COURT FILE NO.: FS 22-30431
DATE: 20241211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Melody Sitchon
Applicant
– and –
Andrew Shia
Respondent
Lorna Yates, for the Applicant
Ken Nathens, for the Respondent
HEARD: October 1 – 7, 2024
MATHEN, J.
[1] The Applicant Mother (“Melody”) and Respondent Father (“Andrew”) are parents to an eight-year-old boy, M. Melody and Andrew separated in 2022. Ever since, they have been in litigation regarding M. The central issues in this trial focused on whether Andrew should have more parenting time with M., whether Andrew owes Melody child support arrears, and how M.’s prospective section 7 expenses should be handled. To Melody’s and Andrew’s credit, they have managed to resolve many of their other issues.
[2] For the reasons set out below, I have determined that it is not in M.’s best interests for his parenting time with Andrew to be increased beyond the current parenting schedule which has M. residing with Andrew 5 out of 14 overnights. I have calculated the child support arrears owing to Melody, which include both table and s. 7 expenses for 2022-2024 inclusive, and decided how the parties are to determine and share M.’s s. 7 expenses going forward.
BACKGROUND
1. Party History
[3] Melody and Andrew, who never married, began cohabiting on May 1, 2015. They had their only son, M., in late January 2016.
[4] Melody is a real estate broker, and Andrew is a Rogers technician. The parties have deemed their respective 2023 incomes as $75,000 for Melody and $160,766 for Andrew. Table child support for Andrew is $1,377 per month.
[5] Since M.’s birth, Andrew has lived in the same house in Stouffville, Ontario (“Lakeview”).
[6] The parties often lived apart. In 2020, they began living together at Lakeview. They separated on May 22, 2022, after Andrew was charged with two counts of assault against Melody, including assault by choking. The alleged incident happened at home while M. was present. Since that day, M. has lived primarily with Melody in North York.
[7] Melody commenced an Application in this Court on June 23, 2022.
[8] After the criminal charges were laid, Andrew did not see M. for three months. He then had four supervised parenting visits. Since fall 2022, Andrew’s parenting has been unsupervised.
[9] On March 6, 2023, Justice Shore issued an order addressing interim parenting, child support, and section 7 expenses. As a result:
a. Andrew’s current parenting schedule is every Wednesday afternoon until Thursday morning and alternate weekends from Friday afternoon until Monday morning. This amounts to Andrew having 5 overnights out of every 14-day period. During each parent’s time with M., they must take him to any scheduled extracurricular or other activities.
b. Andrew was ordered to pay monthly child support of $1,144.
c. Andrew was also ordered to pay 60 percent of M.’s section 7 expenses.
[10] Andrew’s criminal charges were withdrawn in March, 2024.
[11] On September 18, 2024, the parties executed a partial consent agreement addressing decision-making responsibility for daily and major decisions, holiday and summer vacation parenting time, travel, relocation, and dispute resolution.
[12] In September 2024, M. entered grade 3. His school is approximately 5 minutes from Melody’s home, and 30-45 minutes from Andrew’s home.
[13] M. is involved in numerous activities, including sports.
[14] The York Regional Children’s Aid Society (“CAS”) has opened three files on the family, including one just before this trial. Two of the files are closed. CAS has made recommendations about how the parties should relate to one another.
[15] A clinician prepared two Voice of the Child (VOC) reports.
2. The Issues
[16] The issues in this trial are:
a. Should Andrew’s parenting time with M. be increased by an additional overnight every week?
b. If Andrew’s parenting time is increased, should his child support be reduced under section 9 of the Child Support Guidelines?
c. How much, if any, retroactive child support does Andrew owe Melody?
d. What counts as M.’s “special and extraordinary expenses” and who decides on them? How are they to be funded? How much, if anything, does Andrew owe for retroactive expenses?
3. Party Positions
Melody
[17] Melody has grave misgivings about Andrew having additional parenting time. She says that M. already has difficulties with the current schedule, in part, because of Andrew’s alleged domestic violence which M. witnessed and has greatly affected him.
[18] Despite Melody’s misgivings, she is not seeking to reduce Andrew’s parenting time. She seeks to maintain the status quo of Andrew having 5 overnights with M. every two weeks.
[19] Melody believes that Andrew only wishes to increase his parenting time in order to reduce his child support.
[20] Melody believes that M. thrives under his current roster of activities. She thinks that Andrew’s resistance to M’s activities is financial, not based on what M. wants or what is in his best interest.
[21] Melody seeks the following retroactive child support:
a. $1,754.00 owing for the period of June 1, 2022 to December 31, 2022;
b. $2,706.00 owing for the period of January 1, 2023 to December 31, 2023; and
c. $1,935.00 owing for the period of January 1, 2024 to September 30, 2024
[22] Melody seeks the following retroactive section 7 expenses:
a. $294.53 for 2022;
b. $505.20 for 2023;
c. $831.77 for July 1, 2024 to July 28, 2024; and
d. $457.30 from July 29, 2024 to September 13, 2024.
[23] Relying on section 7 of the Ontario Child Support Guidelines, O. Reg. 391/97, Melody wants numerous expenses to be shared by the parties on a proportionate-to-income basis including hockey, baseball, and tutoring.
[24] Melody says that Andrew is unable to communicate effectively with her. As a consequence, she believes that she should have sole decision-making on M.’s extracurricular activities.
[25] Melody believes everything that M. tells her, including several disturbing things he has said about Andrew. She acknowledges that others, including CAS, do not share this belief.
Andrew
[26] Andrew believes that it is in M.’s best interests to have additional time with him. He describes M. as his “best buddy”.
[27] The current parenting schedule is challenging. Andrew and M. are separated every other week for six nights in a row. This is hard on both of them. Taking M. to and from school takes at least a half-hour. Wednesdays are very rushed, and the weekends are dominated by M.’s activities. Andrew says that he and M. need more “down time”.
[28] Andrew denies that he was ever abusive, that he ever choked Melody, or that he “yells” at M. He admits that his tone may be harsher than he intends.
[29] Andrew does not mind M. being enrolled in various activities. He objects to Melody having the sole say in what they are.
[30] Andrew thinks that neither parent should be able to control how the other spends their parenting time.
[31] Andrew says he wants more time with M. regardless of whether his child support is reduced.
[32] Andrew says that he and Melody have difficulty communicating. He avoids contact with her as much as possible. He admits using his car’s dashboard camera to capture their exchanges as security against possible future complaints by Melody. He is afraid that she will get him criminally charged again.
ANALYSIS
[33] The facts as I find them are set out in the following analysis.
[34] Before turning to the issues, I briefly set out the law regarding credibility and my assessment of the parties.
1. Credibility and Reliability
Overview
[35] Credibility is a primary vehicle for determining the truth of alleged facts. This task can be rendered “unenviably difficult” depending on the narrative put forward by the parties: Konstan v Berkovits, 2023 ONSC 497, 2023 CarswellOnt 932 at para. 8.
[36] In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 20, the Supreme Court of Canada cautioned that evaluating witness credibility is not “a science.”
[37] Traditional criteria used to assess witness evidence include witness demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, [2000] O.T.C. 237, at para. 46 per Justice Cameron.
[38] Witness credibility is critical to the burden of proof: Konstan. Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of “the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact”: Konstan at para. 9.
