Court File and Parties

Court File No.: FC-20-118 Date: 2023-10-17

Ontario Superior Court of Justice

Between:

Brooklyn Sharianne Jankowski, Applicant Richard M. Van Buskirk, for the Applicant

- and -

Jamie Michael Joseph Santos, Respondent Ryan C. Baker, for the Respondent

Heard: September 14, 18, 19, 20, 21 and 22, 2023

The Honourable Madam Justice Piccoli

Reasons for Judgment

[1] The court heard a 6-day trial. On the last day of the trial, the Applicant “mother” and the Respondent “father” were able to resolve a number of issues as it relates to decision making for the child (save and except medical and dental), communication, receipt of information from third parties, retroactive child support to September 30, 2023, the holiday schedule which included an equal sharing of holiday time and a week about schedule in the summer, and the location for pick up and drop off during holidays. An endorsement was made on that day confirming that those consents shall form part of the final order of the court which shall include the issues decided herein.

[2] The issues left for the court to decide were:

(a) Who shall be the primary resident parent during the school year?

(b) What should the parenting schedule be during the school year?

(c) What school should the child attend?

(d) Who should make the medical and dental decisions for the child?

(e) Should an income be imputed to the mother?

(f) What amount of ongoing child support, if any, should be paid and by whom from October 1, 2023?

(g) What should the order for costs be, if any?

Witnesses and Credibility Findings

[3] The mother testified and called 4 witnesses: Fiona Dorman (her friend who currently lives in Guelph, Ontario), Laurel Dade (her friend who currently lives in Tillsonburg, Ontario), her maternal aunt Michelle Lightheart (by Zoom) whose home base is Woodstock, Ontario, and her paternal aunt Kelly Campbell (by Zoom) who lives in Michigan, Ontario. The mother’s witnesses were all credible and even handed in their evidence.

[4] The mother was not always credible, particularly as it relates to some of the serious allegations she levied against the father. Some of those allegations include that he sold drugs during the period of time they lived together, that he did not want her to breast feed because she would be seducing his brother (something that was not put to the brother on cross-examination) and also because the child would turn gay, and that the father was abusive. There was no corroborating evidence for these allegations, including from the mother’s own witnesses. Further, it is clear that she was not truthful about her income.

[5] The father testified and called 3 witnesses: Nicole McCallum (the woman who his mother lives with) (by Zoom), his brother Brandon Santos and his mother Maureen Santos. With the exception of Maureen Santos (paternal grandmother), these witnesses were credible. In the case of Ms. McCallum, her evidence did not always support the father. As it relates to the paternal grandmother, it is clear that she was untruthful about what transpired during the evening/early morning of the incident in later January 2020.

[6] The father was not always credible particularly as it relates to the division of household labour during the parties’ relationship as it relates to the preparation of the child’s food and the cleaning of the home. This is corroborated by Ms. Dorman.

[7] OCL Barbara Dyszuk testified as it relates to her report dated January 15, 2021. She was a credible and knowledgeable witness.

Background and Findings of Fact

[8] The parties began cohabitating in May 2017. They separated on February 1, 2020. They have one child together, Felix Robert William Santos, born October 13, 2018, (“the child” or “Felix”) who is now 5 years of age.

[9] When the parties moved in together, the mother had started her medical aesthetics diploma at Gina’s College and the father was on a stress related disability leave from work. The mother completed her diploma during the relationship.

[10] When Felix was born both parents were 21 years of age.

[11] It is clear the pregnancy was unplanned. The mother suffers from polycystic ovarian syndrome and getting pregnant with this condition is difficult, but not impossible.

[12] There is no dispute that the mother had a difficult childhood. She is to be commended for her resilience, her resourcefulness and her perseverance. In no way does the court hold her childhood trauma against her.

[13] Prior to the separation, the mother was on a maternity leave from June 2018 to March 2019. In April 2019, the mother returned to work, and the father remained at home.

[14] Other than two periods of time when one party overheld the child from the other, the child has been in the parties’ shared care since the date of separation.

[15] Following the separation, the father continued to live at the rental home previously shared by the parties in the Kitchener Waterloo area (KW), but then had to leave because the landlord’s family was moving in. He then moved to the apartment building on Regina Street in Waterloo where the parties lived prior to the birth of Felix, and he continues to live there.

[16] Following the separation, the mother first moved in with her father in Woodstock where she remained for a few weeks. She then moved to a shelter from March to November 2020 and from there moved to secure housing (Ingamo) where she remained until August 2022. Thereafter she moved to an apartment which flooded in November 2022, for a short period of time with her aunt, and she now resides in a 3-bedroom semi-detached home; all of these are located in Woodstock.

[17] The parties have not been able to agree as to what school the child is to attend in large part because they do not agree as to what city the child should primarily reside in during the school year.

[18] When the parties separated, the mother left the home abruptly following an argument. She asserts that she was fearful for her safety and that her grandfather told her to leave, and they would take care of getting Felix later. The father contends that the mother was agitated and acting irrationally, that she had previously threatened to throw herself in a pond to self-harm and that he was concerned for the child’s safety. The father asserts that he spoke to the grandfather and that it was decided the mother should leave without the child. The grandfather was not called as a witness.

[19] The father would thereafter not agree to let the mother see the child until the mother signed an agreement setting out parenting time and a police enforcement provision. The mother retained counsel.

