Court File and Parties
COURT FILE NO.: FC-21-206 DATE: 2024/09/13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Ashwaq Abdul Ridah, Applicant – and – Mohamed Kandil, Respondent
COUNSEL: Paul Riley, for the Applicant Self-Represented, for the Respondent
HEARD: January 24-26, 29-31, 2024, May 15, 2024 and June 28, 2024.
REASONS FOR DECISION
LABROSSE J.
Overview
1This trial began on January 24, 2024 and proceeded for seven days with most of the relevant evidence provided by the Applicant mother and the Respondent father.
2This application deals with the divorce of a married couple with two children, Z.K. who is 10 years of age and I.K. who is 9 years of age.
3The main issues are decision-making for the children, the Respondent’s parenting time, income for support purposes, child support arrears, prospective child support, the date of separation and the equalization of net family property.
4At the conclusion of trial, the Respondent’s circumstances for parenting time were still unstable. He had not moved into a residence where his parenting time could take place although a lease was signed. The most recent Children’s Aid Society (“CAS”) investigation was closed with verified parenting issues which necessitated supervised parenting time for the Respondent until the Applicant could satisfy herself that the children were safe. At the conclusion of the trial, the Applicant consented to the Respondent having limited unsupervised parenting time with the children one night per week during the summer.
5The court cannot make a final decision on the Respondent’s parenting time. Justice Labrosse will remain seized of the issue until such time as the Respondent’s parenting time can be properly assessed, including his new residence and transportation issues. Time is required to allow the Respondent to set up a residence for his parenting time and then resume a gradual stepped-up parenting time schedule with the children.
6For the reasons set out herein, the court concludes that it is in the best interests of the children that the Applicant mother have sole decision-making authority for the children, that the Respondent father have access to all information pertaining to the children and that he be consulted on all major issues. The Applicant’s claim for retroactive child support is made out and the Respondent shall be imputed income at the greater of his line 15000 income on his Notice of Assessment or minimum wage (whichever is the greater) since the date of separation. The Respondent will be credited for payments accepted by the court.
7As for the date of separation, despite the conflicting evidence, I conclude that the parties finally separated on February 20, 2018. As such, the Applicant owes a modest equalization payment to the Respondent.
8Unless the parties can agree otherwise, the Respondent’s parenting time shall be subject to the ongoing Case Management by Justice Labrosse and a Case Conference will be scheduled. The parties will also provide updated calculations for child support arrears since the date of separation and the proper amount based on minimum wage income to determine prospective child support.
Background
9The parties met in 2009 while the Applicant was in Kuwait for a one-year employment term. They married in Cairo, Egypt in 2011. The Applicant returned to Canada and sponsored the Respondent who arrived 18 months later in October 2012. There was a religious marriage while in Cairo, but there was no civil ceremony in Canada.
10In January 2013, the Applicant found out that the Respondent may be cheating on her. He had a dating application and was meeting women. He would introduce himself as a single man looking to meet women. In February 2013, the Applicant found out she was pregnant. The pregnancy had complications. At first, there were issues with the umbilical cord and a risk of Down Syndrome. The Applicant did not want to get an abortion. The parties reconciled at some point in August-September 2013. Z.K. was born in the fall of 2013. Although he was not diagnosed with Down Syndrome, he had further health complications. The hospital diagnosed a genetic disease known as phenylketonuria (“PKU”) resulting from an elevated level of amino acid which can affect the brain.
11The parties separated shortly thereafter in December 2013 and signed a home-made separation agreement. Neither party had independent legal advice. In January 2014, they resumed their relationship, and the Applicant found out that she was pregnant with their second child, I.K., who was born in the fall of 2014.
12The assessment of the early years of the relationship is challenging due to the lack of precision in the testimony of both parties. The best evidence was provided by the Applicant who testified that after reconciling in early 2014, the parties were on and off. They would separate every 4-5 months and then reconcile. During this time, they had separate residences with the Applicant renting at unit 12A on Letourneau Street in Ottawa. The Respondent lived at several different residences until 2016 when he purchased the multi-unit building at 37 Lucien Brault in Gatineau. The Applicant testified that the Respondent was spending most of his time at her residence.
13The evidence is overwhelming that the Applicant has been the primary caregiver, solely responsible for the children’s health, education and activities. In particular, the Applicant has dealt with a number of complex medical conditions for Z.K., while the Respondent had little or no involvement. The Applicant testified that she was in and out of hospitals with Z.K. during the early years of his life.
14Z.K. is described by the Applicant as being creative as he likes to build things from scratch. He likes to play with the magnetic alphabet and will name all the planets. He likes rocks and how they interact with each other. Z.K. is very shy, not social and needs encouragement to meet friends. He has overcome most of his physical challenges and now the Applicant has concerns about his anxiety. Z.K. is described by the Applicant as her hero.
15I.K. was born in the fall of 2014 and according to the Applicant, her early years were less intense than her brother’s, as she has not had the same health challenges. I.K. is stubborn and not a morning person. She must be dragged out of bed and says that she just fell asleep. She prays and attends private school to learn Arabic. She is very intelligent and enjoys ballet and gymnastics. I.K. is described by the Applicant as her princess.
16Both children attend an Islamic private school which the Applicant describes as one of the top five private schools. They embrace their culture and are encouraged to do so with classmates. They pray five times a day and, this year, Z.K. will fast for the first time.
17Both children are very close to the Applicant’s two older children from a previous relationship. The Applicant also has a younger child with her current partner. They all live in a large home where each child has their own bedroom. The children are also close with their maternal grandmother who visits every 4-6 months and will stay for up to five months at a time.
18As for the Respondent, the role he played during the children’s early years was peripheral at best. To a certain extent the Respondent does not dispute this. He testified that he was still quite young when the children were born and had not lived in Canada for very long. He was not familiar with how to navigate local services, such as health care and education, allowing the Applicant to take the lead in those areas.
