Court File and Parties

COURT FILE NO.: FC-22-634 DATE: 20240610 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: D.N. Applicant Mother (Responding Party on Motion) – and – A.N. Respondent Father (Moving Party on Motion)

Counsel: Alexandra Abramian, for the Applicant Mother S. Lawrence Liquornik, for the Respondent Father

HEARD: May 22, 2024

JUSTICE ALEX FINLAYSON

PART I: NATURE OF THIS MOTION

[1] These are my Reasons for Decision following a long motion brought by the father heard during the spring 2024 trial sittings.

[2] The core question raised on the father’s motion is whether the Court should grant him relief on an interim basis pending trial, from the temporary Order of Justice Jarvis dated November 21, 2022. That Order required him to pay the aggregate of $5,134.24 per month for certain of the matrimonial home’s expenses and the mother’s car payments. The father would have the Court vary this Order retrospectively, to require him to pay $1,000.00 per month instead. The father says he cannot afford to pay the amounts that Jarvis J. ordered, because he is not working any longer, for health reasons.

[3] While her credibility about this is challenged by the father, and the father even alleges that she “perjured herself” before Jarvis J., the mother says that she does not work. She says she has not worked since her pregnancy with the eldest of the parties’ two young children, P. and D.. She is a stay-at-home mother. She is the two children’s primary parent.

[4] Compounding the financial problems in this case, D. has a high degree of special needs. His treatment expenses are high. Unhelpfully, the father is questioning this. The father is not exercising any parenting time.

[5] This long motion was the latest in a series of motions that have been brought in this case. The first ones were brought by the mother to try to obtain some form of support, and then to try to collect on the temporary obligation to pay the expenses. At one point there was a motion by the father for the sale of the matrimonial home, but Jarvis J. struck it off the list, due to the father’s non-compliance. Jarvis J. also ordered that the father had to obtain leave before bringing further motions, which the father did not obtain prior to bringing this motion. The father came into this motion in breach of Jarvis J.’s November 21, 2022 Order. According to the father’s Factum, his arrears now stand at $69,054.00. He is also in default of two costs Orders.

[6] In my view, the father has not satisfied the test to vary an interim order on an interim basis pending trial. The issues raised in his motion are not capable of being decided on a motion, for a multitude of reasons. If they are not going to settle, the parties could have, and should have, gotten ready for trial already, instead of arguing a long motion like this, for which they each presented voluminous material (multiple affidavits, multiple financial statements, several expert reports, and facta ). Indeed, three Trial Scheduling Conferences were previously scheduled, but then adjourned, on consent, creating the opportunity for this motion to then be brought . The parties have not even questioned each other, despite the several credibility issues on both sides that have been raised.

[7] For the reasons that follow, the father’s motion is dismissed. At the end of these Reasons, I issue directions aimed at bringing this matter to its conclusion.

PART II: BACKGROUND

[8] The parties began cohabiting in 2013, they were married on June 11, 2015 and they separated on May 1, 2021. The father moved out of the matrimonial home about two months after that, on July 5, 2021.

[9] The parties have two children, P. who at the time of this motion was almost 5, and D., who was about to turn 4. D. has been diagnosed with Level 3 Autism Spectrum Disorder and Global Developmental Delay. The treatments he needs are costly.

[10] The mother says that the father essentially disappeared from her life and the lives of the children after the separation. She says the father has not seen either child since February of 2022, apart from one two-hour visit in June of 2022. The mother believes that the father is acting this way because of D.’s special needs. At one point, he even suggested he was not the father, asked for a paternity test, and then did not take the test. The mother also says that the father is not seeing the children, because he has chosen to prefer his new life with a new partner, over the children.

[11] Both parties are challenging the other’s statements about what his and her true income is. In her affidavit sworn December 6, 2023, the mother deposes that she did work back in 2017 and 2018 under her sole proprietorship called DNA Brows, providing some aesthetic treatments. The mother took a maternity leave in 2018, prior to P.’s birth. She became pregnant again, with D. She says she has not been able to return to work since. There is no income reported on either of the mother’s 2022 or 2023 Notices of Assessment. As I explain below, the father asserts that there is evidence of hidden income.

[12] The father, with the paternal grandfather, are equal co-owners of a company called Leman Construction. The mother says their business also distributes “German-made kitchens”. The mother claims that the father earned approximately $15,000.00 per month during the marriage, plus significant cash income from renovations he did outside his work for the company.

[13] The father does not agree that his income was that high. Regardless, he now claims his income to be only $28,200.00 for 2023, and I suppose for this year, too. He relies on his own statements about his health, the medical records and reports of participant experts, and the opinion evidence of litigation experts, to justify this reduced income. Additionally, the father has obtained a business valuation report, and an income report. The mother argues that there needs to be cross-examination, and regarding the financial reports in particular, perhaps she will obtain a critique.

[14] Not only do both parties accuse the other of misrepresenting the true state of affairs about income, they have been surveilling each other. The mother says that in June of 2023, the father installed a tracking device on her car. She says that he was arrested and charged with mischief and criminal harassment. The father has not attached any of the evidence from this surveillance, if he in fact did this. What is admitted though, is that the father has obtained the mother’s social media postings, and he conducted a corporate search of a company said to be owned by the mother.

[15] The mother has also turned to social media to obtain evidence about the father. She has filed internet postings and photographs of the father enjoying his life with his new partner, at times when he said he was too ill to work. In the spring and fall of 2023, the mother had a private investigator follow the father. With her motion materials, the mother has filed two PI reports that include both photographs and videos. During this motion, the father objected to the admissibility of the videos.

PART III: PRIOR LEGAL PROCEEDINGS

A. The Endorsement of Himel J. dated April 27, 2022

[16] This case began in the spring of 2022 by way of the mother’s urgent motion to address that the father had stopped making her car payments, which I gather he previously paid for. By the time the motion came on before Himel J., the father had apparently indicated that he was prepared to make the payments. He also said he intended to retain counsel.

[17] Himel J. ordered an urgent case conference on the financial issues. In so doing, she noted that the Court expected the father to continue the financial status quo of making payments towards the car, the mortgage and other expenses, until an agreement between the parties could be worked out, or a court order could be obtained.

B. The Urgent Case Conference Before Bruhn J. on May 12, 2022

[18] In the Endorsement from the urgent case conference before Bruhn J. on May 12, 2022, the Court noted that the mother was the children’s primary parent, that the father was not seeing the children, and that D. was showing signs of developmental delay. Then, he was on a wait list for an assessment and perhaps day care, starting in September of 2022. P. was already in day care. The situation respecting day care would later change.

[19] The mother told the Court that she was unemployed and relied on child tax benefits. At this point, the father claimed his income to be approximately $60,000.00 as a result of his joint ownership in the construction company. Bruhn J. was also told that there was about $150,000.00 in equity in the matrimonial home, and that the early dispute about the father’s payment of various house and car expenses had been rectified.

[20] The parties otherwise apparently told the Court that they expected to file Minutes of Settlement about some issues. Bruhn J. made a procedural order, which included permission to file the Minutes by 14B to her attention. She adjourned the matter to a Settlement Conference on October 7, 2022. Regrettably this case went in a different direction.

C. The Mother’s Second Urgent Motion dated September 23, 2022

[21] The mother brought a second urgent motion on or about September 23, 2022, again to deal with payment of the expenses, in particular her car lease, and the mortgage and maintenance fees associated with the matrimonial home. MacPherson J. adjourned the motion to permit the father to respond.

[22] MacPherson J. later dismissed the motion on September 28, 2022. Once again, the issue had become partially moot. The father provided confirmation that he had brought the car lease payments up to date. There was also an email from his counsel dated September 16, 2022 that he would pay the car payments going forward, if the lease was extended and the payments did not increase. MacPherson J. found that the issues the mother raised in her motion were otherwise not urgent. He reserved costs to the trial judge.

[23] Once again, the financial status quo would not then be maintained.

D. The Settlement Conference Before Bruhn J. on October 7, 2022

[24] There was supposed to be a Settlement Conference on October 7, 2022. Bruhn J. adjourned it to January 23, 2023, because the father had in the meantime booked a motion for parenting time. She gave the mother leave to bring a cross-motion, also about parenting time. She gave the father leave to bring a separate motion on February 8, 2023 to seek the sale of the matrimonial home, and for the mother to bring a cross-motion for child and spousal support.

[25] Bruhn J. issued various directions about the timing and the length of the motion material. Notably paragraph 7 of Bruhn J.’s Endorsement states that the Court “may determine [these motions] on the written record, or by limiting submissions to the responses to questions. In the alternative the Court may opt for oral submissions.” Similar rules were contained in the Notice to Profession in force at the time. I point this out in view of the father’s complaints now made, that what happened next, was unfair to him.

E. The Mother’s Third Urgent Motion Brought on or About November 7, 2022

[26] In the interim, the mother brought a third urgent motion, yet again concerning the payments. Jarvis J.’s Endorsement of November 7, 2022 states that the mother wanted the Court to order the father to bring the mortgage, maintenance fees and car lease payments into good standing. Jarvis J. summarized the prior proceedings to date. He noted that the father was not in compliance with his disclosure obligations. The father filed a medical note that he had “functional ambulatory symptoms”. Jarvis J. wrote, “notably absent is any information dealing with the financial crises being faced by the AM and the parties’ children”.

[27] Before ruling on the motion, Jarvis J. notified counsel for the father that a response was required. Meanwhile, Jarvis J. gave the father until November 14, 2022 to bring the mortgage and maintenance fees into good standing to November 1, 2022, failing which his February 8, 2023 motion for the sale of the home would be vacated and he would be prohibited from scheduling any further event in these proceedings without leave of the Court [my emphasis added]. Jarvis J. was critical of the father for making the mother bring repeated motions on the same topic. This was now her third such motion. He also warned the father to cooperate with disclosure.

F. Jarvis J.’s Order of November 21, 2022

[28] The return of this motion came back on before Jarvis J. On November 21, 2022, after finding the father in breach of his previous Order of November 7, 2022 to file a responding affidavit and a properly completed and sworn financial statement, and of Bruhn J.’s Order of October 7, 2022 to provide disclosure, Jarvis J. made a temporary Order requiring the father to make monthly mortgage payments of $3,426.34 and monthly maintenance fee payments of $874.33, enforced as a support Order. Jarvis J. further ordered the father to pay for the lease on the mother’s car in the amount of $833.57 per month, also enforceable as support.

[29] Jarvis J. vacated the father’s February 8, 2023 motion for the sale of the matrimonial home, having previously given the father a warning on November 7, 2022, that this might be a consequence. Finally, he ordered the father to pay costs of $1,200.00, also enforceable as support.

[30] This is the Order that the father complains was made pursuant to an unfair process.

G. The Settlement Conference Before Bruhn J. dated January 23, 2023

[31] At this continuing Settlement Conference, the mother advised the Court that the father had still not provided disclosure or paid support. Now she intended to bring a motion to strike the father’s pleadings, and to add the paternal grandfather as a party to this proceeding on February 8, 2023. The father’s counsel raised an issue respecting the father’s capacity to litigate.

[32] Bruhn J. granted the father leave to bring a different motion for the father to be found a special party. She made a scheduling Order and included similar terms about the manner that motion may be heard.

