Court File and Parties

NEWMARKET COURT FILE NO.: FC-23-2025 DATE: 20240904 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Xue Li, Applicant AND: Henry Ho, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Elan Mendelsohn, Counsel for the Applicant Erika Jacobs, Counsel for the Respondent

HEARD: August 28, 2024

Ruling on Motion

[1] There are two motions before the court. The applicant mother (“the mother”) seeks an Order for a broad range of parenting relief (principally sole decision-making responsibility) and for child support. The respondent father (“the father”) opposes some of the relief sought by the mother but, in turn, seeks sole decision-making responsibility. The children are a daughter, IH, who is six and a half years old and a son, CH, who will be five years old this November.

[2] The parties are not married. They dispute when they began cohabiting: the mother says the date was June 1, 2016, whereas the father says that the date was on or around July 30, 2015, a year earlier. Nothing turns on that. Both agree that they separated on August 10, 2022, and that since then the children have continued to live with their mother in a residence owned by her and in which the parties, their children and the maternal grandparents lived before separation. The father lives in a home owned by his father and also occupied by his sister. The children reside with their mother during the weekdays and with their father every weekend from Friday late afternoon/early evening until Monday morning. Without putting too fine a point on it, the children spend six overnights with their father six every two weeks. [1] The mother is a realtor: the father is self-employed as a project manger in home construction working for his family company.

[3] Before argument of the motion, the court indicated to the parties its general views of the issues to help frame submissions from counsel and also invited the parties to discuss those views with their advisers to ascertain whether any of the issues might benefit from further negotiation. For example, the mother’s motion had requested an Order dealing with school choice for this September, to which request the father said he had agreed, although reluctantly, before the mother brought her motion (she disagrees). There were other parts of the relief sought by the mother that did not appear to be disputed. The parties took the opportunity to negotiate further. This resulted in their reaching a consent on many terms, but four issues remained outstanding. They are:

(a) Decision-making responsibility. (b) Parenting Time. (c) Child support (including imputing income to the father). (d) Costs.

Decision-making responsibility

[4] The mother’s evidence is that she was the children’s primary caregiver before the parties separated and, after separation, continued in that role because the father was a “laissez-faire” parent (her term) who was “lazy” (her term again); in other words an indifferent parent who, certainly after separation, prioritized the children spending time with him and his family rather than following the more structured schedule she preferred, which was to ensure the children’s “maximum contact with their peers and teachers.” The father did not “heed general safety precautions or best practices” (those never defined) and did not bother to check school emails or ignored them. The mother expressed frustration with the father ignoring her efforts to reach out to schedule activities for the children in a timely way and she complained that, since these proceedings began, he had “suddenly become interested in decisions about the children,” which she viewed as detrimental to them. He could be opinionated and combative.

[5] The father submitted that the mother’s description of his parenting was inaccurate. For example, she wanted the children to be involved in structured activities during times when the children could be spending time with him and his extended family during this past summer. The mother also arranged for the children to be baptized in the Roman Catholic church (she is Catholic; the father is Buddist) in September 2023. He was not informed about that until December 2023. In her reply, affidavit the mother avoided answering this directly saying that the father “never indicated that the children could not be baptized or practice Christianity with me. There is no ban on baptisms for Buddists so this did not adversely impact the children if they choose to pursue Buddhism instead.” Tone deaf.

[6] Although the father was not in favour of Montessori schooling for the children (citing its unaffordability) he paid their cost until December 2023. He paid for the children’s soccer and gym. He was not in favour of IH attending a Catholic separate school, preferring instead a public school, but he agreed with the mother’s choice (although the parties disagree whether this was before or after she started her motion).

[7] These are not the only differences in the parties’ narratives.

[8] In her case conference endorsement dated April 15, 2024, Daurio J. emphasized that the parties needed to work together for the sake of the children, that “[n]o one should be making unilateral decisions unless there is an agreement or Court Order for sole decision-making.”

[9] Part III, Section 18 of the Children’s Law Reform Act (“the Act”) defines “decision-making responsibility” as follows:

18 (1) In this Part,

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extra-curricular activities;

[10] Sections 20(1) and (4) of the Act provide as follows:

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

20 (4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

[11] In this case, neither party has raised the rebuttable presumption in s. 20(4) respecting the mother’s entitlement to exercise sole decision-making responsibility given that the parties separated two years ago and the current parenting time arrangements have, more or less, remained constant throughout. However, the fact is that there are no significant decisions involving the children’s welfare, such as those in s. 20(1) (a) to (d) of the Act, upon which the parents have been unable to agree at this time despite the mother’s claims (which the father denies) that he either ignores her, responds in an untimely manner or may disagree with her.