19The Applicant’s evidence is that the Respondent’s parenting time has been very limited. However, her evidence has also been inconsistent as she has, at other times, attempted to demonstrate that during the period from 2013 until 2018, the parties were a family at times subject to certain periods where they separated. The Applicant describes them as a family since 2014 and this is supported by many of the photos entered into evidence. At the same time, she describes the Respondent as distant and not playing an active role in the lives of the children.
20The Respondent challenges this evidence and states that he had the children with him more often than the Applicant suggests. Where their evidence conflicts, I prefer the evidence of the Applicant.
21The Applicant’s evidence is consistent with the notion that the Respondent was not around in the early years of the children’s lives and that she took care of them on her own. This evidence was supported by the Applicant’s adult daughter.
22When looking at the totality of the evidence, the Respondent's role in the children's lives is that of an access parent. I accept the Applicant’s evidence that he has not been involved in Z.K.’s health issues and he has not been involved as an active parent in the children's schooling. He is seen as the fun dad. His photographs suggest that he has a good relationship with his children who have fun when he is with them. The Respondent filed hundreds of photographs of himself with the children throughout the years, suggesting that he is able to meet their basic needs during his parenting time. His evidence does not suggest the role of a primary parent.
23It is in the context of this background information that I must now turn to the relevant issues before the court and the applicable law.
Issues
24The following issues are raised by the parties and require adjudication:
a. Date of Separation b. Decision-Making c. Respondent’s Parenting Time d. Income for Child Support e. Child Support Arrears f. Prospective Child Support g. Equalization of Net Family Property h. Other Relief Requested in Draft Orders
Date of Separation
25On December 19, 2013, the parties signed separation agreement requiring the Respondent to pay child support in the amount of $170 per month commencing on January 1, 2014. That agreement did not address access or other parenting issues. There is no evidence that the parties abided by the separation agreement for any period of time. The Applicant stated that the parties reconciled in January 2014 and going forward they were a family during the birth of the second child subject to a number of unidentified periods when they were on and off for various periods of time.
26At certain times following the reconciliation in 2014, the Applicant filed tax returns and made applications for social benefits representing herself as being separated.
27There is also evidence that the Respondent made a number of e-transfers to the Applicant in 2017. The Respondent has qualified these amounts as child support payments. The Applicant disagrees, stating that they are simply transfers between the parties for various reasons. The e-transfers do not align with a child support obligation of $170 per month.
28For much of the period from 2013 to 2018, the parties maintained separate residences, although the Applicant testified that the Respondent was always at her house. When family members came to visit from abroad, the parties resided together. When the Respondent's mother came to visit, she would always reside at the Applicant's residence but not after 2017.
29The evidence of an early separation date is contradicted by the numerous photographs filed by the Applicant which suggest that at various times this was a happy couple and family who did normal activities. The photographic evidence filed by the Applicant contradicts a 2013 separation date.
30In 2014, the Respondent transferred his Porsche to the Applicant as part of a spousal transfer. In 2015, the parties were looking to buy a house together and described themselves as spouses on the mortgage application. In 2016, the Respondent purchased a property in Gatineau at 37 Lucien Brault. He signed loan agreements identifying the Applicant as his spouse in 2016 and 2017 but then in 2019, those financing agreements lists the Applicant as his ex-spouse.
31I am satisfied on the balance of probabilities that the Applicant has established the date of separation as being February 20, 2018 for the following reasons:
a. There are documentary exchanges between the parties that suggest that the separation took place in 2018. b. The Applicant described how she became pregnant in 2015 with the Respondent’s child and had an abortion due to the volatile nature of the relationship. c. The Applicant’s evidence about at on and off marriage is supported by her adult daughter’s evidence. d. There is clearly a difference in the number of e-transfers in March 2018 which suggests that the Respondent’s child support obligations commenced in or about that time. Conversely, there is little evidence that the Respondent paid child support during the five years prior to 2018. e. While there is conflicting documentation that the Applicant claimed to be separated prior to 2018, my review leads me to conclude that it is more likely that the separation took place in 2018 when considering the totality of the evidence. Specifically, I accept the Applicant's evidence that she claimed on her taxes to be separated because she was seeking to obtain the child tax credit as a result of the failure by the Respondent to support her and the children. While the court does not condone the Applicant's choice to mislead the authorities to obtain the tax credit, her explanation is plausible. f. I accept the Applicant's evidence that although the parties were married, the Respondent was simply not an active parent and did not involve himself in the day-to-day lives of the children. He did not attend medical appointments and his involvement was limited to being a part-time parent. The Respondent did not contradict the Applicant’s evidence that the children did not sleep over at his residence until mid-2018 when his parenting time began. g. Finally, it is apparent that the Applicant did not become employed until 2018 when she was a single mother and became an immigration consultant. This coincides with a number of years where she would have been the primary caregiver for the children while the Respondent was working.
Decision-Making
32The Applicant seeks sole decision-making. The Respondent has been inconsistent. His Answer seeks joint decision-making with a right to making the final decision after meaningful consultation. In his opening statement to the court, he sought joint decision-making and then he amended his Answer and claimed sole decision-making. In his draft order, he seeks sole decision-making.
33Issues of parenting for married couples must be decided while focusing on the best interest of the children and the factors set out in s. 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp):
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(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.
34The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: see Gordon v. Goertz, [1996] 2 S.C.R. 27.
35The court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. None of the factors in the non-exhaustive list of factors in subsection 16(3) is any more important than any other. Rather, the list is a guide or checklist for the court of a number of customary factors that the court should ordinarily consider when determining what is in the best interests of the child. Not all of the factors will apply in each case: see Cote v. Parsons, 2021 ONSC 3719.
