Court File and Parties

COURT FILE NO.: FS-22-31996 DATE: 20231130 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alma Lekic, Applicant – and – Ahmad Ismail, Respondent

In person (Applicant) Absent (Respondent)

HEARD: In Writing

Endorsement

M. Kraft, J.

Overview

[1] This is an uncontested trial brought by the Applicant (“wife”) seeking a divorce; decision-making responsibility for the parties’ two children; primary residence of the children; child support, retroactive to January 1, 2019, and prospectively for the two children; an order that the Respondent (“husband”) pay monthly for the children’s special and extraordinary expenses; an order imputing income to the husband in the sum of $80,000 a year; an order requiring the husband to attend therapy to address his mental health issues if there is a parenting time schedule in place; for ancillary parenting related orders; and a restraining order.

Background Facts

[2] The parties were married on September 21, 2013. They separated after 6 ½ years of marriage, on January 1, 2019.

[3] There are two children of the marriage, a son, A., born on February 28, 2013, age 9, and a daughter, Aa., born October 12, 2016, age 5, both of whom live with the wife.

[4] There is a long history of emotional and verbal abuse by the husband toward the wife and the children during this marriage. The husband struggled with his own mental health issues and substance abuse problems. Even after separation, the abuse continued with the husband harassing and stalking the wife and slandering her to her family members and friends. Ultimately, the wife called the police on July 1, 2022, and the husband was charged on July 3 2022, with 2 counts of criminal harassment. The Court was not advised of the outcome of these charges.

Issues to be Determined

[5] The issues to be determined at this uncontested trial are as follows:

a. What parenting orders should be made in relation to the children?

b. What is the husband’s child support obligation, both Table child support and for the children’s s.7 expenses, retroactively and prospectively?

c. Should there be an order restraining the husband from having direct or indirect contact with the wife other than through texting and/or from coming within 100 metres of her, except for the purposes of parenting exchanges?

d. Should the husband pay the wife’s costs of this uncontested trial in the fixed sum of $7,032.84, inclusive of HST and Disbursements.

Litigation History

[6] On September 27, 2022, the wife issued the within Application seeking:

a. a divorce;

b. decision-making responsibility for the children;

c. an order that the husband be granted parenting time for three hours on a weekday, after school and supervised parenting on the last weekend of every month from Friday, after school to Sunday at 6:00 p.m., to be supervised by the paternal grandparents at their home;

d. an order requiring the husband to pay child support based on his actual income, or that he be imputed with an annual income of $80,000;

e. an order requiring the husband to pay his proportionate responsibility for the children’s s.7 expense, including soccer and swimming for A. and gymnastics and swimming for Aa;

f. an order requiring the husband to attend therapy for his mental health issues while a parenting time schedule is in place;

g. an order permitting the wife to relocate with the children within Ontario without the need for the husband’s consent;

h. an order permitting the wife to travel with the children without the husband’s consent;

i. an order permitting the wife to obtain the children’s passports without the need for the husband’s consent, or alternatively that he sign any necessary documentation within 14 days;

j. an order that the husband not communicate with the wife except by text and only in relation to the children; and

k. a restraining order that the husband not come within 100 meters of the wife’s home, her place of work or any place where she is known to be, except for the purpose of exchanging the children.

[7] On October 26, 2022, the wife served the husband with her Application, her sworn Financial Statement, her Notices of Assessment for 2019, 2020 and 2021, her Income Tax Returns for 2019, 2020 and 2021; her most recent pay stub, her Form 35.1 Affidavit in support of Parenting, his MIP notice, and the Automatic disclosure order.

[8] The husband never responded to the wife’s Application.

[9] On March 10, 2023, the wife served the husband with a Form 20, Request for Information, dated March 9, 2023, to obtain financial disclosure from him. The husband failed to respond.