H. The Mother’s Motion to Strike the Father’s Pleadings and to Add the Paternal Grandfather and the Corporation as Parties to this Proceeding Heard on February 8, 2023

[33] The mother’s motions came on before MacPherson J. on February 8, 2023. The father did not bring a motion respecting him being a special party. While the father now says at ¶ 12 of his factum that the mother’s motion to add parties “failed”, it was actually adjourned, as the grandfather was contemplating retaining counsel.

[34] Regarding the balance of the relief sought then before the Court, MacPherson J. found that the father had failed to comply with nine items of disclosure previously ordered by Bruhn J. on October 7, 2022. He also found that the father had failed to make the mortgage and maintenance fee payments, and the car lease payments, in violation of Jarvis J.’s November 21, 2022 Order.

[35] Although the father did not raise in a Notice of Motion any claims for relief respecting his capacity, MacPherson J. nevertheless considered the evidence before him, that included an affidavit now from paternal grandmother.

[36] At ¶ 42 of his ruling dated February 10, 2023, MacPherson J. accepted that the father has mental health issues, but was not convinced that, “as a result of any diminished capacity, [he] is unable to comply with court Orders or to participate in the litigation process”. MacPherson J. found that if the father continued to advance the position that he was incapable of complying with court orders, then it would be necessary for there actually to be a motion to determine whether the father should be found to be a special party. But at the same time, at ¶ 46 of his ruling, MacPherson J. found that t he evidence currently filed with the court did not support that finding.

[37] In particular, at ¶ 47-52, MacPherson J. found that the father’s mental health challenges did not result in diminished capacity to excuse his non-compliance. He found that the father’s non-compliance was willful and ongoing, in that the father elected not to provide disclosure, stopped making the financial payments, and did not pay the costs order, or even attend at the last conference. MacPherson J. also raised questions about the father’s ownership of the corporation and the retained earnings in it.

[38] Relevant to rebutting the father’s fairness arguments now raised, MacPherson J. declined to strike the father’s pleadings, because he had provided some last-minute disclosure and the FRO had been authorized the enforcement the Order for the payment of expenses. MacPherson J. gave the father a further 30 days to comply with the Court’s Orders. Additionally, he ordered the father to produce an unredacted copy of the corporate minute book, and he made a preservation order respecting the father’s assets, which also prohibited the father from authorizing any dividends or retained earnings to be paid out from the corporation. Finally, MacPherson J. directed the trial coordinator to schedule the motion to add the grandfather and the corporation as parties to this case. He ordered that the mother’s motion to strike the father’s pleadings would be reconsidered on that date, if the father did not comply with all orders.

[39] To my knowledge, no motion was brought after this, to address the special party issue or the mother’s request to add the paternal grandfather and the corporation as parties to this proceeding. Nor did the mother ever renew her motion to strike.

I. MacPherson J.’s Costs Order of March 20, 2023

[40] On March 20, 2023, MacPherson J. ordered the father to pay costs of $7,100.00 to the mother, within 30 days.

J. The Trial Scheduling Conference before Bruhn J. on April 28, 2023

[41] The next step in the case was to be a TSC on April 28, 2023. It did not proceed. According to Bruhn J.’s Endorsement, counsel filed a Confirmation Form advising that the matter was not yet trial ready, and asking for an adjournment. The mother asked for more time to see if the father would bring himself into compliance, and if so, to obtain a critique of his business valuation report, that had been just been produced earlier that month. The father now wanted to obtain an additional, income report. Bruhn J. adjourned the TSC to a date in September 2023, to be set by the trial coordinator, with a view to a November 2023 trial.

K. The Involvement of the Family Responsibility Office

[42] The father has not provided evidence about any specific payments that he made between November 21, 2022, when Jarvis J. made the Order, and September 1, 2023. The mother says the father made one payment only, of $1,500.00 in March.

[43] In any event, around August 18, 2023, the FRO sent the father a Notice to Suspend his driver’s license. At that point, his arrears stood at $39,348.45. Although the father obtained a refraining Order on September 1, 2023, requiring him to pay $1,000.00 per month, a Refraining Order does not relieve a person to pay the full amount of the underlying Order, nor does it preclude other enforcement steps. Consequently the father’s arrears under Jarvis J.’s Order have continued to grow, as more monthly payments that Jarvis J. ordered continued to accrue, and were not paid in full. The father has still not paid the two costs Orders of Jarvis J., made on November 21, 2022, or of MacPherson J., from March 20, 2023, either.

L. The Trial Scheduling Conference before Bruhn J. on October 12, 2023

[44] This TSC did not proceed either. According to the Endorsement of that date, the parties once again filed a Confirmation Form advising that the matter was not trial ready, now because the father had just served his income report. The Endorsement states that the mother had retained an expert to critique both reports. I learned during argument of this motion, that this has not been followed through upon.

[45] Bruhn J. granted a further adjournment to March 28, 2024. Three to four days later, the father finalized his first set of motion material for this motion. He tried to have it heard during the November 2023 sittings. His motion was not called.

M. The Endorsement of Shaw J. dated March 28, 2024

[46] On this date, the parties informed Shaw J., now for the third time, that there were some “extenuating circumstances”, such that they would yet again not be ready for trial, now on the May 2024 sittings. While the “extenuating circumstances” are not explained in the Endorsement (for example I do not know from the Endorsement whether the Court was told that the father’s motion was pending [1] ), Shaw J. nevertheless put the matter over for a combined S/C and TSC on September 26, 2024 at 2 PM, for 2 hours.

N. The Current Motion Before the Court

[47] The father’s motion was called to be heard during the spring 2024 sittings.

[48] The father’s Amended Notice of Motion dated October 30, 2023 does not quantify the extent to which he says this Court should vary Jarvis J.’s November 21, 2022 Order, but his factum does. During submissions, the father’s counsel confirmed that the father was content for the Court to Order him to pay the $1,000.00 amount that he had previously agreed to pay to obtain the refraining Order. The father asks the Court to Order this relief retroactively, and if necessary to suspend enforcement of arrears. [2]

[49] Between the time that he first brought this motion and the time it was heard, the record has significantly expanded. The father filed five affidavits sworn October 16, 2023, October 30, 2023, November 13, 2023, March 15, 2023, and May 14, 2024, two financial statements sworn October 30, 2023 and May 15, 2024, and a Factum. The mother filed three affidavits sworn December 6, 2023, March 19, 2024 and May 17, 2024, two financial statements sworn December 6, 2023 and May 17, 2024, and a Factum. Cumulatively these documents, with exhibits, are 420 pages in length. During submissions, counsel for the father also made reference to additional financial statements that the mother had previously filed in the Continuing Record.

[50] Among other things, the exhibits attached to the father’s affidavits include social media postings, various medical records and reports, an occupational therapy report, a valuation report, and an income analysis. The mother’s exhibits include social media postings, her two PI reports, and the private investigator’s videos.

[51] As this motion was brought prior to the most recent Notice to Profession dated May 13, 2024, I heard it. However, a motion of this kind, with materials of this length, should not be brought like this again in the future. Had it been brought after May 13, 2024, it would have violated the new Notice to Profession.

[52] For example, b oth counsel confirmed that this motion was not scheduled by the case management judge. Leave of the case management judge is now required to bring a long motion under the new Notice to Profession. The Court also notes, again, that due to Jarvis J.’s Order of November 7, 2022, the father ought to have obtained leave. The volume of material filed by the parties, without any judicial oversight or discussion about page limits, and with little apparent forethought into the evidentiary issues that the evidence raises, was also unreasonable.

PART IV: ISSUES AND ANALYSIS

A. The Nature of this Motion

[53] The father has made two particular complaints about what has transpired in this case, in particular before Jarvis J. One of these complaints seems to be that that a support motion has not yet been argued in this case, and so that should now be heard. [3]

[54] This Court accepts that the Court has not made a more ‘conventional’ support Order, broken out into a monthly amount for temporary child support, section 7 expenses and a monthly amount for temporary spousal support . But it is not correct to suggest that interim support arrangements have not been put before the Court, and dealt with.

[55] As already explained, on November 21, 2022, Jarvis J. made an order for the payment of expenses. Jarvis J.’s order of November 21, 2022 provides that the father’s payments are enforceable as support. That can only be done when the Court makes a support Order: see for example the definition of a “support order” in section 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996.

[56] Curiously, in spite of the father’s suggestion of unfairness, he is not even actually asking the Court to make a ‘proper’ temporary child support, section 7 expenses and spousal support Order, now. To do that, the Court would have to determine his income, apply the Child Support Guidelines, consider issues like entitlement and quantum of temporary spousal support, and perhaps consider the Spousal Support Advisory Guidelines .

[57] Instead, what the father is asking the Court to do, is order him to pay $1,000.00 per month based on the arrangements he entered into with the FRO, to obtain the refraining Order.

[58] Meanwhile, the mother has not brought a cross-motion for child and spousal support, nor does she seek an order quantifying the father’s contributions towards the high amount of section 7 expenses that she is incurring for D. Rather, her position is just that the father’s motion be dismissed, having the effect of continuing the existing Order of Jarvis J. for the payment of expenses, until trial.

[59] Regardless of what the parties put or didn’t put in their Notices of Motion, I am treating this motion as a motion to vary a previous temporary support Order of this Court.

[60] For the reasons that follow, I find that the father has not met his onus to vary a temporary support Order on a temporary basis pending at trial. Any payments made under Jarvis J.’s Order can be fully accounted for and allocated at the trial. [4]

B. Test to Vary a Temporary Support Order and a Temporary Basis

[61] The test to vary a temporary Order of this nature on an interim basis pending trial involves the consideration of:

(a) whether there is a strong prima facie case that there has been a material change in circumstances since the time of the order in question; (b) whether there is a clear case of hardship; (c) whether there is a situation of urgency; and (d) whether the moving party comes to court with “clean hands”.

See Berta v. Berta, 2019 ONSC 505 ¶ 28-40 ; see also Noor v. Youssef, 2021 ONSC 2717 ¶ 31-35 .

[62] I intend to deal with each of these factors in these Reasons, although not necessarily in the Order that they are listed above. In my view, the father fails on all four branches of the test.

C. Whether the Father Comes Before the Court With “Clean Hands”

[63] This question about whether the father comes before the Court with “clean hands” is interrelated with the mother’s argument under rule 1(8) of the Family Law Rules, that the Court should not permit the father to proceed with this motion in view of the fact he comes into it in breach of his court ordered financial obligations.

[64] On the one hand, MacPherson J. already found the father to be in breach of Jarvis J.’s November 21, 2022 Order in his February 10, 2023 ruling. It is common ground that the father continues to be in breach of that Order of Jarvis J. dated November 21, 2022, and he is in breach of two costs Orders. In his own Factum, the father says that arrears of the monthly payments now stand at $69,054.00. These factors militate in favour of the Court not hearing this motion. And MacPherson J. did rule on February 10, 2023, that the mother’s motion to strike could be reconsidered.