36The jurisprudence provides some guidelines for the court in considering a joint decision-making regime as follows:
a. The parties do not need to consent to an order for joint decision-making but before ordering joint decision-making, the court must have some evidence that the parties are able to communicate effectively with each other: see Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.). b. Simply relying on allegations of conflict will be insufficient to preclude a joint decision-making order. The analysis must address the nature, extent and frequency of conflict, and whether such conflict is likely to impact the well-being of the child. If the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint decision-making may be appropriate: see Ladisa v. Ladisa (2005), 11 R.F.L. (6th) 50 (Ont. C.A.). c. Where it is necessary to preserve the balance of power between the parties, particularly in cases were both parties are caring and competent parents, but one party has been primarily responsible for the conflict, joint decision-making may be appropriate: see Khairzad v. McFarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436; Fraser v. Fraser, 2016 ONSC 4720. d. Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests: see: Shokoufimogiman v. Bozorgi, 2022 ONSC 5057, at para. 44.
37Another option is to order parallel parenting. In Cox v. Down Stephen (2003), 47 R.F.L. (5th) 1 (Ont. C.A.), the Court of Appeal upheld a parallel parenting order, with terms giving decision-making responsibility respecting education to the Applicant, and decision-making respecting the child’s physical health to the Respondent, despite the long-standing history of conflict between the parties.
38In V.K. v. T.S., 2011 ONSC 4305, Chappel J. discussed the concept of parallel parenting in the following paragraph:
79 Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child's best interests. There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child's life, over and above time sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents' relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict. [Footnote omitted.]
39The issue of family violence has also been raised by the Applicant and it is relevant to the parenting order that is before the court. When considering family violence and past conduct as factors under the best interests test, paras. 16(4) and 16(5) of the Divorce Act direct the court to consider the following:
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
40Finally, in terms of legislation, the court must keep in mind what was formerly known as the maximum contact provision. This provision has been modified as part of the recent amendments to the Divorce Act and s. 16(6) now reads as follows:
Maximum parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
41It has been established that “[t]he maximum contact principle does not necessarily require equal parenting time”: see Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13. Thus, there is no onus on a party to rebut a presumption of equal time.
Analysis on Decision-Making and Best Interests of the Children
42The analysis of the best interests of these children is focussed on each party’s decision-making ability, and to a lesser extent the appropriate parenting plan for the children, given the Respondent’s present circumstances. The long-term parenting schedule will be determined once I have received an update of the parties’ circumstances through case management.
43In arriving at my conclusion on decision-making, I have considered the testimony of the parties, the exhibits filed and the jurisprudence. I have also considered the parties’ roles in the health, education, religion and activities of the children. The challenging interactions between the parties and history of violence are also of primary importance.
44In terms of the ability to communicate I have concerns about statements made by the Applicant during the trial whereby she wants to get the Respondent out of her life. These parents share two children, and frankly, unless the Respondent were to do this voluntarily, she is not in a position to avoid contact with him. If she is the decision-making parent, then she has the obligation of keeping the access parent informed of what is going on in the children's lives and of involving him in major decisions. She has demonstrated an unwillingness to do this when she chose to send the children to a private school without involving the Respondent. This demonstrates a desire to exclude the access parent and can justify parallel parenting. At other times, the Applicant is begging the Respondent to get engaged in the lives of the children.
45However, when reviewing the totality of the evidence, the overwhelming conclusion is that the Respondent has not demonstrated an ability to fulfill the role of a parent with decision-making authority over any part of the children's lives. He has not meaningfully involved himself in their health, particularly the health challenges of Z.K. He has not been part of the education plan for the children, nor has he involved himself with the school. He has also not shown an interest in being involved in the children's religion. As previously stated, he has played the role of an access parent and no more.
46There is no circumstance that this court can imagine the Respondent playing a role where he has decision-making over certain aspects of the children's lives because he has never played such a role. The Applicant has done this since birth. Now, with Z.K. and I.K.’s half-siblings and her new spouse, she has demonstrated the ability to provide the necessary stability to the lives of the children.
47The Respondent spent much of his evidence focussed on issues related to the Applicant’s finances and attacking her credibility on those issues. While this evidence has raised some concerns for the court, it does not have a significant impact on the analysis of what is in the best interests of the children when considering decision-making.
48The Respondent's marginal involvement in the lives of the children as described by the Applicant is accepted. The Respondent has failed to persuade the court that he has the ability to take on the role of a decision-making parent in any aspect of the children's lives. He has not demonstrated an interest in being involved. The analysis of the best interests of the children favours the Applicant in all respects.
49Specifically, I accept the Applicant's evidence as to the limited support that the Respondent provided for Z.K. during his health challenges and that this was limited to the equivalent of babysitting. Otherwise, the only evidence provided by the Respondent involves his access time, but he has not persuaded the court that it has been as frequent as he suggests.
50The best interest analysis must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. In this regard, I am of the view that only the Applicant has demonstrated the ability to provide these factors. The Respondent's evidence was focused on attacking the Applicant and finding inconsistencies in her evidence surrounding the separation date and on financial issues. However, the Respondent only spoke in generalities as to his ability to meet the needs of the children and did not establish that he has ever had an interest in doing so. He has complained about the Applicant not always respecting his access rights but otherwise has not demonstrated that he has made efforts to become involved in their health, education, religion or extracurricular activities. The Respondent's evidence did not materially touch upon these factors, and as stated, his role has been limited to that of an access parent.
51Furthermore, the Applicant has received little to no support from the Respondent in fulfilling her ongoing role in providing for the child's physical, emotional and psychological safety, security and well-being. This is compounded by the Respondent’s failure to pay child support or demonstrate a concerted effort to do so since August 2021, which is reflective of an inability to prioritize the interests of the children.
Needs of the Child
52The overall needs of the child are being met by the Applicant. She has demonstrated an ability to overcome the conflict and reach out to the Respondent when the needs of the children require it. Overall, I accept the Applicant’s evidence that she has been the one to provide for the children. She has been the one to provide a home, clothing and food for the children. She has looked after medical appointments and their schooling. All of this with little contribution by the Respondent.
