COURT FILE NO.: FS-20-00098480-0000

DATE: 2023 11 03

SUPERIOR COURT OF JUSTICE – ONTARIO

7755 Hurontario Street, Brampton ON L6W 4T6

BETWEEN:

ROHAN DON NATHAN MANE

A. Dennis and A. Mayer, for the Applicant

• and -

KARYNAH ZEH MANE

Self- Represented Respondent

HEARD: September 13-19, 2023

REASONS FOR JUDGMENT

The Honourable Justice Ranjan K. Agarwal

I. INTRODUCTION

1This trial engages almost all of the issues that could arise in a family law proceeding: parenting time, decision-making, child support, spousal support, and equalization. At bottom though, it’s about family violence and mental health, and how these factors have impacted the parties’ ability to communicate and cooperate in their child’s best interest.

2The applicant Rohan Don Nathan Mane and the respondent Karynah Zeh Mane were married for over five years. In October 2018, their son, KM, was born. The parties separated when KM was almost two. This family law dispute has been “high conflict” from its beginning: Karynah accuses Rohan of irredeemable family violence; Rohan charges that Karynah’s mental health challenges undermine her parenting abilities. Rohan was arrested for family violence; Karynah started a case in Manitoba; Rohan then started this proceeding in Ontario; there have been several interim motions; and child protection services have been involved in both Peel Region and Manitoba.

3Karynah has been self-represented since December 2021, including at trial.

4Karynah argues that Rohan should have as little contact with KM as possible because Rohan physically, psychologically, and financially abused her. Rohan acknowledges bruising Karynah’s arm during an argument. But he denies exercising coercive control over her. Rohan proposes shared, equal parenting time and joint decision-making responsibility. He agrees that KM should have maximum contact with Karynah. But he says that he should have the “final” decision if there’s an impasse. He also asks for an order that Karynah continue therapy as a condition of parenting time.

5It’s in KM’s best interests that decision-making responsibility for KM is allocated to both Rohan and Karynah. It’s also in KM’s best interests that KM’s parenting time with Rohan and Karynah be allocated equally in accordance with the interim parenting order.

6But I’m not prepared to order that Rohan should have the final decision. I’m not persuaded, based on the evidence at trial, that it’s in KM’s best interests that Rohan should effectively have a veto. Instead, I order that the parties shall retain a mediator or parenting coordinator to help them reach a joint decision, subject to either party’s right to seek directions from the court. I also dismiss Rohan’s request that Karynah be ordered to continue therapy—Karynah has been working on herself since this proceeding started and there’s no need for a court order that binds her to see a therapist indefinitely.

7On the financial issues, I’ve made several other orders:

(a) Rohan shall have exclusive possession of the matrimonial home for the purpose of its disposition 60 days after he pays Karynah $7500 from the equalization payment;

(b) Rohan shall pay to Karynah an equalization payment in the amount of $123,289.50;

(c) the parties are required to pay for the support of KM in accordance with the amount set out in the applicable table, based on Rohan’s income of $135,000 and Karynah’s imputed income of $48,750, starting January 1, 2024;

(d) the amount to cover all of KM’s special and extraordinary expenses shall be shared by Rohan and Karynah in proportion to their respective incomes;

(e) if there’s an increase in either party’s total income shown on line 15000 of their 2023 or 2024 tax return that would result in a different child support order, they’ll pay the amount payable in a lump sum on or before December 31, 2024, or December 31, 2025, respectively;

(f) Rohan shall pay the amount of $1150 monthly for the support of Karynah; and

(g) Karynah’s share of the carrying costs of the matrimonial home are the amounts claimed by Rohan, less occupation rent, which shall be set-off against any retroactive child and spousal support to be paid to her.

8Rohan and Karynah are to be commended for making their mental health a priority, and actively working to improve it. Their relationship, and the ensuing legal conflict, has taken its toll on both of them. They’ve formed views about the other person that aren’t always grounded in reality. Or, at least, in the reality of who the other person is today. Despite their conflict, I saw moments of genuine fondness between them during the trial. They shared a life, and now share a child. I believe they can foster KM’s relationship with the other parent, where appropriate. My hope, in making these orders, is that by putting the litigation behind them, Rohan and Karynah can focus on what’s most important now—co-parenting KM in a way that makes him, and them, the best versions of themselves.

II. BACKGROUND

A. Background Facts

9Rohan and Karynah were married in June 2015. Both are practicing Christians (Rohan is South Asian; Karynah is Mennonite). KM was born in October 2018. Rohan and Karynah separated in September 2020, when KM was almost two years old. KM is now five years old, and just started Senior Kindergarten.

10In August 2020, Karynah, Rohan, and KM travelled to Manitoba to visit Karynah’s family. Rohan bruised Karynah’s arm during an argument. A few days later, the police arrested Rohan. He and Karynah separated. Karynah started a family law proceeding in Manitoba. Rohan started this proceeding two days after that, while both parties were still in Manitoba.

11Since the separation, Karynah has been living in the matrimonial home. Rohan has been living with his mother, Pearl Tellis-Mane. Rohan has been paying the expenses for the matrimonial home, including the mortgage, property taxes, insurance, utilities, and condominium fees. He’s also been making payments on the parties’ joint credit card, which Karynah has been using for her and KM’s day-to-day expenses. Rohan hasn’t paid any child support or spousal support.

12Rohan works as an IT Enterprise Security Architect for Metrolinx. He used to work for Accenture, but was laid off in November 2022. Karynah works as a costume designer and caterer. She’s been on a parental leave since KM was born; she’s returned to work recently but only sporadically. Karynah has ADHD, which was first diagnosed in 2006.

B. Litigation History

13In September 2020, while both parties and KM were still in Manitoba, Rohan moved for an urgent order. Just before the hearing in October, the parties consented to a temporary order that: (a) both of them would undergo a private psychiatric assessment; (b) they’d each continue attending counselling; and (c) Karynah would provide a video of the matrimonial home every week showing that she was maintaining it “in a reasonable state of cleanliness and tidiness”. The parties litigated the remaining issues.

14Justice Peterson ordered Karynah to return KM to Ontario. She also made a temporary parenting order, which was intended “to make the parenting time equal, with only short periods of separation from each parent.” The parties have, among themselves, consented to minor variations to this parenting order. Though Rohan sought to rely on Justice Petersen’s endorsement and the transcript of the hearing from the motion, I don’t find these documents helpful to the best interests analysis. Justice Petersen dealt with several written affidavits and many exhibits, all filed for an urgent, interim motion immediately after the parties’ separated. In contrast, I’ve had the benefit of viva voce evidence, three years after those tense first days following separation. See Ceho v Ceho, 2015 ONSC 5285, at paras 83-84.

15Karynah has a legal aid certificate from Legal Aid Ontario. At the time of this motion, she was represented by a lawyer. Karynah self-represented starting in January 2021 (including when she served her answer in March 2021). At the case conference in September 2021, she was represented by a (different) lawyer. She was self-represented once again by December 2021. Though Karynah still has a legal aid certificate, she’s not retained a lawyer since then, including for the trial of this proceeding.

16After the settlement conference in June 2022, Rohan moved for a temporary order that KM attend the local public school. Karynah argued that KM should attend a private school because it provides better supports for him. KM still napped during the day, making full-day kindergarten tiring for him. She also worried that he may develop ADHD. Justice Rahman ordered that it was in KM’s best interest that he attend the local public school, which KM has since then.