[39] It is necessary to distinguish credibility from reliability. Credibility has to do with whether parties’ testimony is honest, while reliability concerns whether testimony is accurate: R. v. Sanichar, 2013 SCC 4, [2013] 1 S.C.R. 54, at para. 19. One may find a witness generally credible yet doubt their reliability. Conversely, a witness who is not credible may nonetheless offer reliable testimony.
The parties
[40] Generally, I find Melody to be a credible witness. Her testimony was consistent. She seemed to make genuine efforts to answer the questions put to her. In her examination-in-chief, she tended to go into more detail than necessary, but I did not perceive this as an effort to distract or confuse proceedings. Under cross-examination, she was neither combative nor defensive.
[41] I also find Melody generally reliable, with some exceptions. As I will explain further in these reasons, I do not entirely accept her account of the incident between the parties on May 22, 2022.
[42] Melody can appear rigid and unyielding. She firmly believes that M. benefits from a myriad of activities and she is resistant to the idea that his schedule might be trimmed. While this does not render her less credible, it does make her less reliable in her account of M.’s enjoyment of all of his activities or what would happen if M. had fewer of them.
[43] I find Andrew credible in some respects and not credible in others. His love for M. appears genuine. I do not doubt that Andrew sincerely wants to have more time with M. Andrew also comes across as reflective about their relationship than Melody does. I find him willing to entertain compromises.
[44] Andrew originally listed his mother Suzan Shia as a witness but removed her shortly before trial. At several points during the trial, Melody’s counsel implied that there was something suspicious about this. In his examination-in-chief, Andrew stated that his mother was physically and emotionally unwell. The fact that Ms. Shia was not called as a witness does not affect my assessment of Andrew’s credibility.
[45] Andrew reported Melody to the York Regional Police in July 2024. I discuss this incident further in these reasons. I do not believe Andrew’s account of why he did this.
[46] Andrew also lacked credibility on the nature of his connection with a company called Innovative Signs. This connection was raised as part of Melody’s narrative that Andrew is hiding income. Andrew testified that his relationship with Innovative Signs was limited to his friendship with its owner. I do not find this credible. However, after 2020 there is no evidence of any relationship at all. In addition, the parties agreed they should each be imputed with income for child support purposes. Therefore, while this testimony weakens Andrew’s credibility, his relationship with Innovative Signs in 2020 or 2021 is otherwise irrelevant to the issues in this trial.
[47] For the following reasons, I find Andrew much less reliable than Melody. First, in his testimony Andrew had enormous difficulty conveying information. This was especially evident during his cross-examination, which took much longer than Melody’s. While Andrew was not evasive, he frequently became confused. Andrew appears to have difficulty processing information, particularly when reading from a screen, which he was frequently asked to do. On numerous occasions, after an extended back and forth with Melody’s counsel, he would simply accept whatever was being put to him.
[48] The second reason I find Andrew less reliable than Melody is that he did not do nearly the same amount of trial preparation as she did. Strikingly, he admitted to failing to review his own documents before trial. Because he could not recognize many documents put to him, such as the parties’ partial consent executed on September 18, 2024, he could not speak to them.
[49] The third reason I find Andrew less reliable than Melody is that he frequently would refer to facts or prior assertions that were not in evidence. I find that this tendency sprang from his overall confusion and not a deliberate effort to deceive the court. I find Andrew unfocused and easily flustered.
Other witnesses
[50] Melody called two additional witnesses: Hailey Fisher, an intake and assessment worker with the York Region CAS, and A.D., Melody’s current partner.
[51] Andrew called one additional witness, Q.C., his former wife.
[52] I discuss the credibility and reliability of these witnesses under Issue One.
Issue One: Should Andrew’s parenting time with M. be increased?
[53] Andrew’s parenting time is at the core of this case. There are many aspects to this issue, including allegations of family violence.
[54] I begin by setting out the law I must consider.
[55] I then organize the evidence chronologically:
a. Parenting Pre-Separation
b. The May 22, 2022 Incident and Aftermath
c. Parenting Post-Separation
[56] In addition to what was provided from Melody and Andrew, the evidence includes testimony from A.D., Q.C., and Hailey Fisher, the York Region CAS reports, and the two VOC reports, which the parents agreed to admit in lieu of calling the assessor.
The Law
[57] Section 24(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) states that, in making a parenting order, the court shall only take into account the best interests of the child. In determining best interests, “the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: CLRA, at s. 24(2).
[58] Section 24(3) of the CLRA outlines that the factors relevant to “the circumstances of the child” including:
- the nature and strength of the child’s relationship with each parent;
- each parent’s willingness to support the child’s relationship with the other parent;
- the history of care of the child;
- the child’s views and preferences, giving due weight to the child’s age and maturity;
- the ability and willingness of each parent to care for and meet the needs of the child;
- the ability and willingness of each parent to communicate and co-operate, in particular with one another, on matters affecting the child;
- any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.
[59] Section 18 of the CLRA defines “family violence” as “any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.” Such conduct includes physical abuse, psychological abuse, and threats to kill or harm an animal or damage property.
[60] In considering the impact of any family violence, the court shall take 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 the person’s ability to care for and meet the needs of the child; and
h. any other relevant factor.
CLRA, s. 24(4).
[61] Although it is not a source of law, and therefore not binding on the court, the Association of Family and Conciliation Courts of Ontario Parenting Plan Guide (December, 2021) is helpful in understanding the social science research in respect of parenting schedules at various ages and stages. In respect of an “Early School Age Child” (ages 6-9), the Parenting Plan Guide provides in part:
Even if parents have been equally involved in childcare before separation, some children in this age group will still benefit from having a “home base” with one parent, with, for example, alternate weekends and a mid-week dinner with the other parent. It is very helpful for children this age to have a consistent routine, whatever the parenting plan. Any mid-week parenting time should occur on the same night each week, if possible. [emphasis added]
The Evidence
a. Parenting Pre-Separation
Melody
[62] When M. was born in 2016, Melody and Andrew were living together at Lakeview. Within 12 months, Melody took M. and two dogs to live in North York. The couple lived together off and on for the next several years with the longest period together being from March 2020 to May 2022.
[63] When asked why she kept moving in and out of Lakeview, Melody said the couple experienced a lot of conflict. They could not “talk things out” – rather, Melody was told what to do. When the water line broke in the basement, Andrew called her “stupid” for not knowing where the shut off was. Andrew took out his frustrations on Melody by swearing at her and telling her to leave. Andrew would yell at her repeatedly, for example, about “leaves being in the driveway.” Melody’s hands would “shake” from being yelled at.
[64] Melody described conflict over the couple’s dogs. Her late dog, Pancake, would be aggressive towards another of the couple’s dogs, Pico. She said Andrew would get extremely angry at Pancake, kick her crate, and threaten her. Andrew sprayed Pancake with “dog spray” which created an overpowering smell.
[65] Melody talked to friends and her mother-in-law about her experiences.
[66] Melody says that Andrew had a habit of “going quiet” when he was upset with her or with M. He would refuse to speak for days or weeks. Melody felt like she had to “walk on eggshells” around him.