53The Respondent has taken numerous photographs of the children during his parenting time, but he has not persuaded me that he has ever played the role of a parent who was involved in meeting the day-to-day needs of the children. His evidence has been limited to the children coming over to his house to sleep, that he provides them with meals and takes them out for activities. In cross-examination, he could not recall some of Z.K.’s most significant medical issues and was not convincing when he denied the alleged drug consumption problems in 2020. He spoke of his role with the children in generalities and focused on times when the Applicant would ask him to take the children when she was out of town on business.
54The Applicant’s evidence included communications between the parties in 2020 when she sought for the Respondent to become more engaged as a parent.
55Finally, I accept the Applicant’s evidence that she has acted in a protective way when managing the Respondent’s access. She has limited overnights at times when she thought the children were not safe or would be exposed to strangers residing with the Respondent. I accept that at times, the Respondent has had a dysfunctional lifestyle that was not conducive to caring for the children and that the Applicant has had to manage this.
56In terms of parenting for the children, I prefer the evidence of the Applicant and her ability to meet the needs of the children.
Strength of the Child’s Relationships
57Prior to the most recent CAS investigation, I would have said that both parents had strong relationships with the children. It is obvious that the Applicant has a very strong bond with the children as the primary caregiver.
58Through his photographs, the Respondent also suggests a good bond with the children whereby when he is with them, he gives them much attention and they seem genuinely happy to be with him. Unfortunately, the recent involvement of the CAS has resulted in concerns that the Respondent has caused physical and emotional harm to the children. This is very unfortunate and seems in large part inconsistent with the history of the Respondent having playful parenting time with the children. The bond between the children and the Respondent is now in doubt and the Respondent must take steps to re-establish his relationship with the children and persuade this court that he is not a risk to their physical or emotional safety.
Relationship with the Other Spouse
59The court has obvious concerns here: how will the parties act once the litigation process is completed?
60Questions also lie as to how the Respondent would support the Applicant as the primary decision-making parent and if the Applicant will involve the Respondent and get his views on parenting decisions. As previously stated, the Applicant has made concerning statements about her desire to remove the Respondent from her life. This is contrary to what the court deems is in the best interest of the children. If and when the Respondent re-establishes regular parenting time, it will be expected that he will have an opportunity to be consulted on all major decisions affecting the lives of the children. The Applicant will not be able to simply remove the Respondent from her life. She will have to maintain a place for him in the children’s lives.
61I am of the view that this can only be done through the proper use of an online application for parents whereby the primary care parent is using the application to keep the other parent apprised of what is going on in the children's lives. This is what is expected by the court and a proper order in this regard would be worded as follows:
The biological parents shall consult each other on all major decisions relating to the child’s health, education and general well-being. The decision-making parent will send over an OFW a message to the other parent with their position on a decision to be made and the other shall respond within 72 hours failing which the non-responding parent shall be deemed to agree. If, after meaningful consultation, the parties cannot reach a mutually agreeable decision, they will reach out to third party professionals such as doctors/teachers to assist them in the decision-making process. If, after meaningful consultation and considering the third-party professional’s opinion, the parents cannot agree on a major decision relating to the health and general well-being of the child, the Applicant will continue to have final say.
Child’s Views
62Given the role played by the Applicant in the children's lives, it is easy to assume that she is the central figure for the children. There is no evidence of conflict between the Applicant and the children. Otherwise, there is no evidence of the views of the children.
63However, the history of the relationship of the Respondent as an access parent appears to have been positive for the children prior to the most recent CAS involvement. It is the desire of this court that the Respondent have an opportunity to re-establish proper parenting time with the children and that he should be given an opportunity to do so given that supervised parenting time is not a long-term solution.
64With the case management that I am prepared to offer to the file, I will be able to monitor the Respondent’s parenting time and any concerns raised by the Applicant or the children. If necessary, it may be that the children should have a third party that they can speak to and express their concerns, but we are not there yet. At this point, I am hopeful that the Respondent will re-establish his relationship with the children. The supervision notes filed at trial demonstrate that this has already began and the Respondent should be able to resume his role as an access parent.
Family Violence
65The issue of family violence has found its way to the children’s lives with the Respondent. However, I am not persuaded that family violence has been a constant theme. The Applicant has expressed a concern about being in the presence of the Respondent at the start of this trial but that did not continue. The Applicant has withdrawn her request for a restraining order.
66There is evidence of a history of violence. The Respondent was charged with sexual assault. At the Respondent’s trial, the judge found that the sexual assault had been established as a probability but not beyond a reasonable doubt. The Respondent was acquitted.
67When I consider the factors set out in s. 16(4) of the Divorce Act, I conclude that the Applicant’s concerns about the Respondent can be addressed through the use of a proper communication application to limit interactions and by limiting in-person contact during exchanges. The Applicant essentially agreed in argument that such arrangements would be a proper first step, given her willingness to allow unsupervised parenting time and for pick up and drop off to take place at her home.
Conclusion on Best Interests of the Child
68Although other factors under s. 16 of the Divorce Act may have applicability, the above issues are the most relevant. There is no dispute that it is in the best interests of the children that the Applicant continue in her role as the primary parent and that she have sole decision-making authority. The Respondent shall maintain his role as an access parent who will be consulted on all major decisions.
Respondent’s Parenting Time
69I am unable to make a long-term decision on the proper parenting schedule. I require an update of the circumstances of the Respondent, his employment, transportation issues and the living arrangements for the children when they reside with him.
70During the trial, the Applicant relied on the CAS letter dated January 8, 2024 which stated that the CAS was supportive of the position that all parenting time with the Respondent be supervised until the Applicant feels comfortable that the Respondent will no longer injure them, call them names, hurt them, or talk negatively about their mother in front of the children. Supervised parenting time then began in April 2024.