[65] On the other hand, the father relies on Diciaula v. Mastrogiacomo, 2019 ONSC 2823 to urge this Court that it should not deny him the right to be heard . The father’s attempt to analogize to this case to Diciaula v. Mastrogiacomo seems to be two-fold. One basis is that he says that Jarvis J.’s November 21, 2022 Order was unfair in a different way; he was not allowed to make oral submissions before the Order was made. The second and related argument, is that he says he is in breach of the Order of Jarvis J., because of an alleged inability to pay the amounts ordered, because of his mental and physical health troubles. The full extent of that evidence was not before the Court previously. In other words, there are new developments.

[66] And also on the other hand, the mother could have, but chose not to pursue her motion to strike after MacPherson J.’s February 10, 2023 ruling. Now that this motion has been brought, the mother reframes the argument, not as a motion to strike his pleading, but as a request that the Court not hear from the father.

(1) Denying the Father a Right to be Heard vs. The Father’s Argument that Jarvis J.’s November 21, 2022 Order Was Made Without Oral Submissions

[67] I am not adopting either party’s position on these interrelated and competing positions.

[68] With regards to the father, he is engaging revisionist history. What Jarvis J. did, was expect the father to follow the Rules and a prior Order. Not only did Jarvis J. not treat the father with any unfairness, but Jarvis J., and other judges who were involved in this case before and after him, have given this father more and more opportunities to modify his behaviour. The father’s argument reflects a misunderstanding of the Notice to Profession, about how motions are heard.

[69] At the risk of repeating some of what I already set out earlier when summarizing the prior proceedings, I make these findings because:

(a) From the very outset of this case, when the mother first tried to come before the Court on an urgent basis, Himel J. cautioned the father to keep the financial status quo in tact, to avoid a financial crisis. It appears that the father did not listen to her. He paid sometimes, but then allowed his payments to fall behind; (b) On September 23, 2022, MacPherson J. adjourned the mother’s second urgent motion about the same thing, to permit the father to respond. He later ruled in the father’s favour, after the father once again brought his payments into good standing. He also found the mother’s second motion was not urgent based on the changing circumstances at the time. The father was not treated unfairly; (c) This matter then came on before Jarvis J. twice, again for the very same reason. It is true that the father did not get to make oral submissions. However the Notice to Profession in effect at the time provided, just as the new Notice to Profession still provides, that regular motions are heard presumptively in writing unless the motions judge determines otherwise. Bruhn J. even wrote this in her Endorsement of October 7, 2022, one month earlier. The father was treated no different than anyone else who brings a motion. The Court ultimately decides the format of the hearing; (d) And Jarvis J. did not just rule on the mother’s third motion without hearing from the father. Rather, on November 7, 2022, he notified counsel for the father that a response was required; (e) The father did not even bother to file material as Jarvis J. directed. Rather, as the mother now explains, the father instead relied on the affidavit of the paternal grandfather indicating that the father was physically and emotionally ill (much like he would later rely on the affidavit of the maternal grandmother, when the parties were next before MacPherson J. in February of 2023). Apparently the Court then had before it a chiropractor’s letter saying that the father had a “lumbar spine condition that presents with ongoing functional limitations” and a psychiatrist’s letter, who claimed to have done a “comprehensive psychiatric assessment” based on a single telephone call. I will have more to say about this evidence later on. The father can hardly complain about the state of the record, that he himself had put before the Court; (f) The father behaved similarly, in that he relied on evidence now from his mother, at the time of the next motion before MacPherson J. dated February 8, 2023. MacPherson J. nevertheless considered the father’s argument then being made, that he was unable to comply with aspects of the Court’s prior Orders, on health grounds. He rejected it for thorough reasons. In other words, Jarvis J.’s initial impressions continued to be supported on the subsequent record put before MacPherson J. There was oral argument at that time; (g) MacPherson J. also gave the father more chances to participate. For example, he declined to strike the father’s pleading. He gave the father a further 30 days to comply with the Court’s Orders. Yet again, the father continued to be treated fairly; (h) As I have already indicated, MacPherson J. ordered that the mother’s motion to strike the father’s pleadings could be brought back on, if the father did not comply with all orders. To the father’s good fortune, no such motion was brought back on after this. This had less to do with the Court than the mother, but the result is that the father still has participatory rights in this case; (i) With respect to the father’s current motion now before the Court, it too has been heard in full, despite his ongoing breaches and the mother’s rule 1(8) argument; and (j) The process that I intend to Order in the result of this motion (provided that the parties actually follow it) will allow for the father’s full participation in the trial, despite his breaches.

[70] The complaint that there was some unfairness to the father is entirely without merit. Furthermore, and notwithstanding my decision to hear this motion on its merits and to get this matter on for trial despite the father’s ongoing breaches, it does not go unnoticed by the Court that:

(a) The father did not seek leave to appeal either of Jarvis J.’s Orders of November 7 or 21, 2022; (b) The father did not obtain leave before bringing this motion, as he was required to do according to the November 7, 2022 Order; (c) As I have already indicated, there is still no “proper” motion for support before the Court. Again, the father is just asking the Court to decrease the amounts in Jarvis J.’s Order to the arbitrary amount of $1,000.00 that he agreed to pay when negotiating his refraining Order; (d) Somewhat ironically given his complaint about the “unfairness” of the Court’s prior process, he would have the Court now order this relief that he seeks, according to a process (a motion) that does not actually put the Court in a position to make the findings that he seeks. He proceeds in this fashion when he could have gone to trial already on two different sittings. This would create an unfairness to the mother and the children; and (e) What the father has also done in bringing this motion, amounts to a collateral attack on Jarvis J.’s November 7 and 21, 2022 Orders. I asked counsel for the father whether his current motion to relieve him of the obligation to pay the house related expenses wasn’t really an indirect attempt to create a different crisis that would put the mortgage into default and achieve the sale through the backdoor that he couldn’t get through the front door (since Jarvis J. has already struck the father’s motion for the sale of the home off the list). In response the father argued that there is no evidence now before me, that the mortgage is in default. That misses the point. The mother says that she is borrowing from family to make ends meet. And that is not what the Court ordered was supposed to be happening.

(2) The Merits of the ‘Clean Hands’ Factor

[71] In regards to the merits of the ‘clean hands’ factor, this engages a consideration of both the father’s ability or inability to pay, and his other behaviour.

[72] I do not find the father’s reliance on Diciaula v. Mastrogiacomo to be apt to the circumstances now before me. In Diciaula v. Mastrogiacomo , Kristjanson J. allowed a payor to proceed with a new Motion to Change, notwithstanding the long, agonizing prior proceedings that preceded the particular motion before her, in which prior findings of non-compliance had been made, and there had even a previous Motion to Change that had been struck. Kristjanson J. allowed the payor to proceed in part because he had already paid support for 15 years on imputed income that the payor alleged was twice the level of what he actually earned. She found that the payor had a strong prima facie case for relief.

[73] For the reasons set out below, and unlike in Diciaula v. Mastrogiacomo , the father’s evidence does not give rise to a strong prima case on this motion, nor has he proven a clear case of hardship or a situation of urgency. As such, he is just not paying. And he is not paying in a particularly problematic way. The father’s payment history in this case has been abysmal. He has only made partial payments after much effort on the part of the mother to collect, which involved chasing after him, and bringing repeated motions. He only started to make the $1,000.00 monthly payments under threat of license suspension. This is not even half of the mortgage payments that he would be required to pay as a joint owner of the properly, never mind child support, section 7 expenses or spousal support. As it stands, the owes just under $70,000.00 in arrears, and two costs Orders. The mother is going into debt, while looking after their children.

(3) Findings and Conclusions About Whether the Father has ‘Clean Hands’

[74] In conclusion, I find the father comes to Court without ‘clean hands’.

D. Whether The Father Has A Strong Prima Facie Case

[75] Courts have traditionally discouraged the variation of interim orders on an interim basis pending trial unless the circumstances are urgent. The preferable approach is to get the matter on to trial. However, that is not to say that it can never be done. For example, very recently in Michael v. Michael, 2024 ONSC 3107 , Coats J. changed a spousal support order made earlier in the case, in advance of trial. In so doing she found that the payor had established a strong prima facie case for a material change in circumstances, because there had been a significant decrease in the payor’s income and an increase in the recipient’s. She found that neither had significant assets or debts, that continuing the Order would cause financial hardship as both parties were in similar financial circumstances, and the support order was almost all of the payor’s current income. She found that it would be “incongruous and absurd” to continue the spousal support Order, as the recipient’s income was higher than the payor’s, and the payor did not have the capacity to pay: see ¶ 10-18.

[76] The record before me on this motion is not that. Instead, there are very real credibility issues, and legal and evidentiary issues, on a number of issues in dispute between the parties. These require a trial. I will now explain what those issues are.

(1) The Father’s Allegations About the Mother’s Income

[77] That the mother is not earning any income is disputed by the father. He goes so far as to allege that she committed “perjury”. He has made these claims across his various affidavits with references to different events in time.

[78] First, in his affidavit of October 16, 2023, the father says that the mother did quite a bit of business doing aesthetics for women when they were together. [5] He says she earned cash income. He also alluded to social media postings to demonstrate that she had been self-employed in the past. Notably, much (but not all) of this evidence in this affidavit, is referable to allegations about work done in the past, prior to the birth of the children.

[79] Next, in his affidavit of October 30, 2023, the father complains about the mother’s disclosure. He also says that the mother is still working in this field. He says that her Instagram postings, and google reviews on the internet between 2019 and 2023, “…speak to her numerous followers and the significant fees she charges for services.” He alleges that the most recent posting in this regard was from April 15, 2023, but the mother allegedly took it down so he does not have it. Notably exhibit “S” to this affidavit apparently contains postings only up to 2021.

[80] But what the postings at exhibit “S” actually reveal are:

(a) The first posting contains a picture of the mother with two children standing in a field; [6] (b) The second page appears to be a list of aesthetic services; (c) The third page is a picture of the children on a park bench; [7] (d) The fourth and fifth pages consist of an undated review from “two years ago”; [8] (e) The sixth page appears to be the same list of aesthetic services mentioned earlier; and (f) The rest of the pages are blurry and illegible. I can ascertain though, that the same photograph of the mother with the two children in the field, is repeated in this batch of documents.

[81] In his fourth affidavit for this motion sworn March 15, 2024, the father says that the mother was dishonest about her income. He says she is running her own business called DNA Brows. He repeats that she is earning cash that she is not disclosing. The father adds that in May of 2023, he found another Instagram posting under the DNA Brows account, but that the mother then deleted her business advertising postings in June of 2023. The particular posting that he attaches at exhibit “E” to this March 15, 2024 affidavit, is undated. It appears to be the same list of services referred to above, that were said to have pre-dated 2021.

[82] The father goes on to explain that he obtained a copy of a credit application that the mother completed in connection with the lease of a new vehicle. On it, the mother reported that she was earning $5,000.00 per month from her business, DNA Brows. The father further says that the mother’s bank statements, which by that point had been produced, showed “significant deposits” or “disbursements from unknown accounts”. Finally, he then cast aspersions about the mother’s conduct during the marriage, and thus her credibility, by saying that she had engaged in fraudulent activities, the fourth serious allegation he has made in this proceeding.

