Court File and Parties

Court File No.: FC-16- FO51907(1) Date: 2024/01/09 Ontario Superior Court of Justice

Between:

Leslie-Anne Olaskey, Applicant – and – Scott Peter Olaskey, Respondent

Counsel: Anna Towlson, for the Applicant/Moving Party in Motion to Change Respondent is Self-Represented

Heard: November 30, December 1, 4 – 8, 11 – 13, 2023

Before: Breithaupt Smith, J.

Reasons for Judgment

Executive Summary

[1] This family has been governed by a Final Order since late 2020, reached on consent, in which the parties had joint decision-making and equally shared parenting of their three children. The threshold question is whether a material change in circumstances has occurred justifying a review of that Final Order. If that threshold is met, a fresh review of parenting arrangements in the children’s best interests is conducted.

[2] Mother asks that a consultation protocol be maintained which grants her final decision-making responsibility in the event of conflict or non-response. She asks for the children to spend alternate weekends with Father and to remove any mid-week parenting time with him. She asks for some adjustments to the holiday parenting schedule. She proposes that child support flow based on an imputed income to Father, who she argues ought to be receiving benefits through the Ontario Disability Support Plan (“ODSP”) at a higher income than he receives from social assistance.

[3] For the reasons given in my Endorsement of December 4, 2023, Father’s claims were struck out except his claim for final decision-making authority and changes to the holiday schedule. He seeks a return to equally shared parenting.

[4] Having heard and considered the evidence, I find that a material change in circumstances has taken place. I conclude that it is in the children’s best interests for Mother to have final decision-making authority and for them to spend alternate Saturdays, not overnight, and specified holiday time in Father’s care. I further find that, other than two non-consecutive weeks of summer vacation parenting time, this regular schedule shall prevail during the summer school vacation break to provide continued stability for the children. Finally, although there has been a change in residency and whilst an income is properly imputed to Father based on ODSP, no child support will be payable by him as a result of the application of the Household Standards of Living test pursuant to section 10 of the Federal Child Support Guidelines 1.

1 SOR/97-175, as amended.

Background

[5] For convenience, I refer to the Applicant, Ms. Leslie-Anne Olaskey, as “Mother” and the Respondent, Mr. Scott Peter Olaskey, as “Father.” Together, they are the parents of three children, namely Isabella Lin Olaskey born November 28, 2009 (14) (“Bella”), Emma Leigh Olaskey born February 20, 2013 (almost 11) (“Emma”), and Connor Peter Olaskey born January 10, 2015 (9) (“Connor”).

[6] The starting point for this trial is the existing Final Order of Justice Chappel dated December 1, 2020. It provided for joint decision-making and equally-shared parenting time (2/2/3 alternate weekly schedule). Many other issues are addressed in the Final Order which Mother seeks to continue, such as exchange mechanisms, PD days, holidays, parenting communication and the like.

[7] Next is the Statement of Agreed Facts, which confirms the details of the parties’ relationship timeline and the bumpy procedural history of this litigation. Suffice it to say that Father’s failures to comply with the rules of court were winked at multiple times until Justice Madsen ordered him to pay $1,000 in costs for an aborted Settlement Conference that could not be held due in the absence of proper materials from him.

[8] Mother brought a motion argued on January 23, 2023 seeking to change the equally-shared parenting schedule to one of alternate weekends. As a result, the family is subject to two Temporary Orders of Justice Piccoli. The first, dated January 23, 2023, provides that the primary residence of the children is with Mother and that they spend alternate weekends and Wednesday evenings in Father’s care. In the further Temporary Order of February 6, 2023, Justice Piccoli added that Mother would have the final decision-making authority if, after meaningful consultation, the parties were unable to agree. I pause here to note that it is appropriately difficult to demonstrate to a motions judge that the children’s best interests require a change to the parenting structure in place pursuant to a Final Order. Mother convinced Justice Piccoli that the situation was sufficiently serious to warrant this drastic reduction in parenting time with Father. Other (primarily disclosure) terms were reached on consent, and, after receiving written submissions, Her Honour ordered the sum of $5,000 to be paid by Father to Mother in costs.

[9] The Trial Scheduling Endorsement Form (“TSEF”) was completed with Justice Madsen on August 21, 2023, in the presence of both parties and Mother’s counsel (Father was by then self-representing). All deadlines for the service, filing and/or uploading of documents in preparation for trial were missed by Father. Mother missed the deadline for uploading her Document Brief.

[10] The trial was called to commence on Thursday, November 30, 2023, but could not proceed due to the continuation of another matter. It started the following day, which became a kind of organizational meeting in response to Father’s adjournment request. On Monday, December 4, 2023, I heard Mother’s motion seeking to strike Father’s Response to Motion to Change because of his non-compliance with court orders. I concluded that “the failure of Father to disclose evidence relevant to the parenting issues is a serious concern” and allowed only his claims regarding decision-making and adjustments to the holiday schedule to proceed to trial.

[11] Evidence and submissions were heard over nine days and 42 exhibits were entered. Importantly, especially in the context of the outcome of the motion to strike, Father confirmed in his testimony that he had been given every opportunity to present his evidence and to be fully heard at this trial.

Issues for Trial

[12] The questions for trial are:

1. Has a material change in the circumstances of the parties or of the children taken place justifying a review of the Final Order?
2. Which parent should have final decision-making responsibility if they cannot agree?
3. What should the Regular Parenting Schedule be? Mother seeks primary residence with her and alternate weekends in Father’s care with no mid-week visits; Father seeks a return to the equally shared schedule.
4. What, if any, adjustments need to be made regarding Family Day, Easter, Father’s Day, Summer school vacation break, Thanksgiving, other school closure days and attendance at school events?
5. How do we address the following counselling issues which arise from the Final Order? a. Requirement that both parties successfully complete the Positive Parent Seminar Series offered by Camino Wellbeing (formerly KW Counselling Services); b. Requirement that both parties continue personal counselling, providing proof of attendance on an annual basis; and c. Requirement that Father attend additional communications coaching.
6. What is Father’s income for child support purposes?
7. What, if any, child support is payable by Father? Does Father have a valid claim that payment of child support pursuant to the table for Ontario would cause him undue hardship?
8. How shall costs of this litigation be addressed?

[13] Before embarking upon my analysis of these substantive issues, certain evidentiary issues must be discussed.