71During argument, the Applicant agreed that unsupervised visits could take place on Thursday for an overnight visit every week and then during the school year, a Saturday night overnight every other weekend. Pick up and drop off at Applicant’s home.
72In her draft Order, the Applicant proposed an entirely different parenting time schedule:
a. The Respondent's parenting time shall be supervised at a Renew Supervision Services, located at 312 Parkdale Ave Ottawa, ON K1Y 4X5 once per week until August 1, 2024. b. Commencing August 8, 2024, the Respondent shall have unsupervised parenting time within the community every week for three hours on Thursdays. The Respondent will bear the cost associated with his weekly parenting time. c. Commencing August 10, 2024, the Respondent's parenting time shall increase to overnight visits from Saturday at 12:00 p.m. to Sunday at 6:00 p.m. three weekends per month. d. The Respondent's weekday parenting time referred to above at paragraph 4(b) may continue over the summer months. e. Once the school year commences, the Respondent will have the Thursday visit only the week that the Applicant has the children for weekend parenting time.
73When completing these Reasons for Decision, the court does not know what position the Applicant has taken during the summer. Based on the Applicant’s position at trial, the court must assume that some overnight parenting time has taken place and that with the school year starting, those visits should continue every Saturday night. While I appreciate that the Applicant was only proposing three weekends per month, I disagree that the Respondent’s parenting time should be less than the one overnight per week proposed by the Applicant at the end of the trial. However, all this is conditional on the Respondent having secured a residence suitable for overnight visits.
74Until I receive more evidence of the parties’ respective circumstances, I order parenting time to take place one night per week, every Saturday from 12:00 p.m. to Sunday at 6:00 p.m. The parties shall share pick up and drop off equitably.
75The parties will provide the court with an update on the return to unsupervised parenting time and they will have the opportunity to make submissions at a Case Conference to be set following the release of this decision. The parties may negotiate a step-up parenting schedule (if it is in the children’s best interest) failing which the court will adjudicate. Each party will have an opportunity to provide a very focused update on their respective circumstances. Trial coordination will be asked to set up a virtual Case Conference with the parties to determine how this process will play out to complete the trial.
Income for Child Support
76On February 1, 2021, the Applicant commenced an application for a simple divorce. She claimed no corollary relief. On September 30, 2021, she amended the simple divorce application after the request for divorce was rejected since proper arrangements were not in place for the support of the children. The Respondent was served with the Amended Application on October 1, 2021.
77On October 25, 2021, a consent temporary order was signed by Associate Justice Fortier and the parties agreed that the Respondent would pay child support of $300.00 per month on a without prejudice basis. The corresponding rate of income for that level of child support for two children is $19,300.00.
78In the Amended Application, the Applicant claims retroactive child support to the date of separation, being February 20, 2018, plus the payment of special and extraordinary expenses as per s. 7 of the Federal Child Support Guidelines, SOR/97-175.
79According to the Respondent’s Notices of Assessment, his income for the relevant years was:
a. 2018: $17,014.00 b. 2019: $6,639.00 c. 2020: $26,668.00 d. 2021: $27,089.00 e. 2022: Unable to locate. f. 2023: Unable to locate.
80The Applicant seeks to impute an income of $50,000.00 per year to the Respondent, given that he has two post-secondary degrees and could be earning that amount. Also, she claims that the Respondent did not include all his income from Airbnb rentals at 37 Lucien Brault as portions of that income was received in cash. The Applicant also suggests that he may also have made cash income as an Uber driver.
81The Respondent denies that his income is higher for the relevant years. He denies that he received cash income that was not reported, and he relies on the fact that most of the payments received for Airbnb and Uber were through applications and money transfers. The Respondent also states that the Applicant fails to account for his expenses.
82The general guidelines relating to imputing income are set out in Duffy v. Duffy, 2009 NLCA 48 at para. 35, as follows:
- The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;
- The parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children;
- A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;
- Imputing income to a parent on the basis that the parent is intentionally under-employed or unemployed does not incorporate a requirement for proof of bad faith;
- The determination to impute income is discretionary as the Court considers appropriate in the circumstances;
- Where a parent is intentionally underemployed the Court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;
- A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests;
- A parent must provide proper and full disclosure of financial information. Failure to do so may result in the Court drawing an adverse inference and imputing income.
83In Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, the Ontario Court of Appeal confirmed approach to be taken when considering imputed income. The approach mandated in Drygala v. Pauli (2002), 61 O.R. (3d) 711, requires a consideration of whether the spouse is intentionally unemployed or under-employed, and, if so, what the appropriate income is under the circumstances. The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding. Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking.
84Since 2021, the Respondent has not made efforts to be employed other than one visit to a gas station to discuss the potential work schedule. He says he is unable to work. He makes the ridiculous statement that he is working 24/7 on his various self-represented legal proceedings including these family proceedings, the litigation with the Applicant’s brother, his criminal charges and a dispute with a former landlord. This contention is rejected by the court. Being self-represented in litigation is not a defence to a claim for child support. A child’s right to be supported by a parent is not reduced by the fact that a parent must self-represent in various forms of litigation. There is no basis in law for such a suggestion.
85Where a party fails to provide full financial disclosure relating to their income, or in this case, fails to provide any evidence of efforts to become employed, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.
86In Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure to disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income. This statement can also be extended to the situation where a payor fails to make any efforts to be employed and is not otherwise prevented to seek employment due to medical reasons. Here, the Respondent says that he is an entrepreneur and that since his money from the sale of Lucien Brault is tied up, he cannot proceed with any further employment projects. This evidence is also rejected. If the Respondent is unable to start up a new business, he has an obligation to his children to go out and seek employment, even if such employment is for minimum wage. The Respondent provided no evidence that he would be unable to seek remunerated work.