[10] In mid-June 2023, the wife tried to obtain the husband’s consent to sign the children’s passport applications so she could travel with them in the summer to visit her family. The wife’s sister had passed away on February 16, 2023 in Canada and the wife wanted to travel with the children to Bosnia to look after her sister’s estate and to visit with her family. The husband responded to her text messages with verbally abusive and derogatory texts. He did not respond to the wife’s repeated requests to sign the passport applications. As a result, the wife brought an urgent motion to allow her and the children to travel to Bosnia, Croatia and Montenegro in the summer. Despite being served with the wife’s motion materials both by courier and email on June 26, 2023, the husband did not respond.

[11] At the return of the wife’s urgent motion, the court Registrar wrote the respondent by email and left him a voicemail message. The wife texted the respondent on the date of the return of the motion. The husband did not respond and he did not appear in court.

[12] On June 29, 2023, Kristjanson, J. found that prior to bringing this urgent motion, the wife had reached out to the husband to sign the children’s passport application and the husband’s responses were replete with invective, personal attacks on the wife. Kristjanson, J. made an order dispensing with the need for the husband’s consent or signature on the children’s passport applications and granted the wife permission to travel with the children from Toronto to Bosnia, Croatia and Montenegro from July 28, 2023, to August 26, 2023, without the consent of the husband. This order also dispensed with the husband’s consent to any travel. The wife was to email the husband at his email address ahmadish2Agmail.com with emergency contact information while travelling.

[13] On July 21, 2023, a process server served the husband with the wife’s affidavit for uncontested trial (Form 23C), Form 25A Divorce Order, Form 26, Affidavit for Divorce, Form 25F, Restraining Order, CPIC Form, an SDO form and the SDOIF. Service of these documents took place by email.

[14] The husband failed to file any responding material or respond to the wife’s material.

[15] This is the wife’s uncontested trial.

Issue One: What parenting orders should be made?

[16] The wife seeks sole decision-making responsibility for the parties’ two children, that they continue to reside primarily with her, an order that husband’s parenting time, if any, be supervised by his parents and overnight parenting time to take place at the paternal grandparent’s home; an order restraining the husband from communicating with her except through text and only in relation to the children. She also seeks order dispensing with the husband’s consent to enable her to obtain government-issued documentation for the children, to travel with the children and/or to relocate with the children within Ontario.

[17] Pursuant to s.16(1) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (“DA”), the court is only to consider the children’s best interests in making a parenting order or a contact order. In considering the best interest factors, set out in s.16(3) of the DA, the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s.16(2).

[18] The best interest factors set out in s.16(3) of the DA include, but are not limited to the following:

a. The child’s needs, given the child’s age and stage of development;

b. The nature and strength of the child’s relationship with each spouse;

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

d. The history of care of the child;

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

f. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

g. 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 children.

[19] In terms of family violence and in considering the impact of such violence, s.16(4) states as follows:

Factors relating to family violence

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

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[20] The wife has been the children’s primary caregiver during the parties’ 6 ½ -year marriage and since separation. She managed all major decisions related to the children. She looked after all of their physical and emotional needs.

[21] The husband did not take a meaningful or significant role in the children’s care during the marriage or since the separation. He has demonstrated an inability to communicate with the wife on all child-related issues and is unwilling to place the children’s needs and interests ahead of his own. The wife has been the sole parent to provide the children with a stable home. I find that the husband has demonstrated no willingness to support the development and maintenance of the children’s relationship with the wife.

[22] After separation, the husband refused to agree to a parenting time schedule to enable the children to spend time with him. Instead, he seeks parenting time randomly when he wishes. The husband has been inconsistent with his contact with the children. As a result, there are times when the husband has gone for 4-6 weeks without seeking the children. The children are left expecting to see the husband and then become disappointed because of his refusal to agree to a consistent and predictable parenting schedule. In this manner, I find the husband has demonstrated a total inability to understand and/or to meet the children’s needs, or be cognizant of the children’s ages and stages of development.