Evidentiary Issues

Statement of Agreed Facts

[14] The parties filed a Statement of Agreed Facts as the first exhibit at trial. It addresses basic background facts and delineates the difficult procedural history described above. It confirms that costs ordered payable by Father to Mother in the total amount of $6,000 have not been paid. It confirms the parties’ Line 15000 incomes for the years 2019 – 2022 as:

Year	Mother	Father
2019	$59,112	$13,829
2020	$49,606	$11,260
2021	$45,783	$15,011
2022	$63,144	$13,804

Cross-Examination of Mother

[15] Mother alleges family violence throughout the relationship and continuing attempts at coercive control post-separation. In the context of the motion to strike Father’s pleadings, Ms. Towlson raised concern about Father, now self-represented, cross-examining Mother. During the argument of the motion to strike, both parties agreed to my proposal that cross-examination of Mother be conducted as follows (per paragraph 5 of my Temporary Order made December 4, 2023):

a. Father shall prepare written questions, with copies of same to be provided to Ms. Towlson and to the Court at the outset of cross-examination. b. The Court will read out the questions to Mother and receive her answers under oath from the witness box. c. Father may provide further follow-up written questions arising from the Applicant’s evidence, and a recess may be taken if needed to allow him to prepare same. d. The Court will again read out any such follow-up written questions to Mother and obtain her evidence from the witness box. e. Father will remain seated at counsel table for the duration of this process. f. If Mother asks to refer to any exhibit in the course of her responses, same will be placed before her by Ms. Towlson. g. Ms. Towlson may thereafter conduct any re-direction as may be necessary.

[16] Father prepared two sets of questions which were posed to Mother in this manner on December 5 and 11, 2023. Allowing for some adjustments to improve comprehension, the questions were largely read verbatim to the witness.

Credibility of Witnesses

[17] Mother’s evidence was relatively straightforward. Having regard to her diagnosis of Post-Traumatic Stress Disorder (“PTSD”), as described in the letter from her Clinical Psychologist filed in support of her motion to strike, I conclude that delays in her response time and a flat affect during certain portions of her testimony are connected with her condition. For the 2023-year, Mother kept detailed contemporaneous notes to assist her in documenting events and observations. I have some concerns, however, that Mother may not have been completely transparent with the court: for example, she attested that she had provided all pages of a note written by Bella, although it is evident from the note itself that pages are missing.

[18] In assessing Father’s credibility, I note that:

(1) He was generally respectful in his presentation but was reactionary and self-excusing when confronted with clear errors in his approaches to parenting and communication. (2) He was in considerable physical distress at various points in the trial, such that the matter was stood down over December 7, 2023, when he took himself to the hospital. (3) He failed to produce any medical records, leaving a complete vacuum as to his condition and prognosis. (4) Although he continuously claimed to have difficulty with reading and comprehension, having seen a number of voluminous and detailed responses written by Father through Our Family Wizard (“OFW”), I conclude that he greatly exaggerated his inability to comprehend concepts or to properly review documents and prepare himself for trial.

[19] Unfortunately, I must also conclude that Father did more than just minimize or re-interpret events. He intentionally hid information regarding important happenings from Mother, for example the vehicle accident when Father allowed a transient tenant to drive the children in Father’s vehicle. It is also clear that he was untruthful with the Court in important matters such as the sharing of litigation documents with Bella: when caught by Ms. Towlson in cross-examination for having lied about putting a litigation document on Bella’s cellphone, his response was “I forgot that it wasn’t deleted.” It was not that Father forgot that he gave Bella access to the court document; he forgot to cover his tracks by deleting it. He thus admitted that he had shared the document with Bella and his previous denial of having done so was proven to be a lie. While I do think that Father believes many, if not all, of his own explanations and excuses, self-righteous belief does not transform his viva voce evidence into a reliable foundation upon which to build the children’s future.

[20] Father’s sworn Affidavits were filed as exhibits at trial. Father was very critical of his previous counsel and feigned a lack of opportunity to review his Affidavits before signing them, which he later recanted as cross-examination progressed. I do not believe that Father’s counsel did anything other than properly record his evidence. This evidence was declared to be factually correct closer in time to the events’ occurrence, when Father’s memory would have been fresher. I find that Father’s evidence as contained in his Affidavits, subject to some minor adjustments given by him as Ms. Towlson reviewed those documents with him during his testimony, is accurate and reliable. Wherever Father’s evidence on the stand at trial conflicts with his Affidavits, I prefer the content of his Affidavits.

[21] The only other witness to testify was Father’s friend, Matthew Hoddle. Mr. Hoddle was candid and precise with his evidence, which was helpful to the Court.

[22] Overall, I find that, in addition to the business records and Affidavits filed, I can only rely upon Mother’s evidence and that of Mr. Hoddle in reaching my conclusions. I do not ascribe any weight to Father’s testimony at trial.

Hearsay

[23] Note that the Divorce Act 2 applies to our analysis as the parties were married. At section 16(3)(e), it specifies the views and preferences of the children as one of the factors to be considered in assessing their best interests. There are three options for receiving evidence attributed to the children: (1) from the children themselves; (2) through an impartial third party such as a Clinician assigned by the Office of the Children’s Lawyer or other witness; or (3) through individuals close to the children, including their parents. The first option is rarely used; the second and third options involve the admission of hearsay statements. Hearsay is a statement made to or within the hearing of a witness that is tendered as proof of the truth of the contents of the statement. For example, a witness to a vehicle accident tells another person that the vehicle at fault was blue, and at trial the second person testifies. The second person did not see the accident but was told by the witness to the accident that the offending vehicle was blue. If the second person’s evidence is being tendered as proof that the vehicle was, in fact, blue, then that is the admission of hearsay. Hearsay is generally not admissible, the Court prefers to hear directly from the person who made the observations, but there are several exceptions to that general rule. One such exception is regarding evidence from children.

2 R.S.C. 1985, c. 3 (2nd Supp.), as am.

[24] It is a long-held tenet that children’s evidence is to be taken with great care with a view to minimizing any negative impact of the litigation process upon them. This regularly requires the presentation of evidence that would otherwise be excluded as inadmissible hearsay. In R. v. Khan, [1990] 2 S.C.R. 531 3, the Supreme Court of Canada provided clear direction in the admission of hearsay evidence to provide a child’s statements to the Court via an adult witness. For the unanimous Court, Madam Justice McLachlin wrote (pp 546 para. h – 547 para. c):

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (…) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances and are best left to the trial judge.

3 [1990] 2 S.C.R. 531.

[25] The Supreme Court went on to caution us that the remaining safeguards to a party’s interests must be respected and maintained where hearsay evidence is being admitted, particularly in the case of child witnesses where cross-examination of the child him- or herself is not available.