87Where the recipient alleges the payor should have been able to find substitute employment if they had looked hard enough, a contextual analysis is required. The payor’s situation, options, and opportunities must be considered in the context of other individuals facing similar circumstances. The Court must be mindful of employment rates and trends, and economic conditions as a whole. The analysis cannot be done in the abstract: Gee v. McGraw, 2014 ONCJ 87; Miller v. Volk (2009), 74 R.F.L. (6th) 61 (Ont. S.C.J.); Prevost v. Prevost, 2017 ONSC 5825.
88The bottom line is that there is no evidence as to any form of employment that could have paid the Respondent at a rate which is in the range of the $50,000 per year. There is no evidence that the Respondent has an ability to be remunerated at such a rate and the Applicant has failed to establish a prima facie case for income to be imputed at that amount. To the contrary, his employment history and levels of remuneration suggest that he has never made that type of income even though I accept that his apartment rentals would have generated some cash which is not otherwise accounted for.
89In addition, the Respondent has not materially withheld disclosure. Although there is information about some cash transactions related to at least one Airbnb rental, I am unable to conclude that it was something that happened frequently. I accept the Respondent’s evidence that the systems in place for Airbnb and Uber use applications which involve e-transfers. I am unable to identify regular cash payments to the Respondent.
90In the absence of any other information, courts will often impute a minimum wage income. The court will require evidence to order more than that. See: Rose v. Baylis, 2018 ONCJ 230; Carmichael v. Abel, 2022 ONSC 7034 and Dassin v. Perpignan, 2021 ONSC 1066.
91The Respondent does not deny that he had child support obligations commencing from the date of separation. For 2018, 2019, 2020 and 2021, the Respondent’s income varied. For some years, he made in or about the same amount as minimum wage and for some years, he is significantly below minimum wage. While the Respondent worked during those years, he was clearly underemployed when he failed to earn an income which was at least equivalent to minimum wage. This also applies to the period from August 2021 to the present when the Respondent has been unemployed and not even tried to find work.
92Otherwise, despite having two degrees, there is no prima facie case to support imputed income in the range of $50,000. His history of employment is limited to earning amounts in or about the range of minimum wage.
93I hereby conclude that the Respondent should be imputed income for each year that he had a child support obligation at the greater of minimum wage or the amount that he earned according to line 15000 of his applicable Notice of Assessment.
94As stated above, I was unable to locate the Respondent’s Notices of Assessment for 2022 or 2023. This may not be relevant as the Respondent states that he has not worked since September 2021. However, unless the parties can agree that the imputed income at minimum wage is the appropriate amount, the Respondent will have 30 days to produce his tax returns and/or Notices of Assessment for 2022 and 2023 or proof that he has now filed his tax returns.
Child Support Arrears
95Turning to the issue of child support arrears and retroactive child support, the Applicant has claimed child support back to the date of separation being February 20, 2018. There is little debate on the appropriateness of such a claim as the Respondent has provided an accounting of the payments he made which are to be credited against his child support obligations. The Respondent relies on Ex. 72 for the e-transfers he made to the Applicant and states that this does not include cash payments that he also made over the years. On this last point, he has provided no evidentiary basis to support a finding that a material amount of cash payments were made to the Applicant since the date of separation. That claim is rejected.
96In his Factum, the Respondent claims credit of the following amounts paid in child support:
a. 2018: $5,080; b. 2019: $4,205; c. 2020: $2,377 (plus $2000 in cash not included in calculations); d. 2021: 7,033.
97As of August 2021, the Respondent does not dispute that he has paid no child support and once again advances the position that he could not do so because the funds relating to the sale of 37 Lucien Brault have been tied up in litigation.
98The Applicant disputes that the amounts in Ex. 72 should be credited against child support obligations because not all of those payments were amounts to be credited to child support. The Applicant filed Ex. 101 which she says includes all the payments she received for child support. That exhibit contains transfers of $5,701 after deducting $600 for duplication.
99In her Factum, the applicant sets out the proper credits as follows:
a. 2018: $1,561.00; b. 2019: $1,500.00; c. 2020: $2,350.00; d. 2021: $2,090.00.
100I have concluded that Ex. 72, less certain adjustments, is the best available evidence of the child support payments made from 2018 to 2021. It includes a number of e-transfers which are not part of Ex. 101. The Applicant has only been able to identify a few payments that were destined to be sent to her brother. Otherwise, she had not been able to challenge the Respondent’s evidence, other than with a general statement that not all transfers were for child support. I acknowledge that there are indicia of this when looking at 2017 and a number of transfers made at a time when the Respondent did not have a child support obligation. However, I conclude that the best evidence is Ex. 72 and that those payments are more likely than not, payments of child support.
101I have calculated that the payments included in Ex. 72 amount to $16,053. $200 must be deducted for duplication. Also, $1,090 must be deducted for payments made prior to February 20, 2018. I also accept the Applicant’s evidence when she says that two or three payments made by the Respondent were forwarded to the Applicant’s brother to pay for the loan. Ex. 72 reflects two such payments in the range of $900. I conclude that the amount should be $1,840 which amounts to two payments of $900 plus the $20 transfer fee to send the money to her brother. This leaves a credit against the Respondent’s child support obligations of $12,923 as I accept that the balance of the bank transfers made by the Respondent should be attributed to his child support obligations.
102The parties will therefore provide the court with their revised child support arrears calculations since the date of separation and those will be incorporated into a final order so that the proper adjustments can be made.
103As a result of these child support arrears, and for the reasons set out below, I am of the view that these amounts must be paid to the Applicant in a lump sum from the funds currently held in trust from the sale of 37 Lucien Brault. This should apply to all amounts owing to September 1, 2024 inclusive.