[83] In his fifth and final affidavit of May 14, 2024, the father now deposes that after the mother’s last affidavit responding to his fourth one, he undertook a search of the Ontario Business Registration system. He says he discovered that the mother is the registered owner of DNA Brows. She renewed the registration in 2022. It is with reference to this that the father says the mother has perjured herself, for example when she previously said that she did not work.

(2) The Mother’s Evidence Respecting Her Income

[84] Regarding the car lease, in her March 19, 2024 affidavit, the mother explains that she was going to lose her previous vehicle when the father would not pay the lease payments in contravention of the court Order. Therefore, she completed a lease application for a new vehicle on which she reported monthly business income from DNA Brows of $5,000.00. She says that she explained to the dealer, that she was receiving this amount of support pursuant to the Order of Jarvis J. dated November 21, 2022. [9] She says that DNA Brows is where she used to work, but not any longer.

[85] In regards to the bank statements, the mother has gone through them and provided explanations for various larger deposits. In summary, she says that the deposits reflected therein came from her family, government tax credits, or money from a charitable organization for children with autism. While the mother’s budget on her two sworn financial statements does exceed her income, the mother says is relying on her family for financial assistance.

[86] In regards to the fraud allegation, the mother denies having been involved in fraudulent activity during the marriage, and provides an explanation. The father has transcripts of phone calls of the mother that were recorded. If the mother’s statement on this point is accepted, these may have been obtained improperly if not illegally. Based on the mother’s responses to this particular evidence about fraud, there may very well be a challenge to the admissibility of the father’s transcripts and recordings, at trial.

[87] In her further affidavit of May 17, 2024, the mother addresses the father’s last affidavit about the corporate search. The mother explains that she obtained a day care subsidy for both children in 2022, but when she tried to renew it, it was declined because she was not working. The mother explains that she renewed the business license for DNA Brows in July 2022, in aid of renewing the subsidy. Apparently this was needed to get the subsidy.

(3) The Mother’s and the Children’s Needs

[88] Despite these credibility issues, for the purposes of determining whether the father has made out a strong prima facie case on the question of the mother having secret resources or income, I have also considered the mostly uncontested evidence I do have, about the mother’s parenting responsibilities, the costs she is incurring, and how she is meeting those expenses. The record before me reveals that the mother is quite preoccupied parenting the two young children, and managing D.’s special needs.

[89] The evidence before me is that D. was born with significant developmental delay. He was diagnosed with Autism on November 30, 2022. In her affidavit of December 6, 2023, the mother says that D. shows receptive language delays, he has inconsistent eye contact, he does not respond to or initiate joint attention, and he uses facial features that he does not understand. The mother says that Dr. Witt, who assessed D., concluded that his impairment in social communication requires very substantial support. In short, the mother says that D. is severely impaired, and he demands a lot her time, attention and care, both on an emotional and physical level.

[90] At ¶ 56 of her affidavit sworn December 6, 2023, the mother deposes the busy routine and schedule that she follows on a weekly basis, to care for both children. This involves bringing P. to and from day care, attending D.’s therapies with him, and caring for the children in the evenings during the week. On weekends, the mother does grocery shopping and laundry, she cooks for the week, and she cares for the children. The mother says she is suffering from “acute stress” and “dangerously high blood pressure which has led to fainting” and her family physician has prescribed antidepressant medication that she takes.

[91] It is not just the mother’s say-so about D.’s needs that is before the Court. Attached as Exhibit “A” to her affidavit sworn May 17, 2024, is a letter from an Early Interventionist with York Region named Mariana Salinas. Ms. Salinas confirms that D. has been diagnosed with Level 3 Autism Spectrum Disorder and Global Developmental Delay. According to recent testing, he is delayed in various areas across a number of areas of his life.

[92] The evidence before the Court also establishes that there are limitations on the outside support that the mother has to help her with parenting, compounded by the father’s choices to extricate himself from his own parenting responsibilities and not to help out financially. For example, she describes that D. started attending daycare in June of 2022, but had significant difficulties because he would not eat or drink anything outside of her home. She says she had to go to the day care every day to try to feed him. The mother says that in July of 2023, the daycare revoked D.’s spot, given his significant special needs. She has not been able to find another day care that she can afford. She says that D. would require a specialized day care that costs approximately $2,000.00 per month, which is not subsidized.

[93] The mother has been able to arrange ABA therapy, group therapy and occupational therapy services for D. Although she is on a wait list for OAP Funding for D., the wait list is between 5 to 7 years. Therefore, the mother is relying on some government assistance, and the assistance of her family, plus the $1,000.00 per month that the father is now paying to make ends meet and to ensure that D.’s needs are met.

[94] In particular, the mother reports on her two financial statements of December 6, 2023 and May 17, 2024 that she receives child tax benefits of $1,770.00 per month. On her financial statement sworn May 17, 2024, the mother reports that she now receives a further amount of $618.00 per month in assistance for children with severe disabilities, and the $1,000.00 monthly payments from the father. In contrast, her reported expenses on her financial statements, which range between about $135,000.00 and $138,000.00, vastly exceed the money she has coming in. Just under half of these expenses pertain to D.’s therapy costs.

[95] The mother has provided an explanation for how she is paying for the shortfall. In her affidavit sworn December 6, 2023, the mother says that her brother has been assisting her to cover her living expenses, her car expenses, and D.’s therapy expenses. The maternal grandmother has been helping the mother meet her legal and expert’s fees. There is significant debt that mother owes to her family listed on her financial statements. Her debts to these family members increased from the earlier financial statement to the next. The debt as of the May 17, 2024 statement stands at $257,693.00.

[96] While this is not sustainable in the longer term, I find the mother’s explanations to be plausible. While I do not intend to prevent the father from pursuing the above lines of inquiry about the mother’s credibility and her “perjury” at trial, in the absence of her cross-examination, the detailed evidence about her parenting responsibilities and how she is meeting her expenses, lends an air of credibility to her position, that she is not working or earning an income.

(4) Findings and Conclusions Respecting the Mother’s Income

[97] In conclusion, the father’s arguments about the mother’s secret income, her alleged perjury and her alleged fraudulent behaviour, at this point raise more questions than they provide answers, when considered alongside the very detailed evidence about the children’s, and D.’s special needs in particular, the parenting tasks that the mother must discharge, and how she is meeting her expenses. Quite frankly the Court is left wondering when exactly the mother has time to earn this alleged employment or self-employment income, that she is apparently secretly earning under the table?

[98] In any event, the ultimate resolution of these questions require a trial to resolve. The father has not made out a strong prima facie case that the mother has income that would warrant the pre-trial revisiting of Jarvis J.’s Order.

(5) Legal Issues Concerning the Father’s Physical and Mental Health

[99] The father’s argument that he lacks the ability to pay support centers almost entirely on his allegations and evidence about his health, and the impact of that on his income. The record that he has placed before the Court raises both legal and evidentiary issues, that I also find require a trial to resolve.

[100] Regarding the legal issues, in Davidson v. Patten, 2021 ONCJ 437 , Curtis J. held that a party resisting a claim for imputation of their income for medical reasons should provide a medical report setting out at least the following information:

(a) diagnosis; (b) prognosis; (c) treatment plan (ie. is there one? what is it?); (d) compliance with the treatment plan; and (e) specific and detailed information connecting the medical condition to the inability to work (ie. this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work doing physical labour; this person cannot work forever).

(6) Evidentiary Issues Concerning the Evidence About the Father’s Physical and Mental Health

[101] In addition to his own say so, the evidence upon which the father relies consists of letters and other documents from treating doctors and therapists. It consists of the assessment reports of a psychiatrist, whom he retained earlier on for the purposes of this litigation, but more so to speak to his capacity to instruct counsel and comply with the Court’s orders, rather than his ability to work. It consists of a subsequent occupational therapy report, that he obtained for the purposes of this litigation. And in regards to his business interests and income specifically, the father has now obtained two reports of CBVs, specifically a business valuation from Bonnie Prussky, and an income report from Steven Polisuk. These were also obtained for the purposes of this litigation.

[102] Some of the evidence from the father’s treating doctors and therapists is the evidence of a participant expert. Some of it may also qualify as practitioner’s reports and be admissible under section 52 of the Evidence Act. In J.K.L.D. v. W.J.A., 2020 ONCJ 335 , I dealt with the admissibility of a similar kind of evidence on a motion, as an exception to the rule against hearsay under rule 14(17) of the Family Law Rules , with regards to rule 20.2 of the Family Law Rules about the evidence of participant experts, and with regards to section 52 of the Evidence Act for practitioners . I adopt that analysis here for the purposes of this motion, without needing to repeat it in full .

[103] Although I adopt that analysis, I nevertheless note that in some instances, there are gaps in the evidence about the qualifications of some of the health care professionals, upon whom the father relies. There is also no evidence that the father served any notice under the Evidence Act, of his intention to rely on these documents as an exception to the rule against hearsay, without having the witnesses attend to testify. It also seems to me, that the mother wishes to cross-examine the health care professionals on at least some of this evidence. Despite these short comings, I will nevertheless assume, without really needing to decide (in view of the plethora of unanswered questions that the father’s medical evidence raises regardless), that this evidence is properly before the Court.

[104] The psychiatrist’s assessments, the occupational therapy report, and the CBVs’ reports, are another matter. If they are qualified as experts at trial, this will be the expert opinion evidence of litigation experts: see the definition of a “litigation expert” in rule 20.2(1) of the Family Law Rules . I do not agree with counsel for the father, that this evidence is admissible for the purposes of an interim motion, merely as a result of it getting attached to an affidavit, or even if it had been sworn by the experts themselves. I dealt with this precise issue in Gannon v. Gannon, 2021 ONSC 7160 ¶ 50-66 .

[105] Like some of the reports that are now before me, the evidence before the Court in Gannon v. Gannon consisted valuation and income reports. Also like in Gannon v. Gannon , this current motion before me was argued without regard to the fact that these reports were those of a litigation expert, obtained for a trial, and there has been no voir dire or any cross-examination, yet (nor could there be in view of the fact that this is an interim motion).

[106] Without needing to repeat the analysis at ¶ 50-66 of Gannon v. Gannon , I intend to approach the litigation experts’ evidence in this case before me in the same fashion as I did in Gannon v. Gannon . I do so with some caution. The Court will consider the facts, observations or other evidence set out or summarized in these reports, but not the opinion contained therein. Even if I were to rely upon the opinion contained in the litigation experts’ reports, the documents also raise unanswered questions, that need to be fleshed out at trial anyway.

(7) The Actual Evidence Before the Court About the Father’s Mental Health

[107] The father says that he is unable to work on account of impairments to his mental and physical health. In particular, he says he cannot work “due to mental health issues and physical injury to [his] back.” He says that he experiences anxiety and depression. He says that these challenges are “well documented” and “pre-date this litigation”.

[108] The father has re-filed some of the same medical evidence about his mental health, upon which he relied at the motions before Jarvis J. in November of 2022, and before MacPherson J. in February of 2023. He has filed additional evidence that had not been before the Court previously as well. He says that changes the landscape.

