Court File and Parties

COURT FILE NO.: FC-19-1108 DATE: September 10, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ALEXANDER KHAVICH Applicant – and – ROSHEEN MAY NAVARRO Respondent

Counsel: Valerie Akujobi for the Applicant J. Alison Campbell and S. Hakimi for the Respondent

HEARD: May 13, 2024, May 14, 2024, May 15, 2024, May 16, 2024, May 17, 2024, May 21, 2024, May 22, 2024, May 23, 2024

Reasons for Judgment

Justice M. Fraser

Introduction:

[1] The outstanding issues to be determined by me following this 8-day trial concern the parenting and support of the parties’ son A.N. More specifically, the following issues are in dispute:

1. The schedule for the parenting arrangement;
2. Whether there should be an order restricting travel by both or either party with A.N. outside of Canada;
3. Whether there should be an order restricting either party’s right to move A.N.’s residence;
4. How the holiday parenting time should be divided;
5. Who should have decision-making authority over A.N. and upon what terms;
6. Whether income should be imputed to the Respondent for the purpose of determining what child support should be payable; and
7. How s.7 expenses should be calculated.

Background:

[2] The Applicant, Alexander Khavich (“Khavich”) and the Respondent, Rosheen May Navarro (“Navarro”) met in 2016. They dated for approximately two years and were married on June 2, 2018.

[3] The parties began to live separate and apart on August 27, 2018.

[4] There is one child of their very brief marriage, A.N., who is 5 years old.

[5] Khavich is presently 38 years old. This was Khavich’s first and only marriage. A.N. is his only child. Khavich presently lives on his own in Gloucester, in the Regional Municipality of Ottawa-Carleton.

[6] Khavich was born in Canada. Khavich’s father and mother immigrated to Canada from Israel and Belarus respectively. His parents reside in Barrhaven, a suburb of Ottawa. Khavich also has a sister who lives in the Ottawa region. Khavich additionally has family in Israel, Belarus and the United States.

[7] Navarro is presently 39 years old. This was also Navarro’s only marriage. A.N. is her only child. Navarro was born in the Philippines. She immigrated to Canada in 2008 and she became a Canadian citizen in 2013. She joined her mother who had previously immigrated to Canada. Navarro’s sister immigrated to Canada around the same time Navarro did. Navarro’s father and some other family members remain in the Philippines.

[8] The parties met in 2016. They were introduced to each other by their respective mothers who happened to be both working at the same place of employment at the time. The parties dated for approximately two years. They were married on June 2, 2018.

[9] Khavich is a Messianic Jew. Khavich, his parents and his sister are connected to and practice their religion with a community of Messianic Jews in the Ottawa area.

[10] Navarro is Christian. She belongs to the Iglesia Ni Cristo church. Navarro attends church services twice per week (every Thursday and Saturday) in the Ottawa area.

[11] In order to accede to the requirements of Navarro’s church, Khavich agreed to and joined Navarro’s church prior to their marriage. Khavich began to attend services with her thereafter.

[12] Both of the parties’ families were open to a multi-faith wedding. However, Navarro’s church was unprepared to accommodate this. The parties therefore celebrated their wedding twice. The first ceremony was strictly based in the Iglesia Ni Cristo faith. The parties subsequently held a second ceremony which incorporated aspects of Khavich’s Jewish traditions as well. Both families were involved in the planning of this second ceremony.

[13] The parties testified respecting the fact that when Khavich’s mother posted photographs of the second wedding ceremony on social media, the church leaders at Navarro’s church asked that the photographs be removed or made private. Khavich recounted that the parties were then required to write letters of apology to the church disavowing the second ceremony.

[14] The parties purchased a home in the subdivision of Barrhaven in Ottawa, ON (the “matrimonial home”) shortly prior to their marriage. Khavich moved into the home upon its purchase and Navarro moved into the home following their wedding. Khavich borrowed against his RRSPs and supplied the downpayment for the home. While residing together, Khavich solely paid for their expenses, including the mortgage payment, food and the parties’ purchases of furniture and similar expenses.

[15] Navarro’s father visited from the Philippines to attend the wedding celebrations. He stayed at the matrimonial home when in Canada a short time before the wedding and then flew back to the Philippines a few weeks following the wedding festivities.

[16] Both of the parties’ families were engaged with and supportive of the marriage. Indeed, around this time, and prior to the marriage, the families took a number of trips together.

[17] Khavich works in Ottawa, Ontario, as a software developer for a company called Apption. He was employed by this company prior to and during the marriage as well. Khavich usually works from his home remotely. However, he is required to go “on site” at his place of employment to attend meetings every Tuesday.

[18] When the parties first met, Navarro was working on a part-time basis for Costco Wholesale. She intended to enrol in further post secondary education in order to pursue a career. Khavich supported her pursuing a career and Navarro enrolled in a health sciences program at the Ottawa campus of Algonquin College with a view to upgrading her education so that she could then get entry into and eventually become a Registered Practical Nurse.

[19] Navarro suggests that the parties’ relationship deteriorated when she learned she was pregnant. She states that when she told Khavich she was pregnant, he gave her a “shrug” and she maintains that Khavich’s demeanor changed. Navarro asserts Khavich was spending all of his time in his office on his computer while she was doing all the cleaning and cooking. She suggests her becoming pregnant was not happening along the timeline Khavich desired and that he had wanted to wait a year.

[20] Khavich, on the other hand, testified that the parties had spoken of having children together well prior to getting married. According to him, the parties spoke of having children and talked about possible names. When they were sexually active, even prior to their marriage, they sometimes used protection and sometimes did not. They were prepared to accept what came.

[21] Khavich maintains that he was excited to learn that Navarro was pregnant. However, that said, he had concerns as he felt that their relationship was already on rocky grounds.

[22] Navarro recalls becoming overwhelmed with the chores around the house. She asserts that Khavich was not supporting her. She was tired, pregnant and having difficulty sleeping. She asserts that Khavich was controlling the finances and she claims he wasn’t providing her with food. She maintains she couldn’t sleep at night because she was hungry.

[23] Khavich denies this was the case. He maintains that he would go with Navarro to buy groceries or whatever was required for her daily needs. It was his perception that Navarro enjoyed cooking and he enjoyed her cooking. He readily admits to having limited skills in the kitchen. Khavich asserts that he attempted to speak with her about creating a family budget but that Navarro wasn’t interested in this. He maintains that he would pay for any of their expenses.

[24] Navarro asked to be added as a joint account holder to Khavich’s bank account to facilitate her accessing funds to make purchases. She criticized Khavich’s response to the effect that he would first get advice from his parents. Regardless, Khavich did arrange for Navarro to be added as a joint account holder to his bank account.

[25] Once Navarro became pregnant, and given her difficulties sleeping, Navarro testified that she was uncomfortable with Khavich touching her on her side of the bed and that this happened on a couple of occasions. This prompted her to move to a spare bed in the basement to sleep. Navarro asserts that her relationship with Khavich became really strained at this point. They had just married and Khavich was now staying upstairs and she was staying down in basement.

