Court File and Parties

COURT FILE NO: FS-16-410252 DATE: 20241018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MARIANNA de PAIVA AREAL, Applicant AND: FREDERICO GOMES LOPES ITOKAZU, Respondent

COUNSEL: James H. Herbert, for the Applicant Self-Represented, for the Respondent

HEARD: June 24, 2024

RHINELANDER, J.

Reasons for Judgment

[1] On February 29, 2024, the Respondent’s pleadings were struck, and an Uncontested Trial was set for June 24, 2024. The Respondent was authorized to participate in parenting matters only. He was served with the materials and attended court for the trial. He is opposed to the Applicant’s requests.

[2] The Applicant mother seeks final Orders as follows:

a. Sole decision-making responsibility for the child, William (2015.03.19); b. The child shall reside with the Applicant except for when the Respondent has parenting time; c. Child support payable by the Respondent to the Applicant in the sum of $691.00 per month starting January 1, 2024; d. The Respondent shall contribute to the s.7 expenses for the child; e. As of June 24, 2024, the arrears of s.7 expenses owing by the Respondent to the Applicant is fixed at $3,212. The Respondent shall pay these arrears within sixty (60) days; f. A Support Deduction Order (SDO); g. For as long a child support is payable, the payor must provide updated income disclosure to the recipient by May 1 of each year, including a copy of his notice of assessment, notice of reassessment (if any) and income tax return including all schedules and attachments for the previous year; and h. Costs of these proceedings.

[3] The Respondent was not permitted to participate at trial on issues relating to child support, arrears, and section 7 expenses. The only issues with which he was permitted to participate at this trial affected parenting time and decision-making responsibility. The Respondent father seeks additional parenting time and joint decision-making responsibility.

Background

[4] Both parties are originally from Brazil and married December 8, 2014. They separated April 1, 2016. The divorce was severed from the corollary issues and issued May 7, 2020. There is one child of the union, William (9).

[5] The Applicant mother commenced these proceedings May 17, 2016, a month and a half after separation. The Respondent filed an Answer and financial statement June 10, 2016. A case conference and settlement conference took place in 2016.

[6] At the case conference on July 22, 2016, the parties agreed to a parenting time schedule that would increase gradually. The status quo since the summer of 2018, has the Respondent with parenting time every other weekend from Fridays to Monday mornings. There have been variations to this schedule on consent and on other occasions through the actions of one of the parties without consent of the other.

[7] No further court dates occurred between the settlement conference heard in 2016, until 2021. The Applicant explained she did not have the funds to continue with counsel at that time. In 2020, a parenting plan was proposed by the Applicant and rejected by the Respondent. A simpler parenting plan, on a temporary basis, was agreed to by the parties on June 12, 2020, that established a location and pick up and drop off times and a term that neither party attend within a certain radius of each other’s homes.

[8] The Applicant brought a motion in 2021 for summary judgment on the issues of child support and arrears. Justice Czutrin ordered the Respondent to produce his tax returns and Notice of Assessments for 2018, 2019, and 2020. The documents ordered were produced and the Respondent was ordered to pay child support in the amount of $347 per month, plus an additional $125 per month on account of arrears dated back to June 1, 2019.

[9] The Respondent was also ordered to provide the Applicant copies of his T4s, and Notices of Assessment annually, beginning with the year 2021. The Respondent failed to comply with this Order which resulted in the Applicant bringing a motion for financial disclosure that required the Respondent’s employer to provide information of his income.

[10] On September 13, 2023, counsel for the Applicant contacted the Family Trial Office to schedule a Settlement Conference to finalize the parenting agreements and to receive updated financial disclosure from the Respondent. Ultimately, the date of January 25, 2024, was selected and confirmed. Two days prior to the Settlement conference, the Respondent emailed counsel for the Applicant to advise he was unable to attend the conference due to health reasons and requested the matter be rescheduled. He also advised he would send his financial documents upon receipt from his accountant. The Applicant believes this was a delay tactic and that the Respondent does not have health concerns and had just exercised parenting time with the child that weekend.

[11] The Respondent failed to attend the conference and Vella, J. ordered the Respondent to 1) provide updated financial information within fourteen (14) days; 2) attend the Family Law Information Centre; 3) to attend a Mandatory Information Program; and 4) pay costs of $500.00.

[12] The Endorsement was served on the Respondent via email on January 29, 2024, at the email address the Applicant regularly uses to communicate with the Respondent and the same address he used to send an email to counsel for the Applicant on January 23, 2024.

[13] The Respondent failed to comply with Vella, J.’s Order. The Applicant brought a motion to strike the Respondent’s pleadings which was granted February 29, 2024, by Des Rosiers, J.

[14] The Applicant relied on Rules 1(8) and 1(8.1) for an order striking the Respondent’s answer, financial document, affidavit, and any other document filed by the Respondent, and permitting the Applicant to proceed with an uncontested trial.