Section 7 Expenses
104The Applicant has included in her draft final order a requirement that the Respondent pay outstanding special and extraordinary expenses in the amount of $12,760 representing the children’s private school tuition from September 2023 to July 2024. Going forward, the Applicant seeks for an order that the parties pay their proportionate share of the children’s s. 7 expenses including but not limited to $1,160 per month for tuition to Ahlul-Bayt Islamic School.
105In Titova v. Titov, 2012 ONCA 864, 29 R.F.L. (7th) 267, the Ontario Court of Appeal endorsed the following process in assessing a claim for s. 7 special and extraordinary expenses:
[23] In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s.7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s.7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
106I have concluded that the Respondent’s income available for child support is to be imputed at minimum wage until he becomes employed. The Applicant’s 2023 income as per her January 5, 2024 Financial Statement was $54,000.
107There is no real dispute that tuition for private school can form part of s. 7 expenses.
108At trial, there was no evidence that the registration of the children in a private school was a necessary expense. The evidence at trial was that the Applicant never consulted with the Respondent prior to enrolling them in private school. While s. 7 itself does not require prior consultation for allowable expenses, a failure or refusal by a claiming parent to discuss an expense with the other parent in advance bears on the court’s exercise of its discretion in determining whether it is reasonable. There was no opinion of a professional that the children required any special assistance with their educational program to warrant registration in a private school. The Applicant testified that it was good for the children to have them registered in a private school to teach Arabic and Islam as a religion. There is nothing to support that it was necessary in relation to the children’s best interest.
109Turning now to reasonability, the court must determine if the expense is reasonable in relation to the means of the spouses and to the family’s spending pattern prior to the separation. There is no circumstance in which the reasonability criterion is met for the private school expense for the following reasons:
a. The Applicant provided no receipts, invoices, or any evidence of the amount of the tuition. She has never even asked the Respondent if he agreed or if he could afford to pay his proportionate share. b. There is no evidence that such an expense would ever have been part of the family’s spending pattern prior to the separation. It appears that the Applicant can now afford this as she is re-partnered. c. When looking at the parties’ combined income for support purposes, they could never afford such an expense going forward. Considering the Respondent’s situation as being unemployed with imputed income at minimum wage, there is no prospect that he will be in a position to afford such an expense.
110Accordingly, the requested s. 7 expense for private school tuition is denied. Otherwise, there shall be an order that both parties shall pay their proportionate share for proper s. 7 expenses as per the Applicant’s draft Order.
Prospective Child Support
111At the time of trial, the Respondent was still not gainfully employed. Accordingly, he will be imputed income at minimum wage going forward. He will now have an obligation to provide evidence of his efforts to seek employment every four months until such time as he is gainfully employed. His child support obligations are based on the greater of minimum wage or line 15000 of his Notice of Assessment. Should the Respondent fail to provide this information to the Applicant or otherwise fail to demonstrate reasonable efforts to seek gainful employment, the Applicant will have the opportunity to file a motion to change seeking to modify this child support order. Then, the Applicant may seek to increase the amount of imputed income based on actual evidence of the type of work that is available to the Respondent.
112Accordingly, prospective child support shall be paid by the Respondent for the two children commencing on the first day of every month based on the imputed income of the greater of minimum wage for the province of Ontario or the actual amount of income earned as per line 15000 of his Notice of Assessment.
113The Applicant also seeks an order that prospective child support be paid in a lump sum from the funds held in trust from the sale of 37 Lucien Brault.
114Section 26.1 of the Divorce Act allows the court to order a lump sum payment of child support. Section 11 of the Federal Child Support Guidelines provides: “The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments.”
115A lump sum child support order is appropriate “where there is a real risk that periodic payments will not be made”: Makeeva v. Makeev, 2021 ONCA 232, at para. 11.
116Lump sum orders are also appropriate when the payor has not voluntarily paid child support, has not made proper disclosure, and has required the other party to endure protracted litigation: Roscoe v. Roscoe, 2012 ONCA 817, at para. 3.
117In this case, the Respondent voluntarily paid child support dating back to 2018. He stopped in 2021 when he was no longer employed and sold 37 Lucien Brault. I have rejected his justification for being unemployed. However, it is unclear as to what funds remain in trust from the sale of Lucien Brault following the payment of the judgment to Mr. Al Kassar which is obviously subject to appeal.
118Furthermore, it was clear during the trial that the balance of the funds held in trust is all that the Respondent has. He has ongoing child support obligations, but he must also be able to subsist. The obvious answer is that he needs to become employed. Considering that the Respondent has voluntarily paid child support in the past although not as much as he should have, I am not satisfied that he will not pay in the future. This decision confirms his obligation to pay child support at least at minimum wage and it also confirms his obligation to become gainfully employed. In all the circumstances, I do not believe that a lump sum award of prospective child support is appropriate.
119Conversely, the child support arrears are viewed differently. Most of these will have been incurred during a time when the Respondent has been voluntarily unemployed. I am not confident that the Respondent will otherwise pay his arrears once he gets access to the funds held in trust. Accordingly, I order that the child support arrears be paid from the funds held in trust.
Equalization of Net Family Property
120There was much evidence at trial on the date of separation and the value of property for the purpose of calculating net family property. The Applicant’s Net Family Property Statement is found at Ex. 63 and claims that the Respondent owes an equalization payment of $34,798.97. The Respondent’s Net Family Property Statement is found at Ex. 67 and claims that the Respondent owes an equalization payment of $4,593.
121One significant issue was a purported debt from the Respondent to the Applicant’s brother, Yousef Al. Jassar. Mr. Al. Jassar testified at trial about the funds he advanced to the Respondent in 2016. A promissory note dated February 26, 2016 for $120,000 is found at Ex. 86. The Applicant and the Respondent were sending payments to Mr. Al. Jassar. Also, a copy of a Quebec Superior Court decision dated March 18, 2024 was filed as Ex. 71 confirming that Mr. Al. Jassar obtained a judgement against the Respondent for the $120,000 debt plus other amounts. The Respondent testified that he has appealed this decision.