[26] Khavich recalls that shortly after Navarro’s father returned to the Philippines, Navarro began acting coldly toward him and that this is when she began to sleep in the basement. He asked her what was wrong and asserts that he could not get a clear answer from her. In cross-examination, Navarro admitted that she did not discuss her feelings with Khavich.

[27] Navarro made allegations at an earlier point in this proceeding that Khavich “forced” her to be intimate with him twice while she was sleeping in the basement room. Navarro asserts that Khavich came to her on one of his days off work, in the afternoon, when she was lying down resting in the basement. Khavich apparently made sexual advances towards her and she maintains “he was all over me.” She asked him to please stop. It is clear based upon her own evidence at trial that Khavich did stop any advances when asked. Navarro states that Khavich then withdrew to his computer room. She recalled that his reaction was to not talk to her and he did not offer to make her something to eat for dinner when he prepared something for himself. She testified that Khavich then went to bed in his own room.

[28] Navarro’s evidence at trial did not detail any actions by Khavich which could be considered to be forcing sexual intimacy upon her and Khavich denies he behaved inappropriately at any time in this respect.

[29] Navarro decided to move back in with her mother and sister who were living in Orleans, Ontario, approximately ½ hour drive away from the matrimonial home. As such, the parties physically separated on August 27, 2018, when Navarro moved into her mother’s home in Orleans, Ontario. At the time, Navarro advised Khavich that she needed the time to herself and that this did not mean they were permanently separating. The parties continued to have ongoing communications and they continued to attend church together.

[30] At some subsequent point the parties both concluded that there was no prospect of reconciliation. The consensus is that both parties considered the separation to be permanent by November 2018. By this time the parties’ communications had deteriorated significantly. Khavich stopped attending church services with Navarro and he declined to attend a meeting with the church leaders when asked to do so.

[31] Navarro attended the matrimonial home to retrieve some personal belongings. The parties quarrelled and Navarro took the ketubah which evidenced the Jewish wedding ceremony and she ripped it up. A heated argument ensued and Khavich called Navarro a “bitch”. Navarro slapped Khavich in response.

[32] Around this time that Navarro had an ultrasound appointment. Khavich tried to attend. Navarro and her mother did not wish Khavich to join in the appointment and required Khavich to wait outside. Navarro’s sister communicated on Navarro’s behalf once the appointment was finished and she advised Khavich that the parties were expecting a boy. Khavich also learned at this time that the expected due date for the birth of the baby was in March 2019.

[33] While both parties concluded that the separation was permanent, Khavich believed that they were still going to work together as parents and he understood that Navarro was open to participating in mediation in some form in order to address the parenting issues. On March 7, 2019, Navarro emailed Khavich advising that she was open to arranging some form of mediation. She suggested it occur approximately two weeks following the birth of the child.

[34] Khavich responded with an email dated March 8, 2019. He inquired how she was and asked about the pregnancy, the imminent birth and advised that he was invested in being a father. He wrote as follows:

Thank you for the follow-up email.

I hope you wrote it in good faith, and that I and my family will be informed of the birthday and place. We would like to visit the newborn child in hospital.

I, and my family, would also like to visit with the baby after he’s born as much as possible because he will be new to our family as well, so I hope we can find times that will be suitable for everyone.

Wishing you luck with the rest of your pregnancy- please keep me informed if anything unexpected occurs or if I can help in any way. Remember that I am just as invested in our son as you are.

Khavich didn’t receive a response to this email.

[35] On March 25, 2019, he again wrote an email to Navarro. He stated:

Hi Rosheen,

Hope you’re doing well.

Today is our son’s due date so I was just wondering if there’s any news.

Please let me know, I’m eager to be involved in his life.

Thanks, Alex

Again, no response was received.

[36] On April 1, 2019, Khavich sent a text to Navarro’s mother. A text exchange then followed.

From Khavich:

Hi Evelyn. Today is a week after the baby’s due date. I sent Rosheen an email last week asking if there was any news, and she has not responded. Is the (sic.) any news? How is the baby?

The response from Evelyn Navarro:

She’s in a lot of pain as she hasn’t had any sleep. Not a disability, but she’s quite exhausted. So please understand. Baby is doing great. Thanks.

From Khavich:

I’m glad the baby is OK. I’d like to know some details. When was he born? What size and weight? When will I be able to see him?

No further response came from Navarro’s mother.

[37] On April 4, 2019, Khavich emailed Navarro once again. He stated:

Hi Rosheen,

I know you’re tired after the birth of our child, and I hope you’re recovering and that our baby is doing well.

Have you contacted the mediator yet? If not, when do you think you will do that?

I understand there’s a lot of new change in your life right now, but this is very important and we have to discuss how we will move forward.

I’m eager to see our son and be involved in his life.

Please let me know the details of his birth as well as your thoughts on our next steps. I want to see him as soon as possible.

Thanks,

Alex

No response was received.

[38] On April 11, 2019, Khavich emailed Navarro again:

Hi Rosheen,

It has now been over two weeks from the due date of our child.

I still don’t know the proper date of birth – perhaps you could tell me. I’d like to know the other details as well.

I’ve been hoping to hear from you about when I can visit.

I desperately want to see our baby.

Please let me know as soon as possible when we can arrange a meeting.

Alex

He received no answer.

[39] On April 15, 2019 he then wrote:

Hi Rosheen,

You cannot continue ignoring me. I’m the father of our child and we have to discuss parenting in the future.

You told me yourself you’d be open to setting up visits but I haven’t heard anything from anyone in your family – not even the date of birth!

When will I see our baby?

Hope to hear from you soon.

Alex

Again, no response was received.

[40] Khavich, not surprisingly, next retained a lawyer to write to Navarro. By letter dated April 26, 2019, Aaron MacKenzie wrote as follows:

I have been recently retained by Mr. Khavich with respect to the outstanding issues.

The primary issue that needs to be resolved immediately is access to Mr. Khavich’s child.

Despite the fact that you and Mr. Khavich were in regular communication up until the end of March 2019, you have since cut off all communication, and it appears that you are refusing to provide any access to his child. This is unacceptable and a resolution for interim access needs to be reached immediately.

If an interim arrangement is not reached or we do not receive a response from you by May 3, 2019 at or before 4:30 p.m., then we will be proceeding with commencing an Application and bringing an urgent Motion. We will be seeking Mr. Khavich’s costs on a full indemnity basis, as a result of your inaction and denial of any ongoing access to Mr. Khavich’s child.

I would advise you to seek legal advice as soon as possible.

Please give this your urgent attention.

[41] This prompted a response from Navarro. She emailed Khavich on April 29, 2019 as follows:

Alex,

I received an email from your lawyer saying that I am refusing to show the baby to you, that is not the case. I was already planning to meet with you sometime after my recovery but I got ill. We can meet with you this week in Orleans.

Regards,

Rosheen

[42] On that same date, Navarro also responded directly to Ms. Guttin, who had forwarded Mr. Mackenzie’s correspondence to Navarro by email. Navarro wrote as follows:

Good Afternoon Ms Guttin,

I have received your letter dated April 26, as it arrived on the weekend, I will not be able to commence the process of looking for a lawyer until the weekdays and feel no comfort in my ability to arrange for legal advice by May 3 rd .