Issues

[15] The issues for the uncontested trial are:

a. Should the mother be granted sole decision-making responsibility for the child? b. Is the parenting time proposed for the father appropriate? c. Should the Respondent’s income be imputed? d. What quantum of child support should be ordered payable by the Respondent to the Applicant? e. Is retroactive child support owing, and if so, in what quantum? f. What proportion of s.7 expenses is the father responsible for? g. As of June 24, 2024, are the arrears of s.7 expenses owing by the Respondent to the Applicant $3,212? h. Costs of these proceedings?

Relevant Principles and Analysis:

[16] An “uncontested trial” is defined at rule 2(1) as “a trial at which only the party making the claim provides evidence and submissions.” Orders for an Uncontested Trial have a special form (25D) and a special affidavit (23C) but the evidentiary standards remain the same. Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: rule 23(22) Family Law Rules. In this case, the Applicant sought to rely on affidavit and oral evidence. The Respondent attended and cross-examined the Applicant.

Parenting Time and Decision-Making Responsibility

[17] Section 16(1) of the Divorce Act provides that in making an order for parenting time or decision-making responsibility the court shall consider the best interests of the child. Section 16(2) states that when considering the factors in s. 16(3) to determine the best interests of the child, the primary consideration is the child’s physical, emotional, and psychological safety, security, and well-being.

[18] Section 16(3) sets out a list of circumstances the court shall consider in determining the child’s best interests. The list is not exhaustive.

[19] In addition, the court is required to consider whether there has been any family violence, and if so, the impact of the violence on the children, and on the ability and willingness of any parties to care for and meet the needs of the children, when assessing the best interests of the children. V.M.W. v. J. Mc.-M., 2021 ONCJ 441.

[20] Section 16(4) sets out a further set of factors to consider when considering the impact of family violence. The definition of “family violence” in the Divorce Act is not limited to physical acts but also includes psychological and financial abuse. Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

[21] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. This also applies to contact orders. See: F.S. v. N.J. and T.S., 2024 ONCJ 199; V.R. v. S.R., 2024 ONCJ 262.

[22] To repeat, the best interests of the child is the only test when considering the factors set out in section 16. Contact may be restricted if it conflicts with the children’s best interests. Further, parties are required to protect children from the conflict in these types of proceedings. It is important to remember that parenting time is not the right of the parent but that of the child. It is imperative to approach parenting time with a child-focussed approach.

[23] Both parents expressed their love and concern for William, however, I must decide what is in his best interests moving forward as the parents are unable to agree or come to a consensus on issues and decisions regarding William.

The Mother’s Evidence Regarding Decision Making and Parenting Time

[24] William has primarily lived with the Applicant mother since the parties separated. For the past six years, the Respondent has parenting time with William on alternate weekends from Friday to Monday. The Respondent also has small amounts of extra time during the holidays and summer but has never had a large block of time.

[25] The Applicant describes the relationship between her and the Respondent as very poor. She left the relationship and went to a women’s shelter for assistance when they first separated. Without outside assistance, their communication is literally non-existent. There is a lack of respect towards each other.

[26] During the pandemic, when households were on lockdown, the Applicant advised that she tried to cooperate with the Respondent to minimize the number of transitions due to past health concerns of the child. These attempts were unsuccessful and resulted in the Respondent threatening to overhold the child. The Applicant indicated that telephone conversations regarding this issue resulted in abusive language and sometimes occurred in front of William. It was only upon threat of police involvement that the Respondent returned the child to her home. The child’s return was also replete with name calling, threats, and yelling by the Respondent. This was witnessed by neighbours and others in the vicinity.

[27] It was that incident that compelled the Applicant to retain counsel and obtain a final order with ground rules. A comprehensive parenting plan was drafted and provided to the Respondent. He rejected the proposal which resulted in a very basic temporary plan signed June 12, 2020, that included a clause for neither party to attend within 100 metres of the other’s residence.

[28] The Applicant alleges the Respondent displays abusive behaviour towards her, undermines her authority, and encourages William to be disrespectful and disobedient. The Applicant relied upon a message sent thru Our Family Wizard on November 14, 2022, as evidence of his contempt for her, wherein he referred to the Applicant as a “POS” (piece of shit) and a “heartless parasite”. This is only one example of the Respondent’s attitude according to the Applicant. The parties communicate strictly thru OFW regarding William and only when necessary.

[29] William has experienced behavioural issues that includes exhibiting a disrespectful attitude towards teachers and staff at the school and presents difficulty with self-regulation. He often talks back, yells, ignores instructions, and has difficulties with transitions between classes. The Applicant has sought consent from the Respondent to have William enrolled in therapy to assist him in managing his own behaviour. The Respondent provided his agreement recently but only after a couple of years of the Applicant seeking his consent.

[30] William is in grade 3 and attends public school near the Applicant’s residence. He will be changing schools in September 2024, to attend a school for gifted students located outside the catchment area for the Applicant’s residence and much further away.

[31] The Applicant seeks sole decision-making responsibility because the parties are unable to communicate and have an extremely poor relationship. Past efforts to have a civil conversation, have turned into a torrent of abusive language and verbal abuse.

[32] The Applicant does not seek to change the Respondent’s parenting time. She believes it is important that William have time with his father. The Applicant is willing and has suggested additional parenting time for the Respondent during the summer and holidays throughout the year.