[23] The text messages attached to the wife’s Form 23C make it abundantly clear that the husband regularly texts the wife with denigrating, abusive, toxic, cruel and vicious content. In addition to calling her names such as “whore”, “stupid”, “dumb”, “cheating toxic c-nt”, he refuses to answer any of her child-related questions or engage in any meaningful back and forth dialogue about the children. Instead, he takes every opportunity to abuse and ridicule the wife in any contact she initiates with him, even when she does not react and refuses to engage with him. I find the husband’s manner of communication with the wife to be family violence and to be a pattern of coercive and controlling behaviour toward her. Some of the text messages indicate that the children can see these texts and it is not in their best interests to be exposed to this abusive treatment of the husband toward the wife. I have no difficulty concluding that the husband’s anger and resentment toward the wife clouds his ability to care for and/or meet the needs of the children.

[24] The husbands parenting time since separation has taken place in his parent’s home. The husband has a history of substance abuse, particularly, with prescription medications and has required treatment for his addictions. The wife submits that the husband has acted contrary to the children’s best interests on many occasions, including asking the parties’ son to steal the wife’s hard drive and saying inappropriate things to the children. While the wife believes it is in the children’s best interests to have parenting time with the husband, she seeks an order that his time be supervised by the paternal grandparents and take place in their home. The wife would also be agreeable to the husband’s parenting time being supervised at a supervised centre. I agree with the wife. Any parenting time the husband shall have with the children in the future should be supervised and take place at his parent’s home or a supervised centre.

[25] Specifically, the wife proposes that the husband’s parenting time with the children take place as follows:

a. Tuesdays, pick up from the wife’s residence at 5:00 p.m. and drop off at the wife’s residence at 8:30 p.m.;

b. The last weekend of every month, to be supervised by the paternal grandparents, with pick up on Fridays at 5:00 p.m. at the wife’s residence to Sundays, at 6:00 p.m. with drop off at the wife’s residence, to take place at the paternal grandparents home and to be supervised by the paternal grandparents.

[26] Since the separation, when the wife has tried to communicate with the husband about the children’s extra-curricular activities, to plan for his parenting time with the children or discuss any child-related issues, the husband either ignores her or attempts to engage her conversations with her about their relationship. More commonly, the husband has insulted the wife and verbally attacked her.

[27] In addition, the husband has demonstrated that he will ask the children questions about the wife in an attempt to find out information about her or manipulate her.

[28] Given the husband’s conduct, the wife has been forced to make decisions about the children without the husband’s consent.

[29] Given the history of care of the children, the husband’s inconsistent and unpredictable pattern of having parenting time with the children, the impact of the children witnessing or having indirect exposure to the husband’s abusive and toxic verbal abuse toward the mother, and the husband’s abusive manner of communicating with the wife, it is in their best interests that they continue to have their primary residence with the wife and that the wife have sole decision-making responsibility in relation to all major decisions that impact the children’s lives.

[30] The father’s parenting time shall be as proposed by the wife, and it shall be supervised by his parents or at a supervision centre and take place at the paternal grandparents’ home.

[31] The wife shall be given authority to obtain and renew any government issued documentation for the children without the need for the husband’s consent, such as passports, birth certifications, social insurance numbers, driver’s licence, etc. The wife shall also be authorized to travel with the children without notifying the husband or obtaining his consent in advance. Finally, the wife shall be permitted to relocate with the children within Ontario without the need for the husband’s consent.

Issue Two: What is the Husband’s Child Support Obligation?

[32] Pursuant to s.15.1 of the DA, the court may make an order requiring a spouse to pay for child support. In making a child support order, the court shall do so in accordance with the Federal Child Support Guidelines, SOR/97-175 (“CSG”) s.15.1(3) of DA.

[33] The wife seeks child support for the two children in accordance with the CSG.

[34] At the time of separation, the husband was employed full-time as a Post-Production Supervisor at Redlab Digital. The wife submits the husband was earning $80,000 a year in this role.

