Court File and Parties

COURT FILE NO.: FS-20-11691 DATE: 2024-03-28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Derek James Manning, Applicant AND: Laura Margaret Manning, Respondent

BEFORE: Heeney J.

COUNSEL: James Battin, counsel, for the Applicant Andrew Nicholls, counsel, for the Respondent

HEARD: December 19 and 20, 2023, at Woodstock; written argument completed February 26, 2024

Endorsement

[1] The parties began cohabiting in 2013, were married on September 19, 2015, and separated in September, 2019. There are two children of the marriage, Jake, born February 18, 2017, and Maggie, born August 18, 2018.

[2] This has been characterized as a high conflict case, and I agree that it is. Nevertheless, the parties came to court on the first day of trial with Partial Final Minutes of Settlement, executed on Dec. 12 and 13, 2023, filed as Ex. 1. That document resolved many of the most important issues, including joint decision-making responsibility over the children; a 2/2/3 parenting time schedule, alternating weekly, which allocates parenting time equally between the parties; parenting time on major holidays (except Easter) and during the summer; and, equalization of net family property.

[3] Despite the comprehensive nature of that settlement, comprising 17 paragraphs over 5 pages, the parties still disagreed on a total of 19 other issues, as listed in para. 18 of the Partial Minutes. This list was somewhat reduced during the course of the trial, with the filing of further Minutes of Settlement executed Dec. 19, 2023 (Ex. 2), a further settlement document dated Dec. 19, 2023 which provides for an additional 7 day period annually outside of the summer school break (Ex. 5), and further Minutes of Settlement executed Dec. 20, 2023 (Ex. 7).

[4] A final order will go in the terms of Exhibits 1, 2, 5 and 7.

[5] The issues that still remain to be decided are listed in para. 2 of the applicant’s Trial Submissions, and are as follows:

(a) Easter parenting time; (b) Travel; (c) Child Support/Child Support Arrears; (d) Section 7 Expenses/Section 7 Expense Arrears; (e) Facetime/phone contact with children; (f) Children’s Birthdays; (g) Parent Birthday; and (h) Counselling.

[6] I will deal with each of these in turn.

Easter Parenting Time

[7] Although the parties initially disagreed with each other on this issue, they both agreed with the suggestion of the court, made during the course of the evidence, i.e., that each party should have the children on Easter morning in the same year that they have the children for Christmas morning.

[8] A final order will go that the respondent will have parenting time with the children on Easter weekend in even-numbered years, from Friday at 4 p.m. until Sunday at 1 p.m. The applicant will have the children from Sunday at 1 p.m. until their return to school on Tuesday. In odd-numbered years, this pattern shall be reversed.

Travel

[9] The parties disagree with respect to the notice requirements for both travel outside of Ontario and travel within Ontario.

[10] As to the former, they both agree that 30 days notice should be provided, along with particulars as to the mode of travel, available means to contact the children, as well as a brief itinerary. This would facilitate the exchange of necessary travel documentation.

[11] However, the respondent seeks an exception for trips taken at the last minute, and points specifically to the fact that she has elderly family members in Michigan whom she often visits spontaneously. She proposes a 7-day notice period for such trips. The applicant disagrees, and insists on a 30-day notice period in all cases of travel out of Ontario.

[12] I agree with the view of the respondent, and conclude that a 30-day notice period in all cases is unduly restrictive. If one party or the other decides to take the children on a short holiday out of the province, that would presumably occur during their normal parenting time schedule, which could not exceed 3 days (absent the written agreement of the parties, as per Ex. 5). A final order will go that for trips outside of Ontario that are of a duration of 3 days or less, the party will provide the other with no less than 7 days notice. For all other trips outside of Ontario, the notice period shall be 30 days.

[13] As to trips within Ontario, the respondent is requesting 24 hours notice for overnight travel that is 2 hours or more from home. The applicant takes the position that there is no need for such notice, as the children are well cared for when they are with either parent.

[14] This dispute illustrates an overriding and fundamental difference in the approaches of each parent, which feeds into other issues in dispute. In effect, the applicant takes the position that each parent is very capable, and should be trusted to act in the best interests of the children while they are in his or her care. Thus, they should be free to go about their lives, and make decisions as to what they will do and where they will go during their parenting time, without having to notify the other parent as to their plans.

[15] The respondent, on the other hand, apparently needs to know where the children at all times when they are not at home for any significant period of time. She emphasizes that she is not asking that her consent be obtained for such trips, but only that she be advised of them.

[16] In my view, the respondent’s position exemplifies a fundamental lack of trust in the applicant’s parenting abilities, which is detrimental to the functionality of a joint parenting arrangement. Even though she is not seeking a veto over such trips, and asks for notification only, it still amounts to a form of control over what the applicant will do with the children during his parenting time. This is because any notice requirement, even one for 24 hours, restricts the ability of what he can spontaneously decide to do with the children. The fact that she is willing to make the notice requirements reciprocal does not diminish that.

[17] The phrase “helicopter parent” is well known, and connotes a parent who is always hovering over the children, vigilantly monitoring their every move. The respondent’s position on this issue is reflective of such an approach. Given that it reflects, in my view, a fundamental lack of trust in the other parent, it is detrimental to the smooth and conflict-free operation of the shared parenting arrangement that the parties have agreed to, and thus it does not operate in the best interests of the children.

[18] In my view, either parent should be entitled to decide for himself or herself what they will do and where they will go with the children during their regularly scheduled parenting time, without having to give advance notice to the other parent.

[19] For trips within Ontario taken outside the 2/2/3 parenting schedule, they will already be the subject of some pre-planning, since the parties agreed to give notice of their summer holidays by April 1 in each year. Where such trips involve the children being away from home for one week or more, the parties shall provide 30 days notice to the other as to their itinerary and contact information.

Child Support/Child Support Arrears

[20] The issue in dispute here relates to the respondent’s claim that income should be imputed to the applicant arising out of the fact that he is provided with a home to live in on his parents’ family farm rent-free. She asserts that he does work on the farm for his father, and receives free rent as compensation. She asks that income be imputed to him in the amount of $1,260 per month ($15,120 per year), which is the same amount of rent she pays for a comparable house that she rents from her aunt and uncle.

[21] This issue has implications both for ongoing child support as well as for arrears of support. The respondent is the higher income earner, so she is obligated to pay some child support to the applicant based on the table-offset approach that the parties have adopted. She paid no interim child support prior to October 1, 2023, because she was of the view that the applicant’s income should be higher than is shown on his T-4 slip due to attribution. She did so until a temporary order was made, on consent, by Dube J. on September 15, 2023, in which he ordered that child support be paid based upon T-4 income. Thus, attribution, if ordered, will affect the quantum of child support arrears that are owing by the respondent. This same attribution issue also arises with respect to the determination of the final order for child support payable by the respondent on a go forward basis.

[22] The applicant denies that he is given free rent in exchange for doing work on the farm. He states, instead, that he pays for renovations in lieu of rent. He has paid $85,000 to $90,000 in expenses so far, and plans to finish the renovation this coming year for another $100,000.

[23] The extent to which the applicant works on the farm is in dispute. The respondent filed a calendar that she reconstructed for 2019, which has many entries such as “Derek farming all day”, “Derek corn load”, and so on. If it is accurate, it shows the applicant spending some portion of the day at his father’s farm on approximately 5 or 6 days per month. However, that document appears to have been prepared by the respondent from an actual calendar which was routinely kept at their house, and which recorded birthdays and other events, for planning purposes. A copy of that calendar was filed in evidence by the applicant, and contains almost no entries related to farm work. This discrepancy in the two documents was never explained by the respondent.

[24] Ultimately, nothing turns on this. The applicant admits that he does work on the farm from time to time, to help his father out, as he has done for virtually his entire life. What he denies is that he is provided free rent in exchange for doing so.

[25] Bev Manning, the father of the applicant, testified on this issue. I found him to be a credible witness, who was doing his best to recount the facts accurately. He testified that the applicant does occasionally help him on the farm, when his schedule permits, just as he has done since he was a child. He testified that the home in question was previously owned by the applicant’s grandmother, and she resided there. In 2013 the applicant and respondent moved in. The arrangement was that the respondent paid $450 to $475 per month in rent. Derek was to upkeep the property, cutting one to one and a half acres of grass in the yard, and doing minor maintenance and whatever else was needed, in lieu of his half of the rent. In this regard, he corroborated the testimony of the respondent, who said that the previous tenant had paid $950 per month. When she and the applicant moved in, she paid half of that, i.e. $475 per month. The applicant’s half was waived because he did work on the property, although she said it was work on the farm as opposed to just upkeep of the house and yard.

[26] Bev Manning confirmed that, following the separation, there was a plan discussed with the applicant whereby he would do renovations on the house. The children needed a place to live when they were with the applicant, this house was on their school bus route, and it made sense that provision be made for a proper residence for them to live in for the next 10 or 15 years. There were no limitations put on the renovations, and they were left up to Derek. They were “his baby”, as Bev put it. However, they did “use the equivalent of $1,000 per month for that time period”.

[27] Significantly, he testified that the size and scope of the renovations were entirely up to the applicant. He was not required to spend $100,000 or more on the project. If Derek decided to do a minor renovation, involving only thousands of dollars not hundreds of thousands, “that would have been fine with me”.

[28] He said that the renovations didn’t significantly increase the value of the property, since the value in a farm property lies in the value of the land, not the buildings. He is, of course, not an expert in the valuation of farm properties, so this opinion has no evidentiary value. In any event, he would obtain no benefit from the renovations until the property was sold, and he had no plans to sell.

[29] As to future plans, he has had no discussions about the applicant taking over the farm. He was asked whether his estate planning provided for the applicant and his sister to receive the farm after Bev and his wife passed on. His answer was “probably. We do have a will but I haven’t looked at it in years”. He said it would be “logical” for the farm to be split between his two children. I find, from his evidence, that this is the probable outcome.

[30] The basis for imputing income is found in s. 19 of the Child Support Guidelines. It reads as follows:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; (b) the parent or spouse is exempt from paying federal or provincial income tax; (c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines; (e) the parent’s or spouse’s property is not reasonably utilized to generate income; (f) the parent or spouse has failed to provide income information when under a legal obligation to do so; (g) the parent or spouse unreasonably deducts expenses from income; (h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[31] It is immediately obvious that receiving a house from a parent to live in, rent-free, is not included in the list of circumstances where a court may impute income. However, by virtue of the use of the word “include”, it is clearly not an exhaustive list.

[32] The respondent relies on several authorities to support her claim. The first is Batte v. Batte, 2021 ONSC 2847. That case involved a self-employed dairy farmer who rented a farm from his father. The rent that he paid, and deducted as a business expense, included rent for a house which he occupied. Sproat J. concluded, at para. 27, that the farmer received a personal benefit by virtue of the payment of rent by his business, and added the grossed-up value of that rent to his income for support purposes. In my view, this case relates to the add-back of personal expenses that were claimed as business expenses, and has no relevance to the issue at hand.

[33] The next case relied upon is Robson v. Albazi, 2012 ONCJ 194. In that case, the self-employed payor claimed to be earning only $18,600 per year. Spence J. rejected that, and imputed income to him at the minimum wage level of $21,300 per year. He gave a number of reasons for doing so. One was the payor’s failure to provide evidence that he was incapable of earning at least minimum wage. The second was his failure to provide complete disclosure of his income and expenses. And the third was that, while he had previously paid rent of $500 per month, he now lived with his parents rent free, and was “thereby relieved of what might otherwise be a very significant expense that most support payors would have to incur.” (para. 34).

[34] While this case provides some support for the respondent’s argument, it should be noted that free rent was only one of three reasons given for imputing income to the payor, and income was only attributed in the amount of $2,700 per year over the amount he claimed to be earning. This is significantly less than the $6,000 per year that he was saving on rent.

[35] The third case relied upon by the respondent is Zagar v. Zagar, 2006 ONCJ 296. In that case, the payor was employed as a church custodian, and he and his family were provided with residential accommodation for which no rent was paid. Karswick J. took judicial notice of the cost of rental accommodation in his locality, and imputed an annual rental benefit of $10,000 per annum pursuant to s. 19 of the Guidelines. This case supports the proposition that where residential accommodation is provided by an employer, the market value of that rent may be added to the income of the payor. It is distinguishable from the case at bar, however, since the farmhouse in which the applicant resides was provided by his parents, not his employer, for the primary purpose of ensuring that the children had a proper place to live that was on their school bus route. There is no evidence that the applicant is the employee of his father, nor that his accommodation is being provided as part of his wage package.

[36] The final case relied upon by the respondent is Terracol v. Terracol, 2010 ONSC 6442. In that case, the payor provided rent-free accommodation to his friend, Mr. Bertrand, which consisted of a bedroom and use of a bathroom, but no kitchen facilities. The trial judge, Smith J., took judicial notice that rent for a bachelor apartment in Ottawa ranges from $500 to $700 per month, but that the accommodation given to Mr. Bertrand did not include kitchen facilities and was smaller than a typical apartment, which reduced the rental value. Accordingly, he imputed rental income of $200 per month to the payor, less annual expenses of $600. His decision on this point was upheld by the Divisional Court, in Terracol v. Terracol, 2012 ONSC 2801 (Div. Ct.), at para. 3.

[37] This decision deals with the imputation of rental income where accommodation is provided by the payor to another, as opposed to the case at bar, where the issue is the imputation of income where rent-free accommodation is provided to the payor. Nevertheless, it does support the proposition that the rental value of residential accommodation can be imputed as income in the calculation of child support. The fact that it has the stamp of approval of the Divisional Court gives it added weight.

[38] I am satisfied, as a matter of law, that the provision of rent-free accommodation can justify the imputation of income. Since the parties are in a shared parenting arrangement, child support is calculated by considering the gross income of each party. Child support should generally be paid by the party with the higher income to the one with the lower income, such that the net disposable income of each household is roughly the same. The respondent has to pay rent of $1,260 per month out of her net disposable income. In order to level the playing field, it is reasonable to impute income to the applicant in an amount representing the rental value of the accommodation he is provided with by his parents, since he is relieved from paying that rent from his net disposable income.

[39] On the evidence, it is clear to me that the current arrangement is, more or less, a continuation of the arrangement that was in place while the parties were cohabiting. The respondent paid her half of the rent, while the applicant’s half was forgiven. Since the respondent has now moved out, the entire amount is forgiven. Whether that was in exchange for maintaining the property, or for helping out on the farm from time to time, makes little difference. The key point is that he is receiving rent-free accommodation, for whatever reason. The difference between now and the situation during cohabitation is that the applicant is now renovating the property at his own expense.

[40] To accede to the respondent’s request that the full amount of $1,260 per month be attributed to the applicant fails to take account of his obligation to perform renovations on the property. His evidence, corroborated by Bev Manning, is that the cost of renovations, spread out over the span of the 10 to 15 years that he is planning to live there with the children, works out to the equivalent of $1,000 per month. On its own, that would justify the imputation of $260 per month, being the difference between that amount and the very reasonable monthly rent being paid by the respondent.

[41] However, it must also be recognized that the applicant derives a considerable and immediate benefit from these renovations, in terms of being provided with a newly renovated house to live in. This arrangement also accrues to his long-term benefit since, as a matter of probability, he will ultimately receive 50% of the increase in value of the premises resulting from these renovations. Thus, 50% of the notional amount of $1,000/m that is considered by the applicant and his father to be the amortized cost of renovations will ultimately accrue to the applicant, and should be discounted.

[42] Accordingly, I conclude that a reasonable amount of income to be attributed to the applicant with respect to his rent-free accommodation is $760 per month ($9,120 per year). This amount must, of course, be grossed up to pre-tax dollars, since rent is payable by the respondent in after-tax dollars. This demands that the attributed rental value received by the applicant must also be treated as an after-tax amount, which requires grossing up for purposes of the Guidelines.

[43] I have inserted that attributed amount of income in the Child Support/Child Support Arrears chart filed by the applicant as Ex. 3, with all other numbers remaining the same, except that arrears have been calculated to March 31, 2024. The following is the result:

Year	Applicant’s Income, less union dues, plus attributed income	Respondent’s Income, less union dues	Respondent should have paid	Respondent paid	Arrears (running total)
2020	$60,986 - 780 + 9,120 = $69,326	$88,169 - 1,488 = $86,681	$193 x 10 = $1,930	$0	$1,930
2021	$66,564 - 913 + $9,120 = $74,771	$99,208 - 1,686 = $97,522	$248 x 12 = $2,976	$0	$4,906
2022	$68,657 – 942 +9,120 = $76,835	$100,948 – 1,570 = $99,378	$238 x 12 = $2,856	$0	$7,762
2023	$68,657 – 942 + $9,120 = $76,835	$100,948 - $1,570 = $99,378	$238 x 12 = $2,856	$455 x 3 = $1,365	$9,253
2024 to March 31	$76,835	$99,378	$238 x 3 = $714	$455 x 3 = $1,365	$8,602

[44] I should note that the income figures for 2023 used by the applicant, and incorporated in the table above, are actually from the year 2022. However, I was provided with no evidence as to the actual 2023 income, such as a year-to-date pay stub as of the date of trial, projected to the end of the year. Counsel appear content to use 2022 figures. Given the very slight variations in net child support in previous years, I am confident that the actual numbers would have made very little difference.

[45] An order will go that the respondent will pay arrears of interim child support, effective March 31, 2024, in the amount of $8,602. These arrears shall be paid in the amount of $200 per month until fully paid.

[46] An order will go that the respondent will pay ongoing child support in the amount of $238 per month commencing April 1, 2024, and on the first day of each month thereafter. This is the table-offset amount for two children in a shared parenting arrangement, with the respondent’s annual income being $99,378 net of union dues, generating a table amount of $1,463 per month, and the applicant’s annual income being $67,715 net of union dues, plus attributed income in the amount of $9,120 per year, generating a table amount of $1,225 per month.

[47] If the parties wish to have the final child support order reflect their actual 2023 earnings, instead of one based on their 2022 earnings as calculated in the preceding paragraph, they may file a consent to that effect, and their calculation will be incorporated in the final order arising out of this trial in lieu of the one I just made.

Section 7 Expenses and Arrears

[48] The applicant claims that the respondent owes him arrears of s. 7 expenses in the amount of $2,580.97, while the respondent claims that the applicant owes her $455.37. However, the applicant’s numbers do not take account of any attribution of income, while the respondent’s numbers are based on the applicant having attributed income of $1,260 per month. Since my ruling on attribution is $760 per month, the actual amount of s. 7 arrears is somewhere between the positions of the parties. To further complicate matters, I accept the evidence of the respondent that many expenses were unilaterally incurred by the applicant without consultation. In the end, I conclude that any arrears that might be owing are nominal. I accept the suggestion of the respondent that the claims of both parties for arrears of s. 7 expenses be dismissed.

[49] With respect to agreed-upon s. 7 expenses incurred from this date forward, they shall be shared between the parties such that the applicant shall pay 46% and the respondent shall pay 54%.

Facetime/Phone Contact with the Children

[50] The parties have, in Ex. 1, settled the issue as to Facetime contact with the children during summer vacation and at Christmas. What remains in issue is Facetime contact during the parties’ regularly scheduled parenting time. The respondent wishes to have reasonable contact with the children via Facetime or telephone. The applicant maintains that the children have never asked to contact the respondent during their time with him, so they apparently do not feel the need for such contact. Furthermore, given the shared parenting arrangement, both parents will have some parenting time with the children on 10 out of every 14 days, plus additional contact during extracurricular activities. Thus, any additional contact is unnecessary and intrusive.

[51] To this latter point, the respondent states that the applicant often does not bring both children to extracurricular activities, and they are instructed to leave immediately after their activity is finished, such that she has no meaningful contact with them on those occasions.

[52] I have already expressed my concern with the respondent’s overly vigilant and protective approach to parenting. Providing for “reasonable” contact simply creates the potential for conflict, since the parties will invariably disagree on what is reasonable. I agree with the applicant that seeing the children for at least part of every 10 days out of 14 is ample time for the respondent to keep up to date with the children, without the need for additional contact, which could be seen as intrusive on the applicant’s time with the children.

[53] Having said that, the children must be absolutely free to initiate contact with the other parent whenever they wish to do so, and an order will go to this effect. The order will require each party to facilitate such contact, by Facetime or telephone, upon request of the children or either of them. The parties shall deliver this message to the children, together and at the same time, to ensure that the children have no doubt that they are free to do so.

[54] As to contact at extracurricular activities, there is no reason why there should not be meaningful contact between the child or children and the parent who is attending the activity during the other parent’s parenting time. In fact, it sends an entirely negative and improper message to the children to hustle them away from the activity, thereby denying the other parent the opportunity for a brief chat with them, to congratulate them on their performance and so on.

[55] To ensure that this happens, an order will go that where one parent is in attendance at an extracurricular activity of the children, during the parenting time of the other, that parent will be afforded the opportunity for reasonable communication with the children at the conclusion of the activity.

Childrens’ Birthdays

[56] Both parties agree that where a child’s birthday occurs during the week, the non-custodial parent is entitled to a Facetime chat with the child during the morning. This will occur prior to school in Jake’s case. Given that Maggie was born on August 18, she will never be in school on her birthday, so it could be any reasonable time during the morning.

[57] The parties disagree on what happens when a birthday falls on the weekend. The respondent wishes the non-custodial parent to have parenting time from 11 a.m. until 2 p.m. on the child’s birthday. The applicant takes the position that Jake’s birthday only falls on a weekend twice from 2024 to 2034, and so for the sake of consistency it should be a Facetime chat in the morning in all cases.

[58] I checked the calendar to see how often the children’s birthdays will fall on a weekend (i.e., on a Saturday or Sunday), and it is, in fact, far less rare than the applicant submits. Jake’s birthday fell on a weekend in 2024, and will do so again in 2029, 2034 and 2035. Maggie’s birthday will fall on a weekend in 2024, 2029, 2030 and 2035.

[59] I do agree that during the week, when each parent will only have the children for 2 days, a Facetime chat is appropriate, and the parties agree on that. However, on every weekend the children will be with one parent or the other from Friday after school until Monday morning. It would not be unduly disruptive to share the child’s birthday between the parties in a limited way, by allowing the parent who doesn’t have the children for that weekend some parenting time, from 11 a.m. until 2 p.m. on the child’s birthday. This will still allow ample time for the other parent to have a birthday party for the child, if so desired.

[60] A birthday is a very special day in the life of a child, and celebrating it on a different day, as suggested by the applicant, is no substitute for spending some time with each parent on the actual birthday. An order will go as outlined above.

Parents’ Birthday

[61] By contrast, the birthday of a parent is a far less significant date in the life of a child. It can be celebrated a day or two before or after, as might fit the parenting time schedule. The applicant points out that each parent will have the child in their care on their respective birthdays for 7 out of the next 11 years. This strongly militates against the need to provide for additional parenting time on the actual date of the parent’s birthday.

[62] Thus, the respondent’s request for overnight parenting time on the birthday of each parent is dismissed. The regular parenting time schedule shall instead be followed.

Counselling

[63] The final issue relates to whether the children have demonstrated a need for counselling.

[64] The respondent points to a number of disturbing incidents that Jake was involved in at school. These are summarized in the respondent’s Trial Submissions as follows:

a) On April 8, 2022, Jake’s kindergarten educator informed the Respondent that Jake’s recent actions had “…escalated into undesirable behaviour and often poor choicemaking.” b) On October 3, 2022, the parties were advised that Jake had inappropriately touched a classmate’s vagina, causing the student to show less interest in attending school. c) On November 18, 2022, the parties were further informed that Jake had punched his reading buddy in the penis. d) On March 20, 2023, the Applicant and Respondent were advised that Jake spit in a lunch helper’s face while assisting another student getting ready for recess. e) On April 25, 2023, the parties were contacted by Jake’s senior kindergarten educator regarding Jake’s disrespectful and avoidant behaviour towards her when asked to move to another seat. They were informed that Jake refused to apologize or speak to his educator for the remainder of the day. f) On April 27, 2023, the Applicant and Respondent were advised that Jake punched another student on the school bus. g) On May 29, 2023, they were further informed that Jake pinched a classmate twice. h) On June 14, 2023, Jake’s kindergarten educator reported that Jake inappropriately touched another student by lightly biting his penis. i) On November 3, 2023, Jake left the classroom without permission, packed up all his belongings, put on his jacket and hat and informed the educator he wanted to go home.

[65] The applicant is opposed to counselling for Jake, and stated repeatedly in his testimony that “the children are well-regulated”. He points to reports about the children in their report cards and in parent-teacher interviews, which indicate that they are doing well, and are exceeding their age-expected milestones with respect to reading, writing, sports and emotional control. None of Jake’s teachers have indicated that he needs additional support or therapy.

[66] As to Maggie, the respondent argues that she is often emotional and struggles with parenting time transitions. There is, however, nothing resembling the history of disturbing incidents that Jake has been involved in, to support the need for counselling.

[67] There is no question that this court has the authority to order that children participate in therapy: see A.M. v. C. H., 2019 ONCA 764. The question is whether such counselling is in the best interests of the child. In my view, this turns on whether there is compelling evidence that counselling or therapy is needed, and would be beneficial to the child.

[68] It is common ground that this has been a high-conflict separation, and the tension between the parties has been palpable for several years. As demonstrated in case after case that comes before our courts, the children who are involved in such a fraught relationship are often negatively affected by the acrimony between the parties, and act out in various ways as a result.

[69] The list of incidents relied upon by the respondent is, on its face, very concerning. Many of the incidents involve violence perpetrated by Jake, and several include a sexual element, such as touching a classmate’s vagina, punching a classmate’s penis, and biting the penis of another.

[70] I agree with the respondent, who is a teacher herself, that little weight should be placed on the positive comments in the children’s report cards. She testified that “the direction teachers get is that everything has to be worded in positive manner”. In other words, even where there are problems with a child’s performance or behaviour, there is pressure on a teacher to put a positive spin on whatever is said about the child.

[71] In any event, generalized comments about a child’s performance at school do not offer a direct response or contradiction to reports of specific incidents of disturbing behaviour.

[72] In my view, a prima facie case has been made out by the respondent that Jake may well require counselling or some other form of intervention. Of course, she is not an expert, nor is this court. The decision as to whether counselling is actually indicated must be left to someone qualified to make that decision.

[73] As to Maggie, no case has been made out that she may well require counselling or some other intervention. The evidence demonstrates nothing beyond the occasional and moderate upset that occurs in many or most separated families on access exchanges.

[74] An order will go that Jake will be assessed by a child psychologist, on a referral from the child’s family doctor, with the choice of the psychologist to be up to the family doctor. The child psychologist will determine whether or not Jake requires counselling, or some other intervention, and the parties shall abide by and implement the psychologist’s recommendations.

Costs

[75] My preliminary view is that each party has won some of the issues and lost some as well. Where success is divided, the standard order would be that each party bear their own costs. I note that the parties have already agreed that there will be no costs awarded with respect to the issues that have been settled.

[76] If either party wishes to seek costs, I will accept brief written submissions within 15 days, with the opposing party’s response within 10 days thereafter, and any reply within 5 days thereafter. Failing that, there will be no order as to costs.

Mr. Justice T. A. Heeney Date: March 28, 2024