[33] The Applicant does not believe mid-week parenting time is in the best interests of William. She testified his bedtime is 7:30 p.m. and he functions better with routine. After weekends with the Respondent, it takes days to regulate his behaviour, outbursts, and schedule.

[34] The Applicant requests the court to include a term that prohibits the Respondent from consuming marijuana when exercising parenting time, to maintain a clause from the temporary parenting order that precludes either party from coming within 100 metres of each other’s residence. She explained the Respondent consumed marijuana throughout their relationship and was continually “buzzed” throughout the day. The Applicant requests the latter term due to the incident that occurred during Covid.

The Father’s Evidence Regarding Decision Making and Parenting Time

[35] The Respondent would like to have more parenting time and joint decision-making responsibilities. He believes the parties should co-parent William.

[36] The Respondent agreed William primarily lives with the Applicant but not through his choice. The Applicant made the choices by taking William and leaving the country before going to a shelter. The Respondent states the Applicant’s affidavit is not accurate. He acknowledged he was not a saint but certainly not an abuser or cruel to animals.

[37] The Respondent testified he has been diagnosed with post-traumatic stress disorder that he attributes directly to the Applicant having taken William when they separated and again during Covid when she kept William from him for forty days. The lengthy periods where he did not have parenting time caused him undue stress and he continues to suffer from mental health issues as a result, including fear that she will take William and relocate out of the country.

[38] The Respondent stated he only wants his son in his life and suggested at one point in his evidence that he continue to pay full child support to the Applicant if he can have primary residence and William spend time with the Applicant on the weekends.

[39] The Applicant acknowledged she has no information what William does when he is with the Respondent but believes they play video games all weekend. The Respondent testified he interacts and plans activities with William in advance of his weekends including doing all meal prep so that he has maximum time with his son. Since William tested as gifted, the Respondent has worked with William on crunch labs, lego, and coding. He said William is good at coding. He confirmed they do play video games but as a break. He also told the court William is learning to run, and he planned to enroll him in a 1-Kilometer run for children over the summer.

[40] The Respondent seeks additional parenting time during the week, even an opportunity to speak with William, which the Applicant currently refuses to provide.

[41] The Respondent testified the parties should have joint decision-making responsibility. He does not want to give up any of his parenting rights. They should both be equally capable of making decisions in the best interests of William. He pointed to their ability to agree on William attending the gifted school this year as an example of their ability to work together to make decisions for William.

[42] The Respondent confirmed the Applicant has kept him informed regarding William’s education and sought his input before decisions were made. The Respondent would like some type of resolution process implemented when the parties are unable to agree. His concern is the Applicant has arbitrarily made decisions and withheld William from the Respondent and if she has sole decision-making responsibility she will do so again in the future to the detriment of his relationship with William.

[43] The Respondent was candid and acknowledged an occasion where he shouted at the Applicant. He explained it was at a transition during Covid and the Applicant acted arrogant and refused to confirm when he would see William again and he lost his temper. He has worked hard not to allow that to happen again. The Respondent told the court the Applicant is a good mom, but it is her insistence on having full control that creates issues.

[44] The Respondent denied the allegations that he was always “buzzed” when with William and that he smoked marijuana in his presence. The Respondent pointed to a letter from CAS that was not concerned about his medicinal use of marijuana contrary to what the Applicant stated.

[45] The Respondent denied threatening the Applicant or being abusive verbally, physically, psychologically, or emotionally. In response to the suggestion, he threatened to have the Applicant deported, he explained that was contrary to what happened. He stated the parties remained married specifically so the Applicant could obtain her immigration status to stay in Canada. It was agreed it was in the best interests of all, especially William.

Analysis on Parenting Time and Decision-Making:

[46] It is clear both parents love William and want what is best for him, however, they don’t always agree. Their relationship is fraught with issues, which included allegations of intimate partner violence. History has shown they are not able to communicate with each other effectively to the point where an interim order prevents either party from attending within 100 metres of the other’s residence.

[47] The Applicant has been the primary caregiver to William since birth, not for lack of the Respondent’s wanting more time, but due to how circumstances unfolded at the time of separation and William’s age. The Applicant had sought assistance and put together a safety plan for how to leave the Respondent. Her mother had been diagnosed with cancer around this time and lived in the U.S. The Respondent provided consent for the Applicant to travel with William to visit his maternal grandmother. The Applicant took this opportunity to leave the Respondent by failing to return to Canada per the travel consent.

[48] The Respondent contacted police and the Applicant returned to Canada to a women’s shelter. Shortly after her return, she initiated family proceedings to obtain primary residence and decision-making responsibility for William. Horkins, J. made a temporary interim order for parenting time with a built-in review to allow additional time to the Respondent. Overtime, the Respondent was permitted overnights and ultimately alternate weekends. At no time, did the Respondent bring a motion to increase his parenting time. He explained he did not have counsel and was unaware of the process to do so.

