration. I would place less weight on it in the consideration of the various factors.

[158] On balance though, I find that if were X to move to New Brunswick, it will likely terminate his nascent understanding and speaking of Hindi because there is a very low likelihood of him being exposed to any Hindi in New Brunswick, since his paternal grandmother is unlikely to be present. More importantly, X has already spent a few years being exposed to Hindi at home through the applicant and the applicant’s mother.

[159] While I recognize that X is being raised on his father’s side as religiously and culturally Hindu, primarily because I accept the respondent’s evidence that this did not appear to be as important of an issue to the applicant pre-separation, I would not consider this much of a factor, one way or another, in terms of the best interests of the child and relatedly, for mobility considerations.

s.16(3)(g) - any plans for the child’s care

[160] Both parents claim they want to enroll X in school, but I find the applicant’s plans to have X vaccinated and immediately enrolled in school more realistic. The respondent claims she will seek a vaccine exemption in New Brunswick, and still seek to enroll the child. The applicant has taken actual steps to introduce X to his friends, for instance V, who is “Vincent’s” son. The respondent testified about wanting to introduce X to some of her family’s friends or neighbours in New Brunswick but acknowledged that, at this point, those friends have never met X.

[161] The respondent testified that she is not an extroverted person. She said that during the marriage, the applicant became her life and that, once X was born, she did not have a goal of making friends in Toronto while she focused on doing what was best for her son, which I take to mean, seeking to move to New Brunswick. The respondent testified that, while she was in the marriage and a victim of abuse, she did not have the emotional capacity to have friends. In cross-examination, she also conceded that in the three years since separation, she has not made any friends or acquaintances.

[162] I find that the applicant’s plans for X’s care are more realistic and, of the two parents, he has the greater skill, knowledge, and ability to make realistic plans for the child’s care.

s.16(3)(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;

[163] I find that the applicant has yet to acknowledge the serious family violence that he has inflicted on the respondent, and the respondent has to work on rehabilitating herself so that she can take greater steps towards her own independence. Generally though, I do not see these issues as precluding the parties’ ability to care for the child if the appropriate decision-making and parenting time frameworks are in place.

s.16(3)(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;

[164] The respondent claims that, notwithstanding recent improvements, she has difficulty communicating with the applicant who is controlling. The evidence does not portray the applicant as controlling. Rather it demonstrates that the parties had a toxic relationship long before X was born. It did not improve after X’s birth and they continued to dispute about day-to-day parenting care such as bathing, socialization, the baby’s naps, and the cleanliness and organization of the household. I find, based on the documentation and videos provided to me, that many of these arguments centred around the respondent’s belief system.

s.16(3)(k) – any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child;

[165] I do not consider this factor to be applicable.

Additional Relocation Factors

[166] In deciding whether to authorize a relocation of a child of the marriage, the additional factors to be considered in the child’s best interests are found in s. 16.92(1) of the Divorce Act and referenced in Barendregt.

s.16.92(1)(a) – the reasons for the relocation

[167] The respondent asserts that moving to New Brunswick, where she will be surrounded by her supportive extended family, will provide her with the fresh start she needs to recover from an abusive relationship with the applicant. She asserts that the move would be in the best interests of X given her family’s resources and land which she contrasts with crowded and expensive Toronto.

[168] In Springstead, Smith J. noted that “requiring a parent to remain isolated from their family’s support in difficult financial circumstances may adversely impact a child. This is a factor for the court’s consideration”: Boudreault v. Charles, 2014 ONCJ 273, 45 R.F. L. (7th) 482, at para. 26. Similarly, in Barendregt, at paragraphs 169 to 173, the Supreme Court affirmed that a child’s welfare is often advanced in tandem with improvements in the parent’s financial, social, and emotional circumstances.

[169] While I recognize the benefits that may accrue to the respondent by a move to New Brunswick, my focus must remain on the best interests of X. I find that: (a) the respondent has not lived in New Brunswick for 14 years; (b) the respondent has no vocational or educational plan for herself in New Brunswick; (c) her plan for herself and X is entirely dependent on the goodwill of her parents and family; (d) her reasons for the move are strongly premised on her only being able to recover from family violence once she gets to New Brunswick, even though the parties have continued to live in Toronto and have been separated for 3 years; and (e) the family dynamics between the parties is such that the move to New Brunswick will almost certainly compromise the relationship between X and the applicant.

s.16.92(b) - the impact of the relocation on the child

[170] X was born and raised in Toronto. The evidence at trial indicates that he has started to make some friends his own age in Toronto. He has a close relationship with his paternal grandmother. I find that the impact of relocation on X will be very significant. The likely impact of relocation will be that X will spend far less time in the care of the applicant. Given my earlier findings that the applicant has been the more prepared and better equipped parent to expose X to an environment outside the home, I find that the loss or reduction in time or quality of the relationship between X and the applicant will be detrimental to X’s best interest.

[171] I saw little evidence that the respondent has been able to manage relationships outside the home such as social, medical, financial, educational, and recreational contacts with third parties. For instance, the respondent testified that, in her care, X has not been taken to any playdates. She claimed that she did not know any other children. The respondent has not worked outside the home since 2011. She is not in any counselling with respect to her mental health (OCD and Anxiety) issues. She testified that she has not made friends or acquaintances in Toronto despite living here for 14 years. She has not sought out any educational or vocational related activities. I find it speculative to conclude that, just because the respondent will be in New Brunswick, she will become a significantly different person and start making the health, educational, financial, and social decisions for X that she has been reluctant or unwilling or unable to make in Toronto. While it is fair to consider that the respondent’s family will offer her financial and other support, X’s move to New Brunswick cannot be premised almost entirely on the goodwill of the respondent’s family members to supplement the respondent’s parenting.

[172] On balance, I find that the impact of the relocation will be detrimental to X.

s.16.92(1)c) – the amount of time spent with the child by each parent

[173] The applicant has no connection with New Brunswick other than when the parties lived there for about a year in 2007-08, and when he visited there a few times with the respondent. The applicant’s mother lives in Toronto. While the nature of the applicant’s business is largely online and can be done from outside Toronto, I find that the applicant will have to completely re-establish himself in New Brunswick. The respondent proposes that X spend less time in the applicant’s care in New Brunswick than now. With the respondent’s proposal that she and X live at her parents’ home in New Brunswick, I find that the amount of time that X will spend in the applicant’s care will be far less. As stated earlier, the reduction of parenting time between X and the applicant will not be in X’s best interests.

s.16.92(1)(d),(e) – whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

s.16.92(1)(e) - the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

[174] I do not consider the above two factors to be applicable.

s.16.92(1)(f) – the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new pace of residence and the travel expenses

[175] The respondent proposes that, if she were permitted to move with X to New Brunswick, she would consent to the applicant parenting X on the weekend between Saturday noon to Sunday at 9 p.m., with an hour-long video call between the applicant and X once a week. The respondent also testified that, until the applicant acknowledges his long history of family violence, he is unlikely to make progress and there remains a significant risk that the applicant will abuse X, particularly as X approaches the age when the applicant himself started to experience abuse from his father.

[176] With respect to decision making responsibility, the respondent is seeking sole decision making.

[177] I find the respondent’s parenting time proposal problematic and indicative of her desire to minimize the involvement of the applicant in X’s life. The respondent’s reason for this may very well be her belief that the applicant may one day subject X to the kind of abuse that she herself has experienced. However, I find that, if the respondent were to move with X to New Brunswick, she would in all likelihood continue to be inflexible and resistant to the applicant having expanded parenting time with X. I do not find the respondent’s proposal concerning decision-making and parenting time once X is relocated to New Brunswick to be reasonable.

s.16.92(1)(g) - whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

[178] I have no reason to believe that any party would not comply with an order.