17The parties attended a trial management conference in March 2023. Justice Kumaranayake made a detailed endorsement, including a timetable for certain steps. At the time, based on Karynah’s proposed witness list, this trial would have been 15 to 20 days long. Many of Karynah’s witnesses were identified as a “representative” of an organization or “TBD”. Karynah proposed to call six experts in several areas such as family violence and mental health but didn’t know who these experts would be.

18Following the conference, Rohan amended his pleading. Karynah never filed an amended answer. Though Justice Kumaranayake’s endorsement suggests that Rohan’s amended pleading would “clarify his position on…damages for family violence”, Rohan has never sought such damages for the alleged violence against him.

19Two days before the start of this trial, Justice McGee presided over another trial management conference. Karynah hadn’t complied with any of the time limits ordered by Justice Kumaranayake. Between the deemed admissions from Rohan’s request to admit and Karynah’s failure to confirm her trial witnesses, Rohan reduced his witness list. Justice McGee correspondingly reduced the trial estimate to five days.

20At the trial management conference, Karynah moved for an adjournment of the trial. Justice McGee dismissed the motion. At the start of trial and again after the first day of trial, Karynah once again moved for an adjournment. Karynah’s position was that she’d identified two lawyers willing to represent her (one under the legal aid certificate and the other on a contingency fee basis) but they couldn’t defend the trial until at least January 2024. The next available trial dates were in September 2024. In effect, Karynah was asking to revisit the timetable ordered by Justice Kumaranayake—if the adjournment was granted, she intended to file a response to the request to admit, exhibits, and will-say statements.

21I denied the adjournment request for three reasons. First, there were no new developments since Justice McGee’s order two days earlier that would justify revisiting that order. Karynah had a legal aid certificate since this proceeding started—unlike many litigants who can’t afford a lawyer and don’t have a certificate, Karynah had means and opportunity to retain a lawyer for trial. Though Karynah says that she contacted several lawyers since Justice Kumaranayake’s order, I wasn’t persuaded that none of them would represent her. That view is reinforced by the fact that Karynah hadn’t retained a lawyer since December 2021.

22Second, Karynah hadn’t shown that if the adjournment was granted, the trial would, in fact, proceed in 2024. For example, neither lawyer attended court, or communicated to the court that they’d been retained and could litigate a trial then. Karynah hadn’t served a response to request to admit, exhibits, or will-say statements in anticipation of her request.

23Finally, as I discuss below, the main focus of this trial was parenting time and decision-making responsibility. KM is almost five years old. For most of his life, he’s lived with the uncertainty of temporary orders and ongoing conflict between his parents. He deserves the finality of a final order so that his parents can make decisions and spend time with him without their conflict looming over him.

24In Pintea v Johns, 2017 SCC 23, the Supreme Court of Canada endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006), issued by the Canadian Judicial Council. The Statement of Principles provides guidance to the judiciary on how to ensure litigants “understand and meaningfully present their case, regardless of representation”. I must do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. I have a special duty to Karynah in terms of acquainting her with courtroom procedure and the rules of evidence. See Girao v Cunningham, 2020 ONCA 260, at paras 149-151.

25At the same time, Rohan is entitled to expect that this proceeding will be decided by the same rules of evidence and substantive law whether Karynah is represented by a lawyer or self-represented. To preserve fairness in a proceeding, I must, of course, respect his rights as well. As a self-represented litigant, Karynah, under the Statement of Principles and our courts’ precedents, is expected to learn about the relevant legal practices and procedures pertaining to her case. See Girao, at para 151; Sanzone v Schechter, 2016 ONCA 566, at para 22; and Cicciarella v Cicciarella, 2009 CanLII 34988 (Div Ct), at paras 37-38.

26During the trial, I made several trial management and evidentiary orders, all to help determine KM’s best interests. In doing so, I tried to balance Rohan’s fair trial rights, Karynah’s right to access justice, KM’s best interests, and my special duties.

27The witnesses at trial were Rohan; Dr. Mark Pearce, an expert witness in psychiatry; Sandra Chung, KM’s teacher; Tamar Gordon Stoesz, Rohan’s therapist; Pearl; and Karynah.

28Karynah was candid with the court that her ADHD makes her disorganized. She often needs to process things orally. And, like many self-represented litigants, she sometimes struggled with how to present evidence, and determining relevancy. Ultimately, I imposed time limits on all of the witnesses to ensure that the parties didn’t command a disproportionate amount of the court’s resources. As a gatekeeper and trial manager, I sometimes took a more active role to ensure that Karynah gave her “full story” in court and so that I had the best evidence on the issues. Rohan’s lawyers were respectful to Karynah and adjusted their behaviour accordingly—they met their oath to ensure access to justice.

C. Mid-Trial Rulings

29During the trial, I made three mid-trial rulings on procedural issues that provide some context for my reasons. First, I held that Karynah doesn’t have leave to withdraw her deemed admissions. Second, I held that Karynah couldn’t amend her pleading, mid-trial, to claim tort damages for alleged family violence. Third, I denied Karynah’s motion for leave to call witnesses for her case.

1. Deemed Admissions

30Rohan served a request to admit; Karynah didn’t respond before the time limit agreed to by the parties. As a result, under rule 22(4) of the Family Law Rules, Karynah was considered to have admitted that the facts in the request to admit are true. A few days before the trial, Karynah emailed Rohan’s lawyers to advise that she didn’t agree with the “so called ‘facts’”.

31An admission that a fact is true may be withdrawn only with the other party’s consent or with the court’s permission. At the start of trial, Karynah repeated that she didn’t agree with the facts in the request to admit (which Rohan had since reduced to an “agreed statement of facts”, though Karynah hadn’t actually agreed). Though Karynah didn’t frame the request this way, she was, in effect, asking for leave to withdraw the deemed admissions. The test for withdrawal of an admission is: (a) the proposed amendment is on a triable issue; (b) the admission was a mistake and the party offers a reasonable explanation for the change of position; and (c) any prejudice caused by the withdrawal can be cured or compensated for in costs. See Ramtour v Ramtour, 2019 ONSC 2448; Szelak Investments Ltd. v Orzech, 1996 CanLII 490 (Ont CA).

32Karynah was on notice from March 2023 that she would need to respond to a request to admit. She didn’t come to the trial with a response, other than all of the requested admission were lies and misinformation (which is untrue). To give effect to Karynah’s request, I would’ve had to adjourn the trial so that she could file a response to the request to admit. For the same reasons that I denied her request for an adjournment, I denied her leave to withdraw the deemed admissions.

33That said, I still allowed her to testify about facts that she was deemed to have admitted for four reasons. First, I need to determine KM’s best interests. Second, I’m entitled to interpret the deemed admissions. See Allto Constr. Services Ltd. v Toronto and Region Conservation Auth., 2017 ONCA 488, at para 11. Third, Karynah is self-represented. Finally, in some cases, Rohan’s requested admissions aren’t facts capable of being admitted—they’re conclusory statements. For example, Rohan says that a deemed admission is that he was “active and involved in parenting [KM] during the relationship”. That’s not a fact capable of admission; it’s a conclusion that I make based on the evidence at trial.

2. Tort Claims

34At various points during the trial, Karynah referenced the “tort of abuse”. In Ahluwalia v Ahluwalia, 2022 ONSC 1303, Justice Mandhane recognized the tort of “family violence”. The Court of Appeal rejected the formation of a tort of family violence, finding that the existing torts of assault, battery, and intentional infliction of emotional distress can address the harms of family violence, which can include incidents or patterns of coercive control. See Ahluwalia v Ahluwalia, 2023 ONCA 476. The Court also rejected the proposed torts of domestic violence or coercive control.

