Court File and Parties

COURT FILE NO.: FC-17-2384 DATE: 2024/03/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Shereen Abou-Shaaban Applicant – and – Ghaith Alwani Respondent

COUNSEL: Sonya Notturno, for the Applicant Self-represented, for the Respondent

HEARD: January 15-19 and 22-23, 2024

BEFORE: Holowka J.

Overview

[1] The court heard a seven-day trial involving Shereen Abou-Shaaban and Ghaith Alwani.

[2] They were married on January 6, 2001, and separated in January 2017. During the marriage, they had two children, A.A. (D.O.B. January 6, 2010) and L.A. (D.O.B. August 10, 2012.)

[3] L.A. has significant special needs. The present diagnosis appears to be “global developmental delay”. Regardless of the exact diagnosis, L.A. has benefitted from the assistance of many professionals. While she was initially non-verbal, her progress has been considerable, and L.A. can now communicate verbally. She requires constant supervision. L.A.’s special needs placed a significant strain on the marriage.

[4] The Applicant was diagnosed with stage three breast cancer in May 2016. As a result of this, she underwent surgery in August 2017. The cancer has metastasized, and her condition is terminal. This condition has removed her ability to take care of her children, especially considering the physically demanding care required for L.A. The Applicant has exceeded her life expectancy.

[5] Justice Carter granted a divorce order on April 11, 2023.

[6] The Applicant submits that the following issues are before the court and seek orders relating to the following: parenting time, decision-making authority, child support (arrears, ongoing, and section 7), spousal support (arrears and ongoing), insurance and medical coverage for the benefit of the children, travel/mobility, and contents/equalization (marriage contract).

[7] The Respondent seeks orders to end spousal support, remove all arrears from the jurisdiction of the Family Responsibility Office (FRO) (including amounts owed pursuant to the religious marriage contract), and grant him exclusive decision-making power for the children.

[8] Both parties filed draft orders with the court during the trial.

[9] During the trial, the parties agreed and jointly requested that the court should impose an order concerning communication as part of the order made by the court. This order is reproduced at para. 121, below.

Procedural Issues

[10] In light of the Applicant’s medical condition, the trial proceeded virtually. This was on the consent of the Respondent.

[11] Additionally, a slightly relaxed sitting schedule was adopted. This amounted to a somewhat longer lunch recess and a somewhat earlier end of the sitting day.

[12] Both of these measures were implemented to allow the Applicant to fully participate in the trial. Her medical condition means that she quickly becomes tired. It did not otherwise impact the trial.

Background and Context

[13] Two witnesses were called at this trial: the Applicant and the Respondent.

[14] The Applicant was born on May 25, 1978. She came to Canada in 1993 and attended Carleton University, where she graduated in 2002 with a degree in linguistics. She met the Respondent in 1997. The two attended university at the same time and developed a relationship. They married on January 6, 2001.

The Marriage Certificate

[15] The parties were married in a religious ceremony in the Islamic faith. The Applicant filed a marriage certificate in Arabic and a translation at the trial. The marriage certificate provides for a dowry as follows:

Advanced and Paid: One gold lira Deferred: Fifteen thousand Canadian dollars Dowry attributes: None

[16] The marriage certificate does not specify any terms or conditions regarding the payment of the dowry. It does not specify any triggering events for the payment of the dowry.

[17] There is no evidence regarding the value of a gold lira in Canadian dollars nor the national origin of the lira.

[18] The parties testified that neither the gold lira nor the 15,000 Canadian dollars were ever paid. The Applicant seeks an order for the payment of both. This relief will be addressed later in these reasons.

[19] The Applicant testified that the Respondent told her that he wished to divorce her. According to the Applicant, that is sufficient in Islamic law to bring about the divorce and to require payment of the dowry.

[20] The Applicant, in cross-examination, denied that Islamic law contemplated that upon divorce, a wife would reside in the household of a close relative, such as that of a father or brother, and receive support from them. She testified that a divorced wife could live where she wished. She maintained that support could come from a variety of sources, such as income, spousal support, family, and government sources.

[21] The Respondent testified that in Islamic law, after the deferred payment of the dowry is paid, no further spousal support is payable by the ex-husband.

[22] The Respondent, in cross-examination, agreed that he told the Applicant that he wanted to divorce her. He later maintained that this is not sufficient to bring about divorce in Islamic law as the words were said in anger. The Respondent testified that he tried to get the Applicant back and to save the marriage. He maintained that they were still talking about the marriage and that they were intimate after the words were said. The Respondent testified that if the parties are intimate after the words or if they were said in anger, they do not count.

[23] He agreed that, ultimately, the Applicant stated that she did not want to continue the marriage after he said he wanted to divorce her.

L.A.’s Special Needs

[24] At the beginning of the marriage, the Applicant had a few relatively short-duration jobs. The Applicant testified that she had wanted to seek employment in her field of study, but an economic downturn prevented this from happening. Ultimately, she became a homemaker. The Applicant testified that both she and the Respondent were content with this arrangement before they had children, and they made do with the income of the Respondent.

[25] Once the Applicant and Respondent had children, the Applicant’s role as homemaker was firmly established. The Applicant testified that the parties agreed that her homemaker role was optimal for them. It allowed the Applicant to raise the children herself, as opposed to putting them in daycare and have them raised by others. The Respondent did not dispute this description of the situation.

[26] The Applicant and the Respondent had two children during the marriage. A.A. was born on January 26, 2010, and L.A. was born on August 10, 2012.

[27] After L.A.’s birth, it became apparent that she had special needs. The Applicant testified that L.A. began missing developmental milestones as an infant and a toddler. She was nonverbal, and while she has gained some language abilities, she still cannot care for herself. At 29 months of age, in 2015, L.A. was diagnosed with “global developmental delay” by Dr. Ponesse of the Children’s Hospital of Eastern Ontario (CHEO) and the Ottawa Children’s Treatment Centre.

[28] The doctor made the following recommendations in the clinical report dated January 28, 2015:

1. [L.A.] was referred to General Surgery.
2. Continued exposure or new referral to occupational therapy, speech and language therapy, as well as Infant Development Services.
3. Family resource referral.
4. Follow up in approximately 10 to 12 months’ time.

[29] The Applicant testified that general surgery was not required. The Applicant testified, and I find as a fact, that she was primarily responsible for the follow-up regarding therapy, although the Respondent sometimes attended appointments.

[30] The Applicant described L.A. as non-verbal at two and a half years of age. At one stage, she used a tablet with pictures on it to communicate. As a result of considerable effort and therapy, L.A. can now request and speak certain words. These spoken words continue to be unclear. L.A.’s development remains delayed, and she always requires full support. L.A. is prone to fleeing from her caregivers. In summary, the special needs created a challenging and stressful situation for both the Applicant and the Respondent.

[31] Dr. Ponesse updated the parties about L.A. in a subsequent letter dated February 26, 2016. This letter referred L.A. to “Anesthesia and to Radiology, for [an] MRI, and secondarily to Genetics, for a full consultation.”

[32] Additionally, the doctor discussed and addressed L.A.’s core tone strength and gross motor function and possible steps that could be taken. He notes that the parents settled on swimming as a primary way of having L.A. develop body awareness. He notes that L.A. has a significant number of both sensory aversions and sensory interests. He was of the view that swimming would be an ideal medium with which to engage in sensual pleasure and develop better body awareness. The doctor also proposes other possibilities for this to be pursued. Nothing physiological was preventing her activities.

[33] Finally, Dr. Ponesse addresses the possibility of a diagnosis of an autism spectrum disorder, but ultimately declines to make this diagnosis. In the fall of 2023, as a result of the efforts of the Respondent, such a diagnosis was eventually made.

[34] The Applicant testified, and I accept, that she made significant efforts to enhance the lives and development of the two children while the Applicant and the Respondent lived together. The children were involved in two extra-curricular activities per week. This included skating and indoor swimming in the winter. In other seasons, the girls were involved in biking and other sports, such as soccer or basketball. She enrolled the children in camps during the March and summer breaks to ensure they were exposed to activities.

[35] I find that the Applicant was a dedicated and proactive advocate for L.A. She succeeded in having L.A. admitted in 2017 for a third year at a school run by CHEO, where she had already shown progress. She secured full-time admission and transportation to and from the school. She obtained a tricycle adapted to special needs that was the same as the one L.A. was using at school. The Applicant testified that L.A. was heavier from lack of movement and that biking and swimming aided L.A. in staying fit. L.A. used this bike until June 2022, when the children began to reside primarily with the Respondent. In his testimony, the Respondent confirmed that the bicycle is no longer in use. Instead, he takes evening walks with the children.