[67] Melody testified that she has been M.’s primary caregiver since birth. When she required help, she turned primarily to her own mother, followed by Andrew and his mother, Suzan Shia. M. attended daycare and preschool until the COVID pandemic shut everything in March 2020. As a realtor, Melody was mostly at home.
[68] When M. was born, Andrew had an irregular schedule with shift work. He worked overtime although Melody was unsure whether that started during COVID. Andrew was involved with M.’s activities and care when his work schedule permitted it.
[69] M. started junior kindergarten, virtually, in September of 2020 and did not attend school in person until November of 2021.
[70] The beginning of COVID was a relatively stable period in the couple’s relationship. Eventually, things changed. Melody recounted a conflict about the Lakeview septic tank which Andrew ordered her to locate. She spent months digging up the cover, with M. “helping.” Melody stated that the issue with the septic tank was “a very big deal” for Andrew. Melody gave the impression that Andrew ordered her and M. to dig a large hole.
[71] Another incident stemmed from what Melody described as Andrew’s irritation at the “shit” cluttering the house. While Melody acknowledged that M. had a lot of toys, the dispute escalated to Andrew actually throwing out both Melody’s and M.’s things, sometimes in M.’s presence.
[72] Melody recounted an incident where Andrew shot and killed some raccoons that were destroying the family’s chickens.
[73] Under cross-examination, Melody testified that:
a. Andrew took parental leave after M. was born. She did not recall its duration.
b. As a realtor, Melody sometimes worked nights. She also played volleyball 3-4 times per week.
c. Melody would leave M. in Andrew’s care at least 2-3 times per week for approximately 3-4 hours.
d. Melody never called animal services regarding Andrew’s alleged mistreatment of Pancake.
e. Melody told Andrew to “deal with” the raccoons because they were eating the family’s chickens. She did not see Andrew shoot the raccoons and could not say that M. had either.
f. After the May 22, 2024 incident (discussed below), she moved M. away from Lakeview where the child had always resided.
g. Melody registered M. in his current school “as soon as she could” and did not seek Andrew’s consent until a few days before the registration was due.
h. In an October 2022 email chain, Melody told Andrew that M. had several activities (tutoring on Tuesdays and Thursdays, volleyball on Fridays, and hockey on Saturdays and Sunday mornings) that needed to be observed during his parenting. She did not seek Andrew’s input.
i. On at least one occasion Melody told Andrew that he would have to change his parenting time because Melody would be at an event (e.g., a baseball appreciation night for which Melody was coach). Andrew was under a no contact order at that time.
j. With respect to M.’s current hockey registration, to which Andrew objected, Melody testified that the decision was “out of her hands” since M. had successfully tried out for and secured a spot on the team.
Andrew
[74] Andrew has lived in Stouffville at 83 Lakeview Avenue, which he co-owns with his mother, since 2015. He lives with the following people:
a. Andrew’s long-time friend, G.W.
b. Andrew’s girlfriend, L.D.V.
c. L.D.V.’s sister, I.D.V. I.D.V. lives part-time at Lakeview and part-time at a home in Hamilton. She is M’s tutor and part-time nanny.
[75] There was considerable testimony about the above persons. I find this evidence largely irrelevant to the issues before me and will not address it in detail.
[76] Andrew has been a Rogers technician for 19 years. He is a “maintenance tech, level 2”. His formal schedule is Monday to Friday, 8:00 am to 4:30 pm. Every fifth week, he has a 7-day standby period where he must be available to respond to outages from 12:00 pm to 9:00 pm.
[77] Andrew works all over the Greater Toronto Area.
[78] Andrew agrees that he and Melody had an unconventional relationship and did not always live together. He agrees that Melody moved back to Lakeview when M. was born in 2016.
[79] After M’s birth, Andrew took parental leave for 3 months. To ensure that he would receive full pay, he took a full year’s paternity leave spread over 18 months. He described being home with M., performing infant care.
[80] Once Andrew’s parental leave ended, he performed childcare duties whenever he was around and said: “There wasn’t anything I was not prepared to do.” He took M. to school, and to all of his vaccinations since “Melody doesn’t like needles.”
[81] During COVID, Andrew and Melody shared caring for M. Andrew introduced a number of photos showing happy outings with M., including one featuring a memorable camel outfit.
[82] Andrew said that the couple shared household expenses and would each buy things for M. They did not do strict accounting.
[83] Andrew’s dynamic with Melody had its “ups and downs.” They had “minor arguments every few months”, and larger ones every 8 months. He acknowledged that M. was present for these arguments, and that he and Melody sometimes raised their voices.
[84] Andrew denies that Melody “walked on eggshells” around him. He could not recall a time pre-separation that he tried to throw Melody out of the house.
[85] Andrew had a very different account of the septic tank incident. He said that Melody agreed to help find the tank, that its cover was only 18 inches below grade and that M. was with Melody because he was too young to be left alone.
[86] Andrew said that he had to kill the raccoons to save the family’s chickens. Lakeview is a rural property where these things sometimes happen. The raccoons were trapped on the property but disposed of at a neighbor’s farm. Andrew insists that M. was not present and would not have heard any gunshots since he used an air rifle.
[87] Andrew said that he never “threw out” Melody’s and M’s things. Rather, the family instituted a rule where, when new toys came into the house, some old toys were to be donated or disposed of. He acknowledged that M. was upset at having to cull his toys.
[88] Andrew denied ever threatening any of the family’s dogs.
[89] Andrew said that Melody “loves M. like there’s no tomorrow.”
[90] When asked to describe M., Andrew became extremely emotional. Andrew sees a lot of himself in M.
[91] Before M. was born, Andrew was frequently out at the cabin, or riding bikes. Andrew said that he now does everything with M. in mind. Andrew works so that M. can enjoy life in Lakeview and have the childhood Andrew wishes he could have had.
b. May 22, 2022 Incident and Aftermath
[92] On or about May 22, 2022, Andrew was charged with two counts of assault against Melody including assault by choking.
Melody
[93] Melody said the incident occurred at Lakeview during a power outage. Melody, Andrew, and M. were due to travel to Kelowna.
[94] The outage and resulting property damage created tension and led to an argument, after which Melody told Andrew she no longer wanted him to come on the trip. Andrew responded that he did not want any of them to go. Melody said that Andrew “threatened to throw out [their] stuff.” He closed the door to M.s’ room, where M. was at that time.
[95] In trying to get to M., Melody had to go past Andrew. Andrew pushed her and knocked her to the floor. Melody tried to call the police, but Andrew knocked the phone out of her hand, hard, and pulled her to the floor and locked her legs. Melody says she could see M. standing at the open door, watching everything.
[96] According to Melody, Andrew “positioned [himself] on top of me”, with “his arm around my neck”. M. came out of the room. Melody told M. to run to the neighbor to get help and M. did so without shoes. Eventually, Andrew let Melody go so that he could go retrieve M. Melody ran out of the house through the basement and went to the neighbor’s driveway. Andrew threw Melody’s phone to her but would not let M. go. Melody called the police.
[97] After Andrew’s arrest, Melody took M. to her mother’s home at 2085 Bayview, which is where she currently lives.
[98] Melody says she was informed in or around March 2024 that the charges had been withdrawn. She was not notified in advance or asked to provide input into that decision.
[99] Melody says that after the incident she sought therapy, which she continues to attend approximately once every two weeks.