I will keep you apprised of my progress in retaining counsel and hope to be back to you no later than May 10 th . I have been quite ill of late which has affected my ability to interact but I feel I may be able to reach out to Alexander this week and perhaps arrange a meeting with him this coming week.

Kind Regards,

Rosheen Navarro

[43] While Navarro maintains she was ill and therefore unable to facilitate contact between Khavich and the newborn baby or communicate with him, I note that within the month immediately following A.N.’s birth, she managed to address other matters she considered important. Navarro has provided no explanation why it was not possible to delegate the communications with Khavich to her mother or sister. She was living with her mother and sister at the time and it is clear that they were a significant presence in Navarro’s life, including assisting with A.N.’s care.

[44] Notwithstanding her apparent inability to respond to any of Khavich’s requests for information, it is clear that once Navarro was discharged from hospital she continued, based upon her own testimony at trial, to attend church on a twice weekly basis.

[45] Navarro also applied for a passport for A.N. which document was issued on April 24, 2019. She confirmed that this required her to bring the child to obtain his passport photo and then to attend in person at the passport office in Ottawa. Navarro did not attempt in her evidence to dispute that she did not identify Khavich as the child’s father. Her only explanation was to suggest that she applied for his passport so that the child would have photo identification.

[46] Additionally, Navarro signed and had the required documentation submitted to apply for A.N.’s birth certificate. She gave A.N. her surname alone and she did not identify Khavich as A.N.’s father. Through the course of this proceeding, an order had to be obtained so that A.N.’s birth certificate was subsequently amended to include the father’s name by hyphenating it with Navarro’s name.

[47] Navarro took steps which suggest that she was not prepared to include Khavich in decision making for A.N. For instance, she arranged for A.N. to be circumcised without any consultation or notification to Khavich.

[48] This lack of communication set the tone for the ensuing interactions between the parties.

[49] After the contact by Khavich’s lawyer, an initial visit between Khavich and A.N. was arranged and was to take place on May 2, 2019 at the Place D’Orleans Mall food court. Both families were in attendance. This was first opportunity for Khavich, his parents, and his sister to meet A.N. who was now approaching two months old. This was the first time Khavich was informed of his son’s name.

[50] The visit was followed by correspondence from Navarro’s newly retained counsel who advised that her client had informed her that this visit was “not successful” as the “father’s family was clearly focused on criticizing and insulting” Navarro. The correspondence suggested a proposed schedule for parenting time (two two-hour visits weekly) at Navarro’s home and sought to make any parenting time conditional upon the father’s family not being present.

[51] By letter dated June 3, 2019, Khavich’s counsel wrote to Navarro’s counsel advising of Khavich’s concern that Navarro intended to return to the Philippines with A.N. on the basis that Navarro had expressed to Khavich prior to their separation her view that were she not in a relationship, she would move back to the Philippines. Khavich proposed alternative times for seeing A.N. given his work schedule could not easily accommodate the schedule proposed by Navarro.

[52] An urgent motion was brought by Khavich returnable before Master Fortier (now Associate Justice Fortier) on June 18, 2019. A consent order was obtained on that date which imposed restrictions on removing A.N. outside of Ontario and required Navarro to deposit her and A.N.’s passport with her counsel pending further agreement or order. Navarro also agreed to provide a copy of A.N.’s long form birth certificate to Khavich. Parenting time for Khavich was agreed to on an interim without prejudice basis which provided for two two-hour visits per week at Navarro’s home or at a mutually agreeable location.

[53] On June 28, 2019, Khavich’s counsel wrote again to Navarro’s counsel advising that the proposed access was not working out because “Ms. Navarro is adamant that Mr. Khavich must come alone, and the access must be inside her home.” He stated further that, “Mr. Khavich does not feel safe on his own and requires a third party to attend. In the alternative, Mr. Khavich is prepared to meet at a public location.”

[54] The parties subsequently agreed that Khavich’s parenting time would again occur at the Place D’Orleans Mall food court.

[55] At trial, Khavich introduced segments of audio recordings he took while attempting to exercise his parenting time during the time during the Summer and Fall 2019 which occurred at the Place D’Orleans Mall food court.

[56] While electronic recordings of parenting exchanges and interactions is a growing trend which should be discouraged, I understand Khavich’s inclination to make the audio tapes when his doing so is considered in its context. Throughout this time, Navarro insisted that Khavich come alone for his parenting time. It is clear that a “he said, she said” narrative would be the result.

[57] I accepted these recordings into evidence bearing in mind that the maker of the audio recordings, Khavich, knows his words are being recorded. He clearly would be more inclined to exercise self-restraint knowing this to be the case. Notwithstanding this fact, it is possible to draw a number of conclusions based upon the verbal interactions between the parties which can be heard from these audio recordings. In my view the recordings reveal that:

1. Navarro considered herself to be the parent of A.N. in the singular. During their interactions she would many times react to the conflict with Khavich by insisting she was leaving with “her” child;
2. Navarro very clearly considered herself entitled to impose arbitrary rules on Khavich notwithstanding that his parenting time was permitted by court order. Despite the order being silent on the issue, she sought to impose terms on Khavich’s parenting time, i.e., that he was to remain seated. She attempted to prohibit him from walking around the food court with A.N., and she refused to allow his parenting time to occur if members of his family (his father or mother) were present;
3. Navarro did not seem fearful of Khavich. She challenged him. She called him a “coward” a number of times. She grabbed him by the shirt from the back on one occasion. On another, she struck him on the arm with her phone when he attempted to take hold of the stroller with A.N. in it. In one interaction, she threatened to call 911 when it was very clear that the Khavich had done nothing to threaten her. On another occasion, she terminated the Applicant’s parenting time early and as she left she yelled for security when there were very apparently no circumstances warranting it; and
4. Khavich was increasingly frustrated with Navarro’s attempts to curtail his parenting time.

[58] As a result of the ongoing difficulties between them, including Navarro’s attempts to curtail Khavich’s time with A.N., Khavich brought another urgent motion on September 19, 2019. On that date, his parenting time was restored with the additional provision that Navarro was not to be present during his parenting time. The order also provided that there were not to be restrictions imposed on who could be present with Khavich during his parenting time.

[59] With the additional terms set out in the September 19, 2019 Order, the level of conflict between the parties began to dissipate somewhat. However, A.N. was still very young and was still breast feeding. It was therefore still challenging for Khavich to exercise his parenting time in a normalized setting as the limited time for his parenting time did not allow for him to return with A.N. to his home in Barrhaven. Khavich and his parents arranged for his parenting time to take place in other child friendly locations proximate to Navarro’s home. Khavich began to exercise his parenting time at a nearby library which had an appropriate room and in the basement of a church which was willing to allow his visits to occur there.