35There’s no tort of abuse. That said, it’s clear that Karynah was referring to tort claims arising from alleged family violence.

36During the trial, Karynah waffled on whether she was making a claim for tort damages. She said that she was making the claim so she could lead evidence of family violence and coercive control to support her position on parenting time. But she still maintained a claim for tort damages. Rohan argued that Karynah hadn’t pleaded tort claims, and that allowing her to continue to assert her damages claim would require him to re-open his case and lengthen the trial.

37Karynah argued that she was duped into not pleading a tort claim. She said that Rohan stated, at the trial management conference, that he intended to seek tort damages. She didn’t amend her pleading because she thought the issue was in play. But then Rohan didn’t amend his pleading; she didn’t think she needed to either.

38I ruled, after all of the witnesses had testified, that Karynah couldn’t continue to claim tort damages. First, as discussed above, there were plenty of opportunities for Karynah to amend her pleading well before trial. She had legal counsel for parts of this case. Rohan’s third amended application was served in March 2023. Karynah had until May to serve an amended answer but didn’t do so. Second, Karynah’s breach of the rules created significant trial unfairness for Rohan. He prepared for trial and called his case based on Karynah’s pleading, which didn’t assert the tort. Allowing her to amend her claim mid-trial would have significantly lengthened the trial. Third, Karynah’s claims were unsupported by her evidence. For example, she led no evidence of the damages that she suffered as a result of the alleged tortious acts. As a result, she can’t prove a claim for tort damages. See Smith v Smith, 2021 ONSC 1990, at para 22.

3. Leave to Adduce Evidence

39Karynah didn’t serve will-say statements as required by the trial management order. Before she closed her case, she submitted that she should be granted leave to call six witnesses. She provided will-say statements to Rohan and the court the day before.

40After reviewing the will-say statements, I dismissed Karynah’s request. To begin, most of the evidence she sought to adduce was inadmissible as hearsay evidence or prior consistent statements. The remaining evidence wasn’t sufficiently probative of the issues in dispute to override Rohan’s fair trial rights. Again, Rohan organized his case based on Karynah’s deemed admissions and the witness list. To allow Karynah to call witnesses now, on minor or tangential issues, would lengthen and delay the trial and increase costs for no material benefit.

III. ANALYSIS AND DISPOSITION

41Though decision-making responsibility and parenting time are the central questions, I’ll discuss the issues in dispute in the sequence they appear in Rohan’s draft order to make it easier to follow along. After the trial finished, at my request, Karynah filed a draft order. It included over 90 paragraphs of relief she was seeking (intertwined with calculations, arguments, and comments). As much as possible, I’ve discussed the relief that Karynah seeks in my discussion below.

A. Sale of the Matrimonial Home

42At trial, Karynah agreed to disposition of the matrimonial home, removal of the contents of the matrimonial home using alternate selection¹, and that the property be sold (after Karynah vacates it, which is effectively an order for exclusive possession).

43Karynah asked for 60 days to vacate the home—though she’s had notice of the pending sale since trial, there’s no material difference with the 45 days that Rohan asks for. Sixty days may make it easier to find new accommodations given notice periods under the Residential Tenancies Act, 2006, SO 2006, c 17. Karynah also asks for an “advance” of $7500 on her equalization payment so she can enter into a lease and pay moving costs. That’s a reasonable request given the equalization amount, Karynah’s need, and fairness to her. See Zagdanski v Zagdanski, 2001 CanLII 27981 (ON SC), [2001] 55 OR (3d) 6 (Sup Ct), at para 39.

44As a result, I endorse an order that Rohan shall have exclusive possession of the matrimonial home for the purpose of its disposition 60 days after he pays Karynah $7500 from the equalization payment discussed below.

B. Equalization

45When spouses are separated and there’s no reasonable prospect that they’ll resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. See Family Law Act, RSO 1990, c F.3, s 5(1). The court may order that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled. See FLA, s 9(1).

46At trial, Rohan led evidence to support an equalization payment to Karynah of $155,602. Karynah didn’t dispute this figure except for the value of Rohan’s Magic: The Gathering trading cards. Karynah’s evidence is that Rohan told her that his collection may be worth $20,000. Rohan says he can’t value them because they’re in the matrimonial home. He “guesstimates” they’re worth $3000. I prefer Karynah’s evidence to Rohan’s evidence. Rohan has an interest in minimizing the value of the trading cards. Though Rohan denies saying they were worth more, he could’ve had them appraised. I find that the cards are valued at $20,000 as of the valuation date (which increases Rohan’s proposed equalization amount by $8500).

47Karynah led no evidence and made no arguments at trial to justify her post-trial request that Rohan pay off her debts. Rohan may offset the unpaid costs awards ($24,000) and Karynah’s share of the psychiatric assessment ($16,812.50) from the judgment.

48As a result, I order and adjudge that Rohan pay to Karynah an equalization payment in the amount of $123,289.50 ($164,102 less $24,000 + $16,812.50).

C. Income Determination

49The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where the spouse is intentionally under-employed, other than where the under-employment is required by the needs of a child of the marriage, or any child under the age of majority, or by the reasonable educational or health needs of the spouse. See Federal Child Support Guidelines, SOR/97-175, s 19(1).

50Section 19 of the Guidelines doesn’t allow the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence. When imputing income based on intentional under-employment, a court must consider what is reasonable in the circumstances. The factors to be considered are age, education, experience, skills, and health of the parent, standard of living during the parties’ marriage, the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands, and the hourly rate that the parent could reasonably be expected to obtain. See Drygala v Pauli, 2002 CanLII 41868 (Ont CA), at paras 44-45; Duncan v Donaldson, 2023 ONSC 5114, at para 33.

51Karynah hasn’t worked regularly since KM was born in 2018. She didn’t produce her tax returns or notices of assessment for 2021, 2022, or 2023. Her historical income is:

Tax Year

Line 150/15000 Income

2013

$26,004.08

2014

$67,042.94

2015

$36,325.23

2016

$46,321.07

2017

$32,662.74

2018

$66,955.41

2019

$13,675.00

2020

$0

52Karynah worked as much as possible in 2018 to maximize her income and benefits before KM was born. In 2019, she received RRSP income.

53At trial, there was no dispute that Karynah is intentionally under-employed—she acknowledges that she’s been devoting her time to parenting KM and this litigation (though she had the means to retain a lawyer). Karynah was offered catering and costuming work in 2021 but didn’t accept.

54Karynah is now working irregular shifts as a caterer. Now that the trial is over, she intends to work enough so she “can put food on the table”. She plans to continue working part-time or irregularly as a caterer or costumer. She’s taking a course to become an ADHD Coach. Karynah estimates that ADHD coaches are paid between $25 and $100 per hour, depending on their experience. Karynah believes that until her coaching business is operational, she’ll earn around a minimum wage income ($30,000 annually). She asks that this amount be imputed to her for child support and spousal support.

55Rohan argues that Karynah can earn $75,000 per year between catering and costuming. He relies on Karynah’s union’s collective agreement, which shows that costumers earn between $3250 and $4000 per week. Karynah argued that she can’t simply re-enter the workplace and earn a full-time income after a long leave of absence because she needs to re-engage with producers that will hire her. She also observed that there were two strikes in the industry at the time of the trial, which may hamper her ability to find work.