Conclusion re: Issue #1 – whether the proposed move to New Brunswick would be in the best interests of X

[179] The parties separated in September 2019 when X was just 16 months old. The respondent testified that she was pregnant with X in New Brunswick during the Christmas Holidays in 2017 and felt that her relationship with the applicant was already over. She believes that the respondent emotionally manipulated her into returning to Toronto. I find that this is a tragic situation where the respondent has come to believe that returning to New Brunswick will solve all her problems. Obviously, she would be distanced from her abuser, she would live rent-free with her parents, and she could re-start her life after two decades of an immensely difficult relationship. The evidence suggests that the respondent became more and more isolated and took virtually no steps to integrate X into the wider community. She did virtually nothing to advance her own educational, vocational, or mental health wellbeing. The parties’ toxic relationship ended in separation and, since then, the parties have been embroiled in family law proceedings.

[180] As much as I understand the respondent’s strong desire to move with X to New Brunswick, I must be guided what is in X’s best interests. The evidence points to the importance of both parties playing a role in X’s life and Toronto continuing to be the location where X’s physical, emotional, and psychological safety, security and well-being will be secured.

[181] I find that the OCL’s recommendations that would have permitted the respondent to move with X to New Brunswick are now stale dated. The OCL report and recommendations were a product of the circumstances that existed when there was a non-contact order between the parties and when X was much younger. Those circumstances are no longer in play.

[182] I contrast the case before me with the decision in Reeves v. Brand, 2018 ONCA 263. In Reeves, the Court of Appeal affirmed the trial decision of Diamond J. who authorized Ms. Reeves to relocate with the parties’ 6-year-old son to Nova Scotia from Toronto. The other partner, Ms. Brand, opposed the move.

[183] In Reeves, the Court of Appeal commented on what made the relocation request in that case successful:

[17] Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

[18] I am satisfied that the trial judge sensitively balanced the competing interests of Ms. Brand and Ms. Reeves, and in permitting relocation, made an order in Ray’s best interests. And I am not persuaded that he erred in any of the three ways Ms. Brand alleges.

[19] This case differs from many of the relocation cases that come before the court in two important ways. These two differences provide context for the three errors Ms. Brand alleges. First, this is not a case where relocation will sever a long standing bond between Ray, and Ms. Brand and her family. For most of Ray’s life, he has had no bond, indeed no relationship at all with Ms. Brand’s family. Indeed, the trial judge found at para. 59 that Ray’s bond with Ms. Brand and her family “was created post-separation, and is not something that has been maintained from the time of [Ms. Reeves’ and Ms. Brand’s] marriage.”

[20] Second, this is not a case where the move to Nova Scotia will take Ray from a known home to a new and speculative environment. As the trial judge fairly observed, since he was born, Ray has been connected to Ms. Reeves’ family in New Ross and benefitted from their support. He has spent at least one-quarter of his life there. The support of the community and the Reeves family in New Ross has been part of Ray’s “status quo”. As the trial judge found, from Ray’s perspective, a relocation to New Ross is a return to what is “known” to him. (emphasis added)

[184] Contrasting Reeves with the case before me, I find that the respondent’s proposed move to New Brunswick would likely sever the bond between X and the applicant and X’s paternal grandmother. As well, the proposed move to New Brunswick would, in effect, be to a new and speculative environment given the limited amount of time that the respondent and X have spent in New Brunswick.

[185] For all the above reasons, I do not find that it is X’s best interest to relocate from Toronto to Saint John, New Brunswick.

Issue #2 – What type of parenting orders should be made when considering the child’s best interests?

Decision-Making Responsibility

[186] The applicant claims that there has been some improvement in the parties’ ability to communicate with each other. He seeks joint decision making or, if the parties are unable to agree, that decision-making be assigned to him. Conversely, the respondent seeks sole decision-making and continues to believe that the applicant is unduly controlling.

[187] Section 1 of the Divorce Act also speaks to decision-making for a child:

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities.

[188] In Kaplanis v. Kaplanis, 2005 1625 (ON CA), the Court of Appeal set out the following principles in determining whether a joint decision-making responsibility order (formerly a joint custody order) is appropriate:

There must be evidence of historical communication between the parents and appropriate communication between them.

It can’t be ordered in the hope that it will improve their communication.

Just because both parents are fit does not mean that joint custody should be ordered.

The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

The younger the child, the more important communication is.

[189] In El Khatib v. Noun, 2023 ONSC 1667, Kraft J. commented on when joint-decision making may be appropriate:

[79] Joint decision-making requires a basic level of respect and civility between the parents so that meaningful communication regarding the children can occur. Both parents must have the opportunity and comfort level to express their views and have meaningful input into the decisions that have to be taken. But effective co-parenting cannot occur in an environment of verbal abuse or intimidation. No parent should be exposed to the bullying of a former spouse in the name of shared parenting. Cameron v. MacGillivray, 2005 CarswellOnt 8095 (SCJ); Brown v. Brown, 2021 ONSC 1753 (SCJ).

[80] At the very least mutual trust and respect are basic elements required for shared decision-making to work effectively. L.B. v. P.E. 2021 ONCJ 114; Jacobs & Coulombe v. Blair & Amyotte, 2022 ONSC 3159 (SCJ); S.W.-S. v. R.S., 2022 ONCJ 483 (OCJ).

[81] In Dayboll v. Binag, 2022 ONSC 6510, Pazaratz, J. states in para. [58]:

In the wrong family circumstances, a joint decision-making order can perpetuate hostilities, indecision, and power struggles. Children -- particularly children already exposed to the upset of family breakdown -- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully. Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ); Seyyad v. Pathan, 2022 ONCJ 501 (OCJ).

[82] In S.S. v. S.K., 2013 ONCJ 432 (OCJ) Sherr J. stated that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

a. more or less likely to de-escalate or inflame the parents' conflict;

b. more or less likely to expose the child to parental conflict; and,

c. whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a shared parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[190] In N.M. v. S.M., 2022 ONCJ 482, Sherr J. commented on the presence of family violence when considering decision-making:

In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

[191] Although it may be the case that the parties have been more civil to each other in the last year or so, the respondent continues to believe that the applicant is overly controlling. I find that there were a number of instances where the respondent labels as controlling any decision that does not conform to her way of thinking. While appreciating that the applicant engaged in terrible family violence against the respondent, the evidence also indicates that the parties were fundamentally at odds over X’s day-to-day parenting, socialization, interaction with outsiders, health care, and educational needs.

[192] Notwithstanding the respondent’s claim that her OCD and anxiety conditions are improved, the evidence suggests that the parties’ disputes often centered on disagreements over the respondent’s insistence on things being done in a way that conformed to her belief system. Arguments would descend into shouting or screaming matches, which would descend into the applicant engaging in violence. The parties’ written communications are replete with accusations and recriminations and do not provide a basis for believing that, even three years after separation, the parties are in a position to communicate effectively with each other.

[193] In McBennett v. Danis, 2021 ONSC 3610, Chappel J. set out some principles and guidelines in the area of “divided decision-making” which concludes with a listing of 13 different factors for the court to consider.

[98] The caselaw has also established some valuable principles and guidelines for assisting the courts in deciding whether to make orders that divide out specified areas of decision-making responsibility to each party. These would include orders requiring the parties to attempt to make decisions jointly, but which grant each party final say in specified areas of decision-making in the event of disagreement. These types of decision-making frameworks evolved as a means of meeting the needs of children in circumstances where both parties have been involved and competent parents, and the child would benefit from both having a say on important matters, but the conflict between them is such that a traditional joint decision-making order or an order for sole decision-making in favour of one parent would not be in the child’s best interests. Courts have recognized there are many merits to these types of regimes in appropriate cases. They give both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of the breakdown of the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord (Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.), at para. 30; Jackson v. Jackson, at para. 69). The cases highlight the following factors and considerations as being relevant in deciding whether an order that allocates separate aspects of decision-making responsibility between the parties is in a child’s best interests [the 13 factors follow but are not listed here].