[60] At a further motion held on November 19, 2019, the parties agreed to expand Khavich’s parenting time to three times per week (every Monday and Wednesday from 5:00 p.m. to 7:00 p.m.; every Saturday from 2:00 p.m. to 5:00 p.m.). Khavich’s parenting time was made expressly provisional upon further review and expansion upon A.N. turning 1 year old in March 2020. The order also addressed Khavich’s child support obligation and provided that Khavich would commence paying child support in accordance with the child support guidelines. The order required Navarro to amend A.N.’s birth certificate to include Khavich’s name and the order required Navarro to provide Khavich with advance notice of any medical appointments for A.N. and to report what occurred.

[61] The parties began to employ an “access log” to facilitate communications. This ensured that Khavich could more easily parent A.N. with an awareness of and in a manner consistent of A.N.’s routine.

[62] Khavich’s parenting time progressed, it seems, without further major issue except then the parties were faced with the new challenges that came with the COVID 19 pandemic in March 2020. This predictably gave rise to new issues. This also delayed the anticipated expansion of Khavich’s parenting time.

[63] New difficulties began with an entry in the communications book from Navarro on March 16, 2020 which stated:

Amidst the exponential spread of COVID-19, despite WHO’s announcement of a global pandemic, even the Ontario Public Health advising firmly everyone to stay at home, here I am continuing to give you access to [A.N.] (to avoid animosity and complaining) by putting his health and safety at a very high level of risk….But if the situation take a turn for the worst I will take necessary precautions at all cost to protect [A.N.]. So please understand, that it will be for his safety and health, that will benefit all of us. #wash hands before touching [A.N.] ALWAYS. #Avoid Kissing [A.N.]’s face.

[64] Navarro continued to write what might be considered “directives” in the logbook to Khavich which purported to advise him on safe distancing. She testified that these instructions were not intended to suggest he was not to be physically proximate to A.N. However, her messages were certainly not specific as to who then was intended to be excluded. It would seem reasonable to interpret her communications as aimed at Khavich. For instance:

March 18, 2020: “NO KISSES PLEASE.”

March 21, 2020: “NO KISSING [A.N.]”

March 23, 2020: “Please practice safe distancing to [A.N.] NO KISSING [A.N.]”

[65] The expansion of Khavich’s parenting time was delayed as a result of the pandemic and its impact on court operations. However, Khavich’s Saturday parenting time was eventually expanded from 12:30 to 5:30 by July 2020.

[66] Navarro moved from Orleans to Rockland during the summer of 2022. She moved with her mother and sister. She did not give advance notice of her intention to do so. She disputed this move would constitute a “relocation” within the meaning of the Divorce Act and for the purpose of this trial, and for other reasons, this issue does not need to be determined.

[67] Nonetheless, it is noted that the distance moved increased the travel time between Khavich home and Navarro’s home. While the exchange location was not changed at that time, the increased distance could have clearly inhibited the possibility of Khavich exercising a shared parenting regime. Prior to the move, Khavich was about 39 minutes away travelling by car. Now he was an hour’s drive away.

[68] Khavich, in response, moved as well. He moved his residence from Barrhaven to Gloucester. This allowed for him to be within a 30-minute drive to pick up and drop off A.N. in Rockland.

[69] The matrimonial home at 136 Sorento Street, Nepean was subsequently sold and the proceeds divided between the parties after some adjustments were made to reimburse Khavich for the payment of certain post separation expenses. Unlike the sworn financial statement of Khavich wherein it is possible to identify the deposit of moneys from the proceeds of the sale, Navarro’s updated sworn financial statement does not reflect that she has anything left of her share of the sale proceeds. Navarro testified that she used some of this money to purchase furnishings for her and A.N. but that she also loaned money to both her mother and her sister. She described the arrangement as a “loan” although I note that her financial statement does not identify that money is owed to her.

[70] Navarro enrolled A.N. in school in Rockland. Navarro studied and decided what school she felt was best for A.N. While it is suggested that Navarro “consulted” with Khavich at that time, it would seem that it would be better described as Navarro having presented her decision to Khavich after she had already determined she wished A.N. to be enrolled at the public school in Rockland. She then provided the form to Khavich to provide his contact information to the school. In my view, this meant that it was then up to him to object to her decision after the fact. That is not consultation. Notwithstanding, Khavich raised no objection.

[71] The parenting arrangement in place immediately prior to the trial of this proceeding had Khavich exercising parenting time with A.N. every alternate weekend and additionally every second Wednesday overnight and then every other Wednesday for a couple of hours in the evening.

[72] A.N. is now five years old. There have been no major issues concerning his health or his education. He is bright, curious and active. He has adjusted well to the school in Rockland he is presently attending and he has made friends. It is clear that both parties and their extended families love and are deeply committed to A.N. and that A.N. loves and is connected with both of his parents and extended family.

[73] Navarro completed a two-year health sciences diploma at Algonquin College in Ottawa. She then completed a two-year Registered Practical Nursing Program at Algonquin in the Spring of 2022. Navarro testified that she then did not pass one of the two exams which she was required to successfully complete in order to become eligible to practice as a registered practical nurse.

[74] She has worked part-time hours instead at Costco Wholesale earning a total of $27,797. for the year 2022 and then $7,300 for the year 2023.

[75] Navarro rewrote her final exam to quality as an R.P.N during the course of the trial. She hopes, if she is able to secure employment, to eventually move with A.N. and live independently from her mother and sister. She advises that in considering such a move that she anticipates moving A.N. to another school, if appropriate, at that time.

[76] Khavich introduced evidence that the prevailing hourly rate for a registered nurse in the Ottawa region was between $26.22 (low) to $48.69 (high). This information was published on the Government of Canada job bank website. No party objected to the accuracy of that information. Khavich wishes Navarro’s income to be imputed to her on the basis of this report and submit that an imputed income of $55,000 is appropriate.

[77] Navarro points out that she is qualified (subject to her passing the exam) as a registered practical nurse. She introduced her own statistics from the Government of Canada job bank website. Again, the parties did not contest the use or reliability of this information. This excerpt would suggest that the prevailing hourly wage for a registered practical nurse is more in the range of $24.25 (low) to $33.00 (high).

[78] Khavich’s income is set out on line 150 of his tax returns. His income for the 2023 income tax year was $103,464.56.

Analysis:

Parenting arrangement and decision-making:

[79] The issues in this proceeding are governed by the Divorce Act.

[80] The main legislative provisions that govern the parenting issues in this case are sections 16.1 to 16.4 of the Divorce Act, which outline the court's jurisdiction to make "parenting orders." The term "parenting order" encompasses two key concepts, namely "decision-making responsibility" respecting children and "parenting time."

[81] Section 2(1) of the Divorce Act defines the terms "decision-making responsibility" and "parenting time," which are the two key components of a parenting order, as follows:

decision-making responsibility means the responsibility for making significant decisions about a child's well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extracurricular activities

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time.