[26] Are the hearsay statements attributed to the children “necessary” here? In a high-conflict situation such as this one, it is not difficult to conclude that the evidence of the views and preferences of the Olaskey children could not be provided directly to this Court by way of their testimony without causing them serious harm. I would hypothesize that it would be a rare case when a child’s testimony should be provided in person at trial, and in such cases safeguards such as legal representation of the parents and possibly the child him- or herself would be essential. This is underscored here, where the parties agreed that Father’s cross-examination of Mother would be in the form of written questions to improve fairness and minimize trauma. Father’s repeated response that the children would support his explanations and perspective highlights the likely negative impact that in person testimony (and cross-examination) would have on them. Balancing the children’s right to be heard against the potential deleterious effects upon them, I find that the hearsay statements are “reasonably necessary” as required by the Supreme Court’s analysis.

[27] The second part of the test addresses the credibility of the reporter and thus the reliability of the evidence. Both orally at trial and in her Affidavits admitted into evidence, Mother reported comments made to her by the children regarding events and situations in Father’s home. Having heard all of Mother’s testimony, I find that these were spontaneous utterances by the children and were not coached. Mother and Father both reported comments made to them by the children regarding their views and preferences for the parenting schedule. I appreciate that, especially in high-conflict separations, children can often feel divided loyalties which may cause them to tell each parent what they might think he or she wants to hear. In the absence of any independent third-party reporter of the children’s views on parenting issues, I decline to rely upon either party’s evidence about the children’s statements regarding the parenting schedule. Overall, I admit only the children’s spontaneous statements regarding observations and events as evidence.

Disclosure

[28] In the TSEF, Justice Madsen required Mother to upload her documentary evidence by November 13th and Father to do the same by November 20th. Mother’s documents were not uploaded until November 23rd, a full ten days late. Father uploaded nothing.

[29] To address this challenge, I ruled that the only documents to be admitted would either be: (1) documents that had already been disclosed, with confirmation to be provided by the disclosing party; or (2) documents that would be accessible to either party in the usual course. For example: in the first category I accepted Mother’s certificates of completion of parenting courses which had been sent by email to Father’s lawyer in March of 2023; in the second category I accepted the children’s most recent report cards dated November 17, 2023, as the Final Order provides for complete access by both parents to the children’s school records (at paragraph 17(p)).

Adverse Inferences

[30] I explained to Father the concept of “adverse inference” at the outset and during the trial. Using specific examples as they arose, I explained that if Father is the only person with access to proof rebutting an allegation against him, and he doesn’t produce that proof, I can conclude that the allegation is true. As part of my reasoning in this decision, I have concluded that Father’s failure to produce any form of written confirmation of his attendance at the parenting and counselling programs required by the Final Order means that he did not actually attend such programs.

Law & Discussion

[31] The issues for the court’s determination are:

a. whether a material change in circumstances has taken place; b. Father’s alleged non-compliance with the Final Order (around counselling and programming); c. allocation of final decision-making responsibility; d. the regular parenting schedule; e. adjustments to the schedule for holiday and PA/PD days; f. Father’s income for child support purposes; g. child support; and h. costs.

[32] I will address these issues under three broad headings: Material Change in Circumstances (including alleged non-compliance with the Final Order); Parenting Issues (including programs to be taken by either parent) and Child Support Issues. Regarding costs of this proceeding, timelines for written submissions are set out at the conclusion of this decision.

A. Material Change in Circumstances

[33] As the parties were married, and as spousal support is not a live issue in this case, our starting point is sections 17(4) and (5) of the Divorce Act. They provide:

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

[34] The language changes to the Divorce Act came into effect after the Final Order was made in this matter. A “child support order” is obviously any order for the financial support of any child. We no longer use the terms “custody” and “access” but rather “decision making responsibility” and “parenting time.” A “parenting order” is an order regarding these issues as between parents; a “contact order” is an order regarding communication and contact between children and non-parents. Here, we are concerned with child support and parenting issues between two parents.

[35] Notwithstanding this change in language, the definition of “material change in circumstances” remains consistent. In Willick v. Willick, [1994] 3 S.C.R. 670 at p. 688, the Supreme Court of Canada defined “material change in circumstances” as:

…a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.”

[36] Upon finding that a material change in circumstances has taken place, the Supreme Court of Canada instructs the trial judge to conduct a fresh analysis of the issues from the last operative final order time forward. Having regard to the language of the Divorce Act, a material change must be demonstrated separately for each of child support on the one hand and parenting terms on the other.

[37] Regarding child support, Mother’s income at the date of the Final Order was $45,516. Her income from employment in 2021 was $45,781, rising to $63,144 in 2022 and an anticipated total of $109,432 in 2023. In addition, effective February 6, 2023, the children have been in her primary care and out of the equally shared parenting regime. I find that a material change in circumstances has impacted child support effective January 1, 2022.

[38] This situation is a bit unique on the question of a material change in the circumstances of the children under section 17(5). In addition to the finding by Justice Piccoli that circumstances had changed sufficiently to meet the high threshold for changing parenting time arrangements on a temporary basis pending trial, the Final Order substantiates such a finding in and of itself.

[39] The Final Order in this matter was made December 1, 2020, and includes the following provision, being paragraph 17(j):

j. The parties agree that any future problematic communications (i.e. non-BIFF communications) may be considered a material change in circumstances and shall justify a party pursuing a change to the custody and parenting terms of this agreement.

[40] Recall that the parties reached the terms of the Final Order after five days of intensive settlement conferencing with Justice Chappel. They were both represented by experienced family litigators. The parties specifically contemplated communication problems and considered them sufficiently important to constitute a material change in circumstances. Justice Chappel agreed such that she included this provision in the Final Order. For the reasons set out in my analysis of communication below, I find that paragraph 17(j) was properly triggered.

[41] Further, the continuous violation of the terms of a Final Order is, in and of itself, a material change in circumstances as both parties are entitled to rely upon the content of such a document to govern their expectations and behaviours moving forward. 4 Mother was able to obtain certificates confirming her completion of the agreed-upon programming; Father was cagey about his attendance, asserting that there was no evidence to prove that he did not attend.

4 Laurin v. Martin, 2005 ONCA 37970 approving of the trial judge’s conclusion in this regard at paragraph 3.

[42] Similarly, Father dropped the ball, so to speak, in completing his ODSP application in any semblance of a timely fashion. He first said that he had sent in all required materials to the program administrator by November 11, 2022, and then confirmed that on January 23, 2023 (before Justice Piccoli) he had taken the position that he was waiting for other third parties to provide these same supporting materials to him. He conceded that all such materials were independently available to him, and thus agreed that he had not been truthful with Justice Piccoli. He had no explanation as to why ODSP had not processed his file and does not appear to have made any recent inquiries to find out.

[43] Although it was alleged that Father also failed to consult with the children’s family doctor regarding proper nutrition (and weight management) for the children, he was able to produce documentation confirming that some sort of appointment had been conducted, and thus I will give him the benefit of the doubt on this point.