[194] In J.T. v. E.J., 2022 ONSC 4956, at para. 104(12), Chappel J. stated:

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.

[195] In the within case, X is almost 5 years old. He is at a critical age where he would typically be registering for school to commence in September 2023. The evidence indicates that he has not been registered for any day care or educational program. He has not received the vaccinations that public health authorities recommend for a child of his age. He does not have playdates. The evidence suggests that the respondent’s reluctance to expose X to the outside world is a significant reason why.

[196] I find that X is caught in a bind. He cannot register for most schools or daycares unless he is vaccinated. He cannot be vaccinated until his parents agree on the issue. Unless X is enrolled in a school or daycare program, he will continue to lose out on child and age-appropriate contact with his peers at a critical point in his development. He will continue to not have friends. I find that it would be untenable to continue joint decision-making responsibility with respect to health and education decisions. At trial, I found the applicant’s proposals for X’s future in Toronto to be more sensible and realistic than the respondent’s speculative plans for X in New Brunswick. I find that the applicant has the greater experience in engaging with third parties and is better placed to make timely decisions for X in respect of health and educational (i.e. school, daycare) outcomes. This does not preclude consultation with the respondent. However, given the parties’ difficulties in communicating or reaching agreement, and the need to make up for lost time in respect of X’s progress, I would assign decision-making in respect of health and education to the applicant.

[197] The parties are not as divided on religious and cultural issues. The respondent took a more laissez-faire attitude and the applicant wanted X to grow up with exposure to his Hindu religious background, but the parties did not strike me as unable to discuss and reach agreement on religious and cultural issues. At trial, each party appeared to recognize the fact that X will be growing up with parents from very different religious and cultural traditions. I would be prepared to allow joint decision making in respect of religious and cultural issues.

[198] There was limited evidence about the parties’ views on extra-curricular activities. Part of the reason was X’s relatively young age, but also the fact that he appeared to be enrolled in virtually nothing. To some extent, the still present concerns over the COVID-19 pandemic were present when the trial was conducted in September 2022. Now, with what appears to be the end of lockdowns and masking mandates in Ontario, and with X becoming older, I anticipate that the parties will need to engage more often in a discussion about what kind of extracurricular activities that X should participate in. I remain guardedly optimistic that this is another area in which the parties can continue to have join-decision making.

Parenting-Time

[199] The applicant seeks a 2/2/3 equal time parenting arrangement for the regular schedule. There was no evidentiary basis at trial to justify leaving the status quo in place where the applicant has only two overnights per week with X. Indeed, I find that it is long overdue that the parties have an equal parenting time arrangement. I have taken into account the factors under s. 16(3) of the Divorce Act.

[200] A 2/2/3 arrangement is appropriate in my view given X’s age of 5 years old. He will not have to spend too much time away from any one parent. A disadvantage, however, is more frequent transitions. The parties did not present evidence that transitions have been challenging, however, the circumstance of this family may change if X attends regular school starting in September 2023. The parties are entitled to request a change to the parenting schedule on consent or any one party may see a variation based on a material change in circumstances.

[201] The parties did not make detailed submissions on a summer or holiday parenting schedule. Neither did the parties make submissions about phone and/or video contact for the party who does not have parenting time. Now that I have made my decisions on mobility, decision-making, and parenting time for the regular schedule, I strongly encourage the parties to see if they can reach an agreement on a summer and holiday schedule and phone/video access, failing which a date may be set before me to address the matter.

Issue #3- Financial Issues (Child Support, Spousal Support and Equalization of NFPs)

Child Support

The Applicant’s Income

[202] The applicant submits that he should be paying child support based on his actual income which he says was not contested as follows:

2017 - $123,074 based on his Notice of Assessment (NOA)

2018 - $93,753 (NOA)

2019 - $76,370 (NOA)

2020 - $43,137 (NOA)

2021 - $46,093 (Line 150 Income, not NOA)

[203] In deciding on interim support, Nishikawa J. calculated that the applicant’s yearly income was $93,035.

[204] I accept the applicant’s evidence, which was largely uncontested, concerning his income in 2019, 2020 and 2021. I find that with respect to 2020 and 2021 the COVID-19 pandemic had a significant impact on the applicant’s business which caused his income to drop from his 2018 income of $93,753.

[205] I note that in 2021, the applicant’s Line 150 income of $46,093 consisted of $18,600 in CERB income and dividend income of $27,493.63.

[206] I take a different view of the applicant’s income for 2022 and onwards. At trial, the applicant estimated that his 2022 income was between $35,000 and $40,000. He did not clarify whether the source of that income was dividend, employment, or benefit income. In the applicant’s financial statement sworn September 9, 2022, he estimates his yearly income for support purposes to be $50,400.

[207] The applicant is self-employed. The onus was on him to clearly delineate the sources of his income. I find that he did not do so. For instance, the applicant filed his corporate tax returns from his corporation Trilateral Management Inc. for 2016 through 2019 but not for subsequent years. A spouse’s annual income is determined by the court in accordance with sections 16 to 20 of the Child Support Guidelines, O. Reg. 391/97. Here, the court is left in a difficult position where it must deal with the evidence presented at trial to determine the applicant’s Guidelines income without the benefit of a professional income valuation of the applicant or his business. Moreover, the self-represented respondent did not cross-examine the applicant in a detailed manner about his finances.

[208] I find that the applicant’s Guidelines income for 2022 is $76,370 for the following reasons:

a) In the year 2019, before the onset of the COVID-19 pandemic, this was the applicant’s income. Although the effects of the pandemic had not waned completely by 2022, the economic situation was somewhat improved. I find that the applicant’s pre COVID-19 income in 2019 is more representative of his income in 2022 and for ongoing support purposes.

b) While the applicant claims that his income for 2020, 2021, and 2022 is in the range of $40,000, his real income is higher, albeit not the $93,035 as determined by Nishikawa J. For instance, in the applicant’s financial statement, he deposes that his yearly expenses are $59,220. I find that the applicant is a frugal individual and that it is unlikely that his expenses would be greater than his income.

c) The applicant is a shareholder, director, or officer of a corporation and under section 18 of the Guidelines, the court is entitled to make certain adjustments to a spouse’s income.

d) There was insufficient evidence regarding the expenses deducted from Trilateral’s income. I draw an adverse inference from the lack of evidence and find that the applicant’s true annual income, as best can be determined, lies roughly around the mid $70,000 mark.

The Respondent’s Income

[209] The applicant argues that the respondent is deliberately underemployed and that, pursuant to section 19(1)(a) of the Guidelines, she should be imputed an income consistent with the minimum wage in Ontario equivalent to $31,000 annually.

[210] The applicant submits that any section 7 expenses should be paid by the parties on a basis that is proportionate to their court-determined incomes.

[211] In Tillmanns v. Tillmanns, 2014 ONSC 6773 at paras. 45 to 81, Pazaratz J. summarized a long list of factors in respect of imputing income under the Guidelines. For the purposes of brevity, I have not reproduced the list here, but I confirm that the factors were taken into account in arriving at my decision.

[212] Although many of the cases concerning underemployment or unemployment under s. 19(1)(a) of the Guidelines concern support payors, principles arising under the legislation and caselaw are also applicable to support recipients: Gannon v. Gannon, 2021 ONSC 7160, at paras. 113 to 118.

[213] The last time that the respondent worked was with Loblaws in 2011. She testified that she quit because she had a bad back. The respondent further testified that her severe OCD and her experience as a victim of family violence prevented her from working. She stated that she was “situationally depressed, never clinically depressed.” The respondent did not provide any medical evidence that, due to a disability, she cannot work. She also did not provide any evidence that she has applied for Ontario Disability Support Program (ODSP) or a government support program.