[12] Until further Order of the court or written agreement between the parties, they should share decision-making responsibility for the children. In the event that a significant decision needs to be made, the mother (as the parent with whom the children reside most of the time) shall give the father forty-eight hours notice of the issue with a brief, non-argumentative, explanation for the proposed decision. If the father does not respond (in a non-argumentative fashion) within that time the mother may make the decision. If the father disagrees, the mother has leave to bring a 14B motion on four days’ notice to the father for an Order. The “decision” issue must involve a matter of significance, an urgent matter or one that requires (at least) a resolution within twenty-one days.

[13] In her case conference endorsement, Daurio J. directed the parties to use an internet communication service. Any issue and/or disagreement will be recorded through this service for court reference should the need arise. Daurio J. also encouraged the parties (as does this court) to attempt mediation on the parenting issues.

Parenting Time

[14] Since separation, the children have resided with their mother during from Monday to Friday and with their father every Friday after school (or around 3:30 pm) until Monday morning. The mother’s evidence is that issues arose when the father began to withhold the children from school on Monday mornings to spend time with him and, because he was “lazy” and because the children’s schools were in two different locations, he would only drive one child to their school location She was concerned that without a court Order, this would continue to happen. She wanted the children returned to her Sunday evening. The father disputed the mother’s evidence. During argument, he submitted that he was not averse to the mother having a full weekend with the children (which was an issue that the parties had discussed out of court) but that should not operate to reduce his parenting time. The mother proposed Thursdays after school to the children’s return home that evening during the week preceding their weekend with her and Tuesdays and Thursdays the week following, also from after school to the children’s return to their mother’s residence in time to get them ready for bed.

[15] While the father proposes, and the mother opposes, an expansion of the father’s parenting time beyond what now occurs, the court’s view is that the children should have at least one uninterrupted weekend with the mother and that the father should have overnight parenting time on the Thursdays before that weekend and on the Monday or Tuesday following that weekend, the choice of day to be agreed by the parties and fixed.

Child support

[16] The mother seeks to impute to the father an income of $175,000, which would result in table support of $2,377 a month being paid. She has also claimed s. 7 expenses totalling $12,590 a year comprising gymnastics for IH ($3,067), soccer for IC ($863) and Montessori ($8,660). [3] She earns $33,279 a year, although the father disputes that figure.

[17] Apart from paying for his equal share of the children’s Montessori schooling from August 2022 to December 2023, the father has not paid child support. In three successive financial statements (February 9, 2024; April 5, 2024; and August 14, 2024) he has claimed that he is unemployed. This is untrue. In his affidavit the father claimed that he “had learned the business of project managing and home construction working for my family company” and that, with his brother, he had started a business in August 2022 (now “on hold”) involved in renovating, renting and then refinancing properties. He planned to return to the family business in September 2024, but he provided no further information about what would be his job function or remuneration. The court should not be obliged to guess. An investment property co-owned by the father and his brother had just been sold.

[18] In the court’s case conference endorsement made on April 15, 2024, Daurio J. observed that while both parties “have significant assets and expenses [they] claim to earn very little (to no) income. They are both self-employed and each has a lot of explaining to do.” I agree. For example, in the father’s February and April financial statements his annual expenses exceeded his income by about $107,000 (i.e., $6,603 income and $114,000 expenses) with no corresponding increase in debt. In his August financial statement, after he had sold the investment property co-owned with his brother, the father repaid over $37,000 in credit debt but his expenses still exceed his declared income by about $46,000 (i.e., $36,048 income and $82,000 expenses) and there has been no appreciable decrease in his net worth.

[19] Ms. Jacobs submits that a one-time capital sale should rarely be considered income for support purposes referring the court to McPherson v. McPherson, 2023 ONSC 5643, at para. 70. That case is distinguishable on its facts. The spousal parties had bought a farm as an investment. In this case, the acquisition of the investment property by the father and his brother was pursuant to a business plan. More than one property was contemplated. Moreover, McPherson was a trial decision where there was a far more robust evidentiary record than available to this court on a temporary motion.