[20] On February 20, 2020, the parties signed interim interim without prejudice partial minutes of settlement granting them equal parenting time with the child on a week about basis. The mother was represented by her then lawyer. The father was self-represented.

[21] That same day, namely February 20, 2020, the mother signed the within Application and it was issued one day later, February 21, 2020. She failed to indicate in her Application that the parties had signed interim interim without prejudice partial minutes of settlement.

[22] In her Application and Amended Application, the mother sought, among other things, as it relates to the child, sole decision-making, primary residence, the ability to apply for the child’s passport without the father’s consent, the involvement of the Office of the Children’s Lawyer (OCL), and that the father have supervised parenting time.

[23] The father’s position, as it relates to the child, in his Answer and Claim and his Amended Answer and Claim sought, among other things, sole custody and that the mother have supervised parenting time. He too sought the involvement of the OCL.

[24] By July 24, 2020, as set out in the OCL order of Justice Breithaupt Smith, the father’s position was and remains to this day that the child should be in the care of the parents on an equal basis. As a result of the child needing to start school and the 1-hour drive from each party’s residence, he asserts that this equal time-sharing arrangement cannot be maintained during the school year. The mother agrees.

[25] Since the inception of these matters, there have been two temporary without prejudice consent orders dealing with parenting. The order that governs the parties’ parenting is the consent temporary without prejudice order of Justice Breithaupt Smith dated July 24, 2020. This order varied the consent temporary without prejudice order of Justice Walters dated July 10, 2020.

[26] The order in place has the child in the care of his parents on a 2-2-3 schedule since July 24, 2020.

[27] The OCL clinician, Barbara Dyszuk, completed a s. 112 assessment on January 15, 2021. At the time the OCL started and completed its investigation, the child was 2 years old. The child is now almost 5 years old.

[28] The OCL made the following recommendations:

Recommendations

1. Mr. Santos should have sole custody of Felix.
2. Felix’s primary residence should be with Mr. Santos.
3. Felix should spend time with Ms. Jankowski: a) From Sunday at 4:00 p.m. to Tuesday at 4:00 p.m. b) Mr. Santos and/or designate that Felix is comfortable with should be responsible for transporting Felix for the exchange to the care of his mother at a coffee shop or other community location agreed upon by the parents in Woodstock on Sunday at 4:00 p.m. and picking Felix up on Tuesday at 4:00 p.m.
4. When Felix commences school, Felix should spend time with Ms. Jankowski from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and when Friday is a school holiday from Thursday at 6:00 p.m. until Sunday at 6:00 p.m. and when Monday is a school holiday the time should be extended to Monday at 6:00 p.m.
5. Regardless of the regular parenting time schedule, Felix should spend Mother’s Day with Ms. Jankowski and Father’s Day with Mr. Santos from 10:00 a.m. to 6:00 p.m.
6. The parent with whom Felix is with should be responsible for the day-to-day decisions involving his care, wellbeing and activities scheduled during their parenting time.
7. Mr. Santos should consult with professionals connected to Felix and request input from Ms. Jankowski regarding major parenting decisions related to Felix prior to making the final decision.
8. Ms. Jankowski and Mr. Santos should have the right to make direct inquiries and be given information with respect to Felix’s health, childcare, education, religion and recreational activities directly from the third-party professionals involved with the child. Ms. Jankowski and Mr. Santos should be able to attend medical and health related appointments. Both parents should be listed as emergency contacts for Felix. Mr. Santos should sign whatever directions are necessary to ensure that Ms. Jankowski has access to all information.
9. Ms. Jankowski and Mr. Santos should continue to use the Talking Parents App for communication regarding Felix.
10. Ms. Jankowski and Mr. Santos should complete the New Ways for Families Online Parenting Without Conflict Course for parents who are separated.
11. Ms. Jankowski and Mr. Santos should encourage a climate of support to Felix about the importance of his relationship with the other parent and extended families.
12. Felix should be free to contact his parents at any time through telephone or electronic communication. Ms. Jankowski and Mr. Santos will encourage Felix to feel comfortable communicating with the other parent and provide him with the technology and privacy to do so.
13. Ms. Jankowski and Mr. Santos should not initiate communications with Felix during the other parent’s parenting time. Ms. Jankowski and Mr. Santos will not put pressure or expectations on Felix to communicate with them when he is residing with the other parent.
14. Ms. Jankowski and Mr. Santos should not use any form of social media to post information about the other parent or with regard to their past, present or future disputes.
15. Neither parent should establish and/or maintain a social media/networking account for Felix or in Felix’s name, without the written agreement of the other parent. This includes, but is not limited to, Instagram, Snapchat, Facebook and/or YouTube channel.
16. If either parent posts a photo of Felix on their personal social media/networking pages, the parent’s account(s) should be private such that any posted photos will be shared only with the users who are known to the parent. Any photos that are posted by either parent must not tag Felix by name.
17. Ms. Jankowski and Mr. Santos should ensure that Felix is not exposed to adult conflict and is not exposed to anyone making negative comments about either parent or any significant adults in his life.

[29] The mother filed a dispute to the OCL report dated April 16, 2021. OCL filed a response.

[30] Given the passage of time and the changes in circumstances, there cannot be significant weight put on the recommendations of the OCL. What the court observed now, though, is what the OCL observed at the time, namely that the geographical distance between the parties’ homes makes an equal time-sharing arrangement during the school year a problem for the child. Further, the mother continues to minimize the father’s involvement in the child’s life. The father, on the other hand, was and continues to be willing to support the relationship as between the mother and Felix.