[100] Deeply concerned that M. was present during this incident, Melody started play therapy for him.
[101] Under cross-examination, Melody’s story remained consistent. She did admit to “mutual shoving” when she was trying to get past Andrew to reach M. She acknowledged that she declined the paramedics’ offer to take her to the hospital.
[102] Melody has not initiated any other charges against Andrew and did not testify to other family violence.
Andrew
[103] Andrew acknowledged that the two had an argument on May 22, 2022 “over multiple things” including a fallen tree in the driveway. He acknowledged Melody saying she would take M. to Kelowna on her own was an escalatory factor in the fight. Andrew denied telling Melody that she could not take M. on the trip.
[104] Andrew said that M. was on the couch watching the fight, and Andrew moved him into a separate room because “Mel and I were starting to raise our voices and telling each other ‘Watch your voice.’” Telling Melody “We need to separate”, Andrew took M. into a room on the same floor (he clarified that the Lakeview house is a bungalow). Andrew said M. was “2-3 feet into the room and [that he] was 1-2 feet in.” He continued:
Melody came pushing me through throwing elbows and hands trying to get to M; I grabbed the door frame and Melody to stop her from getting to M; I grabbed her wrists and we both fell.
[105] According to Andrew, Melody stepped onto his foot (most likely accidentally). Andrew is not sure why she fell. Andrew had grabbed Melody’s wrists because she was “throwing elbows at my face to get to M.” Andrew blocked Melody because he was aware of M. right behind them and did not want him to get in the middle.
[106] Andrew testified that, after the couple fell on the floor, Melody yelled at M. to get help and M. went to the door and “froze.” M. was wearing shorts, but no shoes, socks, or hat. Andrew picked M. up and “told him it would be ok.” Eventually, Andrew locked himself in the house. When he would not let Melody back in, she called the police and Andrew was arrested.
[107] Andrew denies ever choking Melody.
c. Parenting Post-Separation
[108] I will now consider the evidence of post-parenting since May 22, 2022. First, I note an evidentiary ruling made during the trial.
[109] In July 2023, Melody recorded a call with M. when he was with Andrew at Lakeview. The recording was made without Andrew’s knowledge, and his voice can be heard in the final ten or twenty seconds.
[110] Melody argued that the recording is probative of whether an increase in Andrew’s parenting time is in M.’s best interest. In particular, she claimed, the video substantiates the allegation that Andrew “yells” at M.
[111] Andrew objected to admitting the video. His counsel indicated that should it be admitted, Andrew would seek to admit his own video.
[112] After a voir dire, I reviewed the video as well as caselaw helpfully provided by counsel.
[113] My oral ruling noted that some courts have admitted surreptitious recordings in proceedings involving family violence, or where a recording can shed light on the best interests of the child. Nevertheless, courts have expressed serious concerns about introducing such evidence in family law proceedings. Generally, in order to be admitted, a surreptitious recording must have strong probative value. Ideally, it should provide information that is not available by other means.
[114] I found that, because the video in question shows Andrew’s behaviour while parenting, it is probative to a material issue: whether an increase in Andrew’s parenting time is in M.’s best interests. However, for the following reasons I found the video to lack strong probative value:
a. It is a single, two-minute recording without context.
b. While the video shows Andrew quite irritated with M., it does not show Andrew being violent or “yelling.”
c. It is not clear what the video would add to the analysis of parenting given the other evidence before this court which includes: Melody and Andrew’s testimony; the VOC reports; the CAS reports; and the testimony of a CAS worker.
d. Because the video shows Andrew in an unflattering moment without broader context, it is prejudicial to him.
e. M. was not a witness in this trial and cannot speak further to the incident.
f. Admitting this video would occasion admitting a second video, creating an unwelcome cascade effect, and potentially complicating the trial.
[115] I ruled that the video was inadmissible: its probative value was slight and outweighed by its prejudicial effect.
Melody
[116] Melody says that after Andrew’s arrest, she proposed (a) mediation and (b) that Andrew see M. in June, 2022. Andrew did not reply for a few months.
[117] Melody proposed 4 supervised visits. Once these visits occurred, Melody agreed to unsupervised visits.
[118] The current schedule for Andrew is alternate weekends Friday after school until Monday morning, and every Wednesday overnight until Thursday morning.
[119] Melody said that the current schedule presents several challenges:
a. There are significant logistical problems with M.’s activities, like baseball. Melody is a coach on several of M.’s teams. When a championship weekend fell during Andrew’s time, Melody had difficulty communicating with him.
b. Melody’s partner A.D. has a son M’s age. A.D.’s parenting schedule falls on the opposite weekend as Melody’s so the boys, who are close friends, rarely spend time together.
c. When M. has special events that fall during Andrew’s time – such as a friend’s birthday party – Andrew either does not respond to Melody or eventually tells her that M. does not want to attend.
d. Melody thinks both parents should be able to attend special events. There was a tense encounter during M.’s hockey banquet in the spring of 2024. Melody testified that Andrew took M. home early which interrupted M. getting an award. According to Melody, Andrew told her “M. doesn’t want us both there.”
e. Transitions often occur in a parking lot. Andrew deliberately moves his car away from hers, so that when M. walks from one car to another it looks like “a hostage exchange.”
[120] Melody says M. has refused to have phone calls with Andrew and must be cajoled into doing so.
[121] M.’s teacher is concerned with images M. draws.
[122] M. has broken down crying at school. Before the current parenting schedule, Melody says, M. did not have many crying episodes; now they occur once a month, “predominantly” following Andrew’s weekends. M. is “bouncing off the walls” and “unable to talk.”
[123] Despite these challenges, M. excels at school. Melody submitted very positive report cards. Having a private tutor for him has been especially helpful.
[124] Melody introduced several photos of M. looking relaxed, silly and happy.
[125] Under cross-examination, Melody testified that:
a. Pursuant to the parties’ partial consent order, parenting issues (including issues regarding communication) are to be handled through a parenting coordinator.
b. She has never heard M. say he wants the parents “separated.”
c. Melody thinks the current schedule works, because M. is used to it and needs “stability.”
d. Melody does not think that M. misses Andrew when the two are apart for several days.
Melody’s Partner, A.D.
[126] A.D. is Melody’s current partner. He first met Melody in 2022 when their kids were on the same baseball team. They started dating about one year later.
[127] A.D.’s own son is the same age as M. and the two are close.
[128] A.D. is clearly fond of M. and cares about his welfare.
[129] A.D. is very happy to have Melody in his and his son’s life. She is a “great mom”. When M. is “naughty”, Melody’s response is measured, most frequently sending him for a time-out.
[130] Having gone through a separation himself, A.D. understands that strong emotions can arise. A.D. said he and Melody try not to discuss the current conflict in M’s presence. While Melody is “not perfect”, she responds positively when A.D. tells her to be self-aware.
[131] A.D. has had a few casual conversations with Andrew at M.’s activities.
[132] A.D. has observed M. both before and after his visits with Andrew. Before a visit, M. “seems nervous, quiet, anxious.” When A.D. tries to speak with him, M. goes even quieter. At times after a visit, M. breaks down, acting like a much younger child. These reactions can last up to several hours.
[133] A.D. thinks Andrew “is trying” and is not “a terrible person.”