[82] Section 16.1(4) of the Divorce Act addresses the permitted contents of a parenting order as follows:

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

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

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

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

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

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

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

[84] Section 16.1(4)(a) directs that in making a parenting order, the court may "allocate parenting time in accordance with section 16.2." Section 16.2(1) provides that parenting time may be allocated by way of a schedule. Section 16.2(2) stipulates that the concept of parenting time includes the exclusive authority to make day-to-day decisions affecting the child during that time:

Day-to-day decisions

16.2(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4) (a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

[85] While Khavich and Navarro have agreed that there should be an order for a shared division of their parenting time with A.N., a consideration of A.N.’s best interests still needs to be addressed when determining the schedule for that parenting arrangement, the collateral parenting terms which remain in dispute, and the decision-making arrangement which should be set in place.

[86] Section 16(1) of the Divorce Act directs that I shall consider only the bests interests of A.N. in making a parenting order. This section directs that I give primary consideration to A.N.'s physical, emotional and psychological safety, security and well-being.

[87] Section 16(3) sets out the following factors that the court must consider in determining the child's best interests:

Factors to be considered

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[88] The wide array of factors relevant to the best interests analysis under the Divorce Act allows for a uniquely tailored analysis of the parenting issues, woven from the particular condition, means, needs and circumstances of the child whose well-being is under consideration. The weight that should be accorded to each factor will vary depending on the unique features of every child and case.

[89] Section 16.3 of the Divorce Act provides that the court may allocate decision-making responsibility in respect of a child, or any aspect of that responsibility, to either spouse, to both spouses, to another person authorized to seek a parenting order or to any combination of those persons. This provision gives the court a wide discretion to craft a tailor-made decision-making responsibility framework that supports and promotes the best interests of the child before the court, taking into consideration the unique facts of each case.

[90] The options available to me include the following:

1. I could grant sole decision-making responsibility in all areas to one spouse.
2. I could grant joint decision-making responsibility in all areas to both spouses.
3. I could grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
4. Alternatively, I could allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
5. Another option open to me is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement.

[91] In deciding on an appropriate decision-making responsibility regime, I am required to consider all possible frameworks, and not simply those proposed by the parties. Chomos v. Hamilton, 2015 ONSC 5208 (S.C.J.), at para. 109; Jackson v. Mayerle, 2016 ONSC 72 (S.C.J.); Ruffudeen v. Coutts, 2016 ONSC 3359 (S.C.J.)

[92] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 set out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:

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

[93] Chappell J., in McBennett v. Danis, 2021 ONSC 3610, conducted a thorough review of the case law and set out the factors which have historically been considered when determining what decision-making regime is in the best interests of a child. Those considerations included the following:

1. The strength of the parties' respective ties with the child;
2. The relative parenting abilities of each parent and the quality of their decision-making respecting the child are also important considerations;
3. A desire to ensure formal equality of influence between the parents is not in and of itself sufficient to support a claim for dividing up aspects of significant decision-making;
4. A history of family violence or any evidence suggesting that there is a significant power imbalance between the parties;
5. An order allocating aspects of decision-making between the parties will not be considered appropriate where the evidence indicates that one party is seeking this arrangement solely as a means of controlling the other parent, rather than as a means of fostering the child's best interests;
6. Is each parent able to place the needs of the child above their own needs and interests?
7. Will an order allocating areas of decision-making between the parties render it more likely to de-escalate the conflict between the parties or inflame it?
8. Are the parties likely to at least be able to navigate basic issues such as scheduling and interpretation of the order under a regime that separates out the various aspects of decision-making?
9. With respect to parental conflict, is one party the major cause of discord between the parties?
10. Is there evidence which would suggest that one or both of the parties will never be able to disengage from combat?
11. Is this an instance where one or both of the parties has a history of failing to comply with court orders or processes?
12. Is there a party who is interfering with or not supporting contact between the child and the other parent, alienating the child from the other parent or marginalizing the other parent's role: (a) Where the parent with primary care has engaged in this type of conduct, but that parent is otherwise very loving and competent, the courts have often considered a reversal of decision-making responsibility as too drastic a measure and have opted for a division of areas of decision-making as a means of protecting the other parent's role and influence in the child's life; (b) Where the non-primary parent is loving and attentive but has engaged in undermining or alienating behavior, this is often a factor that tips the scales in favour of sole decision-making responsibility to the other parent if they are also competent; and (c) If both parties are involved in severe alienating and undermining conduct, the court may conclude that neither can be trusted to exercise sole decision-making responsibly. In such circumstances, if both parties are equally competent and loving parents, allocating the incidents of parental decision-making between the parties may provide an effective means of keeping both of them in check, protecting the child from exposure to damaging parental conflict and ensuring that the child benefits from the contributions that both parents can make to decision-making;
13. The geographical distance between the parties is another factor that may impact on whether an order dividing the various areas of decision-making responsibility between the parties is in the child's best interests.

[94] No one factor listed in section 16(3) of the Divorce Act is dispositive, and not every parenting dispute will contain every factor. Each parenting dispute must be decided on its own facts, in relation to the factors that are present with the primary consideration being the child’s physical, emotional, and psychological safety, security, and well-being. M.Q v. R.C, 2022 ONSC 1753

[95] In giving consideration to the factors listed in section 16(3) I note the following in particular:

(a) A.N. is a healthy, well-adjusted, bright child. He has benefitted from the care, guidance, and love that both of his parents have provided to him to date. While he was a very young infant, there is no doubt that Navarro provided for most of his needs and the care she provided to A.N. was completely and indisputably appropriate. That said, A.N. has also since benefitted from the positive relationship that has more recently been fostered with Khavich. Unfortunately, I conclude that it has only been as a result of court intervention that A.N.’s relationship with Khavich was made possible. Khavich has demonstrated that he is, in my view, also capable of providing A.N. with the care, guidance and love that is consistent with A.N.’s physical, emotional and psychological safety, security and well-being;

(b) Both parties presently have a strong, loving relationship with A.N.;

(c) Navarro was demonstrated a reluctance to support the development and maintenance of A.N.’s relationship with Khavich. She did not advise him of A.N.’s birth and thereafter took steps which can only be interpreted as an intention to exclude Khavich as a parent. She registered the child’s birth without identifying Khavich as a parent. She obtained a passport for the child with Khavich’s knowledge or consent. She has made numerous important medical decisions without consulting or, in some instances, even informing Khavich. A.N. was already seven weeks’ old before Khavich was given the opportunity to meet A.N. and he had not even been informed of the name which had been unilaterally provided to him. This, in my view, supports a conclusion that Navarro was attempting to parent A.N. without Khavich’s involvement or at the very least, that she wished to minimize the role Khavich would play in A.N.’s life;

(d) While Khavich managed to compel a level of cooperation from Navarro through the intervention of counsel and by commencing this proceeding, Navarro has continued to struggle with recognizing that A.N.’s relationship with Khavich ought to be supported and that Khavich has a positive, important role to play in A.N.’s life. Even once she began to accommodate A.N. having parenting time with Khavich, she continued to make decisions concerning A.N. without first consulting Khavich. This would suggest she wishes to oversee the care of A.N. as a sole parent and she has only reached communicated on issues with Khavich when required. Navarro, in my view, has demonstrated by many of her words and actions, that she has not recognized that Khavich could contribute positively in decision-making for A.N.;