56I’m not persuaded by Rohan’s argument. First, Karynah’s average income before she had KM was around $46,000. Second, she never earned $75,000, and only earned more than $50,000 in 2014. Third, based on both Karynah’s and Rohan’s evidence, costuming is a very demanding profession, with long hours every day on set, throughout a filming, which could be weeks. It’s unreasonable to believe that Karynah could continue working full-time as a costumer given her parenting responsibilities. Though Rohan responds that he would parent KM and give Karynah make-up time, that also doesn’t seem reasonable given the duration of the shoots. Finally, Karynah and Rohan agreed that she would exit the workforce for two years after KM was born. That agreement hinged on Rohan and Karynah staying married and Rohan earning a significantly higher salary, which would’ve helped Karynah transition back into the workforce. Instead, they’ve since been separated, and Karynah has been sporadically employed. It’s unreasonable to believe that Karynah could immediately re-enter the workforce as a highly sought after, highly paid costumer. Though Karynah’s failure to re-enter the workforce is, in part, a problem of her own making, I don’t accept that the imputation of income should ignore that reality.

57That said, I also don’t accept Karynah’s evidence that she can only earn a minimum wage income. On her own evidence, ADHD coaches, at the beginning of their careers, earn $25 per hour. Though I don’t expect that Karynah can immediately start working as a full-time coach, $25 per hour is a reasonable wage given her relatively young age, university-level education, catering and costuming skills, past employment in the hospitality and entertainment industries, good physical health, and her parenting responsibilities now that KM is attending school full-time. As a result, I’m imputing an annual income of $48,750 to Karynah, based on a 37.5 hour workweek.

58Rohan asks that his severance payment from Accenture be applied to his 2023 income. Karynah doesn’t dispute this request.

D. Child Support

59A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. See Divorce Act, RSC 1985, c 3 (2nd Supp), s 15.1(1). A court making an order under section 15(1) shall do so in accordance with the Guidelines. See Divorce Act, s 15.1(3).

60There’s no dispute that KM is a child of the marriage. Rohan proposes that he pay the presumptive or “table” amount under section 3(1) of the Guidelines based on an annual income of $305,227 until December 1, 2023 (i.e., his income at Accenture), and based on $135,000 after that (his current income).

61Karynah argues that Rohan was under-employed. He acknowledges that his new job at Metrolinx gives him greater flexibility and he travels less, both of which are important given his parenting responsibilities. He admits, for support purposes, to earning $305,227 until December 1, 2023, and $135,000 after that. Rohan isn’t intentionally under-employed. His employment with Accenture was terminated without cause. He was provided pay in lieu of reasonable notice. He was unemployed for six months. He’s now found full-time, secure employment. He explained at trial that the market for IT professionals has softened since the end of the pandemic—a reasonable explanation for his lower income. Rohan candidly testified that he’s an ambitious person, and intends to seek out better and higher-paying jobs.

62As I discuss below, I’m endorsing an order for shared parenting time. As a result, I endorse orders that:

• starting January 1, 2024, Rohan shall pay monthly table child support of $1185 to Karynah based on his income of $135,000
• starting January 1, 2024, Karynah shall pay monthly table child support of $450 to Rohan based on her imputed income of $48,750
• the amount to cover all of KM’s special and extraordinary expenses shall be shared by Rohan and Karynah in proportion to their respective incomes
• if there’s an increase in either party’s total income shown on line 15000 of their 2023 or 2024 tax return that would result in a different child support order, they’ll pay the amount payable in a lump sum on or before December 31, 2024, or December 31, 2025, respectively

63The parties’ draft orders list soccer, gymnastics, swimming, music lessons, dance lessons, language lessons, and school meals and events as “special and extraordinary expenses”. These aren’t “extraordinary expenses” under section 7(1.1) of the Guidelines—I’m not prepared to make an order that enshrines these expenses as extraordinary expenses.

64Karynah’s draft order includes several provisions related to tax benefits, RESPs, and termination of child support. There was no evidence on these issues, so I decline to make an order about them.

E. Spousal Support

65A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, such lump sum or periodic sums as the court thinks reasonable for the support of the other spouse. See Divorce Act, s 15.2(1). The court may make an order under section 15.2(1) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions, or restrictions in connection with the order as it thinks fit and just. See Divorce Act, s 15.2(3). In making an order under section 15.2(1), the court shall take into consideration the condition, means, needs, and other circumstances of each spouse, including (a) how long 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. See Divorce Act, s 15.2(4).

66Rohan proposes that he pay spousal support of $600 monthly, based on his income of $135,000 and proposed imputed income of $75,000 for Karynah, until March 1, 2025 (which is on the lower end of the range under the Spousal Support Advisory Guidelines). Karynah proposes that Rohan pay spousal support of $2785 monthly based on her proposed imputed income of $30,000. She argues for the higher end of the range on both a compensatory basis (i.e., the parties agreed that Karynah would assume primary responsibility for childcare during KM’s first two years) and non-compensatory basis (i.e., a status quo developed over time with Karynah being out of the workforce).

67There’s no dispute over entitlement. But the parties do dispute when they started cohabiting. Rohan says they started living together in September 2014. Karynah says it was September 2013. She argues that Rohan wanted to hide their living arrangement from his family, so Karynah wasn’t listed on the lease or any other relevant documents, and they lived with roommates until 2014. I find that Rohan and Karynah started co-habiting in September 2014. Though Karynah’s explanation is plausible, I haven’t been provided any admissible evidence to support her claim.

68The SSAG range based on Karynah’s imputed income of $48,750 is $1139 to $2237 per month. The quantum and duration ranges generated by the SSAG simply provide a general framework for the exercise of the court’s discretion. It’s therefore open to the court to go above and below the ranges in appropriate circumstances. See Alalouf v Sumar, 2019 ONCA 611, at paras 21-25. In Kinsella v Mills, 2020 ONSC 4785, at para 107, Justice Chappel discussed key factors:

1. The basis for spousal support entitlement is a critical factor in determining quantum, duration and location within the SSAG ranges. For instance, a strong compensatory claim may favour a spousal support award at the higher end of the ranges both in terms of quantum and duration…
2. In compensatory cases, the goal in establishing quantum and duration should be to formulate an award that reflects the economic disadvantages and advantages flowing from the marriage, and that continues until those consequences are redressed, even if the recipient has reached a reasonable degree of self-sufficiency …
3. The extent of the recipient’s needs is an important consideration ….
4. In assessing the level of a recipient spouse’s need for the purposes of the quantum and duration analysis, the goal is not simply to award an amount that “meets expenses dollar for dollar” …
5. The age, number, needs and standard of living of any children in the care of either party.
6. The payor spouse’s needs and ability to pay are also important considerations…
7. The need to preserve work incentives for the payor.
8. Property division. The Supreme Court of Canada’s analysis in Moge recognized that a fair distribution of the economic consequences of a relationship and its breakdown may be achieved either by spousal support, by the division of property, or both…
9. The parties’ respective debt loads…
10. The impact of any property award or any agreement regarding apportionment of assets and debts on the spousal support analysis will depend on the facts of each case…
11. Self-sufficiency incentives in relation to the recipient spouse …
12. In considering the appropriate location within the quantum ranges generated by the SSAG, and whether the ranges are suitable at all in the circumstances of the particular case before the court, a consideration of the family’s net disposable income (“NDI”) and the proportionate share of that NDI that is allocated to each party under the ranges generated by the SSAG is a factor which may assist the court….