[31] There is no dispute that any schedule for this child needs to, as much as possible, minimize transitions.

[32] Following her move to Woodstock, the mother commenced a horticultural course at Fanshawe College in London. Currently she attends daily from 9:00 a.m. to 3:00 p.m. and one day her classes end at 4:00 p.m. She was on track to graduate in April 2023 but then reduced her course load to be more available to care for Felix. She now expects to graduate in December 2024.

[33] The father’s employment during the relationship was unstable. He had medical leaves and lost his job. Three months after the child was born, he started his business “Gamers Garage”. Initially he modified custom game controllers, but now he fixes all types of electronics. He also recently obtained employment with Happy Taps (a draught service and installation company owned by his friend Justin and Justin’s father). He is in currently training and is working a minimum of 20 hours per week. Once his training is completed, he expects to have a more flexible schedule.

[34] Given the difficulties the father had in maintaining his employment, the mother returned to work when the child was 7 months old. It is clear to the court that this was done out of necessity by mother and not, as alleged by father, out of desire. It is also clear that the mother was not happy about returning to work and that this was a source of contention between the parties.

[35] The parties’ living situation was less than ideal after the child was born; the father’s brother, Brandon, moved in with them and paid rent. As time progressed, Brandon and the mother did not get along. This culminated in an incident in January or February 2019 where Brandon damaged a door and threatened to harm himself with a knife. Police were called but no charges were laid.

[36] I accept Brandon’s version of what transpired on this evening in question. He was forthright and accepted responsibility for his behaviour. The father, to his credit, evicted Brandon from the home. He did not speak to Brandon or his mother for a period of approximately 7 months.

Which parent should have primary care of the child during the school year and what should the schedule be?

[37] It is the mother’s position that the child should reside primarily with her during the school year and be in the care of the father on alternate weekends from Friday to Sunday, to be extended in the event of school holidays, and one overnight during the week.

[38] It is the father’s position that the child should reside primarily with him during the school year if the mother chooses not to return to the KW area. In this case, the schedule should be alternate weekends from Friday to Sunday, to be extended in the event of a school holiday. If the mother chooses to return to KW, then it is the father’s position that the schedule should be week about.

[39] For the reasons that follow, the court orders that the child shall reside primarily in KW during the school year with the father. The mother’s time shall be maximized such that the child will be in her care three weekends per month from Friday after school to Monday to school, to be extended in the event of a school holiday. Additionally, she may enjoy one overnight period of care during the week if she exercises that parenting time within 30 kilometers of the child’s school.

Legal Analysis

[40] Although counsel concede this is not a relocation case, they both addressed certain of the factors in section 39.4 of the Children’s Law Reform Act, R.S.O 1990, c. C.12.

[41] The relevant legislation is the Children’s Law Reform Act, R.S.O 1990, c. C.12, and in particular s. 24(3) of that Act, which sets out the factors the court is to consider in determining the best interests of the child. The list is not exhaustive.

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

[42] It is clear from the evidence of the parties and the witnesses called on their behalf that both parents can meet the needs of the child and that they are both good parents who put Felix’s interests above their own most of the time. Both parents engage the child in numerous activities, both indoor and outdoor. Felix has interests with both parents – with his father cars, hockey and golf, and with his mother games at his level, nature walks and registered sporting activities.

[43] The child needs both parents in his life to the maximum extent possible having regard to the distance. They are both good parents and each has their own skills. The child needs to have unfettered time with his parents in an environment that is free from conflict. He needs to settle in one jurisdiction over the school year and he needs to be able to transition from the care of one parent to the other without conflict.

[44] Most importantly, the child needs stability. The court finds that on balance, the child’s need for stability is better served by being primarily resident in KW over the school year. KW is where the child was born, where his doctor is located, where his paternal grandparents reside, where his uncles, aunt and Brittany live, and where most of the other person’s listed in Father’s Form 35.1 affidavit reside.

[45] Although Felix has also established bonds with the maternal family who mostly reside in Woodstock, he does not see them as regularly as the paternal family.

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

[46] The child is bonded with both of his parents.

[47] Although the mother may not be happy about it, the child is closely bonded with the paternal grandmother. She provides day-to-day care for the child when the father works.

[48] At one time the mother and paternal grandmother were close, and the paternal grandmother was even invited into the delivery room. They need to work hard to re-establish the connection between them because that is what Felix needs to feel at peace no matter where he is.

[49] It is also clear that the child is bonded with his godmother, Fiona, who lives in Guelph (which is closer to KW than to Woodstock) and to his friend, Theo, who now lives in Tillsonburg.

[50] Although both parents clearly love Felix, Kitchener Waterloo is where the child has several support systems, and he is thriving. Most of his connections remain in Kitchener.

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

[51] Both parents overheld the child, the father for 20 days in February 2020, and the mother for five weeks in the summer of 2020. Neither parent was justified in doing so. The overholding was traumatic for the child.