[214] Earlier in these reasons, I found that from about the time of X’s birth in May 2018, the respondent’s overall objective was to move to New Brunswick with X, rather than continue to stay in Toronto. The evidence also indicates that the respondent’s parents supported her following her separation in September 2019 by, among other things, paying for her rent in Toronto. I find that, rather than look for any kind of job or educational program that would lead to a job, or apply for any government assistance in Ontario, the respondent simply assumed, or rather hoped, that she would be authorized to move with X to New Brunswick.

[215] I find the respondent’s course of action to have been unreasonable. The respondent seems to have languished in underemployment believing that: (a) due to her lack of post-secondary education she was unlikely to get a job; (b) physically and mentally she was not capable of working; (c) her needs were partially being met by her family and by the applicant paying interim child and spousal support; and (d) once she re-established herself in New Brunswick, with her family’s assistance, she would get back on her feet.

[216] While undoubtedly, the respondent’s OCD and anxiety, and her experience as a victim of family violence, made it challenging for her to find employment, the evidence presented at trial leads me to conclude that the respondent’s complete failure to earn an income is not justified.

[217] The question is what income should be imputed to the respondent, and from what date.

[218] The parties separated on September 11, 2019. At the time, X was 16 months old. Initially, the applicant did not have parenting time with X. On February 4, 2021, following a parenting motion brought by the applicant, Nishikawa J. ordered that the applicant was entitled to unsupervised parenting time on a gradually increased basis. In an endorsement dated August 19, 2021, Kimmel J. dismissed the respondent’s interim motion to relocate with X to New Brunswick. On December 10, 2021, the respondent’s motion for leave to appeal the order of Kimmel J. to the Divisional Court was dismissed.

[219] I find that, effective January 1, 2022, the respondent should be imputed a minimum wage income for the following reasons:

a) Whereas X was primarily in the care of the respondent while he was a baby, as of January 1, 2022, X would have been over 3-1/2 years old. This is an age where, if the respondent was acting in a reasonable manner, X could have been enrolled in daycare or spent more time being parented by the applicant, which would have allowed the respondent to earn some income. In fact, in the respondent’s Form 35.1: Affidavit in Support of Claim for Custody or Access, dated November 11, 2019, states, “[X] will continue to be cared for by me during the day and night until he is about 3 to 4 years old. Around that time, he will attend kindergarten.”

b) It ought to have been clear by January 1, 2022 that, pending the outcome of trial, she was not relocating with X to New Brunswick.

c) Although shutdowns and economic impacts from the COVID-19 pandemic were far from over, I have factored into my decision the reality that it may have been more challenging for the respondent to have obtained employment, even if she were applying for jobs, until around January 1, 2022.

d) Also by January 1, 2022, the parties would have been separated for almost 2-1/2 years which, in my view, is adequate time, given the respondent’s circumstances, to contribute some income to the parties’ relationship consistent with section 19(1)(a) of the Guidelines and the factors identified in Tillmanns.

[220] The applicant submits, fairly in my view, that the respondent could have been earning a minimum wage salary of $31,000. He states that this is based on a job earning $15.50 per hour, 40 hours a week for 50 weeks a year. I find this to be a reasonable calculation and consistent with the evidence that the respondent worked in her 20s and up to the age of 31 in a variety of minimum wage jobs.

[221] I also note that during the trial, the respondent was able to attend consecutive days in court, follow the proceedings without interruption, use her computer, answer questions, review lengthy documents, conduct cross-examination and make submissions. Based on the respondent’s attendance, conduct and demeanour at trial, it appears that she has several skills that would render her capable of employment.

[222] Accordingly, I find that the respondent should be imputed with an annual income of $31,000 effective January 1, 2022, and zero prior to that.

[223] Under the various interim parenting time arrangements to date, the applicant has had less than 40% of parenting time and, pursuant to section 9 of the Guidelines, set-off child support would not apply. However, on a going-forward basis, once the 2/2/3 equal time parenting arrangement is in place, set-off child support may apply if the criteria in section 9 of the Guidelines are met.

[224] Under section 9 of the Guidelines:

If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[225] I note that even though the applicant’s pleadings contain a claim for “other than Table child support,” the parties did not lead evidence at trial, or make submissions concerning section 9 of the Guidelines. Still, I consider it preferable for the parties to have my decision in respect of section 9 of the Guidelines based on the evidence presented at trial.

[226] The monthly amounts set out in the applicable table for each of the spouses are: $712 for the applicant based on his income of $76,370; and $264 for the respondent based on her imputed income of $31,000. The difference or set-off amount for child support would be $448 a month.

[227] No evidence was led by the parties concerning the increased costs of shared parenting time arrangements.

[228] I find that the the conditions, means, needs, and other circumstances of each spouse and of any child for whom support is sought suggest that I should not depart from Table child support. First, I note that I have imputed an income to the respondent. It is not as if she is presently employed. Secondly, the circumstances of the parties are that the applicant has a modest income, is self-employed, has historically earned greater income than $76,370, and is able to pay Table child support. Conversely, the respondent has not worked since 2011, has no recent educational or vocational training, is a victim of family violence, and her health condition includes a diagnosis of OCD and anxiety. I do not find that the criteria in section 9 of the Guidelines are met.

[229] Based on the foregoing, the parties’ Guidelines income, child support obligations, payments, and overpayments are as follows:

Year	Applicant’s Income	Respondent’s Income	Monthly Child Support Obligation	Respondent Paid	Overpayment by Applicant
2019	$76,370	$0	$0[^2]	$0	$0
2020	$43,137	$0	$395[^3]	$855/month x 3 months = $2,565	$2,565 - $1,975 = $590
2021	$46,093	$0	$427[^4]	$855/month x12 months = $10,260	$10,260 - $5,124 = $5,136
2022 (Jan-Sept)	$76,370	$31,000	$712[^5]	$855/month x 9 months = $7,695	$7,695 - $6,408 = $1,287
					$7,013

[230] To the end of September 2022, the applicant has overpaid child support in the amount of $7,013 and should be credited that amount.

[231] As the trial concluded in September 2022, the court did not receive evidence about what child support payments the applicant made beyond this date and into 2023.

[232] For the balance of 2022, the applicant should continue to pay child support based on his annual income of $76,370 which yields a monthly payment of $712. To the extent that the applicant has been paying $855 a month based on Nishikawa J.’s ruling requiring him to pay on the basis of his higher imputed income of $93,035, the applicant will have overpaid child support.

[233] For 2023, the applicant should continue to pay $712 a month in child support and, to the extent he is paying $855 a month, he should be credited for the overpayment.

[234] The parties’ Guidelines income, child support obligations, and payment for the balance of 2022 and into 2023 are as follows:

Year	Applicant’s Income	Respondent’s Income	Monthly Child Support Obligation of Applicant
2022 (Oct – Dec)	$76,370	$31,000	$712
2023	$76,370	$31,000	$712

Spousal Support

[235] Both at the interim motion stage and at trial, the applicant did not contest the respondent’s entitlement to spousal support. However, the applicant sought imputation of the respondent’s income and disagreed with Nishikawa J.’s finding that interim spousal support should be based on his annual income of $93,035.

[236] Even if entitlement is established, determining the basis for entitlement is still important as this will inform the subsequent steps of the spousal support analysis and the application of the SSAGs.

[237] Section 15.2 of the Divorce Act provides the court with jurisdiction to order spousal support.

[238] Section 15.2(4) notes the factors which the court is to consider, those being “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.”

[239] Section 15.2(5) provides that “the court shall not take into consideration any misconduct of a spouse in relation to the marriage.” However, as clarified in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920:

There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

[240] Section 15.2(6) states the objectives of spousal support orders. They 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.

[241] In the Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016 (Ottawa: Department of Justice Canada, April 2016), the authors note:

Compensatory claims are based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation.

Common markers of compensatory claims include: being home with children full-time or part-time, being a “secondary earner”, having primary care of children after separation, moving for the payor’s career, supporting the payor’s education or training; and working primarily in a family business.