[109] To consider whether this is so, I will compare what is now before the Court, with what the father previously put before the Court. I consider the Court’s previous findings about what was then before it. I will also in the overall analysis consider the evidence as a whole, but with the aforementioned caveats in mind, about the limited use to which this evidence can be put, on an interim motion. I do so to see if the Court’s prior findings continue to be supported by the record now before the Court, or whether they reveal something else.

a. The Evidence About the Father’s Mental Health that Was Previously Put Before the Court

[110] Verbatim, in his ruling of February 10, 2023, MacPherson J. made the following findings about the medical evidence respecting the father’s mental health, then before the Court:

Mental Health – Ms. Cohan

[26] Mariia Cohan, a registered psychotherapist, provided a letter dated February 6, 2023. She states that it was requested by and issued to the Respondent. She states that in June 2020 the Respondent first contacted her for psychological support. There were 15 sessions between June 2020 and September 2020. There were three sessions in May 2021. There were four sessions between May and June 2022.

[27] Ms. Cohan identified that the Respondent reported the following symptoms: marital issues, prolonged periods of low mood, heightened anxiety, panic attacks, fatigue, heightened irritability and anger, decreased ability to focus, disturbed sleep, substance use, suicidal ideation and behaviours, and difficulty with social interaction and interpersonal relationships.

[28] Ms. Cohan administered the Beck Anxiety Inventory (BIA) on June 22, 2020 and the Respondent fell in the severely anxious range.

[29] Ms. Cohan administered the Beck Depression Inventory (BDI) on June 22, 2020 and the Respondent fell in the moderately depressed range.

[30] There is no evidence before the court that these inventories were administered since June 2020.

[31] Ms. Cohan identified the following barriers to the Respondent’s treatment: a) possible undiagnosed mental illness, b) lack of consistency of attendance for treatment, and c) high levels of stress related to marital relationship.

[32] In her summary Ms. Cohan states that the Respondent’s symptoms have a substantial impact on his level of functioning. However, she does not state that the Respondent has diminished capacity as a result of these symptoms and she does not state that the Respondent is unable to comply with court Orders as a result of his mental health challenges.

Mental Health – Ms. Dr. Rootenberg

[33] Dr. Rootenberg is a medical practitioner with a psychiatric specialty and he provided two letters to the court. It is noteworthy that Dr. Rootenberg has not been qualified as an expert in this proceeding and I was not directed to a signed acknowledgement of an expert’s duty.

[34] Dr. Rootenberg provided his first letter dated November 16, 2022. In that letter he stated that he had a single telephone call with the Respondent, the Respondent’s father and the Respondent’s girlfriend. At the time of the letter, Dr. Rootenberg had not met with the Respondent nor did he review his medical records. Based on that single conversation, Dr. Rootenberg diagnosed the Respondent as suffering from severe anxiety and depression with the symptoms debilitating and increasingly acute.

[35] Dr. Rootenberg provided his second letter dated January 21, 2023. In his letter he states that he met with the Respondent on December 22, 2022 and on January 12, 2023. He also obtained information from the Respondent’s primary care physician, Dr. Inna Roitberg. When his report was completed he did not have the Respondent’s medical records from MacKenzie Health and other medical centres. Dr. Rootenberg noted that the Respondent, at the time of the assessment, was receiving no treatment and was taking no medication.

[36] In his letter, Dr. Rootenberg noted what the Respondent reported. The Respondent reported that he was never admitted to a psychiatric facility. He reported attending the emergency department in March 2022 due to anxiety and panic symptoms. He reported attending hospital emergency departments on other occasions but did not know when. The Respondent reported suicidal thoughts and self-harming behaviour including, in October 2022, when he cut his wrist. When meeting with Dr. Rootenberg on January 12, 2023, the Respondent denied any thoughts of harm and his thought processes were noted as being quite concrete. There were no hallucinations and no psychotic symptoms.

[37] The Respondent reported that his anxiety and depressed mood has a detrimental impact on his daily functioning. Specifically, the Respondent told Dr. Rootenberg that he does not do any grocery shopping, cooking, cleaning and is quite isolated spending most of his time at home. Dr. Rootenberg concluded that the Respondent was unable to participate in litigation at this time including reviewing any required documentation and meaningfully interacting at length with counsel. Dr. Rootenberg diagnosed the Respondent with major depressive disorder and anxiety disorder with panic features.

[38] There was no discussion, in Dr. Rootenberg’s letter, to explain why, with this diagnosis, the Respondent was able to complete international travel to Cuba from November 21, 2022 through November 29, 2022. International travel can be difficult. Passports and documentation are required. Security line-ups and luggage issues can be stressful. How could someone with the Respondent’s reported level of anxiety and depression, who is unable to participate in litigation and unable to review any required documentation and who was not receiving any treatment, travel internationally?

[39] Similarly, there was no discussion in Dr. Rootenberg’s letter about the Respondent’s ability to become engaged and then throw an engagement party on January 8, 2023 despite his inability to participate in litigation and inability to review any required documentation.

[111] MacPherson J. also made findings the father’s mental health arising out of an affidavit from the paternal grandfather. MacPherson J. found:

[40] The Respondent’s father, who provided collateral information to Dr. Rootenberg, swore an affidavit on November 17, 2022 stating that the Respondent,

“is currently unable to leave home due to crippling anxiety and depression. He is often in bed and despondent.” “Sometimes he speaks in a disjointed manner. It is a struggle to get him to leave the house.” “In my view, [A.] is unable to meet with Mr. Liquornik at this time and I do not see how he can meaningfully assist his counsel to prepare a financial statement and an affidavit, given his condition.”

[42] The Respondent’s father does not explain how, given this information, the Respondent was able to go to Cuba four days later from November 21, 2022 through November 29, 2022. Dr. Rootenberg considered the views of collaterals, including the Respondent’s parents and girlfriend, yet his report does not address this glaring inconsistency. Perhaps he was not advised?

b. The Updated Assessment Report of Dr. Rootenberg dated March 27, 2023

[112] The father has now filed the further letter of Dr. Rootenberg dated March 27, 2023. This letter followed from MacPherson J.’s findings, and its purpose seemed to be to address the capacity issue, that was perhaps then still being pursued. In the result, Dr. Rootenberg concluded the father did have capacity, despite the argument that the father was previously making. But there is also a conclusory statement in this letter, that he is “unable to work in any capacity at this juncture.”

[113] I do not find this particular, supplementary letter, to be particularly probative or useful, to address the Davidson v. Patten factors. Notably, this assessment was based on one further zoom teleconference with the father. MacPherson J. previously noted gaps in Dr. Rootenberg’s collection of collateral records. Although by the time of this supplementary letter Dr. Rootenberg had requested various medical records, they had still not been received by him. There is an insufficient explanation in the father’s evidence before the Court as well, about what specific steps, if any, that he took to assist to obtain these records, and why they were not obtained.

[114] While Dr. Rootenberg did observe frustration, and the expression of despair and hopelessness in the father throughout his further the interview, this report continues to be largely based on the father’s self-reporting. He also repeated what Ms. Cohan had previously written, about which MacPherson J. had already raised questions.

[115] In concluding that the father could not work at all at the time, Dr. Rootenberg wrote that the father required “much more assiduous treatment”. He said that his current dose of medication was suboptimal, and that he required individual counselling (but could not afford it). The former comments represent Dr. Rootenberg’s opinion, that he has not yet been qualified to give. The latter statement about affordability is a question of fact that this Court can decide, and I suppose it ultimately depends on the Court’s finding about the father’s resources. Even if the Court were to accept Dr. Rootenberg’s opinion about the father requiring “much more assiduous treatment”, what this opinion helps underscore, is that the father did not then avail himself and follow through with the very thing that his own expert recommended. This is problematic in view of the factors in Davidson v. Patten .

c. The Father’s Hospitalization in a Psychiatric Ward

[116] In his February 10, 2023 ruling, MacPherson J. found that the father had not been hospitalized due to his mental health. According to the father’s affidavit of November 13, 2023, the father felt suicidal on November 2, 2023, so he went to the emergency room and remained in a psychiatric ward for four days. This is a subsequent development.

[117] Surprisingly, despite the fleshing out of the evidence by the father for this motion, there are almost no hospital records before the Court about this. Rather, the father has instead filed a letter from a social worker dated November 6, 2023, stating that he was admitted due to “medical reasons”. He also provided a different document that said he went to the hospital because of “mental health concerns” and he was treated there for those “concerns”. This document confirms that a follow up appointment was made for the father to see an outpatient psychiatrist named Dr. Wong. According to other exhibits attached to one of the father’s affidavit, the father was given prescriptions for 25 MGs of Quetiapine, for 15 days, 15 mgs of Mirtazapine to be taken over 30 days, 15 mgs of trazodone, to be taken over 30 days, and naproxen (an anti-inflammatory).

[118] The statements in the former documents about the father’s hospitalization are general and non-descript. They could have been much better fleshed out, or other documents obtained. For example, certainly there will be hospital records from the father’s stay in the hospital that will reveal what was reported, what was observed, and what was done to treat the reported issues. There is no explanation about what these medications, what the dosage means, and whether they helped or not. Moreover, at ¶ 11 and 12 of his affidavit of March 15, 2024, the father talks about this particular hospitalization as being not only for mental health, but also perhaps for pain management. While perhaps the two were connected, I will explain in more detail below what happened, or didn’t happen (or what the Court does not know) with respect to the father’s pain management.

d. The Father’s Subsequent Treatment from Dr. Wong

[119] In his March 15, 2024 affidavit, the father says he now sees Dr. Wong “on a regular basis”. At that point, his last appointment with Dr. Wong was on February 12, 2024, with a further appointment upcoming on March 22, 2024. There is a short letter from Dr. Wong dated December 27, 2023, that states that he had seen the father a few times by that point on an outpatient basis after the hospitalization. Dr. Wong diagnosed the father with Major Depressive Disorder, prescribed medication, and referred the father to a clinician for psychotherapy.

[120] There is otherwise little information in Dr. Wong’s letter about the diagnosis, its impact, and whether the treatment prescribed achieved results. In regards to the psychotherapy, the father says that he had 8 such sessions with Keegan Bielawski with the St. Joseph’s Hospital psychiatry unit, but these ended on February 29, 2024. Mr. Bielawski’s qualifications are not provided. Yet once again, if this therapy was intended part of the treatment plan, the father had already stopped it by the time he swore his March 15, 2024 affidavit.

[121] I find these omissions diminish the strength, and possibility even the admissibility, of this participant expert evidence, at a motion. The omissions are also relevant when it comes to the Court applying the factors in Davidson v. Patten .

e. The Father’s Most Recent Evidence About His Mental Health

[122] The father says that he still suffers from anxiety and depression. He says that some days his anxiety is so bad that he cannot get out of bed, and he has significant mood swings and depression. He says he is still takes the same medications prescribed by Dr. Wong, and now takes medication for migraines. [10] Yet he has not squarely indicated the extent to which he is still seeing Dr. Wong, and how that treatment has helped him or not.

[123] What the father does say, is that he is trying to push himself to transition back to work on a temporary basis. He has gone to job sites on 6 occasions “to try my best to contribute work for a few hours. It is not much but I am doing my very best”. At a minimum, on the father’s own evidence, there has been some improvement. Regardless, as I discuss in more detail below, the mother’s PI reports tell a much different story, and that may very well call into question the veracity of much of this evidence.