[134] Under cross-examination, A.D. admitted that M. has breakdowns at other times. He said that Melody occasionally has outbursts about Andrew in M.’s presence.
[135] I find A.D. both credible and reliable. He appeared sincere. He did not make grandiose or sweeping statements. His answers were measured. He was even-handed, for example, in describing Andrew. I am persuaded on a balance of probabilities that A.D. has observed M. breaking down after parenting with Andrew. A.D.’s evidence bolsters my impression that, because of M.’s distress over his parents’ separation and their fights over him, M. is not doing as well as he should or could be.
Andrew
[136] Andrew testified that he was subject to a pre-trial criminal release condition to not communicate with Melody except for the purposes of childcare.
[137] Andrew said that after his arrest, he and M. had one video call in early June 2022. He had supervised visits in August.
[138] Andrew spoke extensively about his participation in the Partner Assault Response Program (PARS), which he started on or about August 15, 2022. Andrew described the program as oriented towards conflict management. He gained insight into how a person’s body language and tone can convey aggression even if they do not intend to or raise their voice. Andrew said he realized that “M. doesn’t like stern talk” and equates it to “yelling.” Andrew is adjusting his parenting strategy because “if [my tone] makes him uncomfortable I have to stop.”
[139] Andrew tries to keep his written communication with Melody “as neutral as possible.”
[140] Andrew never consented to Melody relocating M. away from Lakeview, or to M.’s registration in his current school. He is concerned that M. left an existing social network at the public school he had been attending for a year. M.’s old school has a small student body and big open spaces. The new one has many more students. It takes extra time and money to ferry M. to and from the new school which is 30 kilometres away from Andrew’s home.
[141] In the VOC reports (discussed below) M. does not say that he wants more time with Andrew. When asked to comment on this, Andrew testified that “I have gotten along really well with M.” He says that M. is very comfortable at Lakeview, in particular because it was his first home.
[142] Andrew says that his “first instinct” is to “trust your child.” Nevertheless, he does not share Melody’s unshakeable belief in everything M. says. Andrew does not believe Melody would ever harm M. Andrew said that M. has made inconsistent statements (discussed below).
[143] Andrew agreed that M. “flip flops.”. For example, with regard to an incident where M. said that Melody put a “rock” on him (discussed below), Andrew said:
M. went on about it for an extended period of time; mentioned it to get out of activities; then went to CAS and said it never happened; [it was] hard to believe but he consistently said it.
[144] Andrew explained that he went to CAS about the rock because of something he read about CAS “being here to help.” He did not appreciate that CAS would immediately begin an investigation.
[145] Andrew talked about I.D.V. who lives with him part-time and does nanny duties for M. Andrew uses her predominantly when he is on-call. Andrew said that I.D.V. tutors M. four hours a week, usually on Wednesdays.
[146] When talking about the hockey banquet from spring 2024, Andrew said that he did not yet know his charges had been withdrawn. Accordingly, he assumed he was under a no contact order. When Andrew arrived at the arena, he saw Melody. Andrew continued:
I was in the main lobby and then Mel came from somewhere, she saw M., I looked at both of them, she offered M. popcorn; M. froze, I told him to walk to her; he was anxious; took popcorn; I called him back; the entire time, [Melody’s partner] A.D. was [standing] beside me, I told him “I can’t do this.”
[147] Andrew left with M. before the end of the ceremony.
[148] As Melody had not been specifically asked about the above details, I permitted Melody to be recalled to the stand where she denied that M. appeared “frozen” at the hockey banquet.
[149] When asked why he has changed his initial request for equal parenting and decision-making, Andrew said he is “tired of these proceedings.” He is sure that M. is conflicted by the parties’ legal dispute and, therefore, “someone has to make the first step.”
[150] Andrew feels “shut out” of decision-making and “excluded from M’s life.” It took him a “really long time”, but he eventually told himself “I have to trust Melody.”
[151] Andrew believes that M. feels “caught in a tug of war” between Andrew and Melody.
[152] Andrew acknowledged that he uses his dashcam to capture Melody when they are exchanging M. between visits. He is afraid of being criminally charged again. While this practice does not promote the best dynamic between the parents, I find it only tangentially relevant to my decision on parenting. I will not address it further in these reasons.
[153] Andrew was examined and cross-examined on his income. This included exchanges about the following items: whether his friend G.W. is really a roommate who should be paying rent to him; the arrangements with Andrew’s girlfriend and her sister who occasionally tutors M.; and Andrew’s past relationship with a company called Innovative Signs. Given that the parties have agreed on each other’s 2023 income, I find this evidence irrelevant to my analysis other than to support my earlier finding that Andrew is less credible and less reliable than Melody.
Andrew’s Ex-wife, Q.C.
[154] Q.C. is Andrew’s ex-wife. The two were married for approximately three years sometime between 2010 and 2014. They have no children together. Q.C. has a daughter who is 5 years old.
[155] For the past two years Q.C.’s daughter and M. have had approximately 10-15 play dates including fishing, visits to Niagara Falls, and a carnival/arcade game called “Claw”.
[156] Q.C. describes M. as a “very sweet kid.” She has not seen him unhappy. Q.C. has occasionally been at Lakeview with Andrew and M. She has no concerns about Andrew and M.’s relationship.
[157] Under cross-examination, Q.C. admitted that she has only seen M. a handful of times in 2024. She said they went fishing in August. Q.C. denied that the less frequent visits were because Andrew now lives with his girlfriend.
[158] Q.C. denied pressing charges against Andrew during their relationship. She acted as his surety in 2012 during a different domestic assault complaint by a woman named J.M. While Q.C.’s account was not entirely clear, I do not find this to go directly to her credibility or reliability about Andrew’s parenting. There is insufficient information before the court about this prior charge to include it in my analysis.
[159] While I am persuaded that Q.C. and her daughter had fun play dates with Andrew and M., she has only seen M. a few times in 2024. I therefore find Q.C.’s evidence only minimally relevant to whether Andrew’s parenting time should be increased.
CAS
Post-May 22, 2022 Incident
[160] CAS first become involved with the family the week after the May 22, 2022 incident.
[161] The Intake Statement coded the incident as “3.3. Child Exposure to Partner Violence”.
[162] On July 19, 2022, investigator Brittany Hunt, sent an email to Andrew entitled “Supports” about the following programs he might enrol in: Triple P Positive Parenting and Jewish Child and Family Services. Andrew did not take any courses in 2022 or 2023.
[163] In a report covering the period from May 23 until July 21, 2022, Ms. Hunt concluded that the file would close noting that:
a. M. said that he felt “sad and scared when his father yells.” M. reported being present during the incident and saw Andrew with “his arm around [Melody’s] neck.” M ran to get help.
b. A no contact order was now in place and the parties did not intend to reconcile.
[164] The CAS concluded that M. was not “in need of protection” because “the parents are separated [and] the risk of the child being exposed to further conflict has been mitigated.” Every possible indicator of “Safety Threats” on the July 2022 report is marked “No.” M. is described as “Safe.”
[165] During a follow-up call from Melody on December 5, 2022, Ms. Hunt logged that Melody stated that “she does not have any concerns for the child with his father at this time, [and] believes [Andrew] is on his best behaviour due to his court involvement.”