[36] The Applicant testified that she followed up on medical recommendations. She was of the view that the hard work paid off. L.A. was discharged from orthopedics as her issues were resolved. Previously, L.A. had alignment issues when standing, causing her to trip frequently and experience difficulty going upstairs or down sidewalks. This situation has improved as a result of her referral to orthopedic specialists.

[37] The Applicant recounted that L.A. was regularly reassessed to determine her progress or lack thereof. The Applicant was intent on seeing L.A.’s progress and avoiding a plateau.

[38] The parties’ position is that the Respondent was responsible for earning an income to support the family during the marriage. At the same time, the Applicant was responsible for caring for the children and home life. Both the Applicant and the Respondent testified about the Respondent’s role concerning the children during the marriage. I find that the Applicant was a devoted caregiver to the two children. She was a strong advocate in acquiring services for L.A.’s special needs and ensuring that L.A. enjoyed a full and rich life. She sought out the best for the two children when the Applicant and Respondent were residing together and after they separated.

[39] I find that the Respondent did play an active role in the lives of the children, albeit not as intensively as the Applicant, as a good part of his life was occupied with his employment. I am satisfied that he sometimes attended medical appointments for L.A. and that the main reason for the family to acquire a second motor vehicle was to allow him to do so and still meet the time demands of his employment. I am also satisfied that he, during some periods, took A.A. to basketball and other activities, and regularly drove her to school for extended periods.

[40] Both parties testified that communication and information sharing between them is challenging. They both point to marital difficulties interfering with their communications. This lack of effective communication made parenting difficult, and both parents pointed to the other as the problem. The Applicant testified that once the children’s primary residence was with their father, she wanted him to have the opportunity to parent independently and not micromanage his efforts. I do not accept this explanation.

[41] The Applicant acknowledged in cross-examination that she chose what documentation to provide to the Respondent. For example, in March 2023, she provided the car ownership papers to the Respondent but did not provide the medical documentation.

[42] The Respondent asserts that the Applicant left him without the information he required to ensure the continuity of services for the children. In support of this assertion, he points to screenshots of a text exchange, which do not entirely support the conclusion he seeks to make. In this undated text exchange, the Respondent states in part, “Please send me the money tonight. Also any information about the girls I need to know”. The Applicant, regarding the request for information, states, “As for information, ask me anything, and I’ll send you info as needed. It’s too much to summarize, took me months to figure things out for myself, so don’t rely on me”.

[43] The Applicant’s text reply reflects two competing messages. First, it conveys that the Respondent is effectively on his own and that he should not rely on the Applicant. Second, it conveys that the Applicant may answer specific questions and that she is unwilling or unable to summarize the admittedly elaborate lives of the two children, their schooling, their extra-curricular activities, and – especially in the case of L.A. – their medical and associated care.

[44] In cross-examination on this topic, the Applicant asserted that she was not the Respondent’s assistant, and it was up to him to inform himself about potential funding sources available due to L.A.’s condition.

[45] I accept that the Applicant did not make concerted efforts to assist the Respondent but that she did leave services in place for the children when the Respondent became the children’s caregiver.

[46] I also find that the Applicant was selective in responding to some communications from the Respondent but not others.

[47] I also find that the Respondent did not make substantial efforts to inform the Applicant of changes in their children’s lives. For example, the Applicant testified that the Respondent never told her of L.A.’s updated diagnosis of autism spectrum disorder in the fall of 2023 but had learned of it by accessing L.A.’s online medical records. The Respondent effectively confirmed this situation and appeared to find this to be sufficient in the circumstances.

[48] The Applicant heard of this diagnosis from CHEO social worker Julie Abgrall-Cowan, who has long been involved with the family. Both parties had a favourable view of this social worker, and both agreed that an order for L.A. to continue to receive Ms. Abgrall-Cowan’s services, to ensure that she received appropriate support and services, would be beneficial.

[49] Both parties described other examples of conflict in scheduling medical appointments and sharing information.

[50] I find that both parents found it challenging to address L.A.’s significant special needs and were left little time for rest.

[51] I find that neither party entirely puts the children’s best interests ahead of their marital disputes.

The Applicant’s Medical Condition

[52] It is a central aspect of this trial that the Applicant has a terminal medical condition. There is no dispute at this trial about the Applicant’s medical condition.

[53] The Applicant testified that she began to experience medical issues in 2012. She had breastfed her first child, although it was difficult. She had intended on breastfeeding L.A. as well, but it was painful. The Applicant described how she was frequently ill. A cold would last four months. She felt that her body and immune system were weak. On May 26, 2016, the Applicant was diagnosed with stage three inflammatory ductal carcinoma. The Applicant described it as an aggressive form of cancer which had no cure.

[54] The Applicant was reassessed in May 2020. At that time, the cancer had metastasized and had spread through the Applicant’s body. As of July 2021, the Applicant is past her life expectancy. She follows both conventional and alternative treatments. The Applicant was of the view that conventional cancer treatment was not to her benefit and that her body better tolerated alternative therapies.

[55] The Applicant filed a letter from Dr. Mohamed Ahmed Khalil Mohamed Abdelaal dated December 18, 2023, requesting accommodation at the trial for the Applicant. The letter states that the Applicant has metastatic breast cancer and is seen at the palliative care outpatient clinic for symptom management.

[56] The Applicant also filed a letter that the Respondent requested approximately three months after the children moved in with their father. The Respondent had questioned the Applicant’s condition and sought further help and services. The letter arises from a medical visit on September 1, 2022. It specifies that the Applicant is suffering from a terminal illness that limits her ability to take care of her children. It states that the Applicant will need additional support and services. Dr. Marie-France Savard authored the letter.

The Change of the Children’s Primary Residence

[57] The parties separated in January 2017. The Respondent left the family home, and the two children remained with the Applicant in the family home. According to the Applicant, the parties attempted parenting time arrangements for the Respondent that corresponded with his wishes. The Applicant could not recall details of the hours that the Respondent exercised, but it did not include sleepovers.

[58] A temporary without prejudice order was put in place in September 2018 by Summers J. It provided that the primary residence of the children was with the Applicant. The Order also stated: “The Respondent shall exercise access with the children every Saturday from 9:00 a.m. until 6:00 p.m. and every second Sunday from 9:00 am until 6:00 pm. Access on both Saturday and Sunday shall commence on September 22 and 23, 2018. The Respondent shall start Sunday only access on September 16, 2018.”

[59] The Applicant testified that surgery was recommended in 2016 when she was first diagnosed with cancer. She postponed the surgery due to the family situation and did not want to open what she described as a “can of worms”. Following the separation, the Applicant testified that she was focused on arranging childcare and professionals to assist with the family, given L.A.’s special needs. By the fall of 2017, both girls were in school full-time.

[60] The Applicant testified that her surgery was finally scheduled for August 30, 2017. The surgery was a bilateral mastectomy with immediate reconstruction. There were two significant surgeries planned: chest and abdomen. The surgery and recovery were expected to take two weeks. The impact upon the body core was anticipated to be substantial and would be an issue as L.A. was a physically demanding child.

[61] The Applicant testified that she became very sick in March 2020. She reached out to the Respondent so he could have sleepovers with the children. She testified that this was implemented, but she could not recall an exact schedule.

[62] According to the Applicant, caring for the children remained the Applicant’s responsibility. The Respondent’s parenting time was not expanded beyond a few hours on the weekends despite the wishes of the Applicant and the children, who wanted him to spend more time with the children.

[63] The Applicant testified that she had arranged with the Respondent to care for the children for two weeks. The children were supposed to stay with the Respondent, who was residing with his mother and sister at the time. Two days before the date set for surgery, the Respondent changed his plans. Instead of staying with his mother and sister, the Respondent stated that he intended to return to the family home to care for the children. In the face of this, the Applicant testified that she decided to move out of the family home. She advised the Respondent that he could return to the house. She removed her personal belongings from the house.

[64] The Applicant testified that she stayed with her family until she could arrange her finances and obtain somewhere to live. She also stated that she remained involved in the lives of the children, although the Respondent was caring for them. She described herself as being administratively in charge of the children. She connected with the doctors, teachers, and other professionals for the children, and sought to keep the Respondent informed. She took the children to appointments, such as therapy or dental. She testified that she ensured the Respondent took the children to school and back.

[65] The Applicant testified she had registered her eldest daughter in Saturday Arabic school and wanted that maintained, but the Respondent refused. Afterwards, A.A. was a year behind her classmates and did not keep up with her Arabic language studies.

[66] The Respondent was employed from August 2017 to the fall of 2018. The Applicant, in testimony, could not recall that the Respondent was involved in appointments and suggested that the Respondent could be asked for this information.

[67] During this year, the Applicant stated that information regarding the children’s schooling and therapy was available to anyone who wanted it. She testified that the Respondent had access to the children but no access to her. She described the Respondent as always busy at work. If the Respondent was interested in school or a therapy appointment, she viewed it as a plus, but there was no expectation on her part.