[242] Neither party has a post-secondary diploma or degree. The parties began to co-habit in 2001 in California and were married there in 2003. The parties worked minimum wage jobs at the start of their relationship. The parties mutually decided to move, initially from California to New Brunswick in 2007, and then from New Brunswick to Toronto in 2008. The applicant established his own business in the late 2000s. The respondent worked until 2011 as a grocery clerk, at which point she quit her job due to the job’s physical demands. Thereafter, the applicant continued to advance his business, finding some success in the stock market research analysis space in or around 2015. The respondent remains unemployed.

[243] The parties’ son, X, was born in May 2018, which is 15 years into the parties’ marriage. The parties separated in September 2019 when X was 16 months old. While I find that the respondent was left with primary child-care responsibilities after X was born, I note that the respondent had not been working since 2011. Moreover, the evidence at trial revealed that many of the parties’ conflicts were over the applicant wanting to bathe X, go out with him, and look after him, which were often objected to by the respondent. At separation, the applicant moved out into rental premises, while the respondent continued to live with X in the matrimonial home, a 3-bedroom townhome.

[244] Based on the foregoing, I find that the respondent has entitlement to spousal support based on compensatory principles since she primarily took care of X after his birth, but it is a weak claim. Rather, the respondent’s stronger entitlement is based on non-compensatory principles or “needs” based.

[245] The SSAGs: Revised User’s Guide states (p. 6):

Non-compensatory claims involve claims based on need. “Need” can mean an inability to meet basic needs, but it has also generally been interpreted to cover a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance and expectation, summed up in the phrase “merger over time.”

Common markers of non-compensatory claims include: the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant.

[246] Here, according to the respondent’s financial statement sworn August 12, 2022, her only source of income is the monthly Child Tax Benefit of $747.75. Her monthly expenses in Toronto are $5,882.80, which includes rent of $3,187.80. She has less than $1,000 in savings. She was last employed in July 2011 as a grocery clerk. The respondent’s proposed budget, albeit premised on a move to New Brunswick where she would only pay $1,500 a month in rent and have other assorted expenses, is $6,705 per month.

[247] In McEachern v. McEachern, 2020 ONSC 31, at paras. 29 to 31, Bale J. stated:

[29] The Spousal Support Advisory Guidelines are a useful tool in the determination of spousal support. They suggest a range of both amount and duration of support that reflects the current law. While neither legislated nor binding, the use of SSAG calculations in family law proceedings has evolved from a starting point to a range that should not be deviated from lightly: Fisher v. Fisher, 2008 ONCA 11 at para. 98, Slongo v Slongo, 2017 ONCA 272 at para. 81.

[30] The Guidelines use duration to categorize cohabitation: a short-term cohabitation is one of less than five years; a medium-term cohabitation is from 5 to 19 years and a long-term cohabitation is 20 years or longer. However, under the Guidelines, a medium-term marriage becomes a long-term one (giving rise to indefinite support) if the parties' years of marriage, plus the age of the support recipient at the date of separation, equals or exceeds 65. This refinement recognizes that an economically-dependent older spouse may have trouble thereafter attaining self-sufficiency: Fisher v. Fisher, 2008 ONCA 11 at para. 105-106.

[31] Where spousal support and child support have overlapped and the recipient has provided primary care and custody of the children, the facts can take the obligation to the longer-end of the durational range: Tadayon v. Mohtashami, 2015 ONCA 777 at para. 53.

[248] The parties co-habited for 18 years and were married for 16 years. As of the time of trial, the Respondent has not been employed for over 11 years. To date, the applicant has long been the family’s sole source of income. The respondent has no assets or regular source of income.

[249] Under the SSAGs, when the applicant and respondent’s annual income is $76,370 and $31,000 respectively, the formula result in a range of spousal support of $0 for the low-point, $0 for the mid-point, and $243 per month for the high-point for an indefinite duration, subject to variation and possibly review, with a minimum duration of 9 years and a maximum duration of 18 years from the date of separation.

Choosing a location within the range

[250] On the issue of choosing a location within the range, I have considered the factors summarized by Carol Rogerson and Rollie Thompson in the Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016 (Ottawa: Department of Justice Canada, April 2016) (the “Revised User’s Guide”), at pp. 45-46. Those factors are (i) the strength of any compensatory claim, (ii) the recipient’s needs, (iii) the needs and ability to pay of the payor, (iv) work incentives for the payor, (v) property division and debts, and (vi) self-sufficiency incentives.

[251] Here, I find that the respondent’s compensatory claim to spousal support is weak; but given the respondent’s needs, including her experience of family violence, she may need a longer time to achieve self-sufficiency. I find that the applicant is not a high-income earner but, being self-employed, his income is less predictable. The applicant has reasonable means to pay spousal support. However, he does not have a “high” ability to pay as demonstrated by his limited income since 2019. Considering that the various factors do not point in the same direction, I find that choosing the mid-point in the range provided by the SSAGs is justified.

Duration of Spousal Support

[252] Duration is nothing more or less than the end of entitlement. When support stops, there may still be – and usually is – an income disparity between the spouses.

[253] As noted by Glustein J. in Gonsalves v. Scrymgeour, 2017 ONSC 1034, at para. 94, in an initial spousal support order, the general approach of the courts is to make an indefinite order subject to review. Rogerson and Thompson comment in the Revised User’s Guide, at p. 43 that “[m]ost initial orders are ‘indefinite (duration not specified)’”.

[254] I find that given the facts of this case, choosing an indefinite duration makes sense. As held in Gonsalves, “[t]his does not mean that an ‘indefinite’ support award is a ‘permanent’ or ‘lifetime’ order.” However, unlike Gonsalves, I do not consider that ordering a review within a certain period is advisable. Here, the parties’ child X is only 5 years old. The respondent was planning on moving with X to New Brunswick. Given my decision declining her relocation request, she will have to recalibrate her future. At present, she is far from self-sufficient. There are too many variables to fix a duration or order a review period and I decline to do so.

[255] Based on the foregoing, the parties’ Guidelines income, spousal support obligations, payments and overpayments are as follows:

Year	Applicant’s Income	Respondent’s Income	Monthly Spousal Support Obligation	Respondent Paid	Overpayment by Applicant
2019	$76,370	$0	$0	$0	$0
2020	$43,137	$0	$666[^6]	$4,659[^7]	$4,659 - $3,330[^8] = $1,329
2021	$46,093	$0	$726[^9]	$19,292[^10]	$19,292 - $8,712[^11] = $10,580
2022 (Jan-Sept)	$76,370	$31,000	$0[^12]	$15,651[^13]	$15,651 - $0[^14] = $15,651
					$27,560

[256] To the end of September 2022, the applicant has overpaid spousal support in the amount of $27,560 and should be credited that amount.

[257] As the trial concluded in September 2022, the court did not receive evidence about what spousal support payments the applicant made beyond this date and into 2023.

[258] For the balance of 2022, the applicant should continue to pay $0 in spousal support based on his annual imputed income of $76,370 and the respondent’s annual imputed income of $31,000. To the extent that the applicant has been paying $1,739 a month in spousal support based on Nishikawa J.’s ruling requiring him to pay on the basis of his higher imputed income of $93,035, the applicant will have overpaid spousal support.

[259] For 2023, the applicant should continue to pay no spousal support and, to the extent he has been paying $1,739 a month, he should be credited for the overpayment.

Equalization

[260] Equalization is mandated under section 5 of the Family Law Act, R.S.O. 1990, c. F.3. When spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties (NFPs) is entitled to one-half the difference between them.

[261] The applicant submitted a revised Net Family Property (NFP) statement in his closing submissions at trial. He claims that, following equalization of NFPs, the respondent would owe him $8,073.31. For the reasons that follow, I disagree with the applicant’s calculation and find instead that he owes the respondent an equalization payment of $49,567.63.

[262] I will address and make findings in respect of a number of issues regarding equalization of the NFPs.