July 2024 – Hailey Fisher
[166] The next CAS contact was instigated by Andrew. It was described by Hailey Fisher, an Intake and Assessment Worker who testified at the trial. Ms. Fisher acknowledged sending a letter to the parties on September 20, 2024.
[167] On July 11, 2024, Andrew contacted CAS to report that Melody was “putting a rock on [M.]” Andrew said M. described the rock as approximating a “12-inch by 12-inch brick that was heavier than a 6-pound box of bolts.” It would be placed on M’s body “including his head for 20 to 30 minutes.” M. told Andrew that this had been happening for six months.
[168] After a private meeting with M. on July 17, Ms. Fisher made the following notes:
a. M does fun things with his father like watching YouTube and Minecraft videos.
b. M. feels scared at his mother’s home because his mother put a brick on him (M. drew a cinderblock). M. initially stated this happened every day, then said the last time had been a week ago, then said it had occurred four days previously.
c. M. first said the rock placement happened randomly, then said it happened when his mother was angry.
d. M. reported feeling scared at his mother’s house because “she yelled at night when he was supposed to be asleep”.
e. M then denied that his mother ever yelled at him.
f. When Ms. Fisher followed up later in the same meeting about M.’s statement about getting hurt at his mother’s home, M. denied that he had gotten hurt.
[169] When Ms. Fisher told Andrew about M.’s inconsistent statements, Andrew said that M. “flip flops.”
[170] Melody told Ms. Fisher that M. collects rocks (Andrew confirmed this). Melody denied ever putting a rock on M. Melody expressed concerns about Andrew “coaching” M. to say negative things about her.
[171] A different CAS worker, Hayley Dew, attended Melody’s home on July 19, 2024. M. seemed happy and comfortable. After a private meeting with M., Ms. Dew made the following notes:
a. M. told Ms. Dew that Andrew told him to repeat the story about the rock or his father would “beat him up.”
b. M. said he had been told to say his mother yells at him.
c. M. denied ever being scared of his mother.
d. M. said there is yelling at his father’s home and that his father intimidated him.
e. M. said he felt safe at both his parents’ homes.
[172] In a follow up conversation, Ms. Dew told Andrew she had no immediate concerns about M. and would leave it to Ms. Fisher to follow up upon her return from vacation. Andrew told Ms. Dew he had been reluctant to contact the CAS in the first place. Andrew said that M. “has an active imagination.”
[173] A few days after Ms. Dew’s visit, the CAS received a referral from York Regional Police that Andrew had made a police complaint about the rock.
[174] On August 2, Melody advised Ms. Fisher that Andrew was not feeding M. properly.
[175] After speaking to M. again at Andrew’s home on August 8, Ms. Fisher noted:
a. When asked if he was supposed to tell Ms. Fisher anything that day, M. said he wanted to hang out with his father more.
b. M. said he was sick and hungry during a previous visit with his father but denied that Andrew had withheld food.
c. M. said his mother told him to say things about his father, and to say that “the rock” did not happen.
d. M. denied that his father had told him to say things.
e. M. stated that “the rock” had been happening “lately but not lately” [this is an exact quote].
[176] Ms. Fisher asked Andrew why he went to the police in July. Andrew said he had not understood that Ms. Dew had no immediate concerns about M. If he had, he would not have gone to the police.
[177] Ultimately the CAS decided that the rock incident was not verified given M.’s “inconsistent and contradicting information.” The CAS did, however, verify “concerns against both parents regarding M.’s exposure to post separation conflict”. In particular, CAS states that “it appeared that M. felt pressured to make statements against the parent in whose care that he was not in at the time of the statement”. The CAS recommended that both Melody and Andrew “refrain from involving [M.] directly and/or indirectly, in their conflict.”
[178] The CAS then closed the file.
[179] Ms. Fisher testified that both parents needed to work on their mutual interactions to avoid exposing M. to their conflict. While CAS did not recommend supervised visits for Andrew, Ms. Fisher said that CAS generally would not make such a recommendation. Ms. Fisher noted that the PARS program would be suitable for Andrew. On cross-examination, Ms. Fisher said that M. had not said anything about Andrew throwing out his toys.
[180] With respect to any pressure that M. feels to make statements against his parents, Ms. Fisher said that it is not clear whether that pressure is “internal” or “external”.
October 2024
[181] Just prior to this trial, M.’s play therapist contacted CAS to say that M. told her that he feels fearful at Andrew’s house, is unable to sleep, is only fed “rice and noodles”, and “does pullups to make him stronger”.
[182] Consequently, Ms. Fisher met with M. the day before her testimony. During an exercise, M. revealed that he has two worries about being at dad’s house: yelling and swearing directed at him; and concerns that Andrew would “k-a-l-l” him (according to Ms. Fisher, M. spelled this out).
[183] Ms. Fisher said that M. gave no reason for this fear but indicated that it began after his second VOC interview in September (described below). M. stated that Andrew yells and swears after M.’s nightly phone call with Melody.
[184] According to Ms. Fisher, M. did not report being “scared” of Andrew. Ms. Fisher did not explain the difference between M. saying his father would “k-a-l-l” him and saying he was “scared”. I note that the last investigation wrapped up only in September and this new information is contrary to what was learned at that time. That may be why the CAS has, for the moment, assessed M. as safe.
[185] Under cross-examination, in response to the question of whether M. “flip flops”, Ms. Hailey said: “M. provided contradicting information on multiple occasions, yes.”
[186] Under cross-examination, in response to a question about whether there is reason to doubt that M. has “fun” with his father, Ms. Hailey said that in a drawing exercise she had done with M. the previous day, M. indicated “nothing” positive at Andrew’s house.
[187] On re-examination Ms. Fisher agreed that it is too early to come to any conclusions about this latest CAS contact.
[188] On re-examination, Ms. Fisher agreed with or stated the following:
a. The particulars about Andrew’s yelling following M.’s calls with his mother did not come up in Ms. Fisher’s visits prior to her September 20, 2024 letter.
b. Ms. Fisher has no knowledge that Melody has discussed Andrew’s yelling with M.
c. Ms. Fisher has no knowledge that Melody has discussed the May 22, 2022, incident with M.
d. In response to a question about whether “mom has any worries for you”, M. reported that he has told Melody he worries dad will “kill” me at which point, M. says., Melody became upset, and M. changed the subject.
[189] I find Ms. Fisher credible. She gave her evidence in a careful and measured manner. She did not extrapolate unless explicitly invited to. Her evidence was consistent with other evidence concerning M.’s well-being and reactions to the parenting dynamic. I also find her reliable with regard to what M. said and did during his contacts with the CAS.
Voice of the Child
[190] Ricardo Theodoluz, a registered social worker, was privately retained by the parties to ascertain M.’s views and preferences in respect of the residential schedule. Mr. Theodoluz created two VOC reports, one in December 2023, and a follow up in September 2024. The parties agreed to admit his reports in lieu of calling him as a witness.
[191] For the first report, Mr. Theodoluz had two meetings with M. and one with each parent. At the time, M. was seven years old.