[68] When the Order of Summers J. was issued in September 2018, the Applicant described the Respondent’s status changing from a full-time parent to a part-time parent. The Applicant had wanted the Respondent to take on greater time with the children, but it was his choice not to do so. She described the full-time responsibilities as being difficult for her. According to the Applicant, it affected her health and slowed her recovery from surgery. It allowed her disease to progress faster.

[69] Two months before her re-diagnosis, she was very ill. The Applicant asked the Respondent to take the children, who stayed with the Respondent for two weeks. In May and June 2020, the children had sleepover visits with the Respondent. The Applicant had difficulty recalling the details of the sleepover visits and was unsure whether they were one- or two-night sleepovers. It was a flexible arrangement that permitted her to unplug and sleep well. The Applicant described that there were a lot of restless nights caring for L.A., and the stays with the Respondent provided her with a break.

[70] The Applicant described the typical day when the children were in her primary care:

a) In the mornings, she would get the children fed, dressed, and off to school. b) L.A. had transportation to school. The Applicant would drive A.A. to a nearby private school she had commenced attending in September 2018 or 2019. (The parties agree that A.A. should continue to attend this school, Abraar, following her wishes. L.A.’s school is located two minutes from A.A.’s school. She is in an integrated classroom for children with special needs.) c) After school, the children are involved in two activities during the week – swimming and another activity. Swimming might be on Mondays and Wednesdays; the other activity would be on Tuesdays and Thursdays. d) As the girls had different interests, the Applicant hired a care provider to be with L.A. when the girls were involved in different activities. This individual would bring L.A. home and shower her after swimming. The Applicant would be with A.A. at her activity, and they would sometimes attend the library to pick up books. e) On weekends, the children would, depending on the arrangements, be with the Respondent. f) On March break and holidays, the Applicant would place the children in day camps. The camps for L.A. were for full days.

[71] The Applicant testified that the Respondent did not assist with respect to these activities other than occasionally picking up one of the children. The Applicant hired a caregiver instead of asking the Respondent for aid, as she felt that the Respondent made it challenging to communicate with him. She preferred delegating to someone that she could rely upon. She recalled that the Respondent withdrew A.A. from Saturday Arabic school contrary to her wishes. The Applicant stated that she would often do things herself, which affected her health and the children.

[72] When the Applicant resumed primary care of the children, she was not employed. She received child support and the child tax benefit. She sought funding for the children’s activities and was proactive.

The Return of the Children to the Primary Care of the Respondent

[73] The Applicant’s health continued to deteriorate. She was no longer able to care for the children. At the Applicant’s request, her father approached the Respondent to discuss the Applicant’s declining health.

[74] The Applicant related to the court that her recovery was going backwards. She had open wounds that would not heal, which interfered with the physical demands of caring for L.A. The Applicant testified that she sought out alternative treatments: rest, diet, and IV therapy. All require a large amount of money and are not covered by social assistance. She explained that while chemotherapy is covered, alternative treatments are not. She stated that she is glad that she made a treatment plan for herself and is still around for the children, but that she cannot continue to exert herself by caring for the children.

[75] The primary care by the Respondent commenced in June 2022.

[76] The Applicant testified that when school commenced in September 2022, she could not keep up and felt that she needed to detach mentally and emotionally. She stated that she transferred responsibility for the children to the Respondent and wanted him to do it independently. She explained that she would not be around to help. She wanted him to do it without her meddling or interfering and wanted him to lead and make choices. The Applicant stated that she could not bring herself to check L.A.’s online chart then. She needed to take a break and to unplug.

[77] The Applicant testified that she continued to see the children despite this change, but their contact was minimal. The majority of the time she spent with the children was in her home. The Respondent transported the children to visit her because she could not do it.

[78] According to the Applicant, the Respondent’s transporting the children to visit the Applicant became an issue. The Respondent told her that if she wished to see the children, she could come and pick them up herself. The Respondent did not accept that the Applicant had a terminal illness. The Applicant obtained a letter from her physician that clarified this issue. After receiving the medical letter, the Respondent resumed making the seven-minute drive to pick up and drop off the children.

[79] The Applicant indicated that there had been no difficulties regarding the transportation of the children to spend time with her since then.

[80] The Applicant would see the children every week when medically capable. The Applicant stated that she probably skipped a couple of weekends. She estimated that 80 percent of the visits were sleepovers. The Applicant noted that the negotiations with the Respondent regarding visits were difficult.

[81] The Respondent provided A.A. with a cell phone for emergencies and to allow her to communicate with the Applicant. The parties arranged parenting time for the Applicant through A.A. The Applicant testified that direct communication from the Respondent ceased in May 2022, but that it was difficult to make straightforward arrangements even before this. There was always a push and pull. The Applicant testified that she did not have patience for these arguments.

[82] The parties agree to use the OurFamilyWizard app (OFW) for communications in the future and request that an Order be made to this effect.

[83] The Applicant testified that holiday access to the children on an ad hoc basis has been an issue for the last year and a half. A.A. wished to spend New Year’s Eve with her mother this year. This was put into place without issue. The Applicant spent additional time with the children over the recent holidays as the Respondent worked a lot. The Applicant described no difficulties, at least regarding parenting time and transportation, over the past 18 months.

[84] The Respondent testified to a daily routine – similarly challenging to that described by the Applicant – with the children during the school year following June 2022:

a) He awakes around 7 a.m. He prepares lunches for the children. b) He wakes L.A. and deals with L.A.’s toileting needs. c) He gets L.A. breakfast and gets her ready for the van that comes to take her to school around 8 a.m. each morning. d) A.A. gets up around 7:45 a.m. She has breakfast and then he takes her to school. It is a 50-minute round trip. e) Upon arriving home, the Respondent works from 9:30 a.m. to 3:30 p.m. He had an agreement with this employer that permitted him to stop work early and to make up the hours later in the day. f) He travels 25 minutes to pick up A.A. at school at 4 p.m. While L.A. is in the extended day program and can stay until 6 p.m., the trip from home is so long that unless he has an errand to run in the neighbourhood, such as groceries, he will pick up L.A. and return home. g) He makes it home between 5:00 and 5:15 p.m. h) While they used to eat out more, given his finances, he now cooks more often. Dinner takes about an hour. i) He spends some time with L.A., and the children are put to bed around 9:00-10:00 p.m. j) He works for an hour, getting to bed around midnight. k) On Saturdays, the Respondent and the children go to the Respondent’s mother’s residence for a day with family. The Respondent’s mother usually cooks for them. They are at the Respondent’s mother’s residence between 1:00 p.m. and 6:00 or 7:00 p.m. l) On Sundays, they “chill” at home. When they had more money, the Respondent used to take the children out more, but given the current financial situation, they stay at home.

[85] The Respondent testified that he became tired of everything. He had headaches and was prescribed blood pressure medication, but it remained high even with medication. The doctor prescribed other medication for depression.

[86] He eventually went on short-term disability. The Respondent testified that his job was very demanding and that he could not spend as much time as he wished to finish the job. The company expected more than eight hours daily, and he was not even doing that. No reason for dismissal was listed on the email dismissing him as, according to the Respondent, the employer did not want to deprive him of unemployment insurance.

Analysis

Parenting Time

[87] Regarding the issues of parental decision-making responsibility and parenting time, including consent to travel and maintaining a passport, I have been guided by the relevant provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and, in particular, s. 16 of that Act.

[88] Section 16(1) of the Divorce Act provides that the court shall take into consideration the best interests of the child. Section 16(2) mandates that the court give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.

[89] Section 16(3) elaborates on the factors related to the circumstances of the child to be considered. The factors are as follows:

(a) the child’s needs, given the child’s age and stage of development, such as the 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…; (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; [and] (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...

[90] Section 16(5) of the Divorce Act states, “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.”

[91] Given the Applicant’s medical condition, there is no issue regarding parenting time. The parties agree about parenting time. As such, paras. 1 and 2 of the Applicant’s draft order shall be granted. As noted above, the parties similarly agree on para. 3, as amended during the trial, regarding communication by the OFW application.

[92] Paragraph 4 of the draft order dated January 15, 2024, states, “ The Respondent shall continue to be responsible for the children’s transportation to and from the Applicant’s home for her parenting time. The father can choose to either drive the children to their mother or provide them with another form of transportation through either a member of his family or a taxi at his expense.”

[93] The Respondent is opposed to this order being made. He argues that the Applicant lives only seven minutes away from his residence and can drive. He posits that she is, therefore, capable of driving to pick up the children.

[94] Although the Respondent takes this position, he has been driving the children to see the Applicant without issue.