Aequitas International Inc.

[263] The respondent claims that, although the applicant is no longer working with Aequitas, he is still a part-owner. She bases her belief on the fact that an energy rebate bill for Aequitas arrived at the parties’ former matrimonial residence (her current residence), and that a screenshot of the company from Industry Canada showed that, as late as 2020, the applicant was a corporate director. The applicant explained that the energy rebate arrived years later after what was probably a reconciliation, and that Industry Canada was still in the process of processing the change of directors after the termination of the applicant’s involvement in the corporation. I am satisfied with the explanation provided by the applicant as to the reasons for these developments and that his ownership was bought out in 2017 by his former business partner Rahul Arora. I do not find any evidence that, as of the date of separation, the applicant was still an owner of Aequitas. I agree with the applicant that his NFP under “Business Interests” should not reflect a line item for Aequitas.

Trilateral Management Inc.

[264] The applicant acknowledged that his ownership interest in his corporation, Trilateral, was 2/3, rather than the 1/3 that he originally claimed. He claimed that the other 1/3 was owned by his mother who contributed $65,000 in exchange for shares of his corporation. The total equity in the corporation at separation date was $42,281, hence his 2/3 interest is $28,187.33.[^15]

Date of Marriage Loan from Applicant’s Parents

[265] The parties agree that, prior to marriage, the applicant’s parents loaned the applicant $50,000 for flight training. In his Revised NFP statement, the applicant placed the $50,000 under Part 5: Debts and Other Liabilities (on Valuation Date) which is correct since the debt was not paid off during the marriage; however, the applicant failed to also list the $50,000 under Part 6 (Property, Debts and Other Liabilities on Date of Marriage). The applicant’s error resulted in a significant understatement of his NFP.

Double-counting of $65,000 received from Applicant’s parents on NFP statement

[266] On the one hand, the applicant testified that, over the course of the parties’ marriage, his parents provided him with two loans ($25,000, $40,000) totalling $65,000. The $25,000 was for living expenses and the $40,000 was for legal fees for immigration to Canada. The applicant stated that, in exchange for the $65,000, and once his father passed away, his mother received a 1/3 share in his corporation Trilateral.

[267] On the other hand, the applicant also claimed that the $65,000 that his parents (now surviving mother) provided to him were loans and, for that reason, the applicant has listed these loans under Part 5: Debts and Other Liabilities on separation date on his NFP statement.

[268] The applicant cannot have it both ways. Either he should accept that he owns 100% of his corporation - which would increase his ownership stake in his corporation to $42,281 rather than $28,187.33 (which is 2/3 of that amount) – and then list the $65,000 that his parents provided him as a loan; or, he should accept that he owns 2/3 of his corporation and that, because his mother got valuable consideration for her 1/3 share of Trilateral, the $65,000 provided to him is no longer a loan and cannot be listed as such on his NFP. To proceed as the applicant has proposed in his NFP statement represents impermissible double-counting of the $65,000, once for the purpose of reducing his ownership in Trilateral, and again for the purpose of increasing his debts by listing the amount as a loan.

[269] I find that the $65,000 should not be listed as a loan on the NFP statement. At trial, the applicant produced a Shareholder Resolution document from Trilateral dated December 31, 2016. The Resolution confirms that the applicant’s mother received shares in the Trilateral corporation “as good-faith collateral in relation to a $65,000 loan that she provided” to the applicant. I find that this evidence confirms that the applicant’s mother received consideration in exchange for the $65,000 provided to the applicant. Therefore, it would be incorrect for the applicant to list the $65,000 as a loan on his NFP.

[270] The applicant arrived at the conclusion that the respondent owes him $8,073.31 as a result of equalization of NFPs because he calculated that his NFP was $6,863.07 and the respondent’s NFP was $23,009.68, the difference being $16,146.61, half of which is $8,073.05.

[271] The net effect of the above adjustments on the NFP statement is as follows:

a) Adjustment due to Trilateral Management Inc. - Instead of the applicant’s ownership in Trilateral being $27,905.46, it should be $28,187.33, a difference of $281.87. This will increase the value of the applicant’s property owned on valuation date by $281.87.

b) Adjustment due to failure to include the $50,000 loan to applicant as a date of marriage loan - Once the $50,00 is also listed on the “3b Total of Debts Items”, on date of marriage, the figure increases to $50,000, which results in the applicant’s “Net Value of Property owned on date of marriage” being -$50,000.

c) Adjustment due to removal of $65,000 as a loan – Once the two loans ($25,000, $40,000) are removed from the applicant’s listing of debts on valuation date, a further reduction of $65,000 must be applied so the correct figure of the applicant’s debts on valuation becomes $8,615.85.

[272] Whereas the applicant calculated that his NFP (before equalization) was $6,863.07, the cumulative result of the adjustments is as follows:

$6,863.07

+$281.87 (Trilateral adjustment)

+$50,000 (inclusion of debt on DOM so that amount is correctly placed)

+$65,000 (removal of debt on valuation date since amount not a loan)

$122,144.94

[273] The applicant’s revised NFP being $122,144.94 and the respondent’s NFP being unchanged at $23,009.68, the difference is $99,135.26, one half the difference being $49,567.63.

[274] As a result of equalization of their NFP, the applicant owes the respondent $49,567.63.

Post Separation Adjustments

[275] The applicant testified and I find that, following the parties’ separation in September 2019, he paid rent for the former matrimonial residence for October, November and December 2019, and January 2020. He paid $3,150 in rent and also paid the parties’ credit card bills. The applicant testified that, to the date of trial, he continues to pay for the hydro bill and the respondent’s cell phone bill and internet. He paid the Enbridge bill for October, November, and December 2019.

[276] Beyond claiming that the applicant was responsible for reimbursing her father who paid for half of $12,000 in arrears to the landlord, the respondent was not able to articulate what post-separation adjustments were owed.

[277] My understanding is that the $12,000 in arrears to the landlord was dealt with via the applicant and the respondent’s father each paying half of the arrears. I do not understand the respondent’s argument that somehow, she should not be responsible for paying for half of the rent (which, in any event, was paid for by her father).

[278] Given the very limited evidence that was presented at trial, and my overall impression that, in any event, the post-separation adjustments would be de minimis, I am not inclined to make any award in respect of post-separation adjustments.

Outstanding Costs Awards

[279] As of the time of trial, the respondent acknowledged that she still owes the applicant $25,000 in costs which remain unpaid as follows:

• O’Brien J. ordered that the respondent pay $7,500 in costs after being unsuccessful on a parenting time motion brought by the applicant.

• Kimmel J. ordered that the respondent pay $15,000 in costs after being unsuccessful on the interim mobility motion.

• The Divisional Court ordered that the respondent pay $2,500 in costs after it refused to grant leave to appeal to the respondent to appeal Kimmel J.’s interim mobility decision.

Issue #4 – Is the respondent entitled to damages based on the tort of family violence?

[280] The respondent seeks $150,000 in damages for the physical and mental abuse that she suffered, and claims under the new tort of family violence established in Ahluwalia.

[281] Two weeks before the start of trial, Faieta J. permitted the respondent to amend her Answer to add a claim for damages.

[282] Paragraph 26 of the respondent’s Answer, as amended, reads (in part):

$150,000 (or whatever quantum of damages this Honorable Court deems just) for general, exemplary and punitive damages for the physical and mental abuse suffered by me at the hands of the Applicant.

[283] I note that, notwithstanding the respondent’s submissions at trial that the $150,000 claim was in respect of the new tort of family violence established in Ahluwalia, her amended Answer does not specifically plead the tort of family violence or reference Ahluwalia.

[284] At the time of writing, the Ahluwalia decision is under reserve having been argued at the Court of Appeal for Ontario on March 23, 2023. There are a number of potential outcomes of the appeal, one being that the underlying trial decision and the formulation of the new family violence tort could be upheld in its entirety; another being that the appeal court rejects the creation of a new tort and allows the appeal in its entirety. Even within the model of affirming the creation of the new tort, the appeal court may give some guidance to trial courts about the factors to consider as well as how to assess damages.