(e) Navarro has made decisions respecting A.N. which could have negatively impacted A.N.’s relationship with Khavich. Certain decisions, such as moving to Rockland and enrolling A.N. in school in Rockland, could have negatively impacted the ability of Khavich to exercise a shared parenting arrangement. Khavich had to take steps to ensure this would not happen by moving closer to Navarro’s new residence;

(f) Khavich has demonstrated that he is committed to parenting A.N. from the outset. In my view, he is a bright, informed, articulate young man whose contributions in the making of important decisions for A.N. could only benefit A.N. Notwithstanding, Navarro has not engaged Khavich when decisions needed to be made;

(g) Both parties are, in my view, individually capable of providing for the physical, emotional and psychological needs of A.N.;

(h) A.N. is too young to express views which could be provided any significant weight. However, based upon the evidence provided by the parties, A.N. seems comfortable and bonded with both Navarro and Khavich;

(i) Both parties have, during the course of this proceeding, demonstrated that they respect A.N.’s dual cultural and religious identity. Both articulated a commitment to respect and support A.N.’s learning and engaging in the cultural and religious traditions of the other;

(j) While I am satisfied that both Khavich and Navarro will attempt to comply with and carry out the terms of any order made in this proceeding, they have both reported that neither of them feel that they have been able to communicate and cooperate with each other such that they can effectively co-parent. I agree that they have struggled finding common ground. Ironically, both of them appear to be quite similar in their substantive approach to parenting A.N. The conflict happens when there is any expectation that they make the decisions together. While it is possible that the two of them will someday find a way to improve their ability to communicate with each so that they could work together in decision-making, I do not believe they are at the point where they could manage to do so without some mechanism in place for what is to occur if and when they are unable to agree; and

(k) There have been instances of conflict between the parties. However, no evidence led in this proceeding which would support a conclusion that there are family violence considerations impacting the ability of either of the parties to care for the needs of A.N. There has been inappropriate conduct and the extent of that evidence was outlined above. However, that conduct was not, in my view, of the nature that would impact the appropriateness of an order which would require the parties to cooperate on issues affecting A.N. and neither party has submitted that family violence is a consideration which impacts the best interests of A.N. in this instance.

[96] The parties in this proceeding are extremely fortunate. A.N. is reported to be a very bright, engaged, happy child. He is healthy. He has so much potential. He is very much loved by both of his parents who likewise are healthy and seem to have so much to contribute toward the care of a child. A.N. has the added benefit of extended family on both sides who clearly dote on him and who wish to be a part of his life.

[97] In this respect, the issues requiring my determination in this instance would be considered by many to be so minor in contrast to the struggles of most litigants in family proceedings. This court is frequently tasked with making decisions when there seems to be no ready solution to end the issues of poverty, addiction and conflict often permeating a child’s family constellation. Parents are often left to raise children as their sole means of guidance and financial support, without the benefit and support from extended family. We frequently see parents with mental health and addiction issues which seriously undermine their ability to parent. Sometimes it is the geographic distance between the parents which severely limits the options for parenting a child.

[98] None of those factors are present in this instance. For that reason, the parties need to understand how very fortunate they are in this respect.

[99] The fact that the parties have agreed that a shared parenting arrangement will be implemented for A.N. moving forward is, in my view, significant. I am satisfied, on the evidence, that both parties are capable of and committed to providing A.N. with the love, care and attention he requires. Both of them are capable of ensuring that A.N.’s physical, psychological and emotional needs are met.

[100] Additionally, both parties are prepared to a shared parenting arrangement which would implement a 2-2-5-5 split. Given A.N.’s young years, I consider this shared parenting arrangement to be the most appropriate for A.N. as it will ensure that he does not spend long periods of time away from either of his parents.

[101] Khavich asks that the 2-2-5-5 schedule accommodate the fact he has to work on Tuesdays at his place of employment when he works remotely from home during the other days of the week. This negatively impacts his ability to bring A.N. to and from school on Tuesday or to be as flexible with any needs arising on Tuesdays. Khavich’s other concern is that the alternate weekend he is to spend with A.N. needs to accommodate his father’s work schedule as his father works every second weekend.

[102] While Navarro agrees to a 2-2-5-5 parenting arrangement, she asks that she have A.N. with her on the Wednesday and Thursday rather than the Monday and Tuesday as this would better accommodate her ability to bring A.N. to church with her as he would be with her on an evening when church is scheduled. Navarro also maintains that it is not possible to accommodate Khavich’s father’s work schedule on the weekend Khavich’s father works. In her view the result would be that she would be deprived of weekend time with A.N. because of her present work schedule with Costco Wholesale.

[103] I am prepared, however, to prefer Khavich’s proposed schedule for a 2-2-5-5 split. I am firmly of the view that Khavich’s work schedule needs to be accommodated to best ensure he is able to oversee the transport of A.N. to and from school on Tuesday’s and maximizes his time with A.N. He should not have to rely upon Navarro’s family stepping in to assist with the Tuesday schedule as suggested by Navarro. This takes away from the time Khavich otherwise has with A.N. Some would say that the best quality time spent with young children consist of the time spent “discussing” the issues of the day while a child is “trapped” in their car seat travelling to and from school or activities. I do not feel it is reasonable to suggest that Khavich should delegate or even have to rely upon Navarro’s family to assist with caring for A.N. if he is unable to on the Tuesday due to work commitments.

[104] I am also not prepared to give preference to Navarro’s work schedule. Her evidence at trial was that she was attempting to find employment as an R.P.N, and not continue her shift at Costco Wholesale. She did not present evidence which satisfied me that she could not change her shift, and given her demonstrated reluctance to promote A.N.’s relationship with Khavich and his family, I am quite frankly concerned that even with a shift change, Navarro may not offer to make the change to the schedule in a manner which would accommodate that paternal grandfather’s schedule so that the paternal grandparents would enjoy greater time with A.N.

[105] While Navarro wishes to bring A.N. to church services on an evening in addition to the Saturday when he is with her, I am not satisfied that this is necessary given the very young age of A.N. or that this consideration should take priority over Khavich’s schedule. Navarro testified that A.N. would often sleep during the service in any event and I do not accept that there is sufficient benefit to A.N. in attending this mid week service.

[106] The parties have also been unable to agree upon an arrangement to address holiday time. More specifically, they have been unable to resolve the manner in which they divide parenting time around any religious holidays and this therefore also needs to be addressed.

[107] I credit both parties for demonstrating a respect for the other’s cultural background and religion. I am satisfied both of them recognize the need and benefit of A.N. being exposed and learning his unique identity. I conclude that to the extent to which any religious holidays conflict such that they would be celebrated on the same day or weekend, that the weekend/period over which the religious holiday is scheduled be divided equally between the parties unless the parties agree in writing to a alternate arrangement.