[35] A few months after separation, in May 2019, the husband lost his employment position and moved in with his parents in Waterloo, Ontario.

[36] Between May 2019 and May 2020, the husband was unemployed.

[37] From September 2020 to December 2020, the husband was employed by Toyota as a Quality Lead. The wife has no information about the income he earned in this role.

[38] In 2021, the husband was unemployed again for a period of time.

[39] From March 2022 to December 2022, the husband was employed by Shaftesbury Films as a Post-Production Supervisor. In December 2022, the husband advised the wife that his contract with Shaftesbury had ended in March 2022. However, the wife attached as Exhibit to her Form 23C his LinkedIn page demonstrating that it still lists him as working at Shaftesbury Films.

[40] The wife submits that she understands the husband is a food delivery person for Uber Eats and a dog walker. This is information that the children have told her.

[41] The wife has outlined the child support payments made by the husband since separation.

a. In 2019, the husband paid total child support of $16,915.

b. In 2020, he paid total child support of $7,620;

c. In 2021, he paid total child support of $2,350; and

d. In 2022, he paid total child support of $1,550.

[42] Notwithstanding his periods of unemployment, the husband purchased expensive gifts for the children. On October 12, 2022, and March 12, 2022, the husband purchased a laptop computer, a Nintendo Switch game console and an Apple Watch for the children.

[43] The husband has not provided the wife with any financial disclosure. He refused to participate in these proceedings. After he was served with the wife’s Request for Information, Form 20, the husband failed to respond. As a result, the wife has no income information from the husband.

[44] The wife produced salary information from the website, Glassdoor, which lists a salary for a project manager at Shaftesbury Canada, a in the range of $69,303 a year. She seeks an order imputing the husband with an income of $80,000 a month and an order that he pay her Table child support for the two children in the sum of $1,211 a month, starting January 1, 2019 (the date of separation), after giving him credit for the child support he paid.

The Law on Imputation of Income

[45] When determining whether to impute income to a payor, the court has regard to s.19 of the CSG, which allows the court to impute income to a spouse as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment.

[46] In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 23, Gilles, J.A. set out the questions a court should ask when considering whether a spouse is intentionally under-employed or unemployed:

a. Is the spouse intentionally under-employed or unemployed?

b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

c. If no, what income is appropriately imputed in the circumstances?

[47] The court also clarified that “intentional” under-employment or unemployment does not require a specific intent to evade child support obligations. There is no requirement of bad faith: Drygala, at paras. 25-26, 29.

[48] “Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. To meet this legal obligation, a parent must earn what he or she is capable of earning”: Drygala, at para. 32.

[49] In terms of what income is appropriately imputed in the circumstances, the court cannot 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: Drygala, at para. 33.

[50] The test for imputing income for child support purposes applies equally for spousal support purposes: Di Sabatino v. Di Sabatino, 2022 ONSC 383, para. 49, leave to appeal refused 2022 CarswellOnt 7089 (Div. Ct.).

[51] While the imputation of income is not an exact science, the amount to be imputed as to reference real evidence: Albanez v. Samuda, 2019 ONSC 3610. The wife has provided the court with information from a job website, Glassdoor, demonstrating that the husband would have earned income in the $67,000 to $68,000 range.

[52] In McNeil v. Dunne, 2019 ONSC 6388 (S.C.J.), the Divisional Court reiterated that sometimes prior employment income is a rational and sufficient basis for quantifying imputed income. In Lawson v. Lawson, 2006 ONCA 26573, the Court of appeal found no error “in the trial judge basing the appellant’s imputed income on his average income for the three years prior to separation and found it was reasonable in the circumstances, para. 38.

[53] In reference to the third question in the analysis, namely what income to impute, the court has “wide discretion”: A.E v. A.E., 2021 ONSC 18880 (S.C.J.), para. 262 (2)(c). The Court considers the evidence, and when selecting a number, “must consider what is reasonable in the circumstances”, looking at, for example, “age, education, experience, skills and health of the parent”: Drygala v. Pauli, supra, paras. 44-45.