69I don’t agree that Karynah has a strong compensatory claim. There were few economic disadvantages flowing from this marriage (Divorce Act, s 15.2(6)(a), (c)). Karynah stopped working in 2018 as agreed to by her and Rohan. They planned for her to go back to work as a costumer sometime after November 2020. She didn’t do so because she and Rohan separated. She’s been living in the matrimonial home since separation, and Rohan’s been paying most or all of her carrying costs. Karynah and Rohan have been sharing parenting since October 2020—her childcare responsibilities, at least since KM started full-time school, haven’t prejudiced her ability to find paid employment (Divorce Act, s 15.2(6)(b)). If Karynah had re-entered the workforce as planned, she may have ensured her own income security and independent economic well-being. A spousal support order shouldn’t discourage Karynah from becoming self-sufficient (Divorce Act, s 15.2(6)(d)).

70I also don’t agree that Karynah has a strong non-compensatory claim. 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.” See Emmerson v Emmerson, 2017 ONCA 917, at para 105. The parties co-habited for a short time. Karynah didn’t suffer a drop in standard of living after separation because of the separation. There’s no evidence of “economic hardship” that isn’t caused, in part, by Karynah’s refusal to accept work offers.

71Based on these factors, I endorse an order that Rohan shall pay the amount of $1150 monthly for the support of Karynah.

72Karynah’s draft order requests relief regarding Rohan’s life insurance. I didn’t hear any evidence about this issue, so I don’t make any order regarding designation.

F. Retroactive Support

73Rohan accepts that he owes Karynah retroactive child and spousal support. That said, he’s claiming for her share of the carrying costs of the condo because Karynah refused to sell it. At trial, he argued that the amounts he owes for retroactive support are equal to or the same as her share of the carrying costs.

74Given my finding on Karynah’s income, child support, and spousal support, Rohan will need to recalculate the amount of retroactive support he owes to Karynah. At trial, Karynah didn’t make additional arguments about retroactive support—her evidence and arguments were limited to her share of the carrying costs.

75Rohan adduced evidence that his carrying costs included mortgage principal and interest, property taxes, property insurance, and utilities. Karynah didn’t dispute these costs. Rohan also adduced evidence that he paid Karynah’s and KM’s expenses through a joint credit card—he claims for her share of the credit card charges, interest, and fees. For example, Rohan adduced a copy of the February 2023 credit card statement, showing that Karynah incurred around $2300 in charges for groceries, gas, insurance, cell phone, dining out, parking, and various other household and miscellaneous expenses. At trial, Karynah didn’t dispute these charges.

76That said, Karynah makes several arguments about why the carrying costs claimed by Rohan should be reduced. First, she argues that Rohan refused to remove his possessions from the condo, which prevented her from subletting the den. She argues that she could’ve earned $1000 monthly in rental income. But I was provided no evidence that it was possible to sublet the condo under the condominium’s by-laws or that Rohan would consent. I was provided no evidence about the market for rental tenancies or whether $1000 monthly was reasonable. As a result, I don’t give this argument any weight.

77Second, Karynah argued that she didn’t know that Rohan would be seeking her share of these costs. The pleadings show that these costs were a live issue from the beginning of this proceeding. Karynah refused to sell the condo until the start of trial. Karynah was represented by lawyers at various stages. She could’ve sought advice about the risks of her position. As a result, I give this argument no weight.

78Finally, in closing submissions, Karynah argued that she incurred costs to take care of the parties’ cats and driving KM back-and-forth for parenting time. She adduced no evidence at trial to support these expenses. In Karynah’s draft order, she gives evidence and makes submissions about these costs. Given that this evidence wasn’t led at trial (except in a general way), meaning that Karynah couldn’t explain it and Rohan couldn’t cross-examine her, I refuse to admit it. Absent evidence of the costs that she says should be set-off, I give this argument no weight.

79Karynah, in closing argument, also referenced offers she made to Rohan regarding the sale of the condo (“rent-to-own”). Given that these discussions are settlement privileged, I didn’t hear any evidence about these offers.

80Rohan argues that he’s also entitled to occupation rent for the period when Karynah had exclusive possession of the condo. An action for an accounting may be brought by a joint tenant or tenant in common against a co-tenant for receiving more than the co-tenant’s just share. See Courts of Justice Act, RSO 1990, c C.43, s 122(2).

81Though Karynah didn’t oppose this request at trial, her draft order doesn’t contemplate occupation rent. A claim for occupation rent is discretionary when the trial judge considers it to be reasonable and equitable to do so. See Jasiobedzki v Jasiobedzki, 2023 ONCA 482, at para 15, aff’g 2022 ONSC 1854. Here, I refuse to exercise my discretion to award occupation rent to Rohan. First, Rohan didn’t pay any spousal support. Though he provided for Karynah’s living expenses, she was always subject to his control and oversight through the shared credit card. Second, I’m not satisfied that Karynah received more than her “just share”. Rohan’s contribution to the maintenance of the home was minimal. Though he paid the mortgage, property taxes, and insurance, I’ve already found that half of the expenses are to be apportioned to Karynah. Occupation rent in addition to this would be unfair. See Griffiths v Zambosco, 2001 CanLII 24097 (Ont CA), at para 49; Jasiobedzki (Ont Sup Ct), at paras 91-92.

82As a result, I find that Karynah’s share of the carrying costs are the amounts claimed by Rohan, less occupation rent, which shall be set-off against any retroactive child and spousal support to be paid to her.

G. Decision-Making Responsibility and Parenting Time

83This court may make an order for the exercise of parenting time or decision-making responsibility for any child of the marriage, on application by either spouse. See Divorce Act, s 16.1(1). Decision-making responsibility means making significant decisions about a child’s well-being, including for: (a) health; (b) education; (c) culture, language, religion, and spirituality; and (d) significant extracurricular activities. See Divorce Act, s 2(1).

84The court may allocate decision-making responsibility for the child, or any aspect of that responsibility, to either spouse or to both spouses. See Divorce Act, ss 16.1(4)(b), 16.3. Decision-making responsibility helps ensure that a parent’s relationship with their child isn’t marginalized. See Rigillo v Rigillo, 2019 ONCA 548, at para 12.

85In deciding on the appropriate decision-making responsibility regime, the court must consider all possible frameworks, and not simply those proposed by the parties. The goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” See McBennett v Danis, 2021 ONSC 3610, at para 96; RG v JG, 2022 ONSC 1678, at paras 117-122; KM v JR, 2022 ONSC 111, at paras 46-62.

86For the court to grant joint decision-making in some or all areas, there must be some evidence before the court that the parties are able to communicate effectively in the areas under consideration for the sake of the child despite their differences. The best interests of the child won’t be advanced if the parties can’t make important decisions about the child under a joint decision-making arrangement. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. See McBennett, at para 97.

87In cases involving very young children, the court must consider that the child is unable to easily communicate their physical, emotional, developmental, and other needs. Accordingly, the need for effective communication between the parties in a joint decision-making arrangement will be particularly pressing in those cases. See McBennett, at para 97.

88The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is key to determining whether an order for joint decision-making in some or all areas is appropriate. See McBennett, at para 97.

89A party who’s not been granted decision-making responsibility for “significant decisions about a child’s well-being” still supports the child’s life and retains a decision-making role in daily issues that can be equally important to the child’s overall well-being. See Divorce Act, s 16.2(2). This section protects children and parents who have parenting time with each other from attempts by the party granted decision-making responsibility respecting significant decisions to intrude upon or marginalize the role of the other parent. See McBennett, at para 80.