122As the promissory note is dated February 26, 2016, this would have been a debt owing by the Respondent on the date of separation. Neither party included it as part of their Net Family Property statements. If included, it obviously eliminates any equalization payment owing by the Respondent as his NFP would be zero. The result would be that the Applicant owes a small equalization payment to the Respondent.
123Based on the evidence received at trial, I am satisfied on a balance of probabilities that the Respondent had a $120,000 debt owing to Mr. Al. Jassar on February 20, 2018. Both parties should have included it in their NFP statements.
124Furthermore, there are certain findings which must be made in conjunction with the conflicting information found on the various NFP statements and Financial Statements. I make the following findings:
a. I conclude that the proper value for the Respondent’s property at 37 Lucien Brault in Gatineau, Quebec is $420,000. This amount is based on the apparent agreement between the parties that this was the relevant value based on the municipal property assessment, which is the best available evidence. While the Applicant filed an appraisal report for that property at $435,000, the author of the appraisal report was not called. The report was filed as a lettered exhibit and remains hearsay. The only and best available evidence as of February 20, 2018 is the purported municipal property assessment at $420,000. b. The Applicant’s NFP statement dated January 30, 2024 shows the Hyundai Santa Fe as an asset belonging to the Respondent. She also shows the loan relating to the Santa Fe as her debt. I am satisfied that it was an error to include the Santa Fe as an asset of the Respondent. c. With respect to the purchase of the Santa Fe, the Applicant has been inconsistent in her financial statements and NFP. It appears that she had a loan of $8000 as per previous Financial Statements as of the separation date but no document was tendered. However, the evidence is inconsistent on the purchase price. The January 30, 2024 NFP states a purchase price of $10000 and a value on the separation date of $8,000. The Respondent’s NFP (Ex 67) suggests that $2000 was paid as a down payment and that payments were $1,000 per month leaving a balance on the loan of $5,000 as of the date of separation. The source of this information was unclear, and the Respondent did not properly explore this issue in cross-examination. The Applicant’s NFP dated February 15, 2024 now shows that $2000 was paid as a downpayment and that the value of the debt on the date of separation was $6000. This document now shows the value of the car at $6,000 on the date of separation in an apparent attempt to net out the amounts. All of this is very confusing, and the Applicant has the burden of establishing the value of her assets. Accordingly, the best available evidence is the Applicant’s sworn financial statement date January 5, 2024 which shows an asset of $8,000. I accept the Respondent’s evidence that there was a $2,000 downpayment and thus the debt for the Santa Fe is $6,000 on the date of separation. d. As for the Applicant’s bank account ending in *438, the Applicant includes the value on February 16, 2018 at $70.47. The Respondent uses the value of $1,492.00 which is one of the values applicable to February 20, 2018. However, the closing value for the account on that date was $888.10 and I conclude that this is the proper value for that date. e. As for the bank account on the date of marriage, the Applicant provided no evidence that she had $400.00 in her bank account on February 26, 2011. This is indicated as an estimate because the statements were not available. That amount is rejected.
125When taking into account the outstanding loan of $120,000, the Respondent’s Net Family Property is negative and considered as $0.00.
126With the above corrections, the value of the Applicant’s total assets on the date of separation is:
a. Bank accounts: $892.45 b. Furniture: $5000 c. Vehicle: $8000.
127When considering the Applicant’s debts and excluded property, she had a $6,000 debt for the vehicle and excluded property of $5,000 for the furniture owned on the date of marriage. This leaves her Net Family Property at $2892.45 and an equalization payment owing of $1446.23.
Other Relief Requested in Draft Orders
128I have reviewed the requested relief in both draft orders. The draft order submitted by the Applicant aligns more closely with this decision and it will form the template for this decision. Some paragraphs of the Applicant’s draft order are not agreed to or were not explored in evidence. I make the following comments:
a. I accept paras. 1, 2, 3, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25. b. Paras. 6, 7 will be amended as per this decision. c. The Respondent’s parenting time shall be in line with this decision and shall be ordered on a temporary basis. Parenting time shall be further considered following a Case Conference with Justice Labrosse following the release of these reasons; d. The parties are to share equitably in the location for parenting exchanges; e. The funds held in trust shall be used to pay child support arrears and shall be held pending arguments relating to the costs of these proceedings; f. I agree that consent should be required for special or extraordinary expenses, such consent should not be unreasonably withheld; g. There is no basis to order police enforcement of this order. Neither party has a history of withholding the children contrary to the provisions of an order; h. There is a need for a holiday parenting time schedule which can form part of the post-trial parenting time process; and i. The right to travel only exists for the Applicant. This is appropriate and a change will be required if and when the Respondent’s parenting time expands.
129Turning now to the Respondent’s draft order, there are numerous provisions which do not align with this decision, but I agree that the following elements or paragraphs should be inserted into the court’s Final Order:
a. A holiday schedule; b. Insert the following paragraphs: 11, 12, 13, 14, 20; c. There should be a paragraph that the Applicant will retain all official documents and provide copies to the Respondent. d. A paragraph shall be added to reflect the equalization payment owing by the Applicant. e. Justice Labrosse shall remain seized of the issues surrounding the proceeds of sale for 37 Lucien Brault which are held in trust.
CONCLUSION
130The Applicant is directed to forward a new draft order to the Respondent for his approval in Word format. The Respondent will make the changes he seeks, if any, in track changes format. These documents will be forwarded to the court for approval.
131The parenting schedule set out herein will continue, and the trial will resume to allow for updated evidence to be focused on the appropriate parenting schedule, unless the parties can agree otherwise.
132The parties will schedule a Case Management Conference with me to discuss the implementation of these conclusions and the final steps in the trial.
Justice Marc R. Labrosse Released: September 13, 2024