[49] The Respondent, wanting to ensure his role in William’s life, has not always agreed with the decisions which has made it difficult for the Applicant to obtain services she believes are in the best interests of the child. William is doing well in the mother’s care. She has maintained a stable environment for him and continues to support and care for him.

[50] The Applicant argues the Respondent should not be allowed to derive an advantage from his own default and his own failure to file affidavit evidence in advance of this trial. This affected the Applicant’s ability to properly respond as she was unaware and caught by surprise by portions of the Respondent’s evidence.

[51] The Applicant asks the court to exercise caution when making findings of fact based on the Respondent’s evidence.

[52] The Applicant submitted the Court should not grant relief to the Respondent outside what the Applicant has asked for in her draft Order. It would be unfair for the Respondent to attend at trial, request relief for the first time, and obtain same. Specifically, the Applicant is opposed to additional parenting time and joint decision-making.

[53] The Respondent testified he did not seek further parenting time prior to the trial. He relied on the stress he has undergone over the past 8 years, his diagnosis of post traumatic stress disorder, his inability to secure counsel due to limited finances, and simply trying to progress daily.

[54] Both parents presented as smart and articulate and gave their evidence in a confident manner. The parties agreed on some aspects of incidents that occurred in the past and disagreed on others.

[55] The most contentious point in their evidence related to their ability to communicate and discuss issues maturely regarding William.

[56] It is clear the Respondent still harbours resentment towards the Applicant in the methods she used when the parties separated. In retrospect, in the months leading up to the separation, the Respondent believed the Applicant set a plan in motion, and each time it hit a bump, she constructed a new plan to paint him in a bad light to provide her with an advantage. He disagreed about any threats or abusive behaviour leading to the Applicant’s departure.

[57] The Applicant relied upon notes of a clinic she attended in 2016 where she disclosed the discourse in the home and sought support for how to address or escape that environment. In assessing this evidence, I am mindful, this is a prior statement of the Applicant that she seeks to use to bolster her credibility. It is evidence that she told someone about the abuse in 2016 but is not evidence the abuse occurred. Just as she asks this Court to rely upon it for the truth of its contents, the Respondent argued it is evidence of her master plan to set wheels in motion, including the complaint made by the clinic to the CAS based on the Applicant’s statement to them. After an investigation by CAS, they closed their file without negative findings against either party.

[58] I agree with the Applicant, a party who fails to follow the rules should not gain an unfair advantage. However, the Court is not limited to making an Order based solely on one party’s requests for relief. A court must decide based on the evidence before the Court and the legal factors to be considered. In this case, the best interests of William.

[59] Courts allocating parenting time are required to consider that “a child should have as much time with each spouse as is consistent with the best interests of the child ”: Knapp v Knapp, 2021 ONCA 305 [emphasis added]. It is important to acknowledge the starting point after separation is not equal parenting time, but rather what is in the best interests of the child.

[60] Contact may be restricted if it conflicts with the children’s best interests. It is important to remember that parenting time is not the right of the parent but that of the child and when considering parenting time, it should be with a child-focused approach.

[61] William is 9 years old and requires consistency and stability. The dispute here between the parties is an appropriate parenting schedule.

[62] The Applicant maintains she is supportive of William having a relationship with the Respondent. I am not persuaded she has taken active steps to facilitate the relationship with the Respondent other than what she deems is appropriate based off her own personal concerns about the Respondent. No independent evidence was adduced to support her concerns.

[63] While both parents have expressed, they are willing and able to meet the needs of William, the Applicant is not prepared to allow the Respondent additional parenting time beyond alternate weekends. She testified William needs stability and consistency and attributes William’s behaviour when he returns from weekends with the Respondent, as a failure of the Respondent to provide this. She stated she has been working with William’s teachers and counselor to assist William in self-regulating his behaviour and not act out. Again, no evidence was adduced to corroborate or support William’s behaviour is a direct result of his time with the Respondent.

[64] The parties do not trust one another. This is commonplace in family law disputes with marital breakdown and children. The goal is for this trust to rebuild. The goal is for the parents to work together in their effort to ensure that William reaches his potential and feels comfortable that both parents are important and critical in his life. Children need to feel secure that both parents recognize the importance of the other. It is time to move forward and for the conflict to subside. Both parents should turn all their focus and attention on being the best parents they can be.

[65] The AFCC-Ontario Parenting Guide has identified situations where “children in the age group of 6 – 9 may benefit from having a “home base” with one parent”. It recommends that children this age have a consistent routine and any mid-week parenting occur on the same night each week, if possible. It sets out that mid-week parenting-time is valuable even if only a few hours or overnight, for the parent to engage in the child’s routine activities.

[66] William will be ten years old in approximately six months. The AFCC suggests children during their pre-teen years become more independent from their parents. That parenting plans must take into consideration the child’s activities and friendships. Extra-curricular sports and activities should be consistent in both homes. Of larger concern, is the importance of supporting the child’s relationship with the other parent, especially where there is a high level of conflict. Children between the ages of 10 to 12 should have frequent contact with both parents and where possible it should include overnights or dinners during the school week and some weekends with each parent.