[108] Khavich wishes that there be an order restricting travel with A.N. by Navarro as he submits that there is a risk that she intends to return to the Philippines to reside and it is not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). Navarro asks that there be no restriction on her travel with A.N. She alternatively suggests that Khavich has family in countries that may not be a signatory to the Hague Convention and asks that he be so restricted as well.

[109] I have expressed concern with how Navarro conducted herself in the first half year of A.N.’s life. She very clearly sought to exclude Khavich from A.N.’s life. Given the fact that she obtained a passport for A.N. within a month of his birth without his consent and without his being identified as the father, prior to Khavich meeting the child, it is not surprising that Khavich takes the position that he is concerned that Navarro will attempt to remove A.N. and return to reside in the Philippines. I have concerns, based upon the evidence, that Navarro was indeed considering the option of removing Navarro to the Philippines in the early days following A.N.’s birth. Navarro denies this to be the case and maintains that she was simply securing a passport for A.N. so that she could “vacation” with A.N. but this is not a credible, plausible explanation, in my view, given that the child was a newborn, no actual “vacation” was planned, and she was taking these steps while maintaining at the time that she was not well enough to manage to even communicate with Khavich and inform him that their child had been born.

[110] I am not satisfied at present that there is any great need for either of the parties to travel out of country with A.N. I believe that the parties need to become acclimatized to the shared parenting arrangement. I hope the passage of time will foster a better level of trust between the parties as they feel greater security from their continuing involvement in A.N. upbringing.

[111] That stated, I consider it to be in A.N.’s best interest to restrict Navarro from travelling with A.N. outside of Canada without first obtaining the express written consent of Khavich. Either party may request that there be a review of this travel restriction by the court following the two-year anniversary of this decision. My hope is that as A.N.’s bond is solidified with both parties, that neither will conclude that removing the child without the other’s consent is appropriate or in the best interests of A.N. I am also of the view that as A.N. ages and becomes more articulate and worldly, he is less likely to succumb to either parent making decisions for him that would effectively remove him from the life of the other.

[112] I am not imposing the same travel restriction upon Khavich as there was no evidence led which would suggest he might remove A.N. from Canada other than for temporary travel with A.N. and I am aware that he wishes to be able to vacation in the U.S. with A.N. This would not be unreasonable. In this event, he is to notify Navarro and provide the particulars of any travel plan 90 days in advance of such travel. A.N.’s passport is to be held by Khavich pending further order.

[113] It is my hope that, with time, the parties will rebuild a level of trust between them such that both can travel outside of Canada with A.N. and that this will be agreed upon and even encouraged.

[114] The Respondent moved to Rockland with the child in July 2022. The Applicant objected to the move and viewed it as a relocation under the meaning of the Divorce Act. He is seeking various parenting terms because of this issue but he is not asking for an order that Navarro move A.N. from Rockland. Navarro does not agree that her move to Rockland constituted a “relocation” within the meaning of the Divorce Act. Notwithstanding her position, she does not oppose there being terms of restriction imposed respecting future moves, given the parties are commencing a shared arrangement.

[115] For the sake of ensuring that the shared parenting arrangement is workable, I believe that a restriction on the ability to move A.N.’s residence by either party is appropriate, reasonable and in A.N.’s best interest. The parties presently reside within 40 km of each other. I consider it appropriate that neither of the parties move their residence for A.N. a distance larger than what is presently in place, absent the consent from the other obtained in writing and in advance of committing to or making any such move.

[116] Similarly, and with the ability to maintain a shared parenting arrangement for A.N. which is not disruptive to A.N., neither of the parties are to change A.N.’s school without the other’s prior consent and agreement.

[117] Khavich seeks an order providing that the parties jointly make decisions for A.N. He asks that the decision-making responsibilities be divided between the parties in the event of a disagreement so that one of them has the final say on issues concerning A.N.’s education, and the other has the final say on issues concerning medical decisions which need to be made on A.N.’s behalf.

[118] Navarro seeks an order providing that she will consult with Khavich on all decision-making for A.N. and that she will take into consideration Khavich’s views. However, she asks that she solely have the final say with respect to decision-making for A.N.

[119] With respect to Navarro’s proposal, she has asserted that she is prepared to consult with Khavich on all issues prior to making any decision. However, the evidence at trial clearly supports the conclusion, in my view, that she has not consulted with Khavich in the manner which would be desired. Initially, she excluded him altogether. While this was corrected, she has been prone, in my view, to making decisions and then advising Khavich, maintaining that it would then be his prerogative to oppose her decision. This is what occurred when she chose A.N.’s school. This is not a “consultation” in my view.

[120] In my view, it would be in A.N.’s best interest that each party make the daily decisions for A.N. when A.N. is in his or her care.

[121] With respect A.N.’s extracurricular activities, based upon my conclusion with respect to shared arrangement, and the fact that A.N. is still very young, either party may arrange for A.N.’s involvement in after school activities on their scheduled time. Any scheduled activity which needs to occur over days in which A.N. is with the other party is not permitted except with that other party’s consent. I am confident as A.N. matures, that both parties will be able to reach a consensus on what works best for A.N. However, that being the case, I do not believe that it would be reasonable or necessary in these circumstance to permit either of them to impose activities on the other during their time with A.N. without the other’s consent to do so.

[122] I have concluded that with respect to decision-making on issues concerning A.N.’s medical and health care needs and his education that either party is capable of making those decisions as needed in A.N.’s best interests. I also think both of the parties seem to actually agree upon the major decisions which have been made for A.N. to date and that they have not theoretically been far apart in their views as to what might be best for A.N. at any given point in time. On this basis the decision-making should be joint.

[123] That said, the conflict has arisen as a result of the process by which any major decisions have been made to date for A.N. Those decisions have principally been made by Navarro without proper advance consultation or involvement of Khavich. This has driven the conflict in my view. This needs to change. I therefore am not prepared to grant Navarro’s request that she have sole decision-making authority for A.N.

[124] While I do not rule out the possibility that with some effort, both parties could successfully make all important decisions together, I also recognize that the level of conflict between them necessitates their being a mechanism in place in case they do not agree. Therefore, the final decision-making authority over A.N.’s medical and health care needs shall be joint but if, after consultation and discussion, the parties are unable to agree, then Navarro shall have the final decision-making authority over matters which concern A.N. medical and health care needs. The final decision-making authority over A.N.’s education shall also be joint. However, in the event the parties are unable to agree, after consultation and discussion between them, then Khavich shall have the final decision-making authority of such matters.

Child support:

[125] The parties agree that child support is payable for the support of A.N. pursuant to section 15(1) of the Divorce Act.

[126] Child support has been paid up to December 1, 2022. The parties agree that there is owed an amount for retroactive support once the child support table amount is adjusted to reflect Khavich’s line 150 income. It has now been calculated that $1,089 is owed retroactively once the table amount has been adjusted to reflect his actual income. The support is easily calculable given that at that time, the parties were not in a shared parenting arrangement.

[127] Moving forward, the parties have agreed that, with the shared parenting arrangement, there should be a set off of the respective amount each would pay the other pursuant to the Child Support Guidelines (the “Guidelines”). I agree that in the circumstances, this would be the appropriate approach to the child support calculation. The parties are both sharing equal physical parenting time of A.N. and they are both attempting to establish themselves independently as single parents to A.N. A set off of the respective amount each would pay the other would effectively equalize the support available for A.N.’s daily care.