[20] An opaque excess of expense over income unmatched by increase in debt must lead inevitably to an inference of income available for support purposes which must, in turn, be grossed-up to a pre-tax equivalent. There is some element warranting a Drygala imputing of income to the father [5] and grossing up the father’s excess expenses (about $48,000) over his declared income (say $36,000). This results in an income attributable to the father of $101,004, say $101,000, a presumptive table support amount of $1,484 and s. 7 support of $789 for total child support monthly of $2,273. Given that the mother’s calculations did not take into account any tax-deductible amount for Montesorri and the fact that the children’s time with their father exceeds (although slightly) 40% of the time (which the mother disputes but which argument can be better developed for trial), it is my view that on a temporary basis, the father should pay child support of $2,150 a month starting August 1, 2024. Any issue with respect to arrears of child support before that date, including payment credits to the father, are reserved to final adjudication.

Costs

[21] At the outset of the hearing, counsel advised what they would be seeking in costs. The mother advised that she would be seeking costs of $12,000; the father advised that he was seeking costs of $15,000.

[22] There was in a very real sense of FLR 24(6) divided success. The father prevailed on the issue of decision-making responsibility, the court accepted neither party’s position on the issue of child support, a compromise position on parenting time was ordered and the parties successfully negotiated out of court several claims for relief by the mother that were either never contested or which should have been easily resolved without the need to seek those on a motion as their outcome should have been obvious.

[23] No costs shall be awarded to either party.

Disposition

[24] The following is ordered:

(a) The parents shall share joint decision-making responsibilities. Excepting an emergency, in the event of a significant decision needing to be made as generally set out in, although not restricted to, the decisions set out in s. 18 of the Children’s Law Reform Act (as above) the mother shall provide the father with written notice of the decision needing to be made. If the father fails to respond within 48 hours, the mother shall make the decision. If the parties cannot agree, either may move by 14B motion to the court on four days notice to the other party for directions and/or an Order. Costs will be assessed against a party found to have been acting unreasonably. The parties are encouraged to mediate or engage a parenting coordinator instead of court.

(b) The children shall primarily reside with their mother every week from Monday to Friday and the third weekend every month. The children shall have their secondary residence with their father every weekend (except for the weekend when they will be with their mother) from Friday (3:30 pm) to the children’s return to school on the following Monday morning (or Monday evening at 6 pm if the Monday is a holiday). The children shall spend the Thursday before the weekend with their mother and the Monday or Tuesday following that weekend with their father from after school (3:30 pm) until their return to school the next morning. The parties shall choose the Monday or Tuesday overnight upon receipt of this Ruling and shall maintain that date until further Order or written agreement between them.

(c) The mother shall hold all the children’s important documents, including, but not limited to, their passports and vaccination records.

(d) The children’s passports shall be renewed before their expiry. The mother shall complete the paperwork and the father shall sign the paperwork within seven days of being presented with the paperwork, failing which the mother is hereby authorized to sign any renewal without the father’s consent.

(e) The parent starting their parenting time shall be responsible for picking up the children from school or from the other parent’s home if the children are not in school that day.

(f) Both parties shall take the children to their respective daycare/school on Monday Morning when the children are under their care.

(g) The parties shall facilitate reasonable videoconference parenting time with the children at a frequency and duration not less than twice a week for the father and once on Saturdays for the mother or the father as the case may be if the children are spending weekend time with the other parent.

(h) The father shall pay $2,150 monthly child support starting August 1, 2024, and continuing on the first day of each succeeding month until varied by court Order or written agreement of the parties. This amount is based on the father’s imputed income of $101,000 and the mother’s income of $33,729.

(i) The determination of any claim involving child support payable prior to August 1, 2024, including credit for payments made, is reserved to final disposition.

(j) A Support Deduction Order shall issue.

(k) No costs.

Date: September 4, 2024 Justice D.A. Jarvis

[1] The overnight ratio suggests that the children spend not less than 40% of their time with their father, a “shared parenting time” arrangement within the meaning of the Ontario Child Support Guidelines, O. Reg. 391/97. The mother claims that using overnight time does not lead to a “shared parenting” outcome.

[2] R.S.O. 1990, c. C.12, as am.

[3] The father agreed to contribute to these expenses, although the court queries whether gym and soccer qualify as s. 7 expenses and are not captured by the table child support amount.

[4] 2023 ONSC 5643, at para. 70.

[5] Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A).