[54] The Court can consider historical earnings or prior employment income as a basis for imputing income: Drygala v. Pauli, supra, para. 46; Dunne v. McNeil (Div. Ct.), supra, para. 8; Lawson v. Lawson, supra, para. 38.

[55] When considering income imputation, the person asking to impute income does not need to “point to an available job or jobs that meet his qualifications and set out the remuneration”: McNeil v. Dunne, supra, paras. 71-73. The threshold is not this high, and “evidence of previous earnings alone can be sufficient to establish a rational basis that meets the test”: McNeil v. Dunne, supra, para. 74.

[56] When a party refuses income disclosure in family law proceedings, it can be safely assumed that he or she knows that income can be imputed under the CSG. The refusal to disclose evinces an assessment by the litigant that he or she is likely better off with an imputed income than if the real income was known: Matos v. Driesman, 2023 ONSC 6548, at para. 5.

[57] Based on the evidence on record, I find that the husband should be imputed with annual income of $80,000. This corresponds to a Table child support obligation of $1,211 a month for the two children of the marriage on an ongoing basis.

[58] The wife seeks retroactive child support to the date of separation, January 1, 2019.

The Law on Retroactive Child Support

[59] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the court looked at three scenarios where retroactive child support might be ordered, one of which, is where there has not already been a court order for the payment of child support. This is the situation in the case at bar.

[60] Bastarache J. found that s. 15.1 of the Divorce Act, does not expressly provide for retroactive support orders. In the context of a claim for child support where no previous order has been made or agreement reached between the parties for the payment of one parent to another for child support, this court has jurisdiction to award retroactive child support under s. 15.1 of the DA on a contextual reading of the statute. The court found that there is no restriction in the DA as to the date from which a court may order that an order of child support may take effect. In this respect, retroactive support for a child is actually compensation for what is legally owed. D.B.S., paras. 81-84.

[61] The majority in D.B.S. confirmed bedrock principles relating to the obligation of separated parents to pay child support. The amount of support payable under this obligation depends on their ability or their income according to the governing support regime that applies to them.

[62] Bastarache J. observed that the mere fact of parenting places a great responsibility upon parents. They are immediately responsible as guardians and providers upon the birth of a child. Bastarache J. further observed that the parent and child relationship is one that engages not only moral obligations, but also legal obligations; support is an obligation that arises automatically upon the birth of a child; D.B.S., at paras. 36-37.

[63] In D.B.S., the court set out the two steps to decide the issue of retroactive child support. The court must first determine whether a retroactive award should be made on the facts of the case. This determination, in my view, is a question about entitlement. The second step is to decide the amount of support that would adequately quantify the obligation of the payor to pay support during the intervening time. This step requires the court to determine the date from which retroactive child support should be payable, as the amount payable each month is fixed by the table amount according the CSGs for the payor’s income in each year of the retroactive period.

[64] There are several factors to consider in determining whether retroactive child support should be ordered. These factors are often referred to as the D.B.S. factors and can be summarized as follows:

a. Is there a reasonable excuse for why child support was not sought earlier?

b. Did the payor parent engage in blameworthy conduct?

c. What are the child’s circumstances?

d. Will hardship be occasioned by a retroactive award?

[65] In this case, the wife issued the Application on September 27, 2022, 3 years and 9 months after the parties had separated on January 1, 2019. She served the husband with her pleadings on October 26, 2022. There is no evidence before the court that the wife reached out to the husband between the date of separation and October 26, 2022 seeking child support from him. The wife did not provide any reasonable excuse for why she did not seek child support earlier than September 27, 2022. However, there is evidence that the wife endured abusive and toxic email exchanges with the husband on a regular basis and if her delay in bringing the application was a concern regarding his retribution in further or more aggressive and abusive conduct toward her, the case law supports that explanations for delay which it considered to be reasonable included intimidation by the support payor, well-founded fear that the payor would react vindictively to a support application: D.B.S., at para. 101; and Collins v. Colling, 2017 ONSC 2232 (S.C.J.), at para. 53.