[52] Despite the passage of time, there continue to be examples of the mother’s lack of support of the father-child relationship which include:

a) The parties entered into three consent agreements as it related to shared parenting, yet the mother continues to maintain that the father cannot properly care for the child. It was her evidence at trial that the father was not safe in that he failed to buckle the child into the car, that he sells drugs and has during the course of their relationship, that he threw a cat against the wall, that he takes the child on drug runs and that he does not feed him properly. None of these serious allegations (which the father denied) were proven;

b) On August 10, 2022, Justice Donohue’s consent order of August 10, 2022, was that “Neither party shall enroll the child, Felix Robert William Santos born October 13, 2018 (4 years of age), in school until such time as this matter has been heard at trial to determine the child’s Felix Robert William Santos primary residence”. The mother had enrolled him in school in January or February 2022 and did not de-register him following the order;

c) When the mother enrolled Felix in school, she did not list the father as a contact or even as a parent;

d) The mother made a number of unilateral decisions to enroll the child in activities. Although she advised the father of the enrollment, she did not seek his consent in advance (soccer, gymnastics). The parenting app and other electronic communication provided to the court do not support the mother’s contention that she did this because the father fails to respond to her in a timely fashion or at all;

e) She took the child to a naturopath without the father’s consent;

f) She initially refused to provide the father with information as to where Felix was attending daycare in 2021;

g) After CAS investigated her claims about the father’s drug use and improper storage of marijuana, she continued to overhold the child;

h) She continued to involve CAS in issues that were not verified protection concerns as set out in the father’s 35.1A affidavit dated August 28, 2023.

[53] The mother admits that she moved to Woodstock to get away from the father and that if she could cut all ties with him, she would. Although her evidence is that she understands that Felix needs his father in his life, her behaviour indicates otherwise. Although it is understandable that by the end of the relationship the mother felt unsupported by the father and the paternal grandmother, and that initially she left for Woodstock because she had no where else to go and she states there was no availability in the shelters, it is clear that she has made no effort to return to KW or an area close enough to KW to allow shared parenting to continue when Felix started school.

(d) History of care of the child;

[54] Since the completion of the mother’s maternity leave in 2019, both parents have equally cared for the child.

[55] The court finds that the mother was primarily responsible for making food for the child regardless of whether she worked or not. The court also finds that the mother was more diligent about keeping the home clean. Her evidence is supported by Ms. Dorman. However, neither of these findings detract from the father caring for the child on an equal or greater basis depending on the period of time in question prior to the separation.

(e) and (f) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained and the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

[56] The child’s views and preferences are not before the court and the court was not made aware of any cultural, heritage or religious upbring as it relates to the child. As such, these are neutral factors.

(g) any plans for the child’s care;

[57] Both parents have plans for the child. The mother’s plan is to enroll the child in the school that is in her catchment area. As some of her courses at Fanshawe College are online, she has flexibility; she can take him to school and pick him up. If Felix is ill, she can miss her classes and pick him up. There is a before and after school program at the school she proposes. Felix will not be shuffled around. Upon graduation from her program, the mother’s plan is less clear. Her dream would be to move closer to Tobermory, but she has indicated she will remain in Oxford County. It is unclear where she plans to live. As such, her current plan is short lived.

[58] The child’s current accommodation at his mother’s home is lovely. He has his own bedroom, a large play area, a fully fenced in backyard, a cat, and a roommate.

[59] The father’s plan (other than placing the child in school near the paternal grandmother) has remained the same. He plans to use all the resources already in place and he has a number of persons listed on his 35.1 affidavit. He has recently taken a new job which is more flexible and will allow him to be more present for the child. This is a positive change as it is clear that during the week the child is in the paternal grandmother’s care from morning until either 6:00 or 8:00 p.m. He has solid supports in place that have been assisting him and the mother since Felix was born. Although his apartment is one bedroom, the court does not find, as the mother asserts, that it is inappropriate for the child. The father is of limited means, is not in receipt of any assistance and despite looking for a 2-bedroom apartment in KW for the last year, has been unable to secure affordable 2-bedroom housing.

(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;

[60] The mother has taken a number of parenting courses and other helpful courses (see Exhibit 5). She is clearly determined to be the best mother possible. She can meet the needs of the child. Currently she does not have daycare in place as she awaits the court’s decision. Temporarily, family and friends are caring for Felix when she is in school and cannot care for him herself.

[61] The father is also able to meet the needs of the child. He has availed himself of resources. It is clear that he does not want to have the alternate weekend relationship with Felix that his own father had with him. He does rely on his mother for daycare because he has to work. In that regard, he may be more fortunate than most working parents in that he has free childcare available to him. His reliance on his extended family is not a negative.

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

[62] Despite the mother’s assertions that she understands and supports the father-child relationship, her actions and words have shown otherwise.

[63] The mother has denied having post-partum depression even though she is reported to have same in the OCL report by her doctor. Whether she had post-partum depression is not relevant. It is her constant negative assertions about the father’s mental health that are relevant, as well as her failure to accept any responsibility as it relates to the events which transpired between January and February 2020.

[64] The father is open and honest about his anxiety and depression. He consumes marijuana to deal with his anxiety. The court does not find, based on the evidence before it, that his consumption of marijuana is excessive or affects his ability to care for the child. He has offered to do a drug test to prove this, but that offer was not accepted and no explanation as to why was provided by mother. He saw his family doctor regularly, he saw a counsellor and OCL, none of whom were concerned about marijuana use.

[65] Both parties are good parents. Felix has more supports in Kitchener. The father is willing to support the relationship between Felix and his mother, but the mother does not properly support a relationship between Felix and his father. The child needs a schedule with less transitions and more stability. The mother is a resourceful, hard-working woman who loves her son very much but cannot understand how her dislike of the father informs her decisions. Despite that, the court is maximizing her time with the child having regard to the distance and the child’s need for stability, in accordance with the child’s best interests.