90Parenting time may be allocated through a schedule. See Divorce Act, s 16.2(1). Children should have as much contact with each parent as aligns with their best interests. See Divorce Act, s 16(6); Barendregt v Grebliunas, 2022 SCC 22, at para 133. “It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.” See Knapp v Knapp, 2021 ONCA 305, at para 34.

91The court shall take into consideration “only the best interests of the child of the marriage in making a parenting order….” See Divorce Act, s 16(1). Section 16(3) sets out several factors that the court must consider in carrying out the “best interests” analysis:

(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 can’t 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.

92In considering these factors, the court is required to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”. See Divorce Act, s 16(2).

93The list of factors isn’t a “checklist to be tabulated with the highest score winning”. See Van Ruyven v Van Ruyven, 2021 ONSC 5963, at para 47. The “primary consideration” recognizes that there may be conflicts in attempting to weigh the enumerated criteria. Any such difficulties should be resolved by ensuring that the child’s physical, emotional, and psychological safety, security, and well-being are promoted. See McBennett, at para 82.

94In determining what is in the best interests of the child, the court shall not consider the past conduct of any person unless the conduct is relevant to the exercise of their decision-making responsibility. See Divorce Act, s 16(5). In cases of family violence, particularly spousal violence, it’s “crucial that the court consider whether a co-operative parenting arrangement is appropriate”. See Bell v Reinhardt, 2021 ONSC 3352, at para 15.

95At the close of the evidence, there wasn’t a serious debate about many of the factors. Though Karynah argued that she should have between 70% and 90% of the parenting time and sole decision-making, she adduced little or no contradictory evidence about KM’s best interests on many of the relevant factors. For example, Karynah didn’t argue that KM’s relationship or lack of relationship with Rohan or his paternal extended family favours more parenting time with her—she acknowledged the important role that Pearl, Rohan’s brother and sister-in-law, and Rohan’s nephew play in KM’s life. She didn’t argue that KM’s understanding of, and link to, his cultural, linguistic, or religious heritage favours more parenting time with her—Rohan and Karynah have a mutual intention to raise KM as a Christian, and each of them is encouraging KM to explore his South Asian and Mennonite heritage (Karynah perhaps more than Rohan).

96Though both parties led some evidence that KM has behavioural issues caused by the family conflict (in an effort to bolster their respective positions), KM’s Junior and Senior Kindergarten teacher, Sandra Chung, didn’t express any serious reservations about KM’s physical, emotional and psychological development. Though Ms. Chung said that KM had “regressed” since returning to school in September, she didn’t seem overly concerned. She observed that KM had come a long way since starting JK. He’s getting help for his speech impediment. He’s under the care of a psychotherapist, Carole Jane Parker. As a result, I don’t believe this evidence is relevant to determining decision-making responsibility or parenting time.

97The nub of Karynah’s argument for majority parenting time and sole decision-making is based on: (a) family violence; and (b) Rohan’s ability and willingness to care for and meet KM’s needs. That said, at trial, Karynah admitted that she was unlikely to get what she was asking for—she acknowledged that her request may seem unreasonable, but she made it anyway because, in her words, she needs to be able to tell KM that she “fought” for him.

98Rohan’s argument for final say on decision-making is based on the parties’ inability or unwillingness to communicate and cooperate on matters affecting KM. Though Rohan adduced a lot of evidence that might be relevant to parenting time or decision-making, he doesn’t rely on this evidence to argue for anything besides final say and, as I discuss below, therapeutic conditions.

1. Family Violence

99The court must consider the effect of family violence on parenting and contact arrangements, including its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child. The Divorce Act broadly defines family violence in section 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. See Barendregt, at paras 144-6. Family violence need not be a criminal offence. It’s violent or threatening conduct, or a pattern of coercive and controlling behaviour, or behaviour that causes the other family member to fear for their safety or another’s safety. Family violence includes a child’s direct or indirect exposure to this conduct.

100In cases of family violence, the court must also consider whether to require the parties to co-operate on matters related to the child. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. See Divorce Act, s 16(4); Children’s Law Reform Act, RSO 1990, c C.12, s 24(3)(j), 24(5); Barendregt, at para 146. For example, the court would need to consider whether the person:

• might be violent with the child
• might use their relationship with the child to be violent with or control another person
• has caused the child to be fearful of them
• can be an appropriate role model for, and provide guidance to, the child

101Karynah relies on three instances of family violence. First, in September 2020, Rohan forcibly grabbed Karynah during an argument, causing bruising to her arm. He was charged with the assault. The Crown later stayed the charges. Rohan admits assaulting Karynah.

102Second, Karynah testified that Rohan, sometime after KM was born, sexually assaulted her. She alleges that she gave in to sex because KM saw what was happening, and she didn’t want to frighten him. She also testified that Rohan wanted to have sex with her while they were co-sleeping with KM. Rohan denied these allegations. I was provided insufficient evidence on this event and, as a result, I decline to make a finding that Rohan sexually assaulted Karynah.

103Finally, Karynah alleged that Rohan psychologically and financially abused her both before and after they were married, until they separated. In support, she relies on transcripts of two audio recordings, one from before they were married, and the other from after. Rohan objected to the admission of these transcripts on several bases, including Karynah’s failure to identify these transcripts as potential exhibits or as the specific transcripts (of the many she produced in the litigation) that she intended to rely on. I allowed Karynah to rely on the transcripts: (a) she produced them to Rohan several months ago; (b) he had plenty of time to review the transcripts to confirm their accuracy; and (c) at trial, he raised concerns that some of the audio was deleted but didn’t substantively dispute the contents.

104Karynah has made other serious and significant claims against Rohan, including that he has expertise in “hacking”, she’s at risk of cyberstalking, and he made threats against her ex-boyfriend and her. Karynah provided no evidence that Rohan had, in fact, hacked her accounts or cyberstalked her, or that his threats were serious (if, in fact, he made them). There was almost no evidence adduced about these topics and, as such, I give them no weight in my analysis.

105At trial, Karynah often referred to the “Duluth Model”, which uses the “Power and Control Wheel” as a tool to understand patterns of abusive behaviour. It’s designed to enable abusive persons to recognize patterns of domestic violence. Though Karynah isn’t qualified to provide opinion evidence about the Duluth Model, I allowed her to use the model as a tool to describe the abuse she alleges she suffered, which included: intimidation; emotional abuse; isolation; economic abuse; male privilege; coercion and threats; using children; and minimizing, denying, and blaming.

106Karynah tried to argue that the Duluth Model shows that an abuser is always likely to reoffend. In other words, Rohan has abused her and, as such, he’s likely to abuse KM or her again, and should be denied parenting time or decision-making responsibility. Karynah didn’t lead any expert evidence to support this proposition. I’m also unsure that the Duluth Model actually promotes that theory. In any event, the Divorce Act, CLRA, and the common law require me to consider the effect of family violence on parenting and contact arrangements, including the risk to KM, as a factor.

107Rohan acknowledges that he was “unkind” to Karynah in their marriage. For example, he admitted throwing or putting their dirty dishes in her closet because she didn’t clean them. Though he denies exercising coercive control over her, he doesn’t dispute the substance of the two recordings. Though the transcripts appear to show elements of psychological and financial control, I don’t know whether the transcript was redacted and I don’t have any context. Further, some of Karynah’s evidence of alleged coercive control was explained by Rohan. For example, Karynah argued that Rohan paid of his student loan in full, but refused to pay hers. Rohan explained that their mortgage broker recommended they pay off his loan so they could qualify to buy a cottage property—a reasonable explanation.