(8) The Actual Evidence Before the Court About the Father’s Physical Health

[124] In his affidavit of October 30, 2023, the father relies on a number of documents, all of which pre-date the motions before Jarvis J. and MacPherson J. Some of these appear to have been before the Court before, although I am not 100% certain whether they all were. Regardless, I will address the evidence before the Court about the father’s physical health in a similar format.

a. The Evidence About the Father’s Mental Health that Was Previously Put Before the Court

[125] At ¶ 25 of his February 2023 Ruling, MacPherson J. summarized the evidence about the father’s back injury, then before the Court, as follows:

Dr. Roitberg [the father’s former family doctor] provided a letter (that appears incomplete) dated December 14, 2022 in which she indicates the Respondent has complained of lower back pain that started 9 months previous, so in or about March 2022. An MRI completed in July 2022 showed a right lateral recess narrowing at the L5 – S1 secondary to a focal right paracentral disc protrusion compressing the traversing right S1 nerve root. There was no evidence filed to suggest that the Respondent was unable to comply with court Orders as a result of his back injury.

b. Dr. Grossman’s Chiropractor’s Reports

[126] There are three reports of a chiropractor named Dr. Grossman dated May 10, 2022, October 4, 2022 and November 7, 2022, that may or may not have been before the Court previously, but which now are. What is notable, during the period between the first one on May 10, 2022 and the second one on October 4, 2022, the father showed improvement. For example, on May 10, 2022, Dr. Grossman wrote that he placed the father on a treatment plan consisting of “spinal adjustment and traction, passive modalities and Mackenzie type extension exercised”. He wrote that the father’s “ prognosis is quite good and improvements are anticipated ” . He expected improvements to gradually occur over the next 6 to 8 weeks. Dr. Grossman also said that the father was “functionally compromised at this time” and he would have difficulties performing some of his work related duties or any other obligations he may have to attend to [my emphasis added] .

[127] By October 4, 2022, Dr. Grossman wrote that he had seen the father six times, the most recent being on August 16, 2022, and at that time he had “ improved considerably since his initial visit ”, although he still remained functionally compromised. He repeated the statement about having some difficulties respecting his work related duties. He also recommended additional rehabilitation sessions on a more regular and routine basis if the father is to avoid surgical interventions [my emphasis added].

[128] By November 7, 2022, Dr. Grossman wrote a further short letter that the father’s “current prognosis is difficult to predict”. It does not go unnoticed by the Court, that this contrasting letter was obtained on the very day, that the mother brought her third motion on before the Court.

c. The Father Is Not Availing Himself of Back Surgery; This May or May Not Even be Recommended Any Longer

[129] In Dr. Rootenberg’s letter of November 16, 2022, he commented that the father was “awaiting surgery to relieve his back pain and is doing physiotherapy in the interim.” Almost one year later in his affidavit of October 30, 2023, the father discusses this again, saying he is still waiting for a surgical consultation with Dr. Soon-Shiong, apparently due to a backlog associated with the Covid-19 pandemic.

[130] The surgery has not happened. There is no evidence before about whether the father even had this surgical consultation with Dr. Soon-Shiong, and if he did, what was recommended.

[131] During this motion, counsel for the father said he is afraid to undergo surgery. Yet it is unclear to me whether surgery is even still required. For example at ¶ 11 of his affidavit of March 15, 2024, when discussing his November 2023 hospitalization for mental health reasons, the father said that a different doctor named Dr. Malempati, apparently recommended that he hold off on the surgery and instead work with a pain clinic to receive steroid injections. The father claims to have asked for documentation to confirm this, but he did not obtain it apparently.

[132] And while he said in the same affidavit that he had an appointment upcoming at a pain clinic on April 3, 2024, there is absolutely no discussion about whether the father followed through with this either, in his subsequent affidavit of May 14, 2024.

[133] The Court is left wondering, if a change in plan has respecting surgery been implemented, does that mean that there have been improvements? What happened at the pain clinic? Did the father attend?

d. Pain Specialist Dr. Dima’s Rosen’s Letter dated December 14, 2022

[134] There is evidence about a pain specialist in the father’s earlier affidavit of October 30, 2023. There he explains that most of his job requires physical construction related work, but he “also [has] a history of doing administrative and office work for the company including dealing with clients”. In this same paragraph, he says that he cannot now even do a desk job.

[135] At ¶ 28 of that same affidavit, the father says he was assessed by a pain specialist named Dr. Dima Rosen. He attaches a letter from her dated December 14, 2022. The father writes that Dr. Rozen confirmed his “back injury impacting on my ability to work.”

[136] Yet a careful review of Dr. Rozen’s report to his former family doctor at the time, reveals at least three things. First, this report too, is based on self-reporting. Second, Dr. Rozen writes that the father tried physiotherapy and other physical modalities in the past, with little to no long-term benefits. This statement is relatively proximate in time with two of the aforementioned chiropractor reports, that appear to suggest otherwise. Third, while the father would later make reference to the ongoing involvement of a pain clinic as I just discussed, there is no updating documentation after this December 14, 2022 letter.

e. The Occupational Therapy Assessment Report of Remik Zakrzekski dated June 7, 2023

[137] In this context, the father obtained an occupational therapy assessment report for the purposes of this litigation. He is attempting to rely the report of Remik Zakrzewski, dated June 7, 2023 for this motion. This is the second of four litigation experts involved in this case.

[138] In the introduction section of the report, the document states that the aim of the assessment is to determine the “appropriate vocational options for [A.N.]”. Mr. Zakrewski says he considers the father’s “current return to work options, his post injury return to work efforts, factors that impede a successful return to work protocol, and alternate strategies or return to work options for enabling productivity and employment”.

[139] Like much of the medical evidence that has been supplied, the assessment is based on “subjective information from the client” and “his family”. The assessor also apparently relied on the “National Occupational Classification Database, Dictionary of Occupational Titles”, as well as “information derived from medical documentation.” The report refers to that collateral information as being the clinical notes and records from the chiropractor, the hospital, Dr. Rootenberg and Ms. Cohan, Dr. Soon-Shiong, whom it is not clear if the father even saw again, Dr. Rozen, and a new person named Dr. Glazer.

[140] It may be that this is all of the same documentation that the father has put before this Court on this motion, or it may be that Mr. Zakrewski had additional documentation. On the assumption that the father has put his best foot forward with respect to supplying this court with medical evidence, then a trial is required to hear from Mr. Zakrewski about how exactly he took into account the numerous gaps in the medical evidence, that the Court has questions about.

[141] Moreover, the occupational therapist did not even undertake a formal visit to the father’s work place either, because the father “was not working due to his injuries and symptoms at the time of the assessment and the constantly changing worksite environment”. Rather, the description of the father’s workplace came from the father and his family. Notably, it includes “office work” and “collaborating with engineers, architects, sales and contractors”, not just physical labour.

[142] The bottom line opinion in the report, is that “at the present time, [the father] is unable to return to work and engage in these physical demands due to his injuries, physical restrictions, psychological and cognitive symptoms and pain.” This is opinion, that should be received at the trial. The extent to which this assessment is thorough, and the factual foundation upon which this opinion is based, is a significant issue in this case.

(9) The Specific Evidence Before the Court About the Father’s Income

[143] The specific evidence before the Court about the father’s income can be found in both parties’ affidavits, and two financial statements of the father. In addition, the third and fourth litigation experts are Mr. Polisuk, who prepared an Income Report dated August 2, 2023, and Ms. Prussky, who had earlier valued the father’s interest in the construction company at the date of marriage and the date of separation. While Ms. Prussky’s report does not opine about income per se, there is some of the information about income in it, and it also raises questions that require answers.

[144] According to the father’s affidavit sworn October 30, 2023, Mr. Polisuk said that the father’s income in 2022 was $54,000.00. In the same affidavit, in both of his financial statements sworn October 30, 2023 and May 15, 2024, and in Mr. Polisuk’s Report, the father’s income for 2023 and/or his current income, is said to be only $28,200.00.

[145] In his affidavit sworn October 16, 2023, the father deposes that he is drawing a modest salary of $2,000.00 monthly after source deductions. In the October 30, 2023 affidavit, the father says that his financial circumstances are “dire”. He says the company cannot pay him any further salary as he is not contributing to the operation of the business, and because the business supports other family members. The father says that his mother does administrative work for the company, but “there is no income splitting arrangement in this regard” and the company is not “withholding money that it could pay him as income”.

[146] According to Mr. Polisuk’s Report, the maternal grandmother is being paid $28,200.00 for administrative work. According to the paternal grandfather’s and the father’s brother’s (Erik) reports to Mr. Polisuk, this is said to be a market rate. The Court’s finds these specific statements to be curious. This is the same salary that the father is being paid, for doing nothing. The suggestion that the grandmother is being paid a market rate is not proven.

[147] Regarding the father, Erik (who is not an owner of the company), told Mr. Polisuk that the father’s income was reduced from $54,000.00 to $28,200.00 because he was now living with his partner and her mother, who are contributing to his expenses, and because the father and brother “assumed the duties previously provide (sic.) by [the father]”. In addition to these oral accounts, to determine the father’s incomes for 2022 and 2023 Mr. Polisuk appears to have relied on the father’s 2022 T4 from the company, as the father had not yet filed his tax return for 2022, and his pay stubs for 2023 as the report was done mid-year. The Court does not require an expert, to read a T4 and pay stubs.

[148] Now it may be, that the information in Mr. Polisuk’s report will end up being consistent with the underlying evidence, once it is called at trial. For example, the father’s two financial statements that he filed for this motion, set out income and expenses that more or less balance. To do so, the father has listed no housing expenses or utilities expenses. Somewhat surprisingly, he also has no health expenses either, despite the various health issues the father says he experiences. Rather all he says he spends, is $20.00 per month on haircuts, and $270.00 per month on groceries and related items, $916.24 per month on debt payments, and $1,000.00 per month support payments. And consistently with what Erik reported to Mr. Polisuk, in his affidavit of October 16, 2023, the father says that he is living with his fiancée rent free, at her mother’s condominium. His fiancée works and earns approximately $90,000.00. [11]

[149] One of Mr. Polisuk’s main conclusions, that if accepted might bolster the father’s statements about his income, is that his review of various documents, including bank statements, financial statements, general ledgers and other documents” did not “uncover any adjustments necessary to [the father’s] income.” But the Court cannot assess the veracity of this opinion, short of a trial, either.

[150] For example, other aspects of the reports before the Court raise questions about Mr. Polisuk’s opinion. Although Mr. Polisuk says that there is no apparent basis to add back anything to the father’s income, I note that the father included with his financial statements, his Notices of Assessment for 2019 and 2020, which pre-date the separation, and 2021, the year of the separation. In those years, the father was paid $55,000.00 (in 2019) and $60,000.00 (in 2020 and 2021). While there are now limited expenses on the budget sections of the two later financial statements, in his initial financial statement sworn May 4, 2022 that is on case lines, the father’s annual budget was $94,590.24. Perhaps the parties were living beyond their means as the father says; perhaps the father was earning cash as the mother says, or perhaps there should be add backs to the father’s income, contrary to what Mr. Polisuk now opines.