[67] I have considered all the relevant factors in s. 16 of the Divorce Act and applied them to the facts as found by me in this case and have determined the Respondent should have additional parenting time with William beyond every other weekend. The gap of twelve days without any form of contact or parenting time is too long for a child of William’s age and in the absence of professional or medical evidence to the contrary, cannot be in his best interests.

[68] The evidence presented in this case establishes the parties have more conflict than the ability to communicate effectively with each other. The Applicant insists the only mechanism for communication between the parties must be Our Family Wizard, even in an emergency. Good and open lines of communication are necessary for a positive co-parenting relationship.

[69] The Applicant was agreeable to including the Respondent in the decision-making process, insofar, as she would seek his input. If the parties are unable to agree, the Applicant would have the decision-making responsibility. In the circumstances of this case, I find it is in William’s best interests that the Applicant be permitted to make final decisions regarding major decisions but only after the Applicant has informed the Respondent and provided him with a reasonable opportunity to share his input and thoughts on the proposed decision. The Applicant should not dismiss ideas shared by the Respondent without giving it some thought and ensuring the decision is in the best interests of William rather than the parents.

[70] I have considered the Respondent’s position that the parties be provided with joint decision-making with a mediator or alternate dispute resolution process in place to address occasions where they are unable to agree. However, due to the ineffective communication between the parties, this could lead to great delays in decisions being made, increase unnecessary expense, and continue the litigation in this matter.

[71] The Applicant will be permitted to obtain and/or renew government documents without the consent of the Respondent. The Applicant should ensure the Respondent has up to date copies of all such documentation.

[72] The Respondent expressed concern regarding the Applicant travelling with William outside of Canada. The Applicant is permitted to travel outside Canada without the Respondent’s consent; however, she will have to provide the Respondent with advance notice. The Respondent will be permitted to travel outside Canada with the consent of the Applicant that should not be unreasonably withheld.

[73] The mother shall facilitate the father’s parenting time with the child and remain flexible and open to accommodating the summer schedule and/or school breaks if it does not interfere with a previously planned event or activity.

Child Support

[74] Section 15 of the Federal Child Support Guidelines provides that a payor’s annual income is to be determined in accordance with sections 16 to 20. Section 16 provides that a payor’s annual income is their income set out under the heading “Total income” in the T1 General form on their income tax return, subject to sections 17 to 20 and adjusted in accordance with Schedule III.

[75] Section 19(1) of the Guidelines permits the Court to impute income to a payor as it considers appropriate in the circumstances. The section sets out a list of circumstances where the Court may impute income which include a spouse being intentionally unemployed or underemployed, living in a country with different effective tax rates than Canada, and failing to provide income information when under a legal obligation to do so.

[76] While the Court has discretion under s. 19(1) to impute income, it must do so based on evidence. The Court cannot select an arbitrary figure: Drygala v. Pauli, [2002] O.J. 3731 para 52.

[77] The Respondent has failed to comply with previous court orders to provide financial disclosure. The Applicant had to resort to obtaining a court order for financial disclosure from the Respondent’s employer. The employer produced the income disclosure in April of this year pursuant to Des Rosiers, J.s’ Order of February 29, 2024.

[78] The company provided copies of the Respondent’s paystubs from August 1, 2023, to January 31, 2024. The last T4 slip of the Respondent in the Applicant’s possession is from 2020 when the parties appeared before Justice Czutrin. At that time, the Court found the Respondent’s income to be $39,140. The Applicant requests the Respondent’s income be imputed at this amount for the years 2021, 2022, and 2023.

[79] The Respondent’s paystubs reveal he is earning $36.41 per hour, and in the two-week period ending January 31, 2024, the Respondent worked 81.25 hours. The math suggests the Respondent earned $5,916.66 in January 2024. The earnings are described as “regular” on the payslip. Therefore, if the Respondent were to continue employment with this company, his annual income for 2024, would be $70,992. Table Child support for that level of income is $663 per month. The Applicant requests that the Respondent should pay that amount of child support commencing January 1, 2024, on an ongoing basis, with credit for any payments made thus far.

[80] The Respondent attended at the trial and confirmed his income of approximately $70,000 per annum and advised he recently received a raise effective July, of $74,000 per annum. Based on this evidence, there is no need for the Court to impute income for 2024.

[81] According to the Federal Child Support Guidelines, Table Child Support for an annual income of $70,992 is $663 per month, and for $74,000 per annum is $691 per month. Therefore, the Respondent is required to pay child support in the amount of $691 per month less any monies already paid from January 1, 2024 to June 30, 2024. Effective July 1, 2024, the Respondent is required to pay monthly child support of $691 per month less any monies paid.

Section 7 Expenses

[82] Section 7 of the Federal Child Support Guidelines governs “special or extraordinary” expenses. Special or extraordinary expenses are:

a. Childcare expenses incurred as a result of employment, illness, disability, or education or training for employment of the spouse who has the majority of parenting time; b. That portion of the medical and dental insurance premiums attributable to the child; c. Health related expenses, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist, or any other person, physiotherapy, occupational therapy, speech therapy, and prescription drugs, hearing aids, glasses and contact lenses; d. Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; e. Expenses for post-secondary education; and f. Extraordinary expenses for extracurricular activities.