[285] In the present case, the parties were self-represented. They made limited submissions on the tort of family violence. Moreover, they made no submissions whatsoever as to whether the facts of this case could satisfy existing torts such as battery and intentional infliction of mental suffering.

[286] In my view, rather than attempt to make a ruling on a new tort, the parameters of which may soon be clarified by the Court of Appeal, with limited submissions from self-represented parties, I consider it preferable to defer my decision on the respondent’s damages claim pending the release of the Court of Appeal’s decision. At that point, I will either ask for further written submissions from the parties or ask them to appear before me. While this regrettably delays resolution of the entire case including potentially the financial component, I consider it the preferable route in the circumstances.

[287] Accordingly, I decline to make a ruling on respondent’s claim for damages pending the outcome of the Court of Appeal’s decision in Ahluwalia, at which time I shall request further submissions from the parties if they have been unable to resolve the respondent’s damages claim.

Issue #5 - Divorce

[288] The issue of divorce is not contested. I find that, as per my within order, sufficient arrangements are in place for the support of the parties’ child X. The parties have been separated for more than a year, and meet the jurisdictional requirements to be granted a divorce order. An order for divorce shall proceed upon the parties filing uncontested divorce materials to the court.

Order

[289] An Order shall go as follows.

Respondent’s Relocation Application

a) The parties’ child [full name], born [DOB], shall have his primary residence in Toronto, Ontario.

b) The respondent’s application to relocate X to New Brunswick is dismissed.

c) Neither party may remove X from Ontario without the consent of the other party or an order of the court pursuant to s. 28 of the Children’s Law Reform Act, R.S.O., c. C.12 as amended.

Parenting Time for Regular Schedule, Summer, and Holidays

d) Commencing Monday, June 12, 2023 or so soon thereafter as practicable, the parties shall parent the child based on a 2/2/3 schedule, the specific days upon which the parties shall mutually decide.

e) By June 7, 2023, the parties shall provide the court with a joint proposal concerning the ability of the non-parenting party to contact the child during the other party’s parenting time whether by phone, audio/video, or otherwise.

f) By June 16, 2023, the parties shall provide the court with a joint proposal concerning a parenting schedule for the summer months of July and August 2023, future summers’ months (July and August), annual Holidays (March Break, Mother’s/Father’s Day), and the child’s birthday.

g) The parenting schedule set out in this order may only be altered with the parties' written consent, said written consent shall not be arbitrarily or unreasonably withheld.

h) Neither party is permitted to plan activities for the child on days in which they are not in their care unless the other party has given their written consent to same.

i) If the parties are unable to reach an agreement on the above parenting issues, they shall notify the court by the dates therein through my judicial assistant.

Communication between the Parties

j) By June 16, 2023, the parties shall provide the court with a joint proposal concerning their preferred form of communications, including whether it should be limited in any way or to any medium (email, text, Our Family Wizard, other communication software) and under what circumstances.

Decision-making Responsibility

k) The parties shall consult each other meaningfully before making any important decision in relation to all aspects of the child’s well-being, including in relation to the child’s health care, education, religion or spirituality, and extra-curricular activities. Meaningful consultation means that the parties must discuss the decision to be made, provide each other with all information relevant to the decision to be made, as well as with the child thoughts and preferences if appropriate, and the parents’ respective input. The parties shall then attempt to come to an agreement with regards to the decision.

l) If the parties are unable to come to a consensus after a meaningful consultation has taken place, the following shall apply:

i. The applicant shall have final decision-making responsibility over the children’s health care and education;

ii. Health care related decisions include, but are not limited to, all decisions regarding the child’s physical and emotional health, such as wellness appointments, illness-related appointments, dental appointments, orthodontic appointments, eye doctor appointments, vaccinations, flu shots, prescriptions for coughs, colds, nausea, constipation, diarrhea, eye infections, skin infections, prescriptions for any mental health condition; treatment for any bodily infections, appointments with specialists; therapeutic supports, individual counselling, group counselling, in-person or virtual therapy, brief or long-term. The respondent shall sign any and all required consent forms required by a health-related professional dealing with the child. The applicant shall provide information to the respondent about any health-related appointments a child has, by email and shall provide information about the reason for these appointments at least 24 hours before they occur. The applicant shall hold the child’s health card and provide a copy of the card to the respondent.

m) The parties shall have joint decision-making responsibility over the child’s extra-curricular activities, religious and cultural upbringing.

Other Parenting Provisions

n) Neither party shall denigrate the character of the other to the child or to a third party in any situation where the child might overhear them. The parties shall also make their best efforts to ensure that their friends and family do not denigrate the character of the other parent to the child or within the hearing of the child.

o) The respondent mother shall be responsible for renewing and holding all the children's government and official documents (i.e., Passport, OHIP Cards, Birth Certificate, etc.), and the applicant father shall be entitled to the use of the same when needed unless a photocopy will suffice.

p) Neither party shall electronically record parenting exchanges, audio/video, or telephone calls between the child and the other party.

q) If a party plans a vacation with the child anywhere in Canada, that party will give the other party at least 30 days’ notice before the planned trip, providing the flight information, the trip itinerary, as well as contact information for the child during the trip.

r) Where a party plans international travel with the child, that party will prepare, for the signature of the other party, a consent letter proving that the child has permission to travel. The other parent will not unreasonably refuse to sign the consent letter.

s) If either party proposes to change their residence within 10 kilometers from their current residence in the city of Toronto, they will provide the other parent with the new address, telephone number, and the date of the move at least 60 days before the move.

t) Neither party may change their place of residence outside of the perimeters set out above without providing the other party with 60 days’ notice of the proposed move and obtaining the written consent of the other party or a court order to allow the move. The notice must include the location of the proposed new place of residence, the date of the proposed move, and, if necessary, a proposal for modification of the parenting time arrangement.

Child Support

u) Pursuant to ss.15.1(1) and (3) of the Divorce Act, for the months of October 2019 up to and including July 2020, there shall be no child support payable by either party.

v) For the months of August up to and including December 2020, the applicant shall be required to pay child support of $395 per month based on his Guidelines income of $43,137 and, to the extent he has overpaid child support, he shall receive a credit.

w) For the months of January up to and including December 2021, the applicant shall be required to pay child support of $427 per month based on his Guidelines income of $46,093 and, to the extent he has overpaid child support, he shall receive a credit.

x) For the months of January up to and including December 2022, the applicant shall be required to pay child support of $712 per month based on his Guidelines income of $76,370 and, to the extent he has overpaid child support, he shall receive a credit.

y) On a without prejudice basis, from January 1, 2023 and every month thereafter, the applicant shall be required to pay child support of $712 per month based on his Guidelines income of $76,370 and, to the extent he has overpaid child support, he shall receive a credit.

z) The respondent shall be credited in the amount of $7,013 in respect of his overpayment of child support up to and including September 2022.

Section 7 Expenses

aa) Pursuant to ss. 16(1) and (4) of the Divorce Act, commencing October 1, 2022, the parties shall pay for the child’s section 7 expenses proportionately based on their income with the applicant assuming 71% and the respondent assuming 29%. The parties shall forward receipts for any s. 7 expenses to each other by email and include proof of payment. The parties shall provide their proportionate share of these expenses within 7 days of receiving proof of same.