[192] The report states that:
a. M. thinks Melody’s partner (A.D.) is “nice”, and he enjoys playing with A.D.’s son.
b. M. says that Melody and Andrew no longer live together because “[Andrew] choked her, I don’t know what day it was, it was like two years ago, I was scared.”
c. While M. enjoys playing video games with his father, he “worried that [Andrew] will yell at him”, although he could not recall the last time this happened.
d. M. did not wish to change the parenting schedule (set by Justice Shore in March 2023). He did not want his parents to be together for his birthday, stating “I like it separate”, meaning that they should celebrate with him separately. He did not express a desire for a reconciliation.
[193] In the second report dated September 16, 2024, for which Mr. Theodoluz had two meetings with M., he reported that:
a. M. does not like school. He enjoyed summer camp and a recent trip he made to Hawaii with Melody. He misses her “a little bit” when they are not together.
b. M. also misses his father “a little bit.” He recalled going to Niagara Falls with his father and a friend whose name he could not remember.
c. M. said that Andrew told him to tell Mr. Theodoluz that Melody “put a rock on him” and worried that Andrew would become upset if he did not. M. said his mother did not put a rock on him. Further questioning on this was repeatedly met with “I don’t know.”
d. When asked what he liked about different parenting schedules, M. said he did not know. M. was ok with the schedule remaining unchanged. M. said he does not like Monday but has “no idea why.” M. was inconsistent in reporting his preferences regarding the schedule.
[194] Mr. Theodoluz described M. as “reluctan[t] to speak”. He did not believe his second report could offer much assistance.
[195] I find the VOC reports confirmatory of other evidence concerning M.’s well-being and current emotional state.
Findings of Fact
Pre-Separation Parenting
[196] I make the following findings of fact regarding the parties’ relationship and parenting dynamic before their separation.
[197] The parties often lived separately. They lived together for two years prior to their separation.
[198] The parties both cared for M. after he was born, but Melody assumed the lion’s share of responsibilities.
[199] The parties’ relationship was fractious, exacerbated by the stress of caring for a young child during a global pandemic.
[200] I find that Andrew did not always know how to handle frustration. Melody sincerely felt that she had to walk on eggshells around him. Both parties raised their voices when arguing. Andrew did so more frequently and at a higher volume.
[201] I am more persuaded by Andrew’s account of the septic tank incident than Melody’s account and, consequently, I do not find it to be an example of abuse. I am not persuaded that Andrew threw out M’s toys in a rage. I am not persuaded that M. was present when Andrew disposed of the raccoons. There is no evidence before this court that Andrew’s firearm ownership poses a threat to M.
[202] Andrew was frustrated by the fact that the family’s dogs did not get along. I am not persuaded that Andrew physically abused the dogs but, on occasion, he lost his temper and used overly harsh disciplinary measures.
[203] Both parties love M. very much.
The May 22, 2022 Incident
[204] I make the following findings of fact regarding the incident on May 22, 2022.
[205] There was an incident of family violence on May 22, 2022. Melody’s statement regarding the lead-up to the parties’ altercation is consistent. Both parties contributed to the altercation becoming physical due to their focus on M.: Melody through her determination to reach him and Andrew through his determination not to fall backward when Melody pushed past him. However, I am persuaded that Andrew was the primary aggressor.
[206] Given the nature of the physical struggle, which involved both parties “locked” on the floor, it is possible that Andrew had his hands close to or even touching Melody’s neck. However, I am not persuaded that Andrew actually had his hands around her neck. M.’s descriptions of what he saw do reference “choking” but also Andrew’s “arm” being “around [Melody’s] neck”. This was a chaotic and confusing scene. No evidence was presented regarding the extent of Melody’s injuries, or that she was left with marks consistent with a choking incident. Therefore, I am not persuaded on a balance of probabilities that Andrew choked Melody on May 22, 2022.
[207] I find Andrew to be sincere in recounting what he has done after this incident to gain insight into his behaviour and its effect on M. I find, however, that Andrew still has work to do.
Post-Separation Parenting
[208] I make the following findings of fact regarding the current parenting dynamic.
[209] M. is a naturally happy child. However, his parents’ relationship causes him distress, which he expresses through breakdowns, and inconsistent statements concerning both of them.
[210] I am not persuaded that Melody ever put a rock on M. I am persuaded, however, that M. repeated this story to Andrew, and to others, several times.
[211] Andrew testified that he went to CAS because M. kept talking about the rock. I believe Andrew when he says he did not go to CAS to harass Melody. However, I do not believe Andrew when he says he was confused about his conversation with Hayley Dew on or about July 19, 2024, when the CAS worker said she had no immediate concerns. I find Andrew exercised poor judgment in going to York Regional Police shortly after that conversation.
[212] Occasionally, Andrew either yells at M. or speaks to him in a tone that M. interprets as yelling. M.’s references to “yelling” have been consistent.
[213] M. has picked up on the conflict between his parents. I find that both Melody and Andrew say negative things about each other in M.’s presence. A.D. confirmed this in relation to Melody. I am persuaded that Andrew has expressed irritation or frustration about Melody in M.’s presence. I believe that Andrew reacts negatively when he perceives Melody to be intruding on his time with M., such as when M. has his nightly phone call with Melody.
[214] M. is experiencing stress from the current parenting dynamic. One way that M. copes with this is by saying things that he thinks will please his mother and father – including negative things about the other parent.
[215] I am not persuaded of the truth of M.’s latest statements to his play therapist, in particular, that Andrew is going to “k-i-l-l” him or that Andrew “only feeds him rice and noodles.” But these statements do reflect M.’s intense inner conflict which appears to be increasing.
[216] Neither parent poses a danger to M. However, M.’s current inner conflict – which Andrew acknowledges – is highly relevant to whether the currenting parenting schedule should be changed.
[217] In sum, M. is not doing as well as he could or should be. He needs both of his parents active and involved in his life. But he needs to feel safer and to be more shielded from their conflict.
Conclusion
[218] In deciding whether the current parenting schedule should be changed, my first and last consideration is what is in M.’s best interest. I have no doubt that both Melody and Andrew want to spend as much as time with him as possible. That, however, is not the primary consideration. M.’s best interest is.
[219] Relying on section 24 of the CLRA, considering the circumstances of the child, I note the following as especially relevant factors to this case.
[220] I find that both parents are capable of caring for M. I find that M. does enjoyable and enriching things with Melody and with Andrew. He has more activities with Melody. She has been the primary caregiver since his birth and spends more time with him now. I do not find these facts dispositive of whether Andrew should have increased parenting time with M.
[221] I am persuaded that Andrew sincerely wants to spend more time with M. Subsection 24(6) of the CLRA states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[222] M. has not expressed a strong preference to keep or change the current parenting schedule. Given M.’s young age, an expressed preference would not be determinative, but his apparent indifference is noteworthy. I find that M. does not want his parents to reconcile, because he believes they cannot get along.
[223] I am not persuaded that Andrew choked Melody, or that he poses an ongoing risk of violence to either Melody or M. Nevertheless, I find that M. has been traumatized by the parties’ arguments and the violent incident that he witnessed on May 22, 2022. There is therefore an aspect of family violence relevant to determining M.’s best interests.
[224] I am persuaded that M.’s primary need at the moment is stability in the parenting schedule.
[225] M. enjoys his time with Andrew. I accept that Andrew and M. have a close relationship. However, I do not find that the current schedule is causing M. harm or is contrary to his best interest such that I should order that Andrew have more parenting time.