[66] The husband, in my view, did engage in blameworthy conduct because he consciously chose to ignore his child support obligations: Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct: D.B.S., at para. 107. The husband knew that the children were financially dependent on him. Notwithstanding this, he has only paid child support as he saw fit.

[67] The present circumstances of the children are that they continue to be in need of child support. The wife has been meeting all of their financial needs without assistance from the husband.

[68] Since the husband chose not to respond to the wife’s Application or participate in these proceedings, the court has no evidence from the husband as to whether hardship would be occasioned by a retroactive child support award. The court, however, should attempt to craft the retroactive award in a way that minimizes hardship: D.B.S. at para. 116. While hardship for the payor parent is much less of a concern where it is the product of his own blameworthy conduct, it remains a strong one where this is not the case. In the case at bar, it is the husband’s own blameworthy conduct that has resulted in retroactive child support being owed by him.

[69] I find this to be an appropriate case where child support should be awarded retroactive to the date of separation, January 1, 2019. Based on the husband being imputed with an income of $80,000, his child support obligation would be $1,211 a month for the parties two children. The husband’s retroactive child support obligation amounts to $71,449, calculated as follows:

a. In 2019, the husband should have paid $14,532 of child support, calculated as $1,211 x 12 months;

b. In 2020, the husband should have paid $14,532 of child support, calculated as $1,211 x 12 months;

c. In 2021, the husband should have paid $14,532 of child support, calculated as $1,211 x 12 months;

d. In 2022, the husband should have paid $14,532 of child support, calculated as $1,211 x 12 months; and

e. In 2023, the husband should have paid $13,321 up to and including November 30, 2023, calculated as $1,211 x 11 months.

[70] The husband must be given credit for the child support he has paid to the wife since the date of separation. The wife calculates that the husband paid the total sum of $28,435 in child support since the date of separation, on January 1, 2019, broken down as follows:

a. In 2019, he paid a total amount of $16,915;

b. In 2020, he paid a total amount of $7,620;

c. In 2021, he paid a total amount of $2,350; and

d. In 2022, he paid a total amount of $1,550.

[71] After being given credit for having paid $28,435 in child support, the husband owes the wife retroactive child support in the sum of $43,014. I order the husband to pay the retroactive child support at the rate of $500 a month, starting January 1, 2024, until the arrears are paid.

Section 7 Expenses

[72] The children have limited special and extraordinary expenses. A. plays soccer at the cost of $300 a month and takes swimming lessons at a cost of $100 a month. Aa takes Gymnastics at a cost of $100 a month and swimming lessons at a cost of $100 month. The children’s total s.7 expenses amount to $600 a month. The wife seeks that the husband contribute his proportionate share of these special and extraordinary expenses on a prospective basis, at the rate of $249 a month, which amounts to 41.5% of the cost. This is based on the wife’s request that the court impute the husband with an income of $80,000 and uses her last year’s income of $112,811 as her home, such that she would be responsible for 58.5% of the children’s s.7 expenses.

[73] In terms of retroactive s.7 expenses, the wife submits that the husband owes retroactive s.7 expenses in the sum of $11,483 from the date of separation (January 1, 2019) to July 2023. However, the wife provided no supporting documentation for the section 7 she incurred on behalf of the children. There is no breakdown of expenses incurred or receipts to evidence what was paid by her. Accordingly, I have no basis on which to order the husband to pay retroactive s.7 expenses for the children. When the wife produces such information to the court, a retroactive award for the children’s s.7 expenses can be determined.