(j) any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child;

[66] Subsections 18 (1) and (2) of the CLRA defines family violence as follows:

(1) “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

“Family violence”

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself 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.

[67] Section 24(4) outlines factors that the court must consider if family violence has occurred.

[68] Justice Chappel set out the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[69] The mother has made allegations that the father has committed family violence, claiming he has physically, sexually and emotionally abused her. She also asserts that he was financially abusive and exerted control over her.

[70] The court was not provided with police or CAS records.

[71] During the trial, the mother gave no evidence of sexual abuse.

[72] As it relates to physical abuse, she points to the following incidents:

a) The incident with Brandon in January or February 2019. The court finds that Brandon’s behaviour was violent. The father acted appropriately in removing him from the home.

b) The incident of January 17, 2020. On that date, the mother came home from work and it was clear that she was ill. The father put pressure on her to sleep so she could go to work the next day. He took care of the child to a point, and then started playing virtual video games with his nephew. The child monitor was in the room where he was playing video games. At approximately 1:30 a.m., the child became ill. He had to be bathed. The mother woke up and the parties argued in the bathroom. The argument continued into the living area. The mother asserts that the father tossed the child onto the couch like a football and that she struck the father in an attempt to get to the child. She then states the father pushed her to the floor. The parties agree that thereafter, the father went into the garage. Although mother did not follow him there, she believes he ingested marijuana. There is no dispute that while in the garage and on his own, he punched a hole in the wall and called his mother. The court accepts that both parents were frustrated. The mother admits to swatting or striking the father to get to the child. The father does not admit to any form of physical force. Tensions were high and the mother’s pleadings differ from her oral evidence, however, pleadings are not evidence. The court was told in submissions that her affidavits also differ from her oral evidence, but the affidavits were not put before the court. The mother felt outnumbered. She is the one though who swatted or hit the father. I do not accept that the father pushed the mother to the ground or that he threw Felix like a football onto the couch. I find that the argument escalated as a result of both parents being tired and frustrated.

c) An incident in later January 2020 (date of the parties differ). The father had called upon his mother and Nicole to assist in the argument, but despite their assertions that they attempted to be neutral, it is clear that they, in fact, took the father’s side, called the police and did not allow the mother to leave with the child. I accept the mother’s evidence that the paternal grandmother told Nicole to lock herself and Felix in the bathroom as this was corroborated by Nicole herself. The police were called, and the mother left the home before police attended; she was unable to take Felix. It was at this point the mother decided she was going to save money and leave the father. She wanted to leave but he would not let her take Felix.

d) The separation of the parties on February 1, 2020, was a result of an argument over money that escalated. Although the father should not have called the mother and Nicole, I accept that he did so in an attempt to diffuse the situation. It did not.

[73] The court accepts that domestic violence allegations are notoriously difficult to prove and that they often take place behind closed doors and may lack corroborating evidence (see F.S. v. M.B.T., 2023 ONCJ 102, 89 R.F.L. (8th) 442). In this case, police were called by father and mother left before they arrived. The police were again involved when mother attempted to pick up the child from the paternal grandmothers home later in January 2020. No charges were laid. Further, the mother’s insistence that father attend exchanges is not consistent with someone who fears for her safety in his presence. There is insufficient evidence to find that the father was physically abusive towards the mother.

[74] In reference to the financial abuse, mother points to the fact that the money she earned had to be sent to father by e-transfer and that if she did not send him money, he would get very upset. She indicates that all the bills were in his name and so was the lease. The father denies these allegations, and states that the bills were in his name because the mother had a bad credit score. He offered to open a joint account, but she refused. The mother indicates she refused the joint account because it was offered to her closer to the separation when the father became more attuned to the mother’s frustration regarding finances, and it was “too little too late”. She denies that she had a bad credit rating and that that is the reason the bills were in father’s name.

[75] The ability to call the evidence in reference to the mother’s credit score was in her control. The court finds no evidence of financial abuse. The court accepts that the parties struggled financially and that the mother was frustrated with the father’s lack of financial contribution to their relationship, but this is not financial abuse.

[76] Mother also points to the child’s first birthday as evidence of father’s control. The mother, father and child had attended a birthday party for Felix hosted by Aunt Tracey in Woodstock. The mother states that the father did not want to go because he did not want her to be close with her family and, as such, they left early and instead went to go see the paternal grandmother at the polling station. She states that although she is the one who told Aunt Tracey and other members of her family that they had to leave, it was at the father’s insistence.

[77] The father states that the parties left early because the mother had gotten into an argument with her sister. Although both of the maternal aunts that testified indicated they were shocked by the parties leaving early, they could not confirm either party’s version. They could only confirm that it was the mother who told them they needed to leave. Paternal grandmother does not recall this incident at all and states that the evening they attended the polling station was not the evening of the child’s birthday, but a few days later and on the actual day of the federal election.

[78] It is impossible to find that father was controlling on the basis of this incident. The evidence does not support a finding of controlling behaviour. The court accepts that the father might have been overly reliant on his mother for emotional support and that at times the mother felt outnumbered or unsupported. The court does not accept that this amounts to control.

[79] Further, the father is the person who encouraged the mother to reconnect with both of her parents, despite the history. It is father’s evidence that had he know the maternal grandfather had abused the mother, he would never have encouraged the relationship or given Felix the maternal grandfather’s name as a middle name.