108Karynah also relies on Rohan’s refusal to take the Caring Dads program (which is aimed at abusive fathers) or the Partner Assault Response program (which is for offenders who have a domestic violence charge) as evidence that she and KM are at risk of abuse again. At trial, Karynah insisted that Child & Family Services of Central Manitoba directed Rohan to take these programs. In 2021, Justice Dunlop of the Manitoba Court of King’s Bench ordered CFS Central Manitoba to produce its file to the parties. No one from CFS Central Manitoba testified; their notes aren’t admissible evidence. Though Rohan conceded that there’s reference to these programs in the notes, he doesn’t accept that he was directed to take either program.

109Though these instances of family violence are relevant to KM’s best interests, I don’t find them, ultimately, material to decision-making responsibility or parenting time. There’s no evidence that Rohan has abused Karynah since they separated three years ago or that he has been or would be violent with KM. Rohan has taken responsibility for physically assaulting Karynah in September 2020. Ms. Gordon Stoesz² testified that Rohan has been successfully working on his anger management issues since the separation. I don’t accept Karynah’s claim that because Rohan abused her in the past, he should have limited parenting time and decision-making responsibility because she and KM are at risk that Rohan will abuse them in the future. There’s no evidence of this risk such that Rohan should have almost no parenting time and no decision-making responsibility.

110Rohan also adduced some evidence of Karynah abusing him. Karynah says that Rohan encouraged her to hurt him to show how angry she was (the so-called “levels system”). Rohan says that Karynah invented this description to explain her abuse of him. The parties testified about an incident when Rohan put his foot inside a slipper that Karynah had just received for Christmas, and she hit him with it. Karynah says that she was mimicking, in jest, a South Asian practice of “slipper beating” (chappal maar). Rohan doesn’t rely on family violence as a factor for decision-making or parenting time. As a result, I make no findings on whether Karynah committed family violence against Rohan.

2. Ability and Willingness

111The past, present, and future ability and willingness of Rohan and Karynah to care for KM are important factors in determining his best interests. In some cases, a parent’s physical, psychological, or other limitations may raise concerns for the child’s health, safety, well-being, and development. I must consider a person’s strengths and limitations when determining parenting arrangements. See Khurmi v Sidhu, 2022 ONSC 6413, at para 108.

112“Past conduct” evidence must not be permitted to “suffocate” evidence of a parent’s current conduct, circumstances and functioning. The real relevance of “past parenting” evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents’ abilities and circumstances have changed. See Children’s Aid Soc’y of Waterloo Region v C(R), 1994 CanLII 4520 (Ont CJ), at para 20.

113Karynah argues that Rohan is a “Disney Dad”—he indulges KM with gifts and good times but leaves all of parenting responsibilities to Karynah or Pearl. As a result, she argues that he should have limited parenting time and decision-making responsibility.

114In support of this argument, Karynah adduced some evidence:

• after KM was born but before she and Rohan separated, he was an “absentee” father, doing little parenting—she said Rohan often played violent video games, even when he was supposed to be minding KM or while she and KM were trying to sleep in the same room
• Pearl does most of the parenting, including cooking and cleaning
• Rohan allows KM to watch movies that are age-inappropriate (e.g., The Super Mario Bros. Movie and Teenage Mutant Ninja Turtles: Mutant Mayhem)
• one of the ways Rohan and KM play together is through roleplaying, including “violent” characters such as Spider-Man

115Karynah argues that Rohan’s plan to move into his own home after the matrimonial home is sold means that Pearl won’t be around to care for KM. KM has a close bond with Pearl.

116I don’t accept Karynah’s arguments. First, Karynah acknowledged that Rohan and she shared parenting responsibilities when KM was an infant (e.g., she nursed KM, and Rohan changed diapers). After KM was born, Rohan took two parental leaves—two months immediately after KM was born, and four months between July 2019 and October 2019. Second, Pearl’s evidence is that she chooses to cook and clean because she likes those chores—there’s no evidence that Rohan can’t care for KM. Third, there’s no evidence that KM is exhibiting violent tendencies from either watching certain movies or role-playing (both of Karynah’s examples are cartoons and there’s no suggestion that KM watched these films unsupervised). Further, KM’s teacher testified that both parents are actively involved in KM’s education and school life.

117The evidence presented at trial doesn’t support Karynah’s view that Rohan should have almost no parenting time and no decision-making responsibility.

3. Communicate and Cooperate

118KM benefits when Rohan and Karynah cooperate and communicate. Parents who cooperate and communicate are more likely to manage flexible parenting arrangements and joint decision-making about their children. See Khurmi, at para 111.

119Rohan points to three incidents that he argues show that he and Karynah can’t communicate or cooperate in KM’s best interests. He relies on these incidents to argue for final say in decision-making. First, KM was sick enough that several doctors recommended he take antibiotics. Karynah refused consent because she believed KM had a viral illness. Second, Karynah persisted in seeking an accommodation from KM’s school for KM’s naps. Third, Karynah refused to consent to Maryna Svitasheva as a therapist for KM. Rohan also argues that underlying these events is delay—Karynah takes a long time to make a decision about KM.

120Though I agree that these examples show a lack of cooperation or communication, I don’t agree that Karynah bears the blame in every circumstance. These are but three incidents over the last three years—Karynah and Rohan, despite their conflict, seem to be communicating and cooperating about everything else in KM’s life.

121On the antibiotics, at least one of the doctors questioned their continued use. I didn’t hear evidence on how this event ended, but KM obviously recovered, meaning that Karynah’s uncertainty didn’t harm him. In a co-parenting relationship, the parties need to consider all viewpoints and, ultimately, may have to compromise their views in KM’s best interests.

122On the naps, Karynah wasn’t trying to go behind Justice Rahman’s order. She accepted KM’s enrolment in public school. But KM is one of the youngest children in his class. It’s no surprise that he still needed an afternoon nap. I don’t see any issue in Karynah engaging with the school to see if she could take him home at lunch, at least until he dropped his nap. Indeed, I find Rohan’s absolute refusal to consider this option as evidence of his failure to communicate or cooperate. Again, this issue was ultimately resolved—KM dropped his nap and has been successfully attending full-day kindergarten.

123On the therapist, Rohan engaged Ms. Svitasheva unilaterally. Given the parties’ complicated history with therapists, it’s unsurprising that Karynah was skeptical of Rohan’s decision. Karynah also explained that she didn’t consent to Ms. Svitasheva because there was no two-way mirror or video camera for them to observe KM. Karynah told Ms. Svitasheva about Rohan’s abuse and refused to release her psychiatric assessment to Ms. Svitasheva. In any event, Rohan demurred, and the parties engaged Ms. Parker, who’s been KM’s therapist since. I don’t find this event supports final say in decision-making—there was a genuine dispute about engaging Ms. Svitasheva, which Rohan and Karynah resolved.

124To the extent that Karynah takes her time to do due diligence, I don’t see that as a sufficient basis to give Rohan final say over decision-making. We all make decisions in different ways—in Karynah’s case, her ADHD causes her to process things differently. It would be unfair to deny her decision-making because she has a medical condition (that she’s actively managing).

4. Conclusion and Disposition

125On parenting time, I endorse an order providing for the exercise of sharing parenting time in respect of KM in accordance with the current parenting schedule:

Week 1

Karynah -- Friday 9am to Sunday 630pm Rohan – Sunday 630pm to Thursday 9am Karynah – Thursday 9am to Friday 9am

Week 2

Rohan -- Friday 9am to Sunday 630pm Karynah – Sunday 630pm to Thursday 9am Rohan – Thursday 9am to Friday 9am

126Karynah hasn’t proven, on the evidence, that KM’s parenting time with Rohan should be reduced to between 10% and 30%. It’s in KM’s best interest that he should have as much time with each parent.