[44] I find that Father breached the Final Order with respect to the communication provision, terms requiring him to complete personal development work, and terms compelling his application for disability benefits. I find that there have been sufficient changes in this matter, inclusive of the application of paragraph 17(j) of the Final Order and additional breaches thereof, to support a review of the parenting and financial arrangements for this family.

B. Parenting Issues

[45] Under this heading, I will address decision-making and parenting time, both for the Regular Schedule and during holidays and Professional Development Days.

[46] As noted above, the parties were married and thus the Divorce Act applies. In determining whether the best interests of the children require decisions to be made primarily by one parent or jointly by both parents, section 16 of the Divorce Act:

a. mandates that the primary consideration be each child’s “physical, emotional and psychological safety, security and well-being”; b. incorporates and expands upon the inclusive list of factors delineated at sections 24(2) through 24(5) of the former text of the Children’s Law Reform Act, which factors guided many Ontario decisions before March 1, 2021; c. adds the consideration of “any civil or criminal proceeding, order, condition or measure” relevant to the child’s circumstances; d. sets out a non-exhaustive list of seven factors to be taken into account in assessing family violence; and e. clarifies that the “Maximum Contact Principle” does not presume equally-shared parenting but rather means “that a child should have as much time with each spouse as is consistent with the best interests of the child.”

[47] Sections 16.1 through 16.4 and 16.6 are applicable to this family’s situation. 5 The complete text of these sections, together with section 16, is reproduced at Appendix “A” to this decision. The same factors apply both to the determination of decision-making responsibility and the apportionment of parenting time. The factors for consideration, distilled from the above-listed sections, are:

a. each child’s needs having regard to his or her developmental stage; b. each child’s relationship(s) with each of the parents 6, extended family members and other people special to him or her; c. each parent’s willingness to support the development and maintenance of the child’s relationship with the other spouse; d. the history of care for the child;

5 Section 16.5 addresses “Contact Orders” between children and non-spouses (such as extended relatives) and sections 16.7 and onward relate to residential moves and relocations.

6 Note that the Divorce Act, in its focused application to married parents and their children, uses the term “spouse”. I have substituted the word “parent” to reflect each litigant’s role vis-à-vis the children.

e. each child’s views and preferences; f. each child’s cultural heritage, inclusive of language and faith as applicable; g. any plans for the child’s care; h. each parent’s ability and willingness to meet each child’s needs; i. the parents’ ability to communicate and co-operate with one another; j. an assessment of family violence, taking into account: i. the timing, severity and frequency of the incidents; ii. any pattern of coercive or controlling behaviour; iii. whether the child was subjected to or witnessed aspects of the violence; iv. the harm or risk of harm to the child; v. other compromises to the safety of the child or another family member; vi. current fear experienced by the child or another family member arising from the family violence; vii. any remedial steps taken by the violent parent; and viii. any other relevant factor; k. the impact, if any, of family violence on the ability of the offending parent to care for and meet the needs of each child; l. the impact, if any, of family violence on the parents’ co-operation moving forward; m. any legally-founded order, condition or measure relevant to the child’s safety, security and well-being; n. past conduct only insofar as it is relevant to a parent’s participation in decision-making for, or parenting time with, the child; o. the child’s entitlement to as much time with each parent as is consistent with his or her best interests; p. a presumption that day-to-day decisions are to be made by the parent caring for the child at the time the decision arises, unless otherwise ordered by the court; q. the best allocation of decision-making responsibility (regarding major decisions) as between the parents and/or any other participating individual; r. the means by which information regarding each child’s health and education is to be sourced, i.e. whether as between the parents or from third parties directly; s. the existence of a parenting plan submitted jointly by the parents to the court.

[48] Some of the above factors are not applicable to this family’s situation. For efficiency, I have combined connected concepts wherever possible.

Needs of the Children and Abilities of the Parents to Meet Them including Plans for Care

[49] The three children are at differing stages of their lives. Bella entered high school this past September. Emma is in Grade 5. Connor is in Grade 3. Their needs for proper sleep, good personal hygiene and nutritious food are consistent; their emotional and developmental needs differ.

[50] The Temporary Order has given this family, and by extension the Court, the ability to evaluate the alternate-weekend schedule and to compare it to the previous equally shared parenting schedule. 7 This is an unique benefit that is not often seen in family matters due to the high threshold of evidence required to displace the presumption in favour of an existing parenting schedule pending a trial. There are a variety of clear standards against which we can evaluate the relative success or failure of a Temporary Order in its impact upon the health, education and welfare of the children involved. Here, the children’s attendance and performance at school provided objective evidence of the impact of the shift away from equally shared parenting time.

7 Father’s health deteriorated during the trial, such that he initially declined to attend for cross-examination as a result of his health issues and was therefore ordered to attend virtually. I made a Temporary Order on December 13 restricting his parenting time to videocalls out of concern that he was in no state to provide care for the children. An in-person Christmas Day visit was agreed-upon, and Mother was given discretion to permit additional visits on an ongoing basis pending the release of this decision.

[51] Before Justice Piccoli’s Temporary Order was made, the children had an equal number of school mornings in each parent’s care. The vast majority of days when the children were late or absent from school coincided with Father’s parenting time. Father denied the veracity of the school attendance record, alleging that the reason for the children being 15, 20 or even 40 minutes late from his house must be because Bella took too long walking the younger two children to their school entrance door. He claimed that absences arose due to religious holidays or because of his choice not to drive the children to school on days when the school board had cancelled buses. These excuses defy credulity. I find that Father is incapable of ensuring that the children attend school on time and prepared.

[52] The proof of the positive impact of the parenting schedule change is evident in the children’s report cards. Academically, the change has been very positive for them.

a. Bella has a newfound interest in academics; Bella had previously been an average student but, despite the challenge of high school, earned three marks in the 80s and one in the 90s in her first semester of Grade 9. Mother commented on this pleasant surprise: “I didn’t think she was into school that much.” b. Although Emma’s marks did not change, the comments from her teachers are instructive: “Emma’s efforts have already resulted in a noticeable improvement in her abilities… Emma can be counted on to manage her behaviour at school and to act in accordance with our classroom agreement.” And: “if instructions are unclear or if she encounters some difficulty, she seeks out assistance or clarification from her teacher.” These comments taken from her Grade 5 first term report card contrast with ones on related themes as set out in her Grade 4 year end report. c. Connor’s academic life has also changed for the better. Prior to the parenting time shift, he showed multiple “Needs Improvement” notations in life and student skills; by the end of June all of these had been remedied and he had caught up to his reading level. By the end of Grade 2, he was meeting all provincial standards. On his November 17th report card for the first term of Grade 3, his teacher wrote: “Connor is improving his ability to use effective strategies to remain attentive during activities, seeking to enhance his ability to concentrate and engage with the learning material. Your hard work and dedication, Connor, are truly appreciated.”