[83] Section 7 requires a Court to determine the necessity and reasonableness of a claimed expense. It must consider if the expense is necessary in relation to the child’s best interests and reasonable in relation to the means of the spouses. For paragraphs d and f above, the expense must be “extraordinary” not the activity.

[84] An order for contribution to s.7 expenses is discretionary as to both entitlement and amount. It permits a court to order an additional amount payable above table child support. A court must consider the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses.

[85] The Applicant’s affidavit states the Respondent has contributed little to nothing towards special and extraordinary expenses over the years. The Applicant was responsible for all these expenses and was able to manage. However, in February 2022, the Applicant was required to work weekdays between 8 a.m. and 4 p.m. To be able to work, daycare was necessary for William. The Respondent father has not contributed to these costs. Childcare expenses are a valid s. 7 expense. Further, Justice Horkins ordered the parties to share daycare costs equally.

[86] Per the above Order effective July 22, 2016, the parties were ordered to pay for childcare equally. The total childcare fees were 2022 - $6,649.62; 2023 - $7,934.58; and 2024 - $4,269.70 from January to June. The Applicant calculated her net costs for childcare for the above period as 2022 - $2,159; 2023 - $3,300; and 2024 - $967. Based on the Court Order, the Respondent owes $3,212 until June 30, plus $150 for July and August 2024, for a total of $3,362.

[87] The Applicant has also incurred dental costs of $710 for the child in 2023. It is unclear if this amount may be submitted to the Respondent’s insurer. The Respondent shall make the necessary inquiries.

[88] The Applicant proposed that each party select and pay for one extra-curricular activity that occurs no more than once per week for the child and the other parent is expected to take William to that activity and support the child’s participation during the time William is in their care. I encourage the parties to discuss and come to an agreement on this because if the activity occurs on the weekend, it will impact both parents time with William.

Life Insurance and Extended Health Care Benefits:

[89] The Applicant seeks an order requiring the Respondent to obtain and maintain life insurance coverage on his life and to designate the Applicant, in trust for William, as the sole beneficiary of all life insurance available through employment.

[90] The Respondent has remarried. It is appropriate for the Respondent to ensure he has life insurance coverage as security for child support. Therefore, he shall obtain and maintain life insurance coverage on his life and designate the Applicant, in trust for William, as an irrevocable beneficiary of $500,000.00 of such coverage, as security for child support. The Respondent shall provide written confirmation from the insurer that the designation remains in effect when requested by the Applicant.

[91] Should the Respondent’s group insurance cease, he will obtain substitute coverage, as security for his child support. The parties shall rely upon a Divorcemate calculation to determine the quantum required to be obtained.

[92] The Respondent shall maintain William as a beneficiary of any medical/drug/dental coverage available through his employment.

[93] The Respondent shall provide authorization for the Applicant to contact his insurer to facilitate a coordination of benefits and to follow up and confirm approvals and payments. If the Applicant is required to pay for any services covered by insurance, she shall first submit to her insurer (her birth month is first in the calendar year), and then submit to the Respondent’s insurer, the Respondent shall reimburse or endorse the Applicant for any amounts paid by his insurer. If the benefits of both parties do not cover the expenses, the parties shall each contribute to the remaining amount based on their respective incomes.

Order

[94] This court makes the following Order:

a. The temporary orders of Horkins, J. dated July 22, 2016, and Czutrin, J. dated July 23, 2021, shall be set aside and replaced by this final order.

Regular Parenting Time

b. Pursuant to s.16.1(4) of the Divorce Act, until January 1, 2025, the Father’s parenting time shall be 5 overnights out of 14 days, as follows pursuant to the following two-week rotation:

i. During Week One, on alternate Fridays, pick up at school to Monday mornings, with drop off at school; ii. During Week Two, on Wednesdays, after school to Thursday morning.

c. In the event that Monday is a holiday or a PA Day, the Father’s parenting time will end on Tuesday, at the same time.

d. When there is no school, parenting exchanges shall take place at the Tim Horton’s at the corner of Bloor St. and Sherbourne St. Parenting exchanges may also occur at any other mutually agreeable location.

e. The parties shall not attend within a 100-metre radius of the home of the other unless invited in writing.

Mother’s Day/Father’s Day

f. The child shall be resident with the Mother for Mother’s Day and with the Father for Father’s Day regardless of the regular schedule from Saturday at 6:00 p.m. to Monday morning drop off at school if Mother’s Day or Father’s Day does not fall on the honoured parent’s weekend.

Parent’s Birthday

g. The regular schedule shall apply regardless of a parent’s birthday.

Child’s Birthday

h. The parties shall organize their own birthday celebrations with the child on their own parenting time. On the child’s actual birthday, the regular schedule shall apply. The non-resident parent shall have a video call with the child but cannot disrupt dinner plans or a birthday party the resident may have planned on that day.