[74] The wife’s sworn financial statement, sworn on August 26, 2022, provides that she is employed by Baycrest Health Sciences and earns $80,424 a year. However, her 2021 Notice of Assessment lists her income at $112,811; her 2020 Notice of Assessment lists her Line 15000 income as $107,245 a year; and her 2019 Notice of Assessment lists her Line 15000 income as $94,074. Her income from all sources. The wife provides no explanation for why her income has reduced in 2022 from $112,811 to $80,424. Further, the wife’s calculations of the husband’s current proportionate responsibility for the children’s s.7 expenses is based on her last year’s income as reported on her 2022 income tax return/notice of assessment of $112,811. Accordingly, this is the income figure to be used for the wife to determine the husband’s proportionate responsibility for the children’s ongoing s.7 expenses.

[75] If the wife’s income is $112,811 and I have imputed the husband with an income of $80,000 a year, then her proportionate responsibility for the children’s ongoing s.7 expenses is 58.5% and the husband’s proportionate share for the children’s ongoing s.7 expenses is 41.5%.

[76] Section 7 of the CSG provides the court with the authority to order a spouse to provide for an amount to cover all or any portion of a number of expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. The list of expenses which are categories of s.7 expenses include extraordinary expenses for extracurricular activities: s.7(1)(f).

[77] I find that the cost of the children’s soccer, swimming and gymnastics lessons are reasonable and necessary and in the children’s best interests. I order the husband to contribute his proportionate share of these ongoing s.7 expenses, being $249 a month, or 41.5% of same.

Issue Three: Should a Restraining Order be made against the Husband?

[78] The wife seeks a restraining order against the husband so that he does not come within 100 meters of her residence, place of employment or any place she is known to be, except if it is for the purpose of having contact with the children. She also seeks an order that the husband be ordered to have no communication with the wife, other than by text message and only if it is relation to the children.

[79] The authority for the court to make a restraining order is set out in s.35(1) of the Children’s Law Reform Act which provides that the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. A restraining order is also available under the Family Law Act under s.46(1).

[80] The test under both statutes is to determine whether the moving party “has reasonable grounds to fear for his or her safety or for the safety of any child in his or her custody.” The courts must exercise caution when granting a restraining order due to the nature of restraining orders limited the freedom of movement and communication of a party and the risks of criminal sanctions if breached: C.(D). v. C. (M.T.), 2015 ONCJ 242, at para. 64. The onus is upon the person requesting the restraining order, on a balance of probabilities to persuade the court that it is required; C.(D.) v. C. (M.T.), at para. 64.

[81] Given the history of verbally abusive and cruel text messages, harassment, stalking and slander inflicted on the wife by the husband, I find that the wife has established that she has a reasonable fear for her safety and the safety of the children in her care, such that a restraining order against the husband shall be granted.

Issue Four: Should the Husband pay the Wife costs of this uncontested Trial?

[82] The wife seeks costs, fixed in the sum of $7,032.84, including HST and disbursements. The wife was required to retain counsel to assist her with this matter.

[83] Pursuant to r. 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), there is a presumption that a successful party is entitled to the costs of case.

[84] The factors the court is to consider when making a costs order are listed in r. 24(12). The court must consider the reasonableness and proportionality of the factors enumerated in the subrules as they relate to the importance and complexity of the issues. These factors include each party’s behavior; the time spent by each party; any written offers to settle, including those that do not meet the requirements of r. 18; any legal fees; any other expenses; and any other relevant matter.

[85] I have reviewed the Bill of Costs attached to the wife’s Form 23C. Ms. Talebiani, acted as the wife’s counsel, and was called to the Bar in 2016. Her hourly rate is $325 and she spent the bulk of time working on this matter for the wife, a total of 15.65 hours. More junior counsel, billing out an hourly rate of $275 spent 0.6 hours on this matter. The fees in my view, are reasonable and proportionate to the issues.

[86] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behavior by litigants: and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, 299 A.C.W.S. (3d) 770, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, 17 R.F.L. (8th) 147, at para. 12.

[87] In Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (S.C.J.), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the FLRs. He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the FLRs was approved of by the Ontario Court of Appeal in C.A.M. v. D.M., [2003] O.J. No. 3707 (C.A.), at para. 42.