[53] Another metric for evaluation would be the children’s overall health. It appears that Mother is addressing a tendency in the children toward obesity, although insufficient particulars were provided in evidence to allow the court to evaluate this criterion.

Children’s Relationships with the Parents and Others

[54] Mother attested as to the loving bond between the children and her fiancée; and between the children and their grandfather, who resides in a separate apartment in Mother’s home. Mother’s brother also regularly, if infrequently, spends time with them. Further, Mother is the one who promotes the children’s contact with paternal grandfather as he and Father are estranged. I find that the children benefit from the relationship with all members of Mother’s household and with their extended family members.

[55] I cannot be as confident about the children’s relationship with Father; the unintended audio recording captured by Connor speaks for itself, as does a similar video recording in which Father’s hateful attitude toward Mother is evident. It is clear throughout his communications with Mother that he frequently mentions Bella’s babyhood injury to her, likely for the purpose of exerting emotional control over her. I am concerned about the likelihood that Father also discusses that historical situation with Bella, with a view to encouraging her (and by extension the other children) to feel uncomfortable or even unsafe in Mother’s care. Mother’s view is that the children need to have time in the care of each of their parents. She noted that there are certain activities, for example watching wrestling and other events on Pay-Per-View, that the children enjoy doing exclusively in Father’s care. I very much want to find that the children have a positive connection with Father, and I will give him the benefit of the doubt in this regard, but I would underscore that I am very concerned about the influence of his toxicity upon them.

Children’s Stated Views

[56] There was no independent third-party evidence of the children’s views and preferences. Consequently, for the reasons articulated under the heading “Hearsay” above, I have not relied upon hearsay evidence regarding the children’s views on the parenting structure in my analysis. However, we have the benefit of both recordings and written documents prepared by the children spontaneously and independently of this litigation. The recordings speak primarily to the goings-on in Father’s household and are dealt with in greater detail below based on their content. On the topic of views, we have a note written by Bella in response to Mother suggesting a journal entry as an alternate means of communication and a text message from her to Father.

[57] Bella’s note was written two years ago, on November 21, 2021, as her twelfth birthday approached. Mother attested that, since the Final Order was made, her relationship with Bella has been increasingly strained and Bella has been growing distant from her. On one occasion when Bella was clearly in distress and unable to articulate to Mother what was bothering her, Mother suggested that she write down her worries and fears, which they could then discuss at another time. The problem with Bella’s note as submitted in evidence is that a page is clearly missing. Bella’s note starts at page 1 and continues at page 3. Page 1 ends with a sentence fragment, and, as the note was reproduced as a photograph taken by Mother, it is clear that the reverse side of page 1 (which presumably Bella marked as page 2) had not been captured. This is truly unfortunate, as the missing page, in the context of a three-page note, renders this otherwise potentially helpful document useless to the Court.

[58] Bella’s text message was written in mid-November of 2023, immediately prior to trial, and is more helpful. In her exchange with Father, Bella is trying to negotiate a change to the parenting weekends which would allow the children to attend their maternal uncle’s wedding reception. The exchange reads [sic]:

BELLA: It is uncle grants reception thus weekend and us 3 wanna go… But it is ur weejend FATHER: Miss a day or 2 vs getting 50/50 back BELLA: Miss a day or 2 FATHER: Never mind

[59] It is clear that Father is trying to leverage the situation to negotiate with Bella that he will agree to “miss a day or 2” (being the weekend of the maternal family gathering) in order to return to the equally shared parenting structure. Because of the phrasing of his text message, the most logical interpretation is that Bella believes that she is being given a choice between these two options. She chooses to “miss a day or 2,” perhaps meaning that she will forego attendance at her uncle’s wedding reception. Father realizes that she is confirming that she does not want to return to a 50/50 schedule, which is why he responds: “Never mind.”

[60] Father admitted to telling Bella that, at the age of 13, she can choose where she wants to live and how much contact she wants to have with the other parent. Bella has now been living primarily with Mother for more than ten months. If, as Father says, Bella should now be empowered to make her own decisions, it is reasonable to infer that her acquiescence to the current parenting regime confirms her choice to live primarily with Mother. I read Bella’s text message to Father as confirming that choice.

Cultural Considerations

[61] Although the parties are from the same mainstream Canadian culture, I will address two points under this heading: (1) religion; and (2) Mother’s re-partnering.

[62] Mother identifies as Christian. Pre-COVID, she visited two churches in Waterloo Region but is not part of any congregation at the present time. Father does not clearly assert any religious affiliation, at one point suggesting to Mother that he should be able to take the children to explore any number of different faiths during his parenting time, a statement with which Mother agrees. Father has, however, attempted to leverage Mother’s Christian faith against her, asserting that her God would not support her partnership with another woman. In the analysis of the best interests of the children, we must be alive to the possibility that culture and tradition can be weaponized by one parent against the other, as Father has attempted to do here.

[63] Mother has been in a committed same sex relationship since 2016. She and her partner, Amanda Freitas, intend to be married. Although at trial he professed to be happy that Mother has found a loving relationship, Father has repeatedly made his views clear in his messages to Mother – he does not approve of her lifestyle 8. In a message exchange purporting to be regarding Connor’s haircut, Father alleged that the children are already burdened socially because they “have to answer difficult questions from their friends of why they have 2 moms.” There is a strong likelihood that Father’s disapproval has been messaged – whether verbally or otherwise – to the children.

8 I note that the word “lifestyle” was used by Mother and her counsel at trial.

Parties’ Support of One Another

[64] Paragraph 17(o) of the Final Order reads:

Neither parent shall disparage the other to and/or in the presence of the children nor shall they allow any other person to do so. This shall include but not be limited to name calling, eye rolling, muttering about the other parent or sharing with the children information about the other parent in order to demean the other parent. Neither parent shall discuss adult issues with the children including this or any future Court proceedings and each shall ensure the children to not have access to any of the Court documents.