[80] The evidence does not establish that there was either conduct or a pattern of conduct that amounted to coercive and controlling behaviour or that it caused the mother to fear for her safety.

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

[81] This factor is not applicable.

Where will exchanges occur?

[82] Currently, and because of the 2/2/3 schedule, there are 3 exchanges per week or 156 per year.

[83] Until the trial, most of the exchanges took place at a truck stop in Drumbo, Ontario. On occasion they took place at mother’s home or paternal grandmother’s home. The exchanges were fraught with conflict. Ms. McCallum videotaped the exchanges in an obvious way. The mother videotaped the exchanges from a camera on the dashboard in her car. One such videotaped exchange was made an exhibit in this trial.

[84] The court does not accept the mother’s evidence that the child screams, yells, hits, and runs into traffic only when the child leaves her care and goes into the paternal grandmother’s care. She is very critical of the father for not attending the exchanges. The evidence of Michelle Lightheart and Nicole McCallum, that the child sometimes became upset to leave each parent’s care, is accepted.

[85] It is very concerning to the court that the child has been exposed to the level of animosity and conflict that has been occurring at the transitions. The parties should have made a better effort at communicating and making a different plan for exchanges instead of the mother focusing on why the father was not present and her assertions that as a result the child was traumatized and instead of the father telling the mother “it was none of her business” why he was not there or that she was attempting to set him up. Certainly, there was no need to videotape exchanges. It is clear that neither parent has made this process easier for the child. It is for this reason that, where possible, the exchanges will take place at the child’s school.

Who should make medical and dental decisions about the child?

[86] Section 20(1) of the CLRA states: “Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.”

[87] The mother requests that she solely make decisions in reference to the child’s medical and dental care.

[88] The father requests that the parties share decision-making for the child’s medical and dental care.

[89] For the reasons that follow, this court orders that the parents jointly make medical and dental health decisions for the child, that the child’s doctor remain Dr. McGee, and that when available, the parties shall follow the medical recommendations of the health professional.

[90] The only three health related issues that have arisen are:

(a) The child’s adenoid surgery which both parents attended. The court does not fault the father for arriving just before the surgery and leaving once he had an opportunity to see the child once he was awake. He had work commitments.

(b) Enrolling of the child in therapy. Although both parents agreed to enrol him, they could not agree as to the location. The mother put the child in play therapy in 2021 as a result of behavioral issues. The father should have availed himself of the opportunity to speak with the therapist. Going forward, the parties will have to agree to the continuation of the therapy. The court expressed its concern that it is the parental conflict that is the issue. A three-year-old child whose parents put their conflict aside would not likely require play therapy.

(c) The mother alleged that in January 2023 the child suffered a minor concussion while in the paternal grandmother’s care and she was not told. If this is true, it was improper.

[91] There are a number of Court of Appeal for Ontario decisions that deal with the issue of sole versus joint custody, such as: Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373 (Ont. C.A.); Ladisa v. Ladisa (2005), 11 R.F.L. (6th) 50, 193 O.A.C. 336 (Ont. C.A); Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A); and Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356. Although the terminology in the legislation has changed from custody to decision-making, the considerations remain analogous.

[92] In Jackson v. Jackson, 2017 ONSC 1566, Chappel J. summarized the law with respect to custody. At para. 65, Chappel J. held that the decision as to whether an order for sole custody or joint custody is in a child’s best interests is ultimately a matter of judicial discretion. However, several general principles have emerged from the jurisprudence to assist the court in the decision-making process.

[93] The parties have reached a consent as it relates to day-to-day decisions and a consent as to emergency medical care. They have also agreed that non-emergency communications will be through the parenting app, Talking Parents, which they are already using.

[94] The parties have also reached a consent as it relates to all other decisions, save and except for medical and dental. They agreed to make these decisions jointly and, if necessary, consult with the professional, rely on the professional’s advice, and if there was still a dispute, they would attend mediation.

[95] In this case, both parents are fit and able to meet Felix’s needs. Their decision-making ability since separation is not perfect, but the use of Talking Parents App has been of assistance. The mother must not make decisions about the child unilaterally, which she has been doing. The father must respond to the mother’s requests in a timely manner, which he has not always done.

[96] When the court asked counsel for the mother specifically what difficulties there were in arriving at medical/dental decisions, the response was that the mother was better equipped to make the decisions, she had always taken the child to the doctor, and she has two aunts who are nurses. Since there is no reason given as to why the parties cannot make these decisions in the same manner as other decisions that have been made, and given the court’s concern that the mother will marginalize the father, the court orders these decisions be made in the same manner as the agreement reached on other decisions, save and except that the court cannot require the parties to attend mediation.

Where should the child attend school?

(a) Position of the parties

[97] It is the mother’s position that the child should attend Central Public School in Woodstock because:

i. She should be the primary care giver for the child during the school year;

ii. That is the catchment area of her residence;

iii. She is best positioned to assist with schoolwork;

iv. It has a before and after school program; and

v. She has supports in the Woodstock where she will remain at least until graduation.

[98] It is the father’s position that the child should attend school in the jurisdiction where his mother (the paternal grandmother) resides and that the paternal grandmother should be noted as the primary resident parent for school purposes only. He states this is because:

vi. The OCL recommended he be the primary care parent and have sole decision-making;

vii. He has family and support in Kitchener;

viii. His family as a whole believes this is the best plan;

ix. The child’s friends live in the area;

x. The school is a 4-5-minute walk from the paternal grandmother’s home;

xi. He plans to continue to make his long-term home in KW where he grew up and where he has his support system;

xii. The paternal grandmother has been the child’s daycare provider, is closely bonded to the child and is his fall-back position in the event that he is unable to get the child to or from school; and

xiii. The court needs to implement a schedule and choose a school that provides the child with stability.