Christmas

i. In even numbered years, William shall spend December 24 at 9 a.m. to December 26 at 9 a.m. with Mother, and then December 26 at 9 a.m. to December 28 at 9 a.m. with Father.

j. In odd numbered years, William shall spend December 24 at 9 a.m. to December 26 at 9 a.m. with Father, and then December 26 at 9 a.m. to December 28 at 9 a.m. with Mother.

k. Except as set out above, the regular schedule shall continue during the school Christmas holiday.

Summer Schedule

l. The Summer schedule commences when school closes and end on the first day of school.

m. Each parent shall have two one-week periods with the child during the summer. The weeks shall not be consecutive unless agreed upon in writing by the parties.

n. In even numbered years, Mother shall have the first choice of weeks. She shall advise Father by May 1 and Father shall then advise Mother of his choice of weeks by May 15.

o. In odd numbered years, Father shall have the first choice of weeks. He shall advise Mother by May 1 and Mother shall then advise Father of her choice of weeks by May 15.

p. Except as set out above, the regular schedule shall continue during the summer.

Spring Break

q. In odd numbered years, the child shall spend the spring break with Mother, from the last day of school before the commencement of the spring break, until the first day of school at the end of the spring break.

r. In even numbered years, William shall spend the spring break with Father, from the last day of school before the commencement of the spring break, until the first day of school at the end of the spring break.

s. If a parent requests a change to the schedule, and this applies when the non-resident parents would like to have the child for a special occasion (often which means the scheduling of this occasion is out of the control of the non-resident parent), the requesting parent shall communicate via Our Family Wizard about the request for a change to the regular or holiday schedule when the need for the change arises with as much possible notice. The other parent shall reply within 48 hours of the requested change.

Changes to Schedule

t. Neither parent shall make plans for the child when they are scheduled to be with the other parent, without first having the consent of the other parent.

u. The parents shall canvas and obtain the other parent’s consent regarding any potential changes to the schedule before mentioning anything to the child about a change or the special activity.

v. In an emergency or unforeseen circumstances (inclement weather or illness), significant changes to the drop off or return times shall be communicated by a parent as soon as these changes become known to the parent having to make them.

Communication

w. The parties shall continue to communicate about the child through the Our Family Wizard app. If either parent wishes to share information that does not require a response, a message shall be sent with the acronym “FYI” indicating no response is necessary.

x. The parties shall make every possible effort to actively foster and facilitate a healthy and happy relationship between the child and the other parent, and the other parent’s spouse or partner when applicable by overtly encouraging such.

y. The parties shall refrain from any subtle or forthright and open negative influence that might undermine the child’s relationship with the other parent, and/or the other parent’s partner when applicable.

z. On an ongoing basis, each party shall provide the other with his / her: home address; email address, and telephone number.

Decision-Making Responsibility

aa. The Mother shall consult with the Father by Our Family Wizard on all major issues relating to the child prior to making any major parenting decision. A period of 30 days shall follow the Mother’s notification to the Father of the issue so that the parties may communicate on the issue. The parties will make every effort to reach a decision by agreement. Only after 30 days, shall the Mother proceed if there is no agreement.

i. The Mother shall advise the Father of the decision she proposes to make; ii. The Mother shall provide any relevant information and/or documents; iii. The Father may ask any reasonable follow-up questions, and/or provide his thoughts and opinions; iv. The Mother shall consider any input in the decision provided by the Father.

bb. The parent with whom the child is in the care of, shall make the day-to-day decisions, but should try to adhere to similar bedtime and homework routines.

cc. In a health emergency, the parent with care of the child at that time will make the treatment decision, on the advice of medical personnel. If a parent makes an emergency health decision, the parent who has made the decision must immediately contact the other parent and keep that parent updated regarding the child’s medical condition, and treatment, etc.

dd. If the Mother plans to enroll the child in any summer camps or summer programs, she shall immediately advise the Father of these plans so he can choose his vacation weeks in consultation and in advance of enrollment in any camps/programs.

ee. For activities that fall on both parent’s days, such as on weekends, the parties shall use their best efforts to agree on which activities or sports or lesson in which the child shall participate. If the parties cannot agree, the Mother shall have final decision-making responsibility for these activities. For clarity, the Mother shall not enrol the child in activities that purposefully interfere with the Father’s parenting time. The intention is that if some of the child’s sports and team activities have practices, games or tournaments which fall on the Father’s parenting time and the parties cannot agree on whether the child shall attend such events, the Mother shall have final decision-making responsibility for these activities.

ff. The Father shall have the right to consult with and obtain information from the child’s teachers, doctors, or other professionals about the health, education, and welfare of the child without the prior consent or authorization of the Mother and in accordance with section 20(5) of the Children’s Law Reform Act. If the Mother’s consent is required by any professional she shall forthwith execute any documents needed to allow the Father to deal directly with a professional.

gg. The Father shall be permitted to attend any of the child’s appointments, school activities, or other activities. Each parent shall arrange their own parent-teacher appointments separate from the other parent.

hh. The Father will not consume cannabis during parenting time.

ii. The Mother may apply for and obtain a passport, OHIP card, SIN card or other government documentation for William de Paiva Gomes, born March 19, 2015 without the consent or signature of the Father. The Mother shall ensure the Father receives copies of all up to date government issued identification/documentation.