[226] A parenting order must respect, as far as it is consistent with the best interests of M., the principle that M. should have as much time as possible with each parent. There is no presumption of equal parenting time: J.P. v. W.W., 2023 ONSC 1931, 2023 CarswellOnt 4036 at paras.12-18.
[227] M. is clearly in distress because of the current parenting dynamic. I do not solely fault Andrew for this. Melody can be rigid in her approach to resolving issues. This is especially apparent with respect to M.’s extracurricular activities, which I discuss further in these reasons. Nevertheless, for the following reasons I am not persuaded that changing the parenting schedule is in M.’s best interests:
a. The current schedule is slightly more generous than the recommendations of the Association of Family and Conciliation Courts of Ontario Parenting Plan Guide for a child of M.’s age who benefits from having a “home base”.
b. M. benefits from having a “home base” with Melody. Melody has been M.’s primary caregiver since birth. M. clearly is attached to and feels safe with her.
c. Melody wants to foster Andrew and M.’s relationship.
d. Andrew still has work to do in managing his emotions and modulating how he communicates with M.
[228] Melody has asked that the sequencing of the weeks be switched so that M. can spend more time with A.D.’s son. Her request has been outstanding for a year. Andrew’s only objection is that it should wait until the end of this trial. An order will therefore issue to this effect. The order, however, represents a one-time change. It is not a precedent for Andrew’s parenting time to forever more accommodate Melody’s partner. Future changes must be worked out between the parties or set by court order.
[229] Andrew and Melody are unable to communicate effectively. For this reason, it is appropriate for Melody to exercise sole decision-making, subject to the following caveat. At present, on Wednesdays, which is when Andrew exercises his midweek parenting time, M. has no activities scheduled by Melody. I find it is in M.’s best interest to retain this day free of extracurricular activities selected by Melody. Therefore, absent Andrew’s consent, Melody shall not schedule any new activities for M. on Wednesdays. Should the parties change the day on which Andrew exercises mid-week parenting time, they shall observe the spirit of these reasons with respect to any new activities for M.
Issue Two: If Andrew’s parenting time is increased, should his child support be reduced?
[230] Conditional on his parenting request being granted, Andrew requested a reduction in child support. Given that I have ruled against increasing Andrew’s parenting time, it is not strictly necessary to analyse this question. In the interest of completeness, I will explain why, had I ruled that Andrew’s parenting time should be increased, I would not have decreased his monthly child support.
[231] Under section 9 of the Child Support Guidelines, where each parent exercises parenting time at least 40 percent of the time over the course of a year, the amount of a child support order must be determined by taking into account: the table amount; the increased costs of a shared parenting arrangement; and “the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.”
[232] Section 9 is a discretionary provision. It does not automatically reduce child support once a parent surpasses the 40 percent threshold. Instead, section 9 changes “the method used” to determine child support from the presumptive amount set out in the tables: Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 at paras. 30-31.
[233] A decision to modify child support under section 9 involves two questions: first, whether the applicant has surpassed the 40 percent threshold; and second, considering the overall situation of the parents (their conditions and means) and the needs of the children, whether it is appropriate to modify child support: Contino, supra. The applicant (here, Andrew) bears the burden of proof. The analysis is, necessarily, highly fact-driven: M.A. v. N.M., 2021 ONSC 5468.
[234] There is no standard way to calculate parenting time. Courts have used hours, overnights, or partial or full days.
[235] Andrew provided a detailed breakdown of the increase in his parenting time based on hours. Had it been necessary to consider section 9, I would have accepted Andrew’s calculations that his time with M. would increase to 40.09 percent, rounded up to 41 percent. Therefore, Andrew would have satisfied the first question.
[236] Andrew provided a child-care budget dated September 27, 2024 which purports to show how an increase in parenting time would affect his expenses. Andrew added up his total daily costs in various categories (for example, “food”, “clothing and personal care”, “activities and entertainment”, and “transportation”). To this, Andrew added the costs of his housing. Using this formula, Andrew calculated that it would cost him $2,745.56 a month to have M. with him for the total ten days every month he requested.
[237] Andrew’s method of calculation was not persuasive. He did not provide receipts for how much he actually spends per month on M. for things like clothing, personal care, and activities. While it is clear that having M. for more time would require more money for food and transportation, I am not persuaded this is true for other expenses. I am not persuaded that Andrew buys M. half of his clothes. Andrew includes things like a daily share of video subscriptions, but did not say that he purchases them solely for M’s benefit or use. It is not clear why school supplies and sports equipment would be affected in the way Andrew describes. Finally, Andrew cites a daily amount for tutoring but this is a fixed monthly expense of $400 that has been in place for some time. M. does not receive tutoring on every day he is with Andrew.
[238] Therefore, on a balance of probabilities I do not find reliable Andrew’s estimate of his parenting costs relative to the amount of time M. is with him.
[239] I add this: The current disparity between Melody and Andrew’s income, and the need to maintain M.’s current standard of living, would make it inappropriate to take such a fine-grained approach to determining Andrew’s child support. Andrew is asking that his child support be reduced by $400 a month, a reduction of 29 percent. Given that Melody would still have M. for the majority of the time and would continue to bear the majority of expenses for him, such a reduction would not be in M.’s best interests.
[240] Therefore, had it been necessary to reach this issue, I would not have reduced Andrew’s child support by $411 per month.
Issue Three: Does Andrew owe Melody retroactive child support and, if so, how much?
[241] At trial, the parties agreed that Andrew owes the following arrears:
a. 2022: $1754
b. 2023: $2756
c. Jan-June 2024: $1290
[242] Based on Andrew’s 2023 income, table child support beginning July 1, 2024 is $1377. The parties dispute whether Andrew has paid this amount. Melody introduced a statement of account dated September 4, 2024, which she obtained online from the Family Responsibility Office (FRO). The statement shows that the FRO is enforcing Justice Shore’s March 2023 order. Andrew’s counsel suggested that the FRO is not always up to date.
[243] Andrew testified that he has been paying the full amount of child support.
[244] An order shall issue for payment forthwith of child support arrears for $5800. Andrew must establish that he is not in arrears post July 1, 2024. Should Andrew fail within 30 days of this order to prove that he has paid $1377 per month between July 1, 2024 and September 30, 2024, he shall forthwith pay $645 in additional arrears.
Issue Four: Who decides on M.’s extracurricular activities and how are they to be paid for? How much, if anything, does Andrew owe for retroactive section 7 expenses?
[245] Melody claims the following section 7 and other expenses:
a. Camps
b. Tutoring
c. Health insurance premiums
d. Uninsured health and dental expenses
e. Extracurricular activities including hockey, baseball, swimming, muay thai, and go-karting
f. Cell phone
[246] The parties’ disagreement on section 7 and other expenses was a significant contributing factor to this trial. However, in his closing submissions Andrew agreed to share proportionately in the following:
a. Camps
b. Swimming
c. Non-insured medical and dental expenses (excluding play therapy, which Andrew wants to split 50-50 and which is analyzed below)
d. Cell phone
These items require no further analysis.
[247] Below, I will set out the relevant law, Justice Shore’s order, the parties’ evidence, and my findings and analysis.
The Law
[248] Section 7 expenses are those additional costs of raising a child that are not subsumed into table child support: Ostapchuk v. Ostapchuk, 2003 CanLII 57