[99] Both parents agree that in making a determination with respect to the child’s school, the best interest of the child is the paramount consideration. I have considered both parent’s plans and submissions in reaching my decision.

[100] For the reasons that follow, this court orders that the child attend school in his father’s catchment area. To be clear, he will not attend the school in his paternal grandmother’s catchment area unless both party’s consent in writing.

[101] Justice Broad in the recent decision of Dauber v. Dauber, 2021 ONSC 5489, at paras 14-15, summarized the law with respect to the guiding principles on the choice of school, which is ultimately a matter of judicial discretion. The general principals that are applicable to this case are:

a. The court has decided the child should live primarily with his father during the school year and schooling is a matter incidental to that.

b. Despite the father not completing high school and the mother having a higher education, the court is confident that the father has the capacity and commitment to carry out the education plan, assist with homework and will participate.

c. The child has not yet started school but when he does so it is expected that he will have a peer group.

d. The convenience of the parents is not relevant. It is about what is best for the child.

e. Other than mother advising the court that there was an after-school program in place, there is nothing about either school proposed that is uniquely beneficial for the child.

[102] The paternal grandmother, who provides childcare when the father works, lives in the home of her friend Nicole and has done so for 2.5 years or more. Her living space is in the basement, and she sleeps on the living room couch. The father’s plan that she provide daycare is not hampered by this court’s order. Both the father and paternal grandmother indicate that paternal grandmother already picks up and drops off the child at father’s home and that with her retirement she is flexible and always available for the child.

Child Support

[103] The mother’s line 150 income is:

i. 2020 – $13,011

ii. 2021 – $12,452*(her rent that year totaled $2,916) which is comprised of employment income at Country Comfort Spa and Aesthetics and Ontario Works

iii. 2022 – not provided

[104] The father’s line 150 income is:

iv. 2019 – $15,578

v. 2020 – $17,834

vi. 2021 – $37,348

vii. 2022 – $44,696

[105] Despite father’s stated decrease in income this year given his new and more flexible employment with Happy Taps (where he is in training) and will earn $24,000 gross per annum, (commissions bonuses and extra incentives to become available after his 3-month probation period ends), together with his income from Gamers Garage (which he estimates will be $15,300), he is prepared to base child support on his 2022 income.

[106] The mother’s most recent financial statement is dated October 25, 2022. Despite Rule 13 of the Family Law Rules, O. Reg. 114/99, she did not update her financial statement for the trial. Her evidence in chief is that her only source of income is Ontario Student Assistance Program (OSAP). Her evidence in chief was that she no longer cleaned homes and that she only did that for approximately 4 months and earned $400 per month. Until cross-examination, she did not advise the court that she continued to earn income from cleaning homes, that she received bursaries, scholarships, had a roommate who paid $350 a month in rent, and did other odd jobs to earn an income. No breakdown of her employment income was provided.

[107] At the date of separation, the mother was working at a spa. She earned $18 per hour plus commission. Her average hourly rate was $22. She admitted in cross-examination that she could earn $22 per hour.

[108] The mother did not provide any explanation for starting a new school program (Horticulture Technician at Fanshawe College in London), although it is clear that she likes the program she is in and hopes to help low-income earners have a sustainable source of food. It is her hope that with this diploma she will earn $60,000 to $80,000 per annum. Ideally, she would like to work up north and past Tobermory, but she could work in Woodstock, St. Thomas and Cayuga. She advised the court that she is committed to staying in Oxford County.

[109] The OSAP she received for the school year September 2022 to April 2023 was $25,010. During this school year, she had a full course load with 33 weeks of study. She expects to receive $19,000 in OSAP assistance this school year because her course load is reduced. The court was not provided with a breakdown of what portions of her OSAP are loan and what portions are grants.

[110] Grants and bursaries constitute income for the purposes of the child support, whereas student loans do not: see Mwenda v. Madituka, 2018 ONCJ 502, at para. 69. See also Regaudie v. Thomas (2002), 29 R.F.L. (5th) 153 (Ont. S.C.), at para. 10 and Hergert v. Hergert, 2022 ONSC 723 (Ont. Div. Ct.), at paras. 7, 32. And see Gallagher v. Gallagher, 2012 ONSC 6321, at paras. 31-33 and G.S. v. S.S., 2017 ONCJ 384, at paras. 211-212.

[111] The mother estimates her expenses as it relates to hydro and gas to be higher than when she swore her financial statement. She also now pays $1,500 per month in rent and spends $120 every 1.5 weeks in groceries. It was also her evidence that she spends more money on the child’s clothes. She no longer has daycare expenses for the child. Her estimated yearly budget is estimated between $30,000 and $40,000 per annum.

[112] The court does not accept that the mother’s sole source of income is student loans or bursaries. It is clear she is earning more than she is reporting.

Should an income be imputed to the mother?

[113] The father requests that an income of $45,760 be imputed to the mother: $22 per hour times 40 hours per week. He asserts that the mother can and has earned that income.