[95] It is in the children’s best interest that they spend as much time with their mother as she can physically and emotionally provide. The question of this drive is a minor affair for the Respondent but significant for the Applicant. Given her variable medical condition, imposing a condition that the Applicant provide transportation may effectively deprive the children of this critical contact.

[96] I have concluded that the Respondent shall continue to be responsible for the children’s transportation to and from the Applicant’s home for her parenting time. The father can choose to either drive the children to their mother or provide them with another form of transportation through either a member of his family or a taxi at his expense. In light of this, an order shall be issued in the following terms:

a) The Respondent shall continue to be responsible for the children’s transportation to and from the Applicant’s home for her parenting time. The father may choose to either drive the children to their mother or provide them with another form of transportation through either a member of his family or a taxi at his expense.

[97] The Applicant also seeks an order for the following relief: “Holiday access shall be arranged at an ad hoc basis through OFW, to be agreed upon by both parents and in keeping with the views and preferences of the children.”

[98] This proposed relief was not the subject of submissions during the trial, nor was evidence called on this issue. I am satisfied that it is in the best interests of the children that an order be issued in accordance with the Applicant’s request.

Decision-Making Responsibility

[99] The Applicant seeks shared decision-making despite the children primarily residing with the Respondent. The Respondent seeks sole decision-making responsibility for the children.

[100] The Applicant testified that she seeks joint decision-making power for the following reasons:

a) Considering the family dynamics, she is concerned that she is being deprived of decision-making responsibility because the children are no longer living with her. She was the longstanding primary caregiver. Although she is sick, she remains in the background organizing things. b) She is concerned about the care for her children. For example, the Applicant testified that L.A. has missed or skipped three dental cleaning appointments since the Respondent assumed the primary caregiver’s responsibility. A.A. missed one appointment as the Respondent had lost his employment. The Applicant maintains that the Respondent could have made room for a semi-annual dental cleaning, considering its cost of $200. She is concerned about cavities. c) The applicant expressed concern that the children no longer participate in extra-curricular activities or camps. L.A. is no longer in an extended day program where she can interact with children of different ages and abilities. The Applicant testified that she is happy that the Respondent has stepped up and taken on his present role but has many questions and is concerned about what will happen when she passes. She receives no information from the Respondent about the children or their progress. d) She is concerned that A.A. is being required to care for her sister. While A.A. is capable, it is too much to expect of her. Expecting A.A. to care for L.A. all day is too much if L.A. is not in a summer camp. e) The Applicant regarding L.A.’s care for herself. L.A. is still not toilet trained. She is concerned that the Respondent’s residence does not have a bidet. She is worried that the Respondent is assisting L.A. with cleaning herself. She is similarly concerned about how this is being addressed at school. She is nervous about various family members or professionals cleaning L.A. f) The Applicant described how she arranged for personal support workers for L.A. for two hours a week, and that this was increased to four hours a week based on her medical condition. The Applicant testified that she advocated vigorously for this level to be maintained when the Respondent took over primary care of the children. The Applicant is concerned that these services are not adequately managed or taken seriously. The appointments are cancelled. The Applicant stated that she did not allow A.A. to shower L.A. because she felt it was inappropriate.

[101] The Respondent seeks sole decision-making for the children. In his testimony, through his cross-examination and in his oral submissions, he points to the lack of cooperation on the part of the Applicant during the period when he had the care of the children.

[102] The Respondent testified that he seeks sole decision-making for the children for the following reasons:

a) Communication is very difficult with the Applicant. b) The Respondent and the Application do not agree about anything. c) The Respondent did not provide any assistance when he most needed her help. d) The Applicant previously testified that the lack of assistance was done so that he could step up and parent the children. He asks why the Applicant now seeks that everything be jointly decided. e) If joint decision-making is put in place, the parties will need to agree. If a child requires behavioural or speech therapy, someone has to make the decision. He agrees that the OFW application is a great way to communicate, but he requires the power to decide unilaterally if he wants to take the child to therapy.

[103] Effectively, the position of the Respondent is that the harsh reality of the present circumstances is that the Respondent will be charged with implementing the parenting decisions for the two children. Physically, the Applicant is incapable of carrying out most parenting tasks.

[104] I have considered the factors listed in s. 16(3) of the Divorce Act:

a) The child’s needs, given the child’s age and stage of development, such as the need for stability: During the marriage and after separation and divorce, the Applicant spearheaded efforts to promote the development of both children. The evidence establishes that the Applicant was a forceful and determined advocate for her children. The Applicant had more capacity to engage in this advocacy and scheduling for the children to some extent. The Respondent was the sole source of income for the family. Since the Applicant’s illness progressed to a point where she can no longer care for the children regularly, the Respondent has taken on the role of meeting the children’s needs, including providing a home, education, and medical care. He has obtained an updated diagnosis for L.A., which may open doors in terms of treatment and therapy. b) The nature and strength of the children’s relationship with each spouse, each of the child’s siblings, grandparents, and any other person who plays an important role in the child’s life: Both parents care deeply for the children and seek to enhance their children’s lives. The parties agree that in the earlier stages of the family, the division of responsibilities may be described as traditional. The Applicant was the homemaker, and the Respondent was the family’s income source. In light of the development of the Applicant’s cancer, she has had to withdraw from most activities in support of the children. This is because of her limited physical capabilities, not because of a lack of love or care for the children. Conversely, the Respondent is now solely responsible for the family, both the home and the income to support it. c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse: There is minimal cooperation and trust between the parties. While they can arrive at a consensus or work cooperatively, it is more the exception than the rule. However, the parties are capable, when absolutely necessary, of putting aside their differences and working together in the children’s best interests. The necessity of using the OFW application is an apt example. They can communicate regarding the children. They need to do so for the children. However, they agree that the application is required. d) The history of care of the children: The Applicant historically played the role of primary caregiver for the children. The Respondent is now almost exclusively responsible for the care of the children. This has been the case since June 2022. Under this heading, the Applicant argues that the evidence establishes that the Respondent does not put the children first. The Applicant points to the following examples: the Respondent’s choice to not use a specialized bicycle with L.A. and a lack of effort by the Respondent to obtain dental care for A.A. I do not find that the Respondent fails to put the children first. Regarding dental care for A.A., I accept the Respondent’s explanation regarding the lack of financial resources for dental care. The Respondent clearly stated that dental care is necessary. Now that he has resumed active employment, I believe he will prioritize dental care. Regarding the use of the bicycle, the Respondent explained his disinclination to use the bicycle and testified that he has substituted other activities, such as an evening walk. e) The child’s views and preferences: There is no evidence before the court regarding this factor in light of the terminal diagnosis of the mother. f) The child’s cultural, linguistic, religious, and spiritual upbringing: This factor does not appear to be an issue in this matter. g) Any plans for the children’s care: Under this factor, the Applicant submits that the Respondent has not been putting the children first. The Applicant again points to the lack of dental care for A.A. and his lack of effort to investigate alternative sources of funding. The Applicant submits that the children have not been exposed to the community or activities. The Applicant submits the following:

It is hoped that now that the father is backed into a corner with programming extracurriculars and educational aspect of the children’s upbring put in place by the mother and that he will go beyond that and start putting his computer skills to use with simple google searches on what is available out there for the children to participate in even for families in financial need.

Regarding this factor, the Applicant is clearly more motivated than the Respondent in putting extracurricular activities into place. In the absence of a court order, the Applicant has not been able to play this role and has no capacity to carry this out on her own. I am concerned that differing visions regarding activities for the children will inevitably lead to conflict and gridlock regarding this issue. The language the Applicant uses suggesting that the Respondent will be forced into a corner suggests inevitable conflict. In my view, such conflict is not in the best interest of the children. 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: The Applicant submits that she has consistently shown that she puts the needs of the children first while the Respondent is focussed on himself or on blaming the Applicant. The Applicant, after criticizing the Respondent’s conduct, submits that cooperation moving forward is key. I do not fully agree with the Applicant’s characterization of the Respondent’s conduct. I find that he has done his best for the children in difficult circumstances. It is an incontestable fact that the Applicant cannot take on a portion of parenting time in light of her physical condition. There is limited prospect of the parties being able to cooperate fully on a multitude of issues. I do agree with the Applicant that the fact of her physical incapacity should not remove her from the lives of the children. 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: The Applicant submits that she is fully willing and able to engage in a consultative decision-making process with the Respondent and submits that the Respondent is not willing to do so. The Applicant submits that should there be a final say after meaningful consultation, it should remain with the Applicant. The Respondent makes similar submissions regarding the Applicant. Both parties view the conflict and disagreement from their own perspective. I find that neither party has been fully cooperative with the other. Each has on occasion put their own interests in their conflict with the other ahead of the best interests of the children. On balance however, the Respondent has been less willing to cooperate than has the Applicant.

[105] I have also considered s. 16(5) of the Divorce Act. This past conduct is largely addressed in the above factors.

[106] Decision-making authority helps ensure that a parent’s relationship with their child is not marginalized: see Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356, at para. 12; Khurmi v. Sidhu, 2022 ONSC 6413, at para. 14.

[107] In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties: Chomos v. Hamilton, 2016 ONSC 5208, at para. 109; Jackson v. Mayerle, 2016 ONSC 72; Ruffudeen v. Coutts, 2016 ONSC 3359. The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress”: McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, at para. 96, citing J.B.H. v. T.L.G., 2014 ONSC 3569. See generally R.G. v. J.G., 2022 ONSC 1678, at paras. 117-22; K.M. v. J.R., 2022 ONSC 111, 66 R.F.L. (8th) 35, at paras. 46-62.

[108] The Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 10 RFL (6th) 373 (Ont. C.A.), at paras. 10-11, set out the following helpful factors to consider in determining whether joint decision-making responsibility should be ordered:

a) There must be evidence of historical communication between the parents and appropriate communication between them. b) It cannot be ordered in the hope that it will improve their communication. c) Just because both parents are fit does not mean that joint custody should be ordered. d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody. e) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis. f) The younger the child, the more important communication is.

[109] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict: Griffiths v. Griffiths, 2005 ONCJ 235. A standard of perfection is not required, and is obviously not achievable: Warcop v. Warcop (2009), 66 R.F.L. (6th) 438 (Ont. S.C.), at para. 94. The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future so that the best interests of the child can be ensured on an ongoing basis.

[110] Communication is even more critical when the parents have children with special needs: Ciutcu v. Dragan, 2014 ONCJ 602, at para. 33.

[111] Joint custody is more than just a “feel good” label. It entails mutual rights and mutual responsibilities. Joint custody is appropriate where parents have the ability and willingness to work together – to efficiently and amicably plan and problem-solve – for the benefit of the children. But joint custody is not appropriate where the absence of clear decision-making authority will lead to interminable power-struggles, impasse, and paralysis. With high-conflict parents, the absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who do not want to – and should not have to – get caught in the middle: Bennett v. Burns, 2018 ONSC 5443, at para. 11.

[112] At the very least, mutual trust and respect are basic elements required for effective shared decision-making: L.B. v. P.E., 2021 ONCJ 114, at para. 95; Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159, 77 R.F.L. (8th) 434, at para. 271; S.W.-S. v. R.S., 2022 ONCJ 483, at para. 78.

[113] The court has five options, as set out in McBennett, at para. 94:

1. It may grant sole decision-making responsibility in all areas to one spouse.
2. It may grant joint decision-making responsibility in all areas to both spouses.
3. It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
4. Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
5. Another option open to the court is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement. The Ontario Court of Appeal upheld this type of framework prior to the implementation of the recent Divorce Act amendments in the cases of T.J.L. v. E.B., 2019 ONSC 6096 (S.C.J.), aff’d 2021 ONCA 75 (C.A.) and Bourke v. Davis, 2021 ONCA 97 (C.A.).

[114] The parties are capable of working together on occasion. For example, the Respondent has been transporting the children to see the Applicant without issue. The Applicant appears to accept the new medical diagnosis the Respondent obtained.

[115] In juxtaposition, the parties are often in conflict. The Applicant is critical of the Respondent’s parenting of the children, as set out in para. 100, above.

[116] Shared decision-making with neither party having a final say is not appropriate. It will inevitably lead to conflict and inaction. The best interests of the children require a workable structure to be put in place.

[117] The Applicant strongly desires to support her children and see that decisions are made in the children’s best interests. She is skilled at advocating on behalf of the children. That said, she cannot implement those decisions. The children’s best interests mandate that she continue to play a decision-making role in their lives.

[118] The children reside with the Respondent. He bears the responsibility for the daily care of the children. He must be reasonably capable of implementing any decisions made by the parties concerning medical care, schooling, and extra-curricular activities, for example.

[119] I have concluded that the parties shall have shared decision-making responsibility, but the Respondent shall have the final say in all areas in the event of disagreement. This will ensure that the Applicant remains informed of events and decisions and can partake in the decision-making process. It will also ensure that the decisions made will be capable of being implemented and will be executed by the Respondent.

[120] I am confident that both the Applicant and the Respondent have the best interests of the children at heart.

[121] As noted above, the parties consent to the following order concerning communication through the OFW application. As such, an order shall be issued as follows:

a) Both parents shall sign up for and continue to maintain an active account with OurFamilyWizard (OFW). This tool is to provide a platform for ease of communication between both parents regarding their children. b) On a weekly basis, they will input in the program their proposed access times for the week. The Applicant will include two time slots per week to give the Respondent the ability to choose one. If those time slots are not workable, the Respondent will include two time slots in an effort to reach a mutually convenient access time. The Respondent is also able to initiate proposing a time, and the Applicant will make an effort to make it work. c) All communication by the parents will be done through the OFW program. Exceptions would be made in times of emergency when phone calls are necessary. d) All the children’s appointments and activities will be uploaded into OFW. Both parents are required to upload the children’s information as soon as it comes, within a period of a maximum of 24 hours, and maintain an update to events. All information about the children’s schools, transportation, doctor appointments, activities, therapies, treatments, and travel arrangements must be shared on OFW.

[122] Decision-making shall be the joint responsibility of the parties on the following terms:

a) The parties shall confer and consult one another on all major decisions affecting the health and healthcare, education, extracurricular activities, religious training, and general welfare of the children. b) The parties shall communicate with each other by OFW on non-urgent matters and by text or telephone on urgent or emergency matters. Communication shall be exchanged every week at a minimum, and immediately on urgent or emergency matters. c) The parties shall consider and follow, absent good reason, the recommendations of the child’s physician, dentist, or other healthcare provider regarding any treatments. d) If, after consultation, the parties are unable to agree on a major decision regarding the children, the Respondent shall make the final decision.

[123] I have considered the additional requests of the Applicant regarding the care of the children. The Respondent did not make submissions regarding these requests. I conclude that it is in the best interests of the children that the following orders be made pursuant to ss. 16.1(4), 16.3, and 16.4 of the Divorce Act:

a) The Respondent shall oversee all the children’s medical, dental, and therapeutic appointments and treatments, both urgent and non-urgent. More specifically, the Respondent shall ensure that annual and semi-annual appointments (dental hygiene twice a year and vision check once a year, etc.) take place for the children. If any treatment is needed, such as braces, an appointment will be made without delay. b) The Respondent shall administer any medications to L.A. regularly and in a timely manner. c) The parents shall be able to obtain information directly from health care providers, teachers, or any other professionals relating to the children, and this shall be sufficient authority for them to do so. In accordance with the provisions of s. 20(5) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, the parents shall have the same rights to make inquiries and to be given information with respect to the health, education, and welfare of the children. Both parents shall be included on all forms as shared decision-makers for the children, and both shall be emergency contacts for health care providers, teachers, or any other professionals. d) The children’s health cards, SIN cards, passports, and all legal documents will remain with the Respondent. The Applicant shall receive a digital copy of all the children’s documentation (front and back) sent via email (including at the time of renewal). The parents will cooperate with any renewals/signatures needed. The parents will notify the other of such documents being sought or renewed. e) The parents shall inform one another of all travel with the children. For the signing of travel documents, consent will not be unreasonably withheld. When travelling with the children, the travelling parent shall provide to the other information as to dates of travel, destinations, and emergency contact information.

[124] On consent of the parties and based on my conclusion that it is in the best interests of L.A., the following order shall be made for the continuing provision of services by social worker Julie Abgrall-Cowan, or her designate from CHEO:

a) L.A. shall continue receiving the services of Julie Abgrall-Cowan (her current CHEO social worker) or her designate to ensure she receives the support and services she requires for her disability.

[125] I have considered the Applicant’s request that the Respondent install a toilet bidet in all residences for L.A.’s hygiene to assist her with personal care, as she is not yet toilet trained. The purpose behind this request is laudable, as it is intended to protect her privacy and dignity. I have considered this request. There is no evidence regarding the cost of installing a bidet in the Respondent’s residence. Presently, the Respondent resides in modest rental accommodations, and it has not been established whether it is possible to have a bidet installed in this rented residence. There is considerable evidence before the court regarding the Respondent’s recent unemployment and the resulting financial hardship. I note that the Applicant is entirely dependent on spousal support, the child tax benefit (or other federal benefits), or social assistance, and would not be able to bear any of the cost of this expense. Given the Respondent’s significant financial limitations, it is neither appropriate nor reasonable to impose this financial burden on him. Given the other pressing financial priorities for the parties and their children, it is not in the children’s best interest to make this order at this time.

Child Support

[126] Under s. 15.1(1) of the Divorce Act, a court has jurisdiction to order child support. The Child Support Guidelines, O. Reg. 391/97 (CSG), provides that the amount of a child support order for children under the age of majority is the amount set out in the applicable tables, according to the number of children to whom the order relates and the income of the spouse against whom the order is sought: CSG, s. 3(1).

[127] Section 16 of the CSG provides that a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form used by the Canada Revenue Agency, adjusted as per Schedule III.

[128] An order dated September 10, 2018 was issued by Summers J. It provided that the Respondent was to pay $1,450 per month in child support commencing September 15, 2018. The order was made on an interim, without prejudice basis.

[129] The order of Summers J. was modified by the order of Engelking J., dated July 10, 2019. This order provided that the amount of child support payable by the Respondent was $1,403 per month.

[130] The Applicant’s sole income is spousal support. No child support is payable by her at this time. Given the Applicant’s medical condition, this is unlikely to change.

[131] The evidence established that the income for the Respondent was as follows for the relevant years:

a) 2018: $94,401; b) 2019: $101,904; c) 2020: $98,733; d) 2021: $101, 857; and e) 2022: $135,962.

[132] In terms of the relevant periods, the evidence establishes the following:

a) the Applicant was diagnosed with cancer in May 2016; b) the parties separated in January 2017; c) after the separation, the children resided with the Applicant, and the Respondent lived elsewhere; d) the Applicant moved out of the home with the children before undergoing surgery in August 2017, with the Respondent moving into this residence; e) following the Applicant’s recovery and the securing of a new residence, the children resumed primary residence with the Applicant as of September 2018; and f) given the deterioration of the Applicant’s health, the children resumed primary residence with the Respondent in June 2022, with whom they continue to reside.

[133] The following chart sets out the amounts of child support and spousal support paid by the Respondent to the Applicant as well as the amount of child support (table amount) payable:

Year	Resp. Income	CSG Table Amount	CS Table Amount Owing for the Year	Monthly Spousal Support Owing (SSAG Mid-range)	Annual Spousal Support Owing	Amount Paid (Child and Spousal Support Combined)	Comment
2018	94,401	1,403	5,612	1557	6228	2,895	Child support order for four months only during this year
2019	101,904	1,495	17,940	1700	20,400	34,740
2020	98,733	1,456	17,472	1618	19,416	34,740
2021	101,857	1,495	17,940	1671	20,052	37,740
2022	135,961	1,911	11,466	2353/3172	33,150	30,395	Child support is payable for six months only. Spousal support was adjusted accordingly.
2022	-7,975						Child support refunded by Applicant
2023	91,732	2140	25,680	11,553.04
2024	70,000 (Projected)	1633	574
Total			70,430		124,926	141,662.04

[134] I have considered D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, regarding retroactive child support. In that case, the Supreme Court of Canada set out a structure for a discretionary approach where the following four factors are to be considered holistically:

a) the applicant’s delay in applying for retroactive support; b) blameworthy conduct of the payor parent; c) the circumstances of the children; and d) hardship that the retroactive award might cause.

[135] While the court termed these retroactive awards, it pointed out that they were “retroactive” only in the sense that they were not dealing with future payments. The parents who were ordered to make these payments were being ordered to do so because, in hindsight, it was determined that the parents should have made these payments before.

[136] Justice Bastarache set out the following legal principles to consider in granting or refusing retroactive spousal support:

a) Retroactive awards are not truly retroactive. They do not hold parents to a legal standard that did not exist at the relevant time. b) Retroactive awards should not be seen as exceptional orders to be made in exceptional circumstances. While such an order should not be presumed, it will not only be found in rare circumstances. c) In exercising their discretion, courts should award retroactive support where fairness dictates it, but should keep in mind that certainty for payor parents is also an important principle. d) A payor parent under the federal legislation has the obligation to increase his or her child support payments when his or her income rises. e) Where the payor parent’s income rises and the amount of child support does not, there will be an unfulfilled obligation that could later be enforced by a court. f) An application is necessary to trigger the court’s jurisdiction to make a retroactive award of child support. g) It will not always be appropriate for a court to make a retroactive child support order. Such awards will not always conform to the purposes behind the child support regime. Such awards may cause hardship to a payor parent where prospective awards would not. h) A court should strive for a holistic view of the matter and decide each case on the basis of its particular facts. i) Parents have an obligation to support their children in a way commensurate with their incomes. j) Delay in seeking child support is not presumptively justifiable. k) Where the delay is caused by the recipient parent’s unreasonableness and not by the payor parent’s blameworthy conduct, the principle of certainty will be compelling. Nonetheless, unreasonable delay by the recipient parent does not have the effect of eliminating the payor parent’s obligation. Child support is the right of the child and cannot be waived by the parent. l) Recipient parents must act promptly and responsibly in monitoring the amount of child support paid. From the child’s point of view, a retroactive award is a poor substitute for past obligations not met. m) A payor parent who knowingly avoids or diminishes his or her support obligation to his or her children should not be allowed to benefit from such conduct. n) The conduct of the payor parent could militate against a retroactive award where the payor parent’s conduct has had the effect of fulfilling his or her support obligation. o) Courts should consider the present circumstances of the child, as a child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. Need is an important factor when courts consider retroactive awards. It is significant to consider the child's needs at the time that the support should have been paid. A child who experienced hardship in the past may be compensated for this experience with a retroactive award. A child who had all the advantages is less likely to receive retroactive support. p) Courts should try to craft retroactive awards in a way that minimizes the payor parent and his other dependants’ hardship. q) A retroactive award should be retroactive to the date when effective notice was given to the payor parent that support should be paid or that the amount being paid is inadequate. r) It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent. s) The date when increased support should have been paid will be a more appropriate date from which retroactive support should begin when the payor parent engages in blameworthy conduct, such as when he or she intimidates and lies to the recipient parent, but also when he or she withholds information. When a payor parent does not disclose a material change in circumstances, including an increase in income, the presumptive date may be moved to the time that the circumstances changed materially. t) Undue hardship arguments under s. 10 are available in determinations of retroactive child support awards and will generally be easier to show in such cases than in determinations of prospective awards.

[137] In summary, on an application for retroactive support, a court must consider the following:

a) whether the recipient parent has supplied a reasonable excuse for the delay; b) the conduct of the payor parent; c) the circumstances of the children; and d) the hardship the retroactive award might entail.

[138] The Respondent argues that had the Applicant taken steps to change the child support being paid, he would have complied with the increased amount.

[139] On balance, I find that the Respondent knew that the increase in his income between 2019 and 2022 would necessitate an increase in his obligation. The Respondent consciously did not act upon this change in circumstances where the children would have benefited from the increased child support. I also find that the Applicant was aware of the changes in the income of the Respondent and failed to take steps to increase the child support being paid. I accept the testimony of the Respondent that he provided the Applicant with his T4 tax document each year.

[140] Considering the factors above, I conclude that the Respondent should pay retroactive child support to the Applicant to reflect the changes in income between 2019 and 2022, as reflected in para. 131 of this decision. An order shall be issued that all monies received by the Applicant from the Respondent for the combined payment or child and spousal support to date will be attributed to child support first, clearing any arrears.

[141] The children’s primary residence is with the Respondent. A material change in circumstances should be addressed in an order. As such, an order shall be issued as follows:

a) Should child support become payable given a material change in circumstances, child support will end for A.A., upon the first of the following events: i. the child ceases to reside full-time with a parent who pays support; ii. the child becomes 18 years of age and ceases to be in full-time attendance at an educational institution; iii. the child obtains her first post-secondary degree, certificate, or diploma, or becomes 22 years of age; iv. the child marries; v. the child dies; or vi. the child is no longer a child of the marriage. b) Should one of the events occur, child support will be reduced to directly reflect the reduced number of children for whom child support is payable. c) Should child support become payable given a material change in circumstances, the child L.A., who is disabled with extensive special needs, will require assistance beyond the above-noted “events”. The parents acknowledge that the diagnosis is global developmental delays, non-verbal, flight risk, and autism. Child support for L.A. shall end by further court order or agreement of the parties. d) Section 7 expenses will be the responsibility of the primary parenting time parent. e) The children’s special or extraordinary expenses include but are not limited to the following: i. child care, namely L.A.’s child care provider, who assists with her care for an average of ten hours per week; ii. medical/dental insurance, including braces and any measures of preventative dental procedures or treatments not covered by any health plan; iii. healthcare, including any specialized equipment, tools, or services needed for L.A.’s treatment, development, and support, and not covered by any health plan; iv. Abraar Secondary School; v. post-secondary education, including tuition fees, books, equipment, tools, etc.; vi. extraordinary costs related to primary and secondary schooling; vii. extra-curricular activities, including Saturday schools, camps, before and after school care, activities, etc.; and viii. any other special and extraordinary expenses as envisioned by s. 7 of the CSG. f) If it is available under a group insurance plan through the Respondent’s employer, the Respondent shall maintain, for the benefit of the children, medical/dental/drug coverage as long as they qualify as dependants under his group insurance plan though his employer. g) Any medical expenses for the children, agreed upon by both of the parties, incurred by the Applicant will be reimbursed by the Respondent as follows: where the Applicant pays for services covered by such insurance for which he is obligated to provide coverage, the Respondent will forthwith reimburse her or endorse over to her any cheques he receives in reimbursement of any amounts for such services paid by the mother within seven days.

Spousal Support

[142] During the course of the trial, the Respondent raised the issue of the Applicant’s entitlement to spousal support through his cross-examination of the Applicant. The Applicant was opposed to this being raised at the trial and was of the view that the issues regarding spousal support were limited to quantum and duration of spousal support.

[143] The Respondent makes the following arguments in support of his argument against the payment of spousal support:

a) The Respondent argues that his income is approximately $5,000 per month, consisting of a $4,500 salary and $500 child tax benefit. He claims that his expenses exceed his income. He notes that he lives in subpar conditions: a one-bedroom apartment. Essentially, he argues for financial hardship and seeks to end spousal support. b) The Respondent acknowledges that he and the Applicant have significant financial need but argues that he barely has sufficient income to survive. c) The Respondent notes that he paid both child and spousal support until he had problems with his work that ultimately led to his dismissal. d) The Respondent projects that in 2024 he will earn $70,000 in salary. This salary is paid by a corporation of which he is one of three officers and the directing mind. This income level is barely sufficient, and he wishes to prioritize his children in his care. While the apartment where he resides is insufficient for the needs of the children, he submits it meets their most basic needs.

[144] The Applicant makes the following arguments in favour of an order for the payment of retroactive and prospective spousal support:

a) The Applicant argues that she is entitled to spousal support on both a compensatory and non-compensatory basis. b) An entitlement to compensatory spousal support is justified by the Applicant’s role during the marriage. The Applicant’s role was one of homemaker while the Respondent provided income. c) An entitlement to non-compensatory spousal support is justified based on the Applicant’s need. This entitlement is premised on the 16 years of marriage and the significant decline in the standard of living after separation, as her income was social assistance to “top up” her spousal support. The Applicant also argues that she has experienced economic hardship, as demonstrated by her need to cut back on pain management and palliative care treatments, as a result of the Respondent inconsistently paying or underpaying spousal support.

[145] I find that the Applicant has a very strong compensatory and needs-based entitlement based on the factors argued by the Applicant. I note the following:

a) The Applicant’s role of homemaker during the marriage. b) The Respondent’s role of provider. He was effectively the only source of income for the family, and the Applicant was entirely financially dependent on the Respondent during the marriage and since separation. c) The Applicant sacrificed her career path in light of her role in the family. She now faces a terminal illness and, as such, is incapable of seeking or maintaining employment.

[146] Spousal support in this case is governed by s. 15.2 of the Divorce Act.

[147] The seminal cases on spousal support in Canada are Moge v. Moge, [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420. “[T]he purpose of spousal support is to relieve economic hardship that results from ‘marriage or its breakdown’”: Moge, at p. 848. “ [T]he focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects”: Moge, at pp. 848-49.

[148] Bracklow requires the court to consider all the factors and objectives set out in the Divorce Act, but directs that no single objective is paramount. Instead, all objectives must be considered since “[t]he objectives reflect the diverse dynamics of the many unique marital relationships”: Bracklow, at para. 35. The uniqueness of marital relationships effectively means that each case will be largely fact-driven. They are guidelines designed to advise on a reasonable range of spousal support and a reasonable duration for spousal support in many circumstances. While the Spousal Support Advisory Guidelines (SSAG) are advisory only, courts are required to consider them where the parties have addressed them: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.

[149] The Applicant seeks spousal support from the Respondent for $2,293 a month, being the mid-point between the mid- and high-end spousal support, based on the 2023 reported income of $91,732.

[150] Additionally, the Applicant seeks an order for arrears of spousal support for $60,089.96 based on mid-range while child support was payable and high-range while no child support was payable.

[151] The Respondent argues hardship with respect to the payment of spousal support.

[152] As a counterpoint to this position, the Applicant submits that the court should make a negative inference on the testimony of the Respondent regarding his challenging financial situation based on the following submissions:

a) The financial statements of the Respondent are a “cut and paste” and not accurate. b) The Respondent failed to make complete financial disclosure until ordered by the court to do so mid-trial. c) The Respondent claims limited knowledge of deposits into his account while simultaneously arguing that he is experiencing financial distress. d) The Respondent had difficulty explaining over $20,000 of deposits to his account that he testified were from cash advances from credit cards. The evidence reflects no cash advances from multiple credit cards, including Rogers Bank, AMEX, MBNA, and Capital One. e) The Respondent testified that he had issues with FRO and experienced financial hardship as a result of the Applicant not informing FRO that the children where no longer in his care, but the evidence shows that the Applicant repaid the child support in a timely fashion. f) The Respondent is being untruthful about his income and the hardship experienced since the separation in September 2018. The Respondent has earned in excess of $600,000 gross over that timeframe. g) The Respondent has no viable explanation for funds deposited into his bank account but for five payments from his mother for $1,450. Additionally, the Respondent does not include bank accounts in his financial statement and includes expenses in his financial statement that are not actually incurred. h) The Respondent testified that he has obtained new employment and that his salary for 2024 is $70,000. The Respondent omitted in his testimony in chief that the “employment” is with a corporation that he founded and in which he is the main participant.

[153] I find that the Respondent was economical with the truth. His financial statements are incomplete and inaccurate. He failed to provide complete financial disclosure until he was ordered to do so mid-way through the trial.

[154] Of particular note, I find that the Respondent intentionally omitted revealing that his new employment, with a stated salary of $70,000, was at a corporation that he founded, was a director of, and of which he was the directing mind. In cross-examination, it was revealed that this was the case. I find that the Respondent intentionally withheld this information.

[155] I find that with respect to many financial questions, the Respondent was neither credible nor reliable.

[156] On balance, however, I accept that the financial situation for the Respondent has been difficult. He remains the sole source of income for the Applicant, the children, and himself. I accept that he encountered mental health issues and was unable to fulfill the expectations of his employer and that he availed himself of short-term illness leave in 2022 before he was ultimately dismissed from his longstanding position in August 2023.

[157] The credit card statements from Rogers Bank, Scotia CreditLine, Capital One, Scotiabank Visa, and AMEX reflect balances of $11,360.34, $9,942.53, $8,980.82, $12,431.56, $1,306.07, and $7,076.72, respectively. The required minimum payments on the three credit card accounts on these recent statements were $450.03, $79.47, $457.00, $204.00, $1,306.07, and $240.94, respectively. I accept the testimony that the Respondent was attempting to manage his income shortfall by way of credit through these numerous cards.

[158] I also accept the testimony of the Respondent that he resorted to living at his mother’s residence and then rented a modest one-bedroom apartment as he did not have the means to acquire more suitable accommodation.

[159] The Applicant referred to S.J.M. v. J.L.M., 2010 BCSC 154, for the proposition that a healthy spouse may be required to pay spousal support in a higher amount when the other spouse is disabled.

[160] The Applicant points to extra medical and drug costs that she will incur as justifying the higher end of the range.

[161] I also note that the Applicant requests an order for spousal support that is very time limited. The draft order states as follows:

Effective January 15, 2024, based on the 2023 reported income of $91,732.00 the Respondent shall pay the Applicant spousal support in the amount of $2,293.00 per month which is the mid-point between the mid and high-end spousal support. This reduction takes into account the fact that the children reside primarily with the Respondent and no child support is payable.

The payments shall be on the 15th day of each month. Every year, the support amount payable shall be reviewed and paid in accordance with income and the difference between mid and high range support as outline in paragraph 25 above. On May 12, 2025 (two years from the divorce taking effect) on the condition that the marriage contract gifts are fulfilled, spousal support ends forever. The term cannot be extended.

For the purposes of recalculating spousal support payments, the parties shall exchange income tax returns and notices of assessment (and re-assessment if applicable) by June 15th of each year commencing June 2024. The monthly spousal support payments shall be adjusted in accordance with the spousal support advisory guidelines based on the previous year incomes and this monthly spousal support shall be payable from July 15th to and including June 15th of the following year when spousal support will once again be adjusted as of July 15th of that year. All adjustments will be sent to FRO.

[162] I conclude that the Applicant is entitled to spousal support in the mid-range of $2,140 a month until May 23, 2025, on the condition that the marriage contract is fulfilled, specifically payment of the $15,000, as per the reasons set out in the equalization section below. Failing payment of the $15,000 in satisfaction of the marriage contract, spousal support payments shall continue. The spousal support is based on the Respondent’s 2023 income of $91,732.

[163] In concluding that spousal support should be in the mid-range I have considered the following factors:

a) the Applicant’s medical condition and the medical and drug costs that she will incur; b) the parties’ roles during the marriage and the economic disadvantage the Applicant experienced both during the marriage and as a result of its breakdown; c) the Applicant’s complete inability to be employed and the reality that her sole source of income is child support; d) the fact that the children reside primarily with the Respondent; e) the level of debt carried by the Respondent; f) the fact that the Respondent is the sole source of income for the children, the Applicant, and himself; g) the modest living situation of the Respondent and the children; and h) the fact that the Applicant made the time-limited request for spousal support.

[164] While the Respondent projects that his income for 2024 will be $70,000, I am convinced that spousal support should be paid based on the Respondent’s 2023 income. A corporation controlled by the Respondent fixes the projected $70,000 salary for 2024. The projection is not supported by confirmatory evidence. As noted earlier in these reasons for decision, I have considerable difficulty with the credibility and reliability of the Respondent’s testimony.

[165] The amount of spousal support should be subject to variation and possible review with respect to quantum.

[166] An order shall be issued as follows:

a) Effective January 15, 2024, based on the 2023 income of $91,732, the Respondent shall pay the Applicant spousal support of $2,140 per month, which is mid-range spousal support. This reduction takes into account the fact that the children reside primarily with the Respondent and no child support is payable. b) The payments shall be on the 15th of each month. Every year, the support amount payable shall be reviewed and paid in accordance with income. Spousal support ends forever on May 23, 2025 (two years from the divorce taking effect) on the condition that the marriage contract gifts are fulfilled. The term cannot be extended. c) For the purposes of recalculating spousal support payments, the parties shall exchange income tax returns and notices of assessment (and re-assessment if applicable) by June 15th of each year commencing June 2024. The monthly spousal support payments shall be adjusted in accordance with the spousal support advisory guideline based on the previous year incomes and this monthly spousal support shall be payable from July 15th to and including June 15th of the following year, when spousal support will once again be adjusted as of July 15th of that year. All adjustments will be sent to FRO.

[167] With respect to the arrears of child and spousal support, reference may be made to the chart at para. 133. I find that there are arrears of child support owing of $70,430. The amount of spousal support owed is $124,926, based on the relevant income of the Respondent and the mid-range of the SSAG. The Respondent has made payments of $141,662.04. Addressing child support arrears first, as of January 15, 2024, the Respondent owes $53,693.96 in spousal support arrears. This amount shall be enforced through FRO.

Equalization and the Religious Marriage Contract

[168] The parties have no outstanding issues with respect to the division of property and personal effects beyond the order sought by the Applicant regarding a religious marriage contract.

[169] The Applicant seeks an order for enforcement of a religious marriage agreement entered into between the parties on January 6, 2001. The document was written in Arabic and has been translated into English. No issue has been raised concerning the translation.

[170] The Applicant seeks the payment of one gold lira and 15,000 Canadian dollars. The Respondent contests this claim. There is no evidence before the court of the value of one gold lira at the time of the marriage, at the time of separation, or at the date of trial. The draft order provided by the Applicant at the start of the trial suggests that one gold lira is currently valued at $810 based on 22 carat gold weighing 8 grams.

[171] In support of her argument, the Applicant relies on A.M. v. M.S., 2017 BCSC 2061.

[172] I have also considered the following case law and secondary sources concerning the issue of the treatment of religious marriage agreements in Canada:

a) Bakhshi v. Hosseinzadeh, 2017 ONCA 838, 139 O.R. (3d) 531; b) El Khatib v. Noun, 2023 ONSC 1667; c) Faizian v. Ashouri, 2023 ONSC 6703; d) Aaron Franks & Michael Zalev, This Week in Family Law (20 November 2023) (“TWIFL”); and e) Fareen L. Jamal, “Enforcing Mahr in Canadian Courts” (2013) 32 CFLQ 97 (and referred to in the above TWIFL).

[173] As noted in Faizian, at para. 54, the starting point is Bakhshi, where the court stated the following at paras. 22 and 34:

These cases treat Mahers like any other contract that may impose a variety of different legal obligations. The outcome of each case depends, just as in any other case of contractual interpretation, on the objective intentions of the parties as ascertained through the particular wording of the Maher when read as a whole and considered in light of its factual matrix.

Absent any evidence of an objective intention at the time of contract to treat the Maher differently, the Maher payment must be treated under the FLA like any other payment obligation between the spouses.

[174] Bakhshi provides the following guidance to litigants and judges:

a) The Mahr payment must be included in the net family property (NFP), although it may be excluded property pursuant to s. 4(2) 6 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA). b) Unless it is excluded property, the Mahr has the effect of reducing the husband’s net assets and increasing the wife’s net assets. c) The Mahr payment is a “demand obligation with a paper value”: at para. 43. I interpret this to mean that it is a monetary payment. This makes logical sense as that is how all property is dealt with in the equalization exercise. d) The Mahr is like a “third party’s promissory note” that must be paid by the debtor to the creditor: at para. 43.

[175] I find that the marriage agreement shall be included in the parties’ net family property for the following reasons.

[176] The parties did not argue that the marriage agreement was not an enforceable contract. It does not include any language that would exclude it from the NFP calculations.

[177] The FLA supports the inclusion of the religious marriage agreement. The equalization regime provides for an equitable sharing of the family’s increase or decrease of family wealth during the course of a marriage, subject to certain gifts, inheritances, or domestic contract. It is intended to address all forms of property, debts, and monies owing to each of them, including interspousal loans and gifts, unless there is a valid domestic contract that contracts out of this regime.

[178] The testimony before me established that the religious marriage agreement is meant to address the potential financial vulnerability of a wife at separation, as there is no shared property or equalization regime in Islamic law.

[179] The testimony of the Applicant is that the Respondent stated that he wished to divorce her, thereby satisfying the requirement that the husband initiated the religious divorce. While the Respondent agrees that he said those words to the Applicant and that they would have this effect, in cross-examination he attempted to distance himself from the impact of those words. For example, the Respondent testified that if the words stating that he was divorcing the wife were said in anger, they did not count. I reject this testimony of the Respondent whereby he seeks to belatedly distance himself from his stated intention to divorce the Applicant.

[180] There may have been an issue for the court to determine with respect to the timing of the valuation of the gold lira. Arguments may be put forward for the valuation to occur as of the date of the separation or the date of trial. As noted above, there is no evidence before the court as to the value of the gold lira at either of those dates.

[181] The Bakhshi decision clearly states that the payment is in paper, which I interpret as Canadian currency.

[182] Moreover, the NFP regime provides that one party makes a monetary payment to the other, rather than the transfer of assets between them.

[183] It is not appropriate for me, for example, to make an order requiring the Respondent to purchase a gold lira to fulfill his obligation under the religious marriage agreement.

[184] No order shall be made with respect to the enforcement of the payment of the gold lira.

[185] In terms of equalization, there is no other issue before me other than the enforcement of the marriage agreement as part of equalization of NFP.

[186] As such, the Respondent owes to the Applicant an equalization payment of $15,000.

[187] Additionally, an order shall be issued for the Respondent to provide the spare key to the 2014 Toyota Camry to the Applicant by sending it with the children at the Applicant’s next parenting time.

Mobility/Travel

[188] This final issue is presently theoretical in nature. The Applicant’s health does not permit her to travel. The financial situation of the Respondent does not suggest that travel is a likely event soon.

[189] Nevertheless, I find that it is in the children’s best interest that an order be issued requiring the parties to inform one another of all travel with the children. For the signing of travel documents, consent shall not be unreasonably withheld. When travelling with the children, the travelling parent shall provide the other with information as to dates of travel, destinations, and emergency contact information.

Costs

[190] Success in this trial is divided. I am not inclined to make an order for costs. If, however, the parties wish to make submissions regarding an order for costs, they may do so.

[191] The Applicant shall serve and file written costs submissions within 20 days of no more than three pages, not including a Bill of Costs or Offers to Settle. The Respondent shall deliver written costs submissions within seven days of being served with the Applicant’s costs submissions, of no more than three pages, not including a Bill of Costs or Offers to Settle. Reply submissions, if any, shall be served and filed by the Applicant within five days of being served with the Applicant’s responding costs submissions.

Mr. Justice Brian Holowka

Released: March 18, 2024