[88] The FLRs do not explicitly provide for costs on either a partial or substantial indemnity scale There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.

[89] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he/she may face, if he/she is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.

[90] I find that the husband in this case was unreasonable and engaged in bad faith. His refusal to participate in these proceedings certainly increased the wife’s legal fees. She was required to pay for an prepare pleadings, to which he did not respond; she had counsel prepare and serve him with a Request for Information, to which he did not respond. She was then forced to bring an urgent motion to obtain passports for the children, because of his failure to respond to her. Further, she was put to the cost of preparing materials for this uncontested trial. Accordingly, I order the husband to pay the wife’s cost, fixed in the sum of $7,032.984.

ORDER

[91] This court makes the following final order:

a. Pursuant to s.16(1), 16.1(1) and (4) of the Divorce Act, the applicant, Alma Lekic, shall have sole decision-making responsibility in connection with the major decisions that impact A. Ismail, born February 28, 2013 and Aa. Ismail, born October 12, 2016.

b. Pursuant to s. 16(6) and 16.1(4) of the Divorce Act, the children shall reside primarily with the applicant.

c. Pursuant to s. 16.1(4) and 16.1(5) of the Divorce Act, the applicant shall be permitted to apply and renew any and all government issued documentation for the children, including but not limited to passports, social insurance numbers, health cards, driver’s licence, birth certificates.

d. Pursuant to s.16.1(5) of the Divorce Act, the applicant shall be permitted to travel with the children without the need for the respondent’s consent.

e. Pursuant to s.16.9 of the Divorce Act, the applicant shall be permitted to relocate with the children within Ontario, without the need for the respondent’s consent, upon providing him with notice of her intention to relocate 60 days before doing so.

f. Pursuant to 16.5.(5) (6) of the Divorce Act, the respondent shall attend for counselling to address his mental health and addictions if he wishes to have parenting time with the children.

g. Only if the respondent is in compliance with (f.) above, pursuant to s.16.5(5), (6) and (7) of the Divorce Act, the respondent shall have parenting time with the children as follows:

i. Tuesdays, from 5:00 p.m. to 8:30 p.m., with him picking up and dropping the children off at the applicant’s home; and

ii. The last weekend of the month, from Fridays, at 5:00 p.m. to Sundays at 5:00 p.m., provided his parenting time is supervised by the paternal grandparents and takes place at their home.

h. Pursuant to s. 35 of the Children’s Law Reform Act, the respondent shall be restrained from coming within 100 meters of the applicant’s residence and her place of residence, except if it is to exchange the children for parenting time.

i. Pursuant to s. 15.1(1), (3) of the Divorce Act, the respondent shall be imputed with an income of $80,000 a year. Commencing on December 1, 2023, and on the first day of each following month, the respondent shall pay the applicant child support for the two children of the marriage in the table amount of $1,211 a month. In addition, the respondent shall pay the applicant 41.5% of the children’s special and extraordinary expenses, upon the wife providing proof of receipts that she has incurred the expenses for soccer, swimming and gymnastics.

j. Pursuant to s. 15.1(1) and (3) of the Divorce Act, commencing December 1, 2023 and on the first day of each following month, the respondent shall pay 47% of the children’s current s.7 expenses in the sum of $247 a month. If the applicant produces proof of payment and a breakdown of the children’s retroactive s.7 expenses, a further order can be made regarding the respondent’s retroactive obligation to pay for these s.7 expenses.

k. Pursuant to s.15.1(1) of the Divorce Act, the respondent shall pay the applicant retroactive child support of $43,014 (which gives him credit for the children support paid by him since separation) at the rate of $500 a month starting December 1, 2023, and on the first day of each following month until the arrears are satisfied.

l. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

m. The respondent shall pay the applicant’s costs of this uncontested trial in the fixed sum of $7,032.84.

Released: November 30, 2023

M. Kraft, J.