[65] Father has breached this term blatantly and repeatedly. As recently as mid-November 2023, he has spoken about court documents in text messages with Bella. He openly engages in conversations with the children about communication and parenting issues. On June 22, 2023, Connor accidentally recorded Father telling the children that Mother can “go fuck herself” and “grow the fuck up.” In a separate audio recording made by Connor on the same date, the following exchange takes place:

ISABELLA: You're gonna let her to take me to the movies tomorrow, take Connor to soccer today, and... FATHER: Yeah. ISABELLA: ...that’s it? FATHER: Yeah, ‘cause I'm a fucking nice guy. You think she would ever do that to me? ISABELLA: No. FATHER: No, of course not. What does she do? She fucking sends you guys over to your neighbour’s. She fucking sends you over to Grandma and Grandpa’s. ISABELLA: But Connor and Emma wanted to go to. FATHER: Wanted to go where? ISABELLA: To the neighbour’s house to go swimming. FATHER: Oh, okay, guys, would you rather go to your neighbour’s and go swimming or would you rather come – come home and spend some time with Daddy? CONNOR: Daddy. EMMA: You don’t have a pool. It's hot outside. CONNOR: Spend time with Daddy. ISABELLA: Why are you crying? FATHER: Well, guess what, Emma? I’d be able to afford a fucking pool if your mother co-, stopped stealing from us. ISABELLA: Okay, so it’s – can I... FATHER: Just go, Isabella... ISABELLA: ...put this on? FATHER: ...you know. ISABELLA: Yeah, but that’s cracked. Okay, don’t leave, I'll be back in a minute. Please, don’t leave. [Indiscernible].

[66] These comments were made while Father was being accidentally recorded by Connor, who, along with his siblings, was in Father’s vehicle. Father agreed that the recording is disturbing and shows his disparaging comments to the children about Mother. Perhaps the most unsettling aspect of the video is Connor’s light-hearted and oblivious demeanour as he makes funny little faces which he then sends to Mother. It is clear that Connor’s intention is to send Mother a funny video of himself, not to record Father. Emma and Bella can both be heard in the recording; both girls are actively participating in this conversation and their comments (and the absence of any emotional reaction from Connor) make it clear that this was not an isolated incident.

[67] Not only does Father fail to support Mother, but he also actively undermines her and insults her in conversations with the children. This must be incredibly confusing and painful for them.

[68] In contrast, on an occasion this past Summer when Father drove off without Connor at the start of his parenting week 9, Mother repeatedly messaged him asking for further pick up details. Although, Mother says, Connor expressed his wish to remain with Mother for the week, she pressed Father to come and collect him. Father’s evidence was that he had to leave the location after waiting for half an hour because he was running out of gas and Emma needed to use the bathroom. Later, he said that he didn’t want to gather up the other children and drive back to Mother’s home to collect Connor. Instead, Father’s response was to leverage Bella. Bella sent demanding text messages to Mother demanding that Connor be ready to spend the following week in Father’s care, failing which Bella declared that she would not return to Mother’s home at all. Ultimately Bella did not make good on her threat. All three children were back with Mother for the following week in accordance with the summer schedule.

9 The children were on a week-about schedule during the summer of 2023.

[69] Father admitted during his evidence that he:

a. sent Bella court documents, supposedly because he was unable to use his own device to print paper copies, and then forgot to delete them from her device; b. sent Bella inappropriate internet content, including a video from TikTok declaring the court system to be unjust to fathers 10;

10 The ribbons across one TikTok display from “Justice-For-Fathers” read “Men are dying due to Toxic Ex partner lies…” and “toxic women destroy men’s lives”

c. declared to Bella in text messages that she knows “the truth” and is “not scared of [Mother] any more now that [she’s] untouchable” and asserted that he loved Bella first and loves her more [than Mother does]; d. took all three children to Ms. Towlson’s office to review and serve court documents and thereafter to the courthouse to file them; and e. as recently as mid-November 2023, immediately before the commencement of this trial, told Bella that he wasn’t sure if he’d be able to pick the children up for his parenting time because [sic] “I have to be in court on Monday & now her lawyer gave me all this bull shit paper work”.

[70] There is no doubt that Father breached the Final Order, and he admitted as much in cross-examination. The more serious concern is that he has absolutely no insight into the impact of his actions on the children generally and on Bella in particular. He lied about stopping his toxic communication with Bella “when court started” and suggested that it ended when Mother commenced the Motion to Change, which he knew to be patently untrue. He excused his actions as being the product of increasing frustration and worsening health. Egregiously, he claimed that his most recent comment to Bella about the “bull shit paper work” was just answering the child’s question from. This is not correct. Bella’s prior message was to confirm, in response to Father’s cloying and pathetic “I miss you guys…” that “we [will] see u [tomorrow] right.” She wasn’t asking any question but was in fact comforting Father in his apparent distress.

[71] I conclude that Father doesn’t do these things with malicious and calculated intent. If he did, then remorse coupled with counselling could provide hope. Unfortunately, Father does not understand his behaviours let alone express sincere remorse over them. Father appears to have no boundaries whatsoever in regard to Bella; he relies upon her for emotional support and has no ability to understand that his petulant and childish behaviour, which gratifies his own need to continuously play the victim, is seriously damaging to Bella’s psychological well-being.

[72] Father’s approach not only undermines Mother, it is emotionally harmful to the children.

Communication Between Parties

[73] The parties are bound by terms of the Final Order requiring their communication to be:

a. “BIFF” – Brief, Informative, Factual and Friendly (paragraph 17(g)); b. free from any negative, judgmental, and/or derogatory comments (paragraph 17(h)); and c. neutral in tone even if expressing concerns (paragraph 17(i)).

[74] A good example of Father’s approach to communication with Mother is set out in his message through OFW dated March 23, 2021. The opening of the message, which purports to be about Connor’s haircut, is melodramatic and sarcastic. He uses the haircut, and the pretext of being concerned about Connor being bullied, to deride Mother’s same-sex relationship. Father ends his email with a guilt trip about being unprepared (as co-parents) to deal with the “coming storm” of teenage concerns including “first loves that u can never forget no matter how much u wish or may try…” This last remark is undoubtedly some sort of sympathy ploy directed at Mother’s discontinuation of their marriage.

[75] A further example is found in Father’s OFW message dated July 29, 2021, which purports to be about the children’s sports, but is really a broadly-based and misogynistic tirade critical of women coaches and Mother’s lifestyle choices. In the context of supposedly inquiring about Mother’s upcoming marriage, Father throws in an insult about Connor at the end for good measure: “Is Connor going to be a flower girl or give you away?” In his evidence, Father claimed that he was “kidding and making light of that situation” and didn’t mean any harm or disrespect. He claimed that he had “tried to keep things child-related” in communication with Mother. This is demonstrably untrue.

[76] A third, and recent, example of Father’s approach to communication with Mother is found in an OFW chain dated October 4, 2023. Mother opens the contact to advise that Emma had a special school choir event and suggesting a strategy to ensure her attendance as it was Father’s parenting time after school that day. She also asks whether he would be picking up Connor and Emma at all, as they had “mentioned you told them you weren’t picking them up today”. Father completely refuses to respond to the actual parenting issues, writing a long response that sets off a repetitive stream of back-and-forth communication which demonstrates the futility of Mother’s attempts to co-parent. For reference, Father’s first message starts as follows [sic]:

Exactly… today they were to come home & spend time with their Dad the one they hardly ever get to see or talk too… Home is where your heart is… Home is where you feel the safest… Home is their castle & can never be taken from them they will always have this place to call home desperate ur best efforts Over the past 8 years & soon they will finally be able to come back home & live here 50/50 again or longer like it should be.