Travel

jj. The Mother may travel outside Canada with William de Paiva Gomes, born March 19, 2015 without the consent of Father, and shall provide 30 days advance notice of the proposed trip.

kk. The Father may travel outside Canada with William and shall provide 30 days advance notice of the proposed trip. The Mother shall not unreasonably withhold her consent for the Father to travel with the child.

ll. The following terms apply to travel:

i. when a parent travels without the child, that parent shall provide a reliable telephone contact number to the resident parent in case of a child-related emergency and/or if the child wants to contact the traveling parent; ii. the parties may travel with the children during their regular and holiday scheduled time set out in this order, taking into account safety and health advisories; iii. proposed travel that would involve changes to the regular or holiday schedule requires the consent of the other parent; iv. written notice of travel, including an itinerary and full travel information shall be provided to the other parent in advance of travel if travelling outside of Canada; v. if travelling outside of Ontario with the children, the parent will notify the other parent, however, consent is not required within Canada; vi. the traveling parent shall provide the prepared consent letter required for border crossing to be notarized to the other parent containing the following information: departure and return dates, destination, hotel/accommodation name, flight (or train) numbers, and any other pertinent information) at least 2 weeks in advance of travel. The letter shall be returned to the travelling parent one week in advance of the departure date, with the children’s passports. Any other details of the itinerary that are not required in the letter shall be provided no less than one week in advance of departure date. For shorter notice travel, the parties shall provide the required documents to the other parent as quickly as possible within reason and prior to the departure date.

Residential Moves

mm. Neither parent shall relocate the child’s residence more than 25 kilometers from his current place of residence without the written consent of the other or a Court Order.

Child Support

nn. Commencing July 1, 2024, and on the first day of each month, thereafter, the Father shall pay child support for one child in the amount of $691 per month, less any monies already paid, based on an annual income of $74,000.

oo. Between January 1, 2024, to June 30, 2024, inclusive, the Father shall pay child support for one child in the amount of $663 per month, less any monies already paid, based on an annual income of $70,000.

pp. For as long as child support is paid, the parties shall provide each other with updated income disclosure by June 30 of each year in accordance with section 24.1 of the Federal Child Support Guidelines.

qq. Child support shall adjust effective July 1 of each year. For clarity, if the Father’s income decreases in a tax year, there will be no changes to his child support payments until July 1. Likewise, if his income increases, he will not pay top-up support as the one-year income bases support will begin on July 1.

rr. A Support Deduction Order to issue.

Section 7 Expenses and Arrears

ss. The Mother has an income of $58,540, and therefore, the Father shall pay to the Mother the sum of $75 for each of the months of July and August for a total of $150 for the special or extraordinary expenses of the child attending daycare.

tt. As of June 24, 2024, the arrears of special and extraordinary expenses owing by Frederico Gomes Lopes Itokazu to Marianna de Paiva Areal are fixed at $3,212. Frederico Gomes Lopes Itokazu shall pay these arrears within 120 days.

Life Insurance

uu. The Father will forthwith designate Mother, in trust for William, as a beneficiary of life insurance, of no less than $500,000, available through employment.

vv. The Father will maintain this designation as long as the child is entitled to support under this Order.

ww. The Father will provide to the Mother, annually upon request, written confirmation from the insurer that the designation is still in effect.

xx. If the Father ceases to have such group insurance, he will obtain substitute coverage, with an equal death benefit, in an amount calculated from Divorcemate, from a private insurer or another group insurer. Father shall make Mother the sole beneficiary of such substitute insurance.

yy. If the Father dies without this insurance in effect, his personal representatives will pay the difference between the amount paid by the insurer and the amount required by this agreement. This obligation will be a first charge on the Father’s estate.

Health/Medical/Dental Insurance:

zz. The Father will maintain the child as a beneficiary of any medical/dental/drug coverage available through his employment.

aaa. The Respondent shall provide to the Applicant all reimbursements he receives for medical/dental and other health expenses incurred by the Applicant for which the child has coverage under the Respondent’s extended health policy within seven days of receiving payment. Any uninsured portion will be treated as a section 7 expense. The same applies to the Applicant should she have medical/dental and other health coverage.

bbb. The Father shall take reasonable steps to facilitate access to the Father’s extended health care benefits through employment for the child.

ccc. If the parties combined benefits do not cover the entire health care, dental, orthodontic, etc. expense, the parties shall each be responsible for the balance owing according to their incomes.

ddd. If the parties cannot agree on costs, they may schedule a brief video court appearance before me for oral submissions to be no longer than five minutes each; or the Applicant shall serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs and Offers to Settle within 15 days. The Respondent shall serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs and Offers to Settle within 7 days of being served with the Applicant’s costs submissions.

Date: October 18, 2024 Released: October 18, 2024

COURT FILE NO: FS-16-410252 DATE: 20241018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MARIANNA de PAIVA AREAL Applicant AND: FREDERICO GOMES LOPES ITOKAZU Respondent

REASONS FOR JUDGMENT Rhinelander J.