[128] The issue in contention is whether it is appropriate to impute income to Navarro on the basis she is under-employed.

[129] Khavich asserts that Navarro is under-employed and asks that an income be imputed to her in the amount of $55,000. Navarro maintains that at best, a minimum wage should be imputed to her, being $31,304.

[130] Income tax returns are a starting point for determining a parent’s annual income, but the court may impute additional income.

[131] Section 19 of the Guidelines sets out a non-exhaustive list of circumstances under which the court may impute additional income to the payor. These include circumstances in which it is found that a spouse is intentionally under-employed where the under-employment is not required by the needs of a child of the marriage or by the reasonable educational or health needs of the spouse.

[132] A court cannot select an arbitrary figure as imputed income. Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 44

[133] In Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 36 Lang J.A. for the court held that:

When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.

[134] Given that the parties are only now transitioning to a shared parenting arrangement, and given that Navarro is not advancing a retroactive claim for section 7 special expenses, Navarro’s past income is not, to a great extent, relevant. However, her efforts to obtain her qualifications as a registered practical nurse up until trial, and any delay (not related to the needs of A.N. or due to her educational or health needs) do inform, to a degree, whether there should be a finding that Navarro is now underemployed and whether income should be imputed to her.

[135] Navarro has a duty to seek employment and maximize her ability to contribute toward the support of A.N. A.N. is now attending school. He does not have any special needs. Navarro does not have other children which otherwise limit her ability to work. She completed her schooling in the Spring of 2022. Save and except her needing to study in an effort to pass an exam to gain her qualifications as an R.P.N, she should be able to work. Even accepting the need for Navarro to continue to study to pass the final exam to qualify as an R.P.N, I am not satisfied that Navarro could not have increased her hours of work at Costco Wholesale or made the appropriate effort to find other employment at a retailer which would offer her full-time hours.

[136] In my view, Navarro did not properly establish, with evidence, that she has made reasonable efforts to work to her full potential and to contribute to the extent she is capable of doing so toward the support of A.N. While it is understandable that Navarro required time to regroup and prepare to rewrite her nursing exams, I am not satisfied she took these steps within a reasonable timeframe. Once A.N. was enrolled in school, it is difficult to accept that Navarro could only work part time hours for the past year or that she could not write her exam at an earlier date so as to improve her ability to earn a living.

[137] In my view, Navarro could have found other equivalent employment in retail which would have facilitated her working full-time hours, or if she had pressed forward and completed her nursing qualifications, Navarro could have increased her earning competitiveness. I am prepared therefore to impute a salary of $40,000 per year to Navarro which is what I conclude she could have earned in either scenario.

[138] As such, for the purpose of calculating child support moving forward, Navarro’s income shall be based upon her line 150 income from the prior tax year, or an imputed income of $40,000 whichever is the greater.

[139] The only s.7 expense which has been agreed upon by the parties is for A.N. to continue his participation in soccer. The parties should divide the cost of his soccer enrolment on a pro rated basis in accordance with Khavich’s line 150 income from the prior tax year and the greater of Navarro’s line 150 income from the prior tax year or an imputed income of $40,000. Neither party shall be entitled to contribution from the other for any additional s.7 expense without the other party’s prior consent, which consent should not be unreasonably withheld and is to be determined by the parties after they have consulted with one another respecting the reasonableness of the expense when considered against the positive benefit the activity lends to A.N.

Disposition:

[140] On the basis of the above, the following order should issue:

(1) The parties shall have a shared parenting arrangement with A.N. based upon the 2-2-5-5 schedule which was entered as part of Exhibit 73 at the trial EXCEPT that the schedule for Khavich’s time shall be as shown in pink and the schedule for Navarro’s time shall be as shown in blue.

(2) Any religious holidays which conflict such that they would be celebrated on the same day or weekend, that the weekend/period over which the religious holiday is scheduled shall be divided equally between the parties unless the parties agree in writing to an alternate arrangement;

(3) Navarro shall not remove A.N. from Canada without Khavich’s consent in writing. Either party may request that there be a review of this travel restriction by the court following the two-year anniversary of this decision.

(4) A.N.’s passport shall be held by Khavich. Khavich shall have the authority to update A.N.’s passport as necessary.

(5) If Khavich intends to travel outside Canada with A.N. he shall provide Navarro with 90 days’ notice of his intention to do so and provide the particulars to her of any intended travel and agenda.

(6) Neither party shall move their residence for A.N. a distance larger than what is presently in place, being approximately 40 km distant, absent consent in writing and in advance from the other party.

(7) Neither of the parties are to change A.N.’s school without the other’s prior consent and agreement.

(8) Both parties will continue to make the daily decisions for A.N. when A.N. is in his or her care.

(9) Either party may arrange for A.N.’s involvement in after school activities on their scheduled time. Any scheduled activity which needs to occur over days in which A.N. is with the other party is not permitted except with that other party’s consent.

(10) The final decision-making authority over A.N.’s medical and health care needs shall be joint but if, after consultation and discussion, the parties are unable to agree, then Navarro shall have the final decision-making authority over matters which concern A.N. medical and health care needs.

(11) The final decision-making authority over A.N.’s education shall also be joint. However, in the event the parties are unable to agree, after consultation and discussion between them, then Khavich shall have the final decision-making authority of such matters.

(12) There shall be an order that Khavich pay to Navarro the sum of $1,089 for support owing retroactively to the date of trial.

(13) Support shall be calculated a set off of the respective table amount each would pay the other pursuant to the guidelines. Navarro’s income shall be based upon her line 150 income from the prior tax year, or an imputed income of $40,000 whichever is the greater.

(14) The parties shall contribute on a pro rata basis according to their respective incomes to the cost of A.N.’s soccer as a section 7 expense. Navarro’s income shall be based upon her line 150 income from the prior tax year, or an imputed income of $40,000 whichever is the greater.

(15) Neither party shall be entitled to contribution from the other for any additional s. 7 expense without the other party’s prior consent, which consent should not be unreasonably withheld and is to be determined by the parties after they have consulted with one another respecting the reasonableness of the expense when considered against the positive benefit the activity lends to A.N.

(16) The parties have also agreed upon a number of additional terms which should be incorporated into the final order on a consent basis, including the divorce. Counsel are asked to remit for my review a draft order which incorporates those terms into a final order with those above set out as my disposition within 30 days. If they are unable to arrive at a draft order which is approved by both counsel, then they are to remit their proposed draft order within that time frame and I will settle the terms.

[141] If the parties are unable to settle the issue of costs between them, they may provide written submissions to me. Submissions shall not exceed 3 pages, excluding bills of costs, offers to settle, and case law. Khavich’s submissions shall be delivered within 30 days, and Navarro’s submissions shall be delivered within 45 days, with ten days to reply by Khavich.

M. Fraser J.

Released: September 10, 2024