127On decision-making, I endorse an order that the parties shall have shared decision-making responsibility. That said, I don’t agree that Rohan should have the “final say”. I’m not persuaded, on the evidence, that it’s in KM’s best interests that Rohan should have primacy or a veto on decision-making. Again, the fact that co-parents disagree about a particular decision isn’t evidence that they can’t make decisions together—it just means that they need to improve how to communicate and cooperate about KM’s best interests. There’s lots of evidence that these parties can do that for KM.

128Rohan’s real argument appears to be that Karynah didn’t agree with his decisions (give KM antibiotics, full-day JK at the local public school, engaging Ms. Svitasheva), which led to delay in their implementation. But I wasn’t provided any evidence that this delay impaired KM’s best interests.

129Instead, I endorse an order that:

• day-to-day (e.g., homework, bedtime routines, meals, and chores) and emergency decisions shall be made by the parent who is with KM at any given time
• the parties will make significant decisions together about KM’s education, health care, extracurricular activities, language, and spirituality, and encourage input from KM
• in a medical emergency, the parent with care should try to immediately contact the other parent about the situation and involve them in decision-making
• each parent is presumptively entitled to obtain information about KM’s health, education, and well-being directly from any person or agency likely to have such information, like doctors and schools

130If the parties can’t resolve a dispute between them about decision-making, I endorse an order that they’ll jointly retain a mediator or parenting coordinator to help them reach a decision. In making this order, I’m following the order made in SVG v VG, 2023 ONSC 3206, at para 263. In particular, if either party is of the view that participation in parenting coordination isn’t appropriate at the relevant time, I endorse an order they may bring a motion for directions on the issue and for an order that this order shall not apply.

H. Therapeutic Order

131Rohan seeks orders related to Karynah’s mental health:

• Karynah will attend weekly therapy with a qualified therapist, and the therapist will provide reports to Rohan and the court every six months
• Karynah will provide Rohan with a video recording of her home before parenting time with KM
• Karynah will maintain her home in a “reasonable state of cleanliness and tidiness” for KM’s safety

132Karynah opposes these orders.

133In October 2020, Rohan and Karynah consented to an order that they both undergo a psychiatric assessment. They engaged Dr. Pearce, a psychiatrist—his two reports were adduced into evidence and he provided opinion evidence orally. Rohan used Dr. Pearce’s report for two purposes. First, Dr. Pearce found Karynah to be “excessively emotional”, “impulsive”, “duplicitous”, and that her plans are “grandiose and unrealistic”. Rohan used Dr. Pearce’s findings to argue that Karynah’s evidence was incredible or unreliable. I don’t accept the use of Dr. Pearce’s report for this purpose. To the extent that Rohan sought to argue that Karynah’s evidence shouldn’t be accepted because it’s incredible or unreliable, he must do so based on the evidence at trial.

134Second, Dr. Pearce made several recommendations for Karynah: (a) remain involved with Dr. Jamal Lake or another suitably trained therapist to address her coping skills and maladaptive personality attributes; (b) more intensive psychological and pharmacological treatment for ADHD; (c) demonstrate by video the state of affairs of her home when caring for KM; (d) an occupational therapy home assessment to organize her home and reduce clutter; (e) returning to work; and (f) be cautious about future partners. Rohan relies on these recommendations as the basis for his request for a therapeutic order.

135In SVG v VG, at para 132, Justice Chappel discusses the court’s jurisdiction to make therapeutic orders:

• sections 16(4)(d) and (5) of the Divorce Act grant the court a broad discretion to craft a parenting order that addresses the needs and best interests of children
• the court can include terms in a parenting order to provide for any matter that the court considers appropriate
• section 28(1)(c) of the CLRA grants the court a similar broad discretion to include any terms in a parenting order made under that Act that the court considers “necessary and proper in the circumstances”

136I dismiss Rohan’s request. Dr. Pearce’s recommendations were made over 18 months ago, based on his assessment of Karynah from almost two years ago. Dr. Pearce isn’t an expert in parenting orders, and he wasn’t making recommendations based on KM’s best interests. These facts alone make his recommendations irrelevant to whether they’re “necessary and proper” for any parenting order today.

137A lot of time at trial was devoted to evidence of Karynah’s “messiness”. I found this evidence distasteful—it’s unnecessarily embarrassing to subject Karynah’s organizational skills to a public hearing, all in the name of KM’s “best interests”. Karynah admits that her ADHD causes her to be disorganized. But there was no evidence that this disorganization impacted KM’s best interests in any way. Indeed, there was no evidence at all about the current state of Karynah’s home, other than Karynah has been dutifully complying with the January 2020 order.

138Rohan tried to connect Karynah’s ADHD to two incidents involving KM. First, in July 2020, he says KM “nearly drowned” after Karynah became distracted during a boating excursion. Second, in August 2020, he says that KM was almost hit by a truck, again because Karynah was distracted. Karynah says Rohan is exaggerating these two incidents. There’s no evidence that KM has been hurt or risked injury in the three years since the parties’ separated. In any event, there was insufficient evidence about these incidents for me to put any weight on them.

139Karynah continues to see a trained therapist regularly to address her ADHD and other mental health challenges. She’s maintained her home in a “state of cleanliness and tidiness” since the January 2020 order. There’s no evidence that KM is in any danger when living with Karynah. I note that Karynah has serious regrets about consenting to the interim order, given the intrusion on her privacy and the control that Rohan can assert over her through this ongoing supervision. She didn’t expect that the temporary order would continue for three years, or that it would be the basis for a final order at trial.

140To subject Karynah to court supervision and monitoring by Rohan is an unnecessary expense for her, a misuse of judicial resources, and risks encouraging Rohan’s control over Karynah’s life.

I. Travel

141Rohan is concerned that Karynah will relocate to Manitoba with KM. Karynah is candid that she has a stronger support network in Manitoba, where most of her family lives. At trial, the parties agreed that neither party can travel with KM without the other party’s consent, which won’t be unreasonably withheld.

IV. CONCLUSION

142Rohan shall prepare the draft order—if Karynah disagrees with the form or content of the draft order, Rohan will come to court for settlement of the order.

143The parties will engage in meaningful discussions and negotiations respecting the costs of this trial. If they can’t resolve costs, any party seeking costs will serve, file, and upload to CaseLines costs submissions (2500 words), any relevant offers to settle, and their bill of costs (if any) by November 17, 2023, 4pm. The parties’ responding submissions (2500 words) will be served, filed, and uploaded to CaseLines by December 1, 2023, 4pm.

Agarwal J.

Footnotes

1. 1Karynah proposes a multi-step process to divide the parties’ possessions, based on value. I don’t endorse this proposal. That said, family heirlooms shouldn’t be subject to alternate selection.
2. 2Ms. Gordon Stoesz was engaged as a couples counselor for both Rohan and Karynah; they separated before having a session with her. After they separated, she continued to counsel each of them separately, with their mutual consent. Eventually, she terminated her relationship with Karynah because Karynah was more interested in discussing Rohan’s therapy then achieving her own therapeutic goals. Though Karynah tried to argue that Ms. Gordon Stoesz was conflicted, I don’t see any basis for excluding her evidence or giving it less weight. Mr. Gordon Stoesz testified that she complied with her professional responsibilities.