[151] Furthermore, while Mr. Polisuk did not look at income before 2022, and Ms. Prussky was not retained to calculate income at all, her valuation report does nevertheless have summaries of the company’s financial information for a number of years. This includes the period between 2018 to 2021.

[152] One obvious entry in Ms. Prussky’s Report, is that in 2021, the father took a shareholders’ advance of $37,000.00. This no longer appears as an asset of the company in 2022, according to Schedule 4 to Mr. Polisuk’s Report. Based on the father’s and Mr. Polisuk’s accounts of the father’s income, it would not have been possible for him to repay this. The Court queries what happened to it?

[153] If this was taken into the father’s income in 2022, I do not know, since he did not file a 2022 tax return. If it formed part of his $54,000.00 T4 that year I do not know, but that was not what was said in the affidavit evidence or in the report. And if the father did not repay the shareholders’ loan, then shouldn’t this money fall into the father’s 2022 income when he actually files his return, increasing his income to $91,000.00 and not the $54,000.00 that Mr. Polisuk reported it to be as per the T4?

[154] Yet another example, arises out of the mother’s affidavit sworn December 6, 2023. There, she says that on October 20, 2023, some four days after the father deposed his October 16, 2023 affidavit, and 10 days before he deposed the first financial statement, the father traded in his white 2018 Audi Q7 for a new grey Audi Q7. A review of the mother’s PI’s videos reveals the removal of license plates from a white Audi, taking place in the parking lot of a dealership on October 20, 2023.

[155] The father chose not to address this allegation that he recently got a new car, in either of his affidavits sworn March 15, 2024, or May 14, 2024, even though the mother squarely placed this in issue. Neither of his two financial statements for this motion mentions this new vehicle either, or any payments associated with it. Quite to the contrary, at ¶ 11 of the May 14, 2024 financial statement, the father claimed further that there had been no change in his financial circumstances since he swore the last financial statement.

[156] And the CBV reports do not on their face answer this. Yet there is some precedent for this company paying for vehicles in the past. For example, according to Schedule 6 of Ms. Prussky’s Report, the company’s balance sheets show that it had paid out “prepaid expenses” of $74,600.00 in 2020, and $120,730 in 2021. Note 3 to that schedule says that a $42,230.00 deposit for a RAM Truck had been paid, and allocated under this category. The company’s car expenses were $42,510.00 in 2021 according to Ms. Prussky’s Report. They then went to $56,283 in 2022 and further to $69,224.00 in 2023 by the time of Mr. Polisuk’s Report.

[157] So perhaps that Ram Truck referred to on the previous balance sheets is a company vehicle. But perhaps some add backs are appropriate. Perhaps the new Audi car will turn up on a later iteration of the company’s financial statements, since this occurred after the period covered in Mr. Polisuk’s report. Given that the father appears to have a new car and how he is paying for it is not adequately explained, is there in fact really no basis to make adjustments to the father’s income?

[158] Finally, in regards to Mr. Polisuk’s other statement of opinion, that there is no ability on the part of the company to pay out any money to the father, for example under section 18 of the Federal Child Support Guidelines, because the company has a loan payable to the Canada Emergency Business Loan (the “CEBA Loan”) of $60,000.00, I have questions about this too. There is no explanation in the affidavits before the Court, or in the reports, about what the CEBA Loan was used for.

[159] According to Ms. Prussky’s valuation report, that loan was taken out in 2020. While the company is not now apparently in a position to pay out corporate income to the father because of this CEBA loan, it had the loan already when the father was given the 2021 shareholder’s advance. Finally the company also received wage and rent subsidies in 2020 and 2021 in amounts that exceeds the CEBA Loan.

(10) The Additional Observation Evidence About the Father’s Health

[160] I return once more to the father’s health, specifically the observation evidence. Like the other evidence that I have already discussed, there was some of this before the Court previously, and there is now additional evidence. I will follow the same format.

a. The Observation Evidence that Was Previously Before the Court

[161] Like she did when she went before MacPherson J. in February of 2023, the mother again points to the social media evidence that she obtained from the fall of 2022. The mother wants the Court to recall that at that time, the father had the paternal grandfather file an affidavit on his behalf, saying that he was so sick and unable to work, to the point that his capacity to instruct counsel was even in issue. But back then (and again now), the mother presented photographs showing that the father’s new girlfriend was posting pictures of the two of them on Instagram, travelling abroad, going out for dinner, and enjoying life, when he was supposed to be physically and mentally debilitated.

[162] Now included amongst the exhibits before the Court are pictures of the father’s new Rolex, his fiancée’s diamond engagement ring, and an engagement announcement. Perhaps those photographs were before the Court previously, as well.

b. The PI Reports

[163] What is clearly new, is that the mother has since hired a PI. She has put two PI reports before the Court. She describes these as confirming what she said before, that he is living a normal life, driving his car around, shopping, and walking without any issues. Importantly, she says he was filmed on construction sites working.

[164] Some of the mother’s exhibits were missing when I initially reviewed the motion material before this motion. I had court staff request the missing exhibits. I neglected to appreciate that there were videos attached to the mother’s October 6, 2023 affidavit. Once this was revealed, counsel for the father objected to the videos being considered by the Court. Counsel says a voir dire is required. This is yet another reason for a trial, where the admissibility of this evidence can be considered.

[165] In any event, the mother’s summary of her photographs and the PI reports was generally accurate. Notably, on May 19, 2023, the father was observed to facilitate the delivery of construction materials, described as “large grey sheets of construction material”. The father was seen to climb into a truck, into which this material was loaded.

[166] The father sometimes walks with a cane, such as when he attends at his lawyer’s office, but at other times he is running errands without the cane.

[167] There is the video of the license plate being removed from the father’s white Audi, in October of 2023, discussed earlier.

[168] And in one of the more recent videos taken on October 13, 2023, taken less than a month before the father’s hospitalization at which it was seemingly decided that he would not undergo back surgery, the father was seen entering a construction site, walking with a cane. This happened around 4 PM. By approximately 6 25 PM, he was elsewhere in town, walking around without the cane.

(11) Findings and Conclusions Respecting Whether the Father Has a Strong Prima Facie Case

[169] My intention in this decision is not to decide any of these evidentiary or factual matters one way or the other. Rather, it is to illustrate that these parties have placed evidence before the Court that raise far too many unanswered questions, and legal and evidentiary issues. The father has not proven that the mother has unreported income. What he did do, is raise issues about the mother’s credibility. The Court’s conclusion, based only on this record, is that the mother is devoting much of her time to parenting, including a child with special needs, without any personal support with this father, and with his limited financial support. The Court may find otherwise at trial. For now, this means that the father did not establish a strong prima facie case that the mother has income.

[170] In regards to the father, the questions are numerous. In summary and/or in addition:

(a) Adapting MacPherson J.’s February 10, 2023 findings into the framework in Davidson v. Patten , the impact of the father’s anxiety and depression diagnosis appeared to the Court to be exaggerated; (b) Insofar as any treatment plan that then existed and the father’s compliance with it are concerned, the father had only participated in sporadic psychotherapy sessions with Ms. Cohan back then; (c) Dr. Rootenberg’s first reports were not comprehensive. They depended on self-reporting. The subsequent report that he prepared in March of 2023, does not cure the prior deficiencies; (d) What Dr. Rootenberg did recommend, was “much more assiduous treatment” that the father did not avail himself of for several more months; (e) At ¶ 42 of his February 10, 2023 ruling, MacPherson J. found that, “despite the diagnosis, the Respondent has not been hospitalized as a result of mental health issues. Since that time, the father was hospitalized for four days, yet there are many gaps in the evidence about what happened respecting that hospitalization and its aftermath; (f) The father’s own reports of chiropractor Dr. Grossman read as if there was improvement. However as the third urgent motion that Jarvis J. approached, Dr. Grossman changed his opinion for some reason. The prognosis went from “quite good” in the May 10, 2022 letter, to “considerable improvement as of August 16, 2022” in the October 4, 2022 letter, now to “difficult to predict” in the November 7, 2022 letter. There is no evidence from the father across his several affidavits, about whether he obtained the additional rehabilitation sessions that Dr. Grossman recommended in the October 4, 2022 letter, to avoid surgery, but what I do know is that by November of 2023, apparently the surgery was put on hold in favour of steroid injections; (g) The report of Dr. Rozen appears to be based on his self-reporting, and what she wrote appears to be in conflict with the chiropractor’s reports; (h) Like with respect to Dr. Rootenberg, the occupational therapy report contains opinion. There has been no voir dire. It is also heavily based on the father’s and certain family member’s reporting, and apparently some of the aforementioned medical documentation, about which the Court has questions; (i) Ms. Prussky and Mr. Polisuk’s reports contain expert opinion. There has been no voir dire. There are unanswered questions arising out of the facts in the report. Mr. Polisuk also relied on self reports from family members involved in this company, and it seems some of the aforementioned medical documentation. For example, the occupational therapy report, which in turn relied on the medical documentation, was in turn relied upon by Mr. Polisuk; (j) Significant credibility issues are being raised by the mother’s observation evidence; and (k) There is going to be a challenge at trial to some of this evidence, for example the videos, and perhaps the father’s evidence that the mother engaged in fraud.

[171] While I do not foreclose the possibility that the father may at trial prove that he suffers from an inability to work or an inability to earn as much as he could have in the past, I am not in a position, based on the record before the Court on this motion, to find this to be so. This means that the father has not established a strong prima facie case about his inability to work, or to pay the amounts ordered by Jarvis J., either.

E. Whether There is Urgency and Hardship

[172] I address these two factors together. The father has not satisfied me that there is either urgency or hardship. For example, the fact that the parties agreed to adjourn Trial Scheduling Conferences three times, reinforces this conclusion. There could have been a trial already.

[173] I do not find that these questions should be viewed in isolation, or solely from the father’s perspective, either. Holistically, urgency and hardship should also be considered from the mother’s and the child’s perspectives.

[174] At the risk of repeating myself, the weight of the record before the Court that the mother is parenting two young children on her own, one of whom has a high degree of special needs, without any parenting assistance or financial support from the father.

F. Outcome of this Motion

[175] The father’s motion is dismissed. Given the outcome, there is no need to adjourn this motion to have counsel for the FRO in attendance.

PART V: NEXT STEPS

A. Trial Scheduling Conference

[176] As a result of the Endorsement of March 28, 2024, there is now another Settlement Conference (combined with a Trial Scheduling Conference) now boked for September 26, 2024 @ 2 PM. Before that was scheduled, there had been a case conference, three urgent motions, an additional motion on February 8, 2023, two attempts to hold a Settlement Conference, one of which appears to have proceeded on its merits, and three Trial Scheduling Conferences, that all got adjourned. This long motion is the fifth motion in this case.

[177] During the submissions, I advised the parties that their case would be tightly case managed to the conclusion of this litigation. The combined conference booked for September 26, 2024 is being vacated. Subject to what I set out below about settlement, the next step is going to be a Trial Scheduling Conference before me. I have reviewed all of the motion material in detail. It is not efficient for this next step to proceed before a different judge.