Spousal Support

bb) Pursuant to ss. 15.2(1) and (3) of the Divorce Act, for the months of October 2019 up to and including July 2020, there shall be no spousal support payable by either party.

cc) For the months of August up to and including December 2020, the applicant shall be required to pay spousal support of $666 per month based on his Guidelines income of $43,137 and, to the extent he has overpaid spousal support, he shall receive a credit.

dd) For the months of January up to and including December 2021, the applicant shall be required to pay spousal support of $726 per month based on his Guidelines income of $46,093 and, to the extent he has overpaid spousal support, he shall receive a credit.

ee) For the months of January up to and including December 2022, the applicant shall be required to pay spousal support of $0 per month based on his Guidelines income of $76,370 and, to the extent he has overpaid spousal support, he shall receive a credit.

ff) On a without prejudice basis, from January 1, 2023 and every month thereafter, the applicant shall be required to pay spousal support of $0 per month based on his Guidelines income of $76,370 and, to the extent he has overpaid child support, he shall receive a credit.

gg) The applicant shall be credited with the amount of $27,560 in respect of his overpayment of spousal support up to and including September 2022.

Benefits and Insurance

hh) Pursuant to ss. 15.1(1) and (3) and ss. 16(1) and (3) of the Divorce Act, the applicant shall maintain the respondent and the child as beneficiaries on his medical/dental benefits, if any for as long as such plan is available to him through his employment or self-employment.

ii) The applicant shall designate the respondent as an authorized user of his benefits such that she may submit claims on behalf of herself and the child for direct reimbursement for as long as his benefits are available to him through his employment or self-employment.

jj) The applicant shall designate the respondent as beneficiary of any life insurance policy in trust for the child.

Annual Financial Disclosure

kk) The parties shall exchange financial disclosure on June 30 of each year, commencing on June 30, 2024 and each year thereafter. Such disclosure exchange is to include Corporate and Individual Tax Returns and Notices of Assessment.

Equalization

ll) Pursuant to section 5 of the Family Law Act, the applicant shall pay the respondent an equalization payment in the sum of $49,567.63.

Post-Separation Adjustments

mm) There shall be no payments required by one party to another in respect of post-separation adjustments.

nn) There shall be no further payments between the parties other than as required by this order or previous court orders.

Respondent’s Claim for Damages for Family Violence

oo) The parties shall, within 15 days of the release of the Court of Appeal’s decision in Ahluwalia contact me through my judicial assistant and I shall advise whether I require written submissions or an attendance to address the impact of the Ahluwalia decision.

Divorce

pp) The parties shall file materials for an uncontested divorce to be brought to my attention, the cost of which shall be borne equally, and a divorce order shall issue.

Costs

qq) The determination of costs in this matter is deferred until resolution by the parties or through court order in respect of the respondent’s claim for damages for family violence.

Other

rr) Other than ongoing monthly child support and spousal support payments, no party shall be required to transfer funds to the other prior to my further judicial order.

[290] I shall remain seized of this matter to the extent that I have requested the parties to provide me with further information and/or submissions.

[291] If there are any calculation errors the parties may bring this to my attention through my judicial assistant Anna Maria Tiberio who can be reached at AnnaMaria.Tiberio@ontario.ca.

[292] In light of the breadth of this order, I strongly encourage the parties to retain legal counsel to obtain advice and/or representation so that all follow-up issues may be dealt with in a comprehensive manner.

Pinto J.

Released: May 25, 2023

COURT FILE NO.: FS-19-12956

DATE: 20230525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Vikas (Vick) Kohli

Applicant

– and –

Sheri Thom

Respondent

REASONS FOR JUDGMENT

Pinto J

Released: May 25, 2023

[^1]: [1996] 2 S.C.R. 27, 1996 191 (SCC). [^2]: The parties separated on September 11, 2019. The applicant’s Application was commenced on October 4, 2019. The respondent’s original Answer is dated November 12, 2019 claiming, inter alia, child and spousal support. I do not find that the applicant’s support obligations should commence earlier than August 2020 as, until July 2020, the Applicant was paying $3,150 monthly in rent on the townhouse where the respondent and X continued to reside, and credit card bills of $1,850 per month. I find these payments were made in lieu of support. [^3]: I agree with Nishikawa J.’s analysis and find that the child support obligations should commence on August 1, 2020. Hence, there will be 5 months of child support owing for 2020. So for 2020, based on his actual annual income of $43,137 which yields a monthly support payment of $395 per month, the applicant should have paid $1,975 in child support. [^4]: For 2021, based on his actual income of $46,093 which yields a monthly support payment of $427 per month, the applicant should have paid $5,124 in child support. [^5]: For 2022, based on his actual income $76,370 which yields a monthly support payment of $712 per month, the applicant should have paid $6,408 to the end of September 2022 (the time of trial). [^6]: Based on the mid-point “with Child Support” formula; with dependant credit claimed by respondent. [^7]: For 2020, the applicant actually paid a total of $7,224 in combined child and spousal support. I arrive at $4,659 by deducting $2,565 (which is 3 months of child support @ $855 a month) from the $7,224. [^8]: There will be 5 months of spousal support owing for 2020 for the months of August to December 2020. So, based on his actual annual income of $43,137 which yields a monthly support payment of $666 per month, the applicant should have paid $3,330 in spousal support for 2020. [^9]: Based on the mid-point “with Child Support” formula; with dependant credit claimed by respondent. [^10]: For 2021, the applicant actually paid a total of $29,552 in combined child and spousal support. I arrive at $19,292 by deducting $10,260 (which is 12 months of child support @ $855 a month) from the $29,552. [^11]: Based on his actual annual income of $46,093 which yields a monthly support payment of $726 per month, the applicant should have paid $8,712 in

Overview

Facts

Procedural History and Orders to Date

The Trial

The Applicant’s Evidence

Respondent’s Evidence

Summary of Witnesses

Danielle Halliday

Usha Kohli

Rahul Arora

Gabriella Zazzorino

Paul Thom

Andrew Thom

Verna Bernard

Carole Anne Bradford

Applicant’s Position on Trial Issues

The Respondent’s Position

LEGAL PRINCIPLES

Blended Approach to Best Interests of the Child

Statutory Provisions

DISCUSSION

Issue #1 - Is it in X’s best interest to relocate from Toronto, Ontario to Saint John, New Brunswick?

s. 16(3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

s. 16(3)(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

s. 16(3)(c) - each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

s. 16(3)(d) - the history of care of the child

s.16(3)(e) - the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

s.16(3)(f) - the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

s.16(3)(g) - any plans for the child’s care

s.16(3)(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;

s.16(3)(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;

s.16(3)(k) – any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child;

Additional Relocation Factors

s.16.92(1)(a) – the reasons for the relocation

s.16.92(b) - the impact of the relocation on the child

s.16.92(1)c) – the amount of time spent with the child by each parent

s.16.92(1)(d),(e) – whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

s.16.92(1)(e) - the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

s.16.92(1)(f) – the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new pace of residence and the travel expenses

s.16.92(1)(g) - whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Conclusion re: Issue #1 – whether the proposed move to New Brunswick would be in the best interests of X

Issue #2 – What type of parenting orders should be made when considering the child’s best interests?

Decision-Making Responsibility

Parenting-Time

Issue #3- Financial Issues (Child Support, Spousal Support and Equalization of NFPs)

Child Support

The Applicant’s Income

The Respondent’s Income

Spousal Support

Choosing a location within the range

Duration of Spousal Support

Equalization

Aequitas International Inc.

Trilateral Management Inc.

Date of Marriage Loan from Applicant’s Parents

Double-counting of $65,000 received from Applicant’s parents on NFP statement

Post Separation Adjustments

Outstanding Costs Awards

Issue #4 – Is the respondent entitled to damages based on the tort of family violence?

Issue #5 - Divorce

Order

Respondent’s Relocation Application

Parenting Time for Regular Schedule, Summer, and Holidays

Communication between the Parties

Decision-making Responsibility

Other Parenting Provisions

Child Support

Section 7 Expenses

Spousal Support

Benefits and Insurance

Annual Financial Disclosure

Equalization

Post-Separation Adjustments

Respondent’s Claim for Damages for Family Violence

Divorce

Costs

Other

Judge

Counsel

Parties