[114] The mother by her own evidence has confirmed that she can earn $22 per hour working in the field of medical aesthetics which is the field she has a diploma in. There was no reason provided to the court as to why she abandoned that field since she moved out of KW and instead commenced a 2 (now 2.5 year) horticultural course at Fanshawe College in London that will be completed in December 2024.

[115] For the reasons that follow, an income of $42,900 ($22 x 37.5 hours per week) is imputed to the mother. The start date of the imputation of income will be January 1, 2024.

[116] Section 19 of the Child Support Guidelines, O. Reg. 391/97, permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim. The circumstances listed in s. 19(1) are not exhaustive. They are simply examples of situations in which the imputation of income to a spouse may be appropriate: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at paras. 34-35; Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at paras. 46-51; Riel v. Holland (2003), 67 O.R. (3d) 417 (C.A.), 232 D.L.R. (4th) 264, at para. 36; Hawas v. Ibrahim, 2021 ONSC 3713, at para. 36.

[117] The leading case regarding the imputation of income to a support payor remains the decision of the Ontario Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 711, 219 D.L.R. (4th) 319 (Ont. C.A.). At para. 32 of that decision, the court described the imputation of income as “[o]ne method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.”

[118] As Gillese J.A. wrote for the court at para. 44 of Drygala:

Section 19 of the Guidelines is not an invitation to 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.

[119] At para. 23 of Drygala, the court set out the three-part test for the imputation of income, as follows:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of [their] reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[120] A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning, having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances: Drygala, at para. 45. There is no requirement of bad faith or an intention to evade support obligations inherent in intentional underemployment: Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, at para. 26; Drygala at paras. 24-37. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

[121] In Szitas v. Szitas, 2012 ONSC 1548, Chappel J. in reviewing the caselaw cites the following principles that apply to the imputation of income, at para. 57 (footnotes omitted):

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.
2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.
3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.
4. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.
5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.
6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.
7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

[122] The mother, by her own evidence, is capable of working full-time. In this case, it is clear by past history and her own evidence that the mother can earn $22 per hour or $42,900 per annum. Although the mother’s desire for further education is not considered blameworthy, she is intentionally underemployed. She has an obligation to work to her maximum capability, which she is not doing.

[123] I find that the father has provided sufficient evidence to seek imputation on a prima facie basis and the mother has failed to rebut that imputation as required: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28; Tahir v. Khan, 2021 ONCJ 1, 51 R.F.L. (8th) 231, at paras. 38, 40; E.D. v. J.S., 2020 ONSC 1474, at paras. 164-165; Abumatar v. Hamda, 2021 ONSC 2165, at para. 28.

Payment of Child Support

[124] The court ordered schedule if the mother remains 30 kilometers or more from Kitchener results in the child being in the mother’s care less than 40% of the time in a year. See Piasecki v. Piasecki, 2012 NSSC 337, at paras. 92-94.

[125] Given that currently the mother is in school and that she will need time to put her affairs in order, the imputation of income will commence January 1, 2024. This allows the mother ample time to find employment.

[126] If the mother chooses to remain more than 30 kilometers from Kitchener, Ontario, in which case the 3 weekend per month schedule during the school year will be in place, she shall pay to the father the sum of $392 per month.

[127] Both parties agree that if the court finds that the parents have care of the child 40% or more of the time, the set off formula should be applied.

[128] If the set off applies, then this court finds that at that time there will be no child support payable by either party to the other as their current income and imputed incomes are very similar.

This court orders:

1. Both parties shall complete the New Ways for Families Online Parenting Without Conflict course.
2. Both parents shall ensure that the child is not exposed to adult conflict and is not exposed to anyone making negative comments about either parent.
3. The child’s doctor shall remain Dr. McGee pending written agreement otherwise between the parties or a Court Order.
4. Both parties shall consult and agree as to medical and dental decisions in relation to the child. In the event the parties cannot agree, they shall, if provided, follow the opinion of the doctor.
5. The child shall live primarily with his father during the school year.
6. The child’s primary residence for school registration purposes shall be the father’s address unless the parties agree otherwise in writing.
7. For so long as the mother’s residence remains more than 30 kilometers from the child’s school, she shall have parenting time with the child as follows: (a) The first three weekends of each month from Friday after school to Monday to school, to be extended to Thursday after school or Tuesday to school in the event of a school holiday; (b) One overnight per week so long as the child remains within 30 kilometers of his school.
8. If the mother moves within 30 kilometers of Kitchener-Waterloo, then the schedule during the school year shall be week about with the exchange taking place on Friday after school at the school.
9. Commencing January 1, 2024, an income is imputed to the mother in the amount of $42,900 per annum.
10. If the schedule during the school year is as set out in paragraph 7 above, the mother shall pay the father child support in the amount of $392 commencing January 1, 2024, and on the first of each and very month thereafter.
11. If the schedule during the school year is the week about, then given the income of the father in 2022 of $42,900 and the imputed income of the mother of $44,696, there shall be no child support payable.

Costs

[129] I strongly encourage the parties to resolve the issue of costs. If the parties are unable to do so, the Applicant may file written submissions on costs within 14 days. The Respondent may file responding written submissions within 10 days thereafter. The Applicant may provide brief reply 4 days thereafter. Submissions are not to exceed 4 pages, plus a detailed bill of costs which must be submitted and copies of any offers to settle. If a party does not serve and file submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party. Cost submissions shall be sent to Kitchener.SCJJA@ontario.ca and Brontae.Frook@Ontario.ca.

Justice Piccoli Released: October 17th, 2023