[77] As Mother testified: “hardly ever does any message comply with BIFF.” She often doesn’t respond or engage, as she believes much of the content is intended to upset her. The above examples, and many others submitted to the court at trial, bear Mother’s statements out. Co-parenting is not an option where one party is unable to follow basic rules of communication and participate in a child-focused conversation toward a businesslike conclusion.

Communication with Service Providers

[78] Father presumed that Mother or Bella would telephone or videoconference with him at appointments with professionals. He alleges that this was his understanding of how paragraph 17(k) of the Final Order works. That paragraph deals with scheduling and attendance at appointments for the children. Its last sentence reads: “The parent not attending the appointment in person shall be permitted to make arrangements to participate in same via Zoom.” Father did not contact any professional to determine how such contact could be done through the professional’s office. In OFW messages, he vociferously blamed Mother for failing to initiate a videocall with him or declining to have Bella do so. He does not appear to understand that: (1) his proposal for involvement is inherently inconsistent with the detailed communication paragraphs set out in the Final Order; and (2) Bella’s theoretical involvement requires her to be present at her siblings’ medical appointments which impacts her schedule and their privacy. On cross-examination, he admitted that he was mistaken about the wording of the Final Order, agreeing that it was his responsibility to contact the professional directly.

[79] Importantly, Father cut Mother out of the discussion process completely around scheduling important surgery for Bella. Bella requires additional skin grafting on her feet due to an accident in her babyhood. She can opt to have surgery on each foot individually, which would allow her to use crutches, or to have them both done at the same time, which would require her to be immobile for the healing period. As a consultation appointment on this issue was scheduled for Bella at Sick Kids Hospital on Father’s parenting time, he took her to the appointment. From there, and without advising Mother, he proceeded to book the pre-operative appointment and schedule the surgery. When Mother received the notification call about the pre-operative appointment, she scrambled to discuss the situation with Bella and with the surgeon’s office. At Bella’s request, the surgery was scheduled to be revisited at the end of this school year.

[80] Father either fails to communicate with service providers or leverages his involvement to disconnect Mother from the process.

Conduct Relevant to Decision-Making

[81] Father’s conduct in failing to care for himself, and in leaning too heavily on the children (and Bella in particular) to do so, is relevant to decision-making. Father has indicated in his Affidavits and in his evidence before the Court that he is often bed ridden. Evidence was provided of at least one occasion on which Father was unable to get out of bed for several days while the children were in his primary care. All witnesses confirmed that his health is deteriorating, and that he is considerably less well and less mobile now than he was when the Final Order was made. Mr. Hoddle specifically testified that Father’s health has “most certainly” declined and his mobility is “much more restricted” today than it was three years ago. Mr. Hoddle expressed his concern that the children were responsible for too many household tasks. On multiple occasions he had observed them cooking, cleaning and dealing with garbage, while Father was “just sitting”.

[82] Father chose not to provide any medical evidence in this matter whatsoever – there is no foundation upon which to base any conclusion regarding his medical situation. He commented during his testimony that he walked more in the first few days of this trial than he had done in the past twelve months. I would underscore here that it is not Father’s apparent disability that impacts upon decision-making; the impact arises because he has burdened the children with the results of his disability and appears to be taking no meaningful steps to improve his situation.

[83] Note further that Father has failed to take advantage of the opportunities to participate meaningfully in the children’s lives. He did not attend Bella’s Grade 8 graduation; he did not attend the children’s Winter Concert, although he did deliver them to the concert location; he did not attend the hockey game at which Emma’s choir sang the national anthem. Father did not participate in Connor’s Psycho-Educational Assessment at school. All information regarding any of these events was openly available to Father through the school’s automated email system, in which he does not appear to have enrolled. Although he purports to care about the children’s best interests, he does not actually engage.

Family Violence

[84] Mother alleges historic family violence against her which Father vehemently denies. Based on facts already referenced in this decision, I find that Father continues to attempt to control Mother and to abuse her emotionally through their communications.

[85] Of additional concern are Father’s violent outbursts toward Bella and Connor. Father has ripped Connor’s clothing, including one of his favourite T-shirts, in rage. During a game of “bloody knuckles” (which is inappropriate in and of itself), Father became angry with Bella when she won a match by smacking his knuckles. He punched her in the arm, leaving a bruise. Father’s pent-up emotional issues burst forth and cause him to harm the children. I am not confident that they are safe in his care for any extended length of time.

Conclusion on Parenting Issues

[86] Co-parenting was attempted and failed. Having regard to the applicable factors from sections 16.1 through 16.4 and 16.6, I find that it is the children’s best interests for Mother to make all decisions and provide Father with on-going updates. Relevant terms regarding the maintenance of the children’s government documents and Mother’s right to travel with the children internationally on notice to Father but without the requirement of his consent shall also issue.

[87] Regarding regular parenting time, I conclude that the children’s well-being and right to a relationship with each of their parents is properly balanced where they live with Mother and spend alternate Saturdays from 12:00 noon to 9:00 p.m. with Father (the “Regular Schedule”). Should a special event such as a Pay-Per-View be scheduled outside of these times, Mother shall have discretion as to any adjustments to the schedule, taking the views and other activities of the children into account.

[88] The holiday schedule is set out at paragraphs 3, 4, 7 and 8 of the Final Order. In light of my conclusions in this decision, none of these remain applicable. The following holiday schedule will apply:

a. Father’s Day: If, pursuant to the Regular Schedule, the children are to be in Father’s care on the Saturday immediately preceding Father’s Day, that day will be suspended and the children will be in Father’s care on Father’s Day from 10:00 a.m. to 7:00 p.m. If, pursuant to the Regular Schedule, the children are to be in Mother’s care on the Saturday immediately preceding Father’s Day, there will be no change to the Regular Schedule and the children will be in Father’s care on Father’s Day from 10:00 a.m. to 7:00 p.m. b. Christmas Day: When December 25th falls on a Saturday, there will be no change to the Regular Schedule. When December 25th falls on any other day of the week, the children will be in Father’s care from 12:00 noon to 6:00 p.m., which visit will be in addition to the Regular Schedule. c. Additional Holiday Parenting Time: Such further and other holiday parenting time as the parties may agree upon in advance in writing, taking the views and other activities of the children into account.

[89] Finally, parenting exchanges shall take place at Father’s residence, with Mother or her designate to provide transportation to and from Father’s parenting time.

Additional Terms

[90] Father has not completed the requirements for counselling described at paragraphs 18 and 20 of the Final Order. As a prerequisite to any overnight parenting time between Father and the children, Father shall attend and successfully complete the following, with documentary proof of completion to be provided via OFW:

a. A multi-session education program offered by Camino Wellbeing (or a similar agency) or a series of not less than four individual counselling sessions with a specific focus on anger management and/or emotional dysregulation; b. A multi-session education program offered by Camino Wellbeing (or a similar agency) or a series of not less than four individual counselling sessions with a specific focus on children’s needs at differing stages of development; and c. The Caring Dads program, providers of which can be found at: For Dads — Caring Dads™.

C. Child Support Issues

[91] On February 6, 2023, Justice Piccoli changed the parenting schedule on a temporary basis such that the children have been primarily resident with Mother since that date. I have determined that it is in the best interests of the children for them to continue to reside primarily with Mother. Consequently, the question of what, if any, child support ought to be payable by Father is raised. Although the children spent the bulk of the month of February primarily with Mother, I exercise my discretion to apply the determination of child support to the period commencing February 1, 2023 as the first day of the month of the change.

[92] Ms. Towlson, on Mother’s behalf, points to Father’s non-compliance with paragraphs 28, 29 and 32 of the Final Order in seeking to impute ODSP income to him for support purposes. Father’s testimony regarding his application for ODSP did not make sense. In his Affidavit dated November 23, 2022, entered as an exhibit at trial, he attested that he expected to receive ODSP starting in 2023. Receipt of benefits is conditional upon demonstrating financial need. A letter from ODSP dated October 12, 2022, and attached as an exhibit to Father’s Affidavit lists certain documents that Father was obligated to provide. At trial, Father attested that he had provided these documents to ODSP, to Ontario Works and to his previous counsel. He said that these entities have had the documents for “a long time.” He later agreed, however, that he had recently written to Ms. Towlson asking her to send copies of some of the listed documents to him. When asked why he would send such a request if he had already submitted the documents to ODSP, he did not have a cogent answer and went on to reference fax receipts for other materials that he had sent to his former lawyer from a local convenience store. Whether he was confused or whether he was dissembling, Father was unable to explain the status of his ODSP application to the court.

[93] Regrettably, there was no evidence as to the actual difference between Father’s current social assistance and his potential ODSP payments. Father did not know what he might receive from ODSP. For the purpose of my analysis regarding the Household Standards of Living Test, however, even if a basic income of $30,000 is used (roughly minimum wage), the mathematics demonstrate that Father is in a state of undue hardship as contemplated by section 10 of the Federal Child Support Guidelines.

[94] The full text of section 10 of the Federal Child Support Guidelines is attached as Appendix “B” to these reasons. Section 10 lists certain categories of circumstance in which undue hardship may be found. There is no category that is directly applicable to Father’s situation, however, the list is not exclusive. A finding of undue hardship can be premised solely upon the financial discrepancy in affluence between the parents’ two households. The mathematical calculation guiding the court in that regard, referenced at section 10(4), is found at Schedule II to the Guidelines.

[95] Father did not present either legal argument or mathematical analysis of this issue. To do the calculation properly, the Court would require evidence of the income from Mother’s partner and any financial contribution from her father, which evidence was not presented at trial. Further, as noted above, there is a real issue of imputation of income to Father arising from his failure to switch from social assistance to ODSP benefits. To demonstrate that Father’s household is in a state of comparative undue hardship, however, I will conduct the mathematical analysis excluding Mother’s partner and her father and presuming that Father’s income is $30,000. The amount mandated by the Guidelines for three children on this income is $621 monthly. Note that Mother’s anticipated income for 2023 from employment is $109,432.

[96] Using these incomes, and additional information from Mother’s Financial Statement dated September 29, 2023, the calculation would be:

Mother’s Household	Father’s Household
Anticipated income: $109,432	Imputed income: $30,000
Less: Calculated taxes and statutory deductions: ($34,343)	Less: Estimated taxes and statutory deductions: ($NIL)
Plus: Child support payable ($621/month x 12 months) $7,452	Less: Child support payable ($621/month x 12 months) ($7,452)
Household Income = $82,541	Household Income = $22,548
Low-income measures amount (3 people = 1 adult + 3 children) $21,802	Low-income measures amount (1 adult) $10,382
RATIO $82,541 ÷ $21,802 = 3.79	RATIO $22,548 ÷ $10,382 = 2.17

[97] Even giving all concessions in Mother’s favour in the analysis, the standard of living is much lower in Father’s household. Section 10 contemplates the making of an order for “another amount” of child support, lower than the amount otherwise mandated by the Guidelines. In all of the circumstances of this matter, I find that the appropriate resolution is for Father to pay no child support until further Order of the Court.

D. Costs

[98] Mother was the successful party on all parenting issues but was unsuccessful in convincing me that child support should be payable to her by Father. Father was self-representing, had limited participation in this trial and did not make submissions about undue hardship. My conclusions on the financial issues were reached based upon the evidence on my own initiative in response to Mother’s position. Thus, the focus of cost submissions will be on costs incurred around parenting issues only. As Mother was successful, costs are presumptively payable to her and she will provide her written submissions first to the court.

[99] Temporary Order shall issue specifying that:

a. Mother, via counsel, shall serve and file written submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with a detailed Bill of Costs and any documents showing an attempt to avoid this trial by Friday, January 19, 2024. b. Father shall serve and file written submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with any documents showing an attempt to avoid this trial by Friday, February 2, 2024. c. Mother, via counsel, shall serve and file any reply submissions by Friday, February 9, 2024. d. There shall be no extensions to these deadlines. e. In addition to filing, written submissions are to be directed to: Kitchener.SCJJA@ontario.ca. It is imperative that the covering emails indicate the in the subject line: (1) the court file number; (2) that these are costs submissions; and (3) that they are being sent to the attention of Justice Breithaupt Smith.

Global Conclusion

[100] Final Order to issue per draft signed today, incorporating the terms of these reasons for judgment.

J. Breithaupt Smith J. Released: January 9, 2024

Appendix “A”

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(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.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or (b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2; (b) allocate decision-making responsibility in accordance with section 16.3; (c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and (d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

(7) The order may authorize or prohibit the relocation of the child.

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

16.2 (1) Parenting time may be allocated by way of a schedule.

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

Appendix “B”

Federal Child Support Guidelines, SOR/97-175, as amended

10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include,

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living; (b) the spouse has unusually high expenses in relation to exercising parenting time with respect to a child; (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is, (i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.