[178] I am scheduling the TSC to proceed on September 24, 2024 @ 11 30 AM by zoom, based on my availability alone. If it happens that either counsel are unavailable, then they shall contact me through the trial coordinator’s office within the next 7 days, to arrange a reasonable alternative date.

[179] Given what has transpired to date, the TSC is peremptory to both sides. The parties will be placed on the November 2024 trial sittings.

[180] For the Trial Scheduling Conference, the parties are to file a jointly prepared TSEF in draft, and a jointly prepared comparison Net Family Property Statement. Each is to file a written Opening Trial Statements. The parties are to prepare retroactive support calculations, to include section 7 expenses. They are to prepare a chart of what each says is owing, and what the father has paid. The parties are to order a statement of arrears from the Family Responsibility Office. The Court also requires post-separation adjustment calculations, since the mother says she has been paying the housing expenses by borrowing from family, despite the Order.

[181] The mother has told the Court, both at this motion and apparently previously, that she intends to obtain her own expert to review the father’s CBVs’ reports, and perhaps critique them. She has not done that yet, despite three adjournments of the TSCs. While I am sympathetic to her financial restraints, the mother has to make a decision one way or the other, about whether she is going to proceed this way, or whether she is going to proceed to trial without this evidence.

[182] Moreover, on March 28, 2024, Shaw J. already ordered both parties to ensure that they had their expert evidence ready for the combined conference on September 26, 2024. Therefore, I will amend that Order to make provision that this is to be ready for the September 24, 2024 TSC, instead.

[183] The father is specifically warned that he is to follow this Court’s Orders, following this dismissal. That means cleaning up the mess he has made, bringing the arrears into good standing, and paying the outstanding costs Orders. If necessary, MacPherson J.’s preservation order is lifted only to enable him to take money out of the company, to achieve this goal.

[184] If the father chooses to disregard yet another Order of this Court, he may very well end up going to trial in breach of Orders. I appreciate that this may not be ideal, and the father can expect that he will have yet another hurdle to overcome if he does this. But I am equally not allowing the mother to proceed with a motion to strike in advance of this trial, in part because the mother could have, but did not bring it back on earlier, there have already been multiple motions, and she has contributed to the delay in this case by consenting to adjournments of the Trial Scheduling Conferences. The time for her to have acted has past. Anyway, the credibility and other issues about both parties need to be properly tested.

B. Disclosure Terms

[185] While I was led to believe that financial disclosure has been exchanged, [12] if there are any missing financial documents that need to be exchanged, counsel are to sort it out well in advance of the return date. Any disputed items should be limited and tailored. Each side can provide the Court with a short list at the time of the Trial Scheduling Conference, if anything remains unresolved.

[186] In regards to disclosure of other documentary evidence, based on what I have read, it seems to me that in addition, there are credibility issues about the mother, arising out of the lease application, the corporate search that the father did, and her response to that relating to the day care subsidy. To ensure that the parties prepare, I am ordering the mother to obtain and produce a copy of her day care subsidy file by August 2, 2024, and if possible, any documents corroborating the evidence she gave about what was needed to obtain a subsidy.

[187] In regards to the father’s health records, and while I appreciate that disclosure of these may raise privacy issues, the father has very much placed both his mental and physical health into issue. I do not know with complete certainty what has and hasn’t produced already. But the motion material revealed numerous gaps in the documentary evidence. The gaps included: Ms. Cohan’s underlying notes and records, Dr. Roitberg’s notes and records, clinical notes and records from MacKenzie Health and other medical centers, records from the father’s trip to an emergency room in March of 2022, and any other emergency room attendances, [13] hospital records pertaining to the November 2023 hospitalization, Mr. Bielawski’s notes and records, Dr. Wong’s notes and records, Dr. Grossman’s notes and records, Dr. Rozen’s (and/or the pain clinic’s notes and records), Dr. Soon-Shiong’s notes and records, Dr. Malempati’s notes and records (to the extent that these are not included in the hospital records from November 2023), and possibly Dr. Glazer.

[188] If these documents have in fact not been obtained in full by the father already, viewed with his counsel before this motion was brought, and produced, [14] then that exposes a problem. It may mean that this motion was brought without a proper appreciation of the underlying evidence, and the strengths and weaknesses of the positions taken. It has also placed the mother at a disadvantage when it comes to her assessment of the health evidence, such as whether to accept the father’s position, or challenge it.

[189] Counsel for the father should at a minimum be immediately sitting down with the father, obtaining comprehensive records, discussing them, taking a position about production, and assessing where to go next. If any records are withheld after this exercise, a good explanation as to why they should be shielded from disclosure, with sufficient detail to enable the mother to consider her response, must be provided.

[190] This should be resolved well in advance of the TSC, but I cannot be anymore specific right now, because I do not yet fully know what has been produced or not. Therefore, I am ordering the father in general, to make any further health productions by August 2, 2024, but through the lens of these comments. The mother may decide that she needs to bring a motion for production of health records, if the father fails to provide full disclosure. That motion may be scheduled before me.

C. Settlement Discussions

[191] The September 24, 2024 appearance is no longer a combined conference, and its purpose is not to discuss settlement. I do not intend to discuss settlement, so as not to disqualify me from being the trial judge, if I am so assigned by the lead family judge and the trial coordinator.

[192] However, at the end of the motion, the Court implored the parties to change course of the litigation. I was told that there had apparently been settlement discussions underway, including potentially a settlement of the entire case. I indicated to counsel that I would hold off preparing a ruling for a few days to enable those settlement discussions. A short few days later, counsel reported back to the Court that they have not settled.

[193] If the parties wish to continue settlement discussions facilitated by a judge, I may be contacted and I will inquire whether Justice Bennett can see them in advance of the TSC. But this is not to occur as an alternative to the TSC, which will not be further adjourned.

D. Costs

[194] The parties are strongly encouraged not to now shift their focus towards costs litigation. They should be settling costs. Subject perhaps to any Offers to Settle, the mother is the successful party and she is presumptively entitled to costs.

[195] Nevertheless, if the parties cannot resolve costs, then the mother may file written costs submissions on or before June 28, 2024, restricted to three pages, double spaced and using 12 pt font, plus a Bill of Costs and any Offers to Settle. Caselaw is not required, but may be hyperlinked in the submissions. The father’s costs submissions, subject to the same restrictions on length, shall be filed by July 19, 2024.

PART VI: ORDERS

[196] I make the following Orders:

(a) The father’s motion is dismissed; (b) There is no need for the attendance of counsel for the FRO; (c) If necessary, the preservation Order of MacPherson J. dated February 10, 2023 is lifted to enable the father to access corporate funds, only for the purposes of paying the arrears or the costs that he owes to the mother. The FRO may also take any enforcement steps that it sees fit, including as against the corporation; (d) The combined conference currently scheduled for September 26, 2024 @ 2 PM is vacated; (e) There shall be a Trial Scheduling Conference before me on September 24, 2024 @ 11 30 AM by zoom, peremptory to both sides. If it happens that either counsel are unavailable, then they shall contact me through the trial coordinator’s office within the next 7 days to arrange a reasonable alternative date; (f) For the Trial Scheduling Conference, the parties are to file a jointly prepared TSEF in draft, and a jointly prepared comparison Net Family Property Statement. Each is to file a written Opening Trial Statements. The parties are to prepare retroactive support calculations, to include section 7 expenses. They are to prepare a chart of what each says is owing, and what the father has paid. The parties are to order a statement of arrears from the Family Responsibility Office. The Court also requires post-separation adjustment calculations, since the mother says she has been paying the housing expenses by borrowing from family, despite the Order. All expert evidence is to be ready by the time of the TSC, as well; (g) If there are any financial disclosure issues outstanding, counsel are to sort it out well in advance of the return date. Any narrow remaining disputes shall be resolved by the Court at the TSC. For that event, the parties may each provide the Court with a short list of what financial disclosure they want ordered disclosed, and a very brief summary of relevance (if that is not readily apparent); (h) The mother shall obtain and produce a copy of her day care subsidy file by August 2, 2024, and if possible, any documents corroborating the evidence she gave about what was needed to do (ie. renew her business registration), to obtain a subsidy; (i) The father shall make any further health productions by August 2, 2024. If he chooses to withhold any documents, he is to send a letter to the mother’s counsel explaining the documents being withheld, and the basis for the withholding. The letter shall contain sufficient details for the mother to decide how she intends to respond; (j) If the mother chooses to bring a motion for production of health records after that, that motion may be scheduled before me. I may be contacted by 14B respecting scheduling and a timeline for the delivery of motion materials; (k) If the parties wish, the Court will inquire whether Justice Bennett can see them for settlement discussions in advance of the TSC. It would be useful to have the comparison NFP Statement and the calculations and chart referred to in (f) above available for that appearance, if it proceeds; (l) If the parties cannot resolve costs, then the mother may file written costs submissions on or before June 28, 2024, restricted to three pages, double spaced and using 12 pt font, plus a Bill of Costs and any Offers to Settle. Caselaw is not required, but may be hyperlinked in the submissions; and (m) The father’s costs submissions, subject to the same restrictions on length, shall be filed by July 19, 2024.

JUSTICE A. FINLAYSON Released: June 10, 2024

[1] I suspect the Court was probably so informed. [2] When this motion was first brought in advance of the November 2023 sittings, the father served his motion on the FRO. I am told that after this motion was called to be heard during the spring 2024 sittings, counsel for the FRO advised the father’s counsel that she was not available to attend on the precise day that this motion ended up being scheduled for argument. Counsel for the FRO did not arrange for an agent to attend on her behalf. Neither party sought an adjournment. I proceeded with the motion on the understanding that a further attendance with FRO counsel might be required. In view of the Court’s dismissal of this motion, it is not necessary to schedule a further attendance to have FRO attend to address the request to suspend. [3] I address the other unfairness allegation that the father has made, later. [4] Unquestionably, i n the end result, the amounts that Jarvis J. ordered will be allocated towards child support, section 7 expenses or spousal support. It may also be that some of the amounts Jarvis J. ordered are not allocated as support. For example, they could also be treated as the father’s payments towards the matrimonial home, an asset that he is a joint owner of, in which he undoubtedly expects to share in the current equity when the property is dealt with in this case. The possibility that some of the payments may be characterized as property does not in my view change the analysis about the legal framework that applies on this motion. [5] To be specific, the statements in both sides’ affidavit material concern the mother doing eyebrows and eye lash extensions. [6] While this image was posted using an account for “DNA Brows”, it says nothing about the mother working or earning an income. [7] See the previous footnote. [8] Based on the father’s statement that the most recent positing is from 2021, that would be at least as early as 2019, if not earlier. [9] Although close, that is not entirely accurate. To be precise, the monthly amount of payments that Jarvis J. ordered are $5,134.24. [10] There is a prescription for Cambia attached to this affidavit. [11] Incidentally, if this evidence proves to be true, h ow the Court should treat the company’s apparent decision to reduce his income to $28,200.00, and whether income should be imputed to him based on this decision, will also very likely be an issue for the trial. [12] For example, the father’s counsel argued that the mother has not requested anything further. [13] If the father cannot recall where he attended, he can simply obtain an OHIP summary. [14] I assume this was not done, in view of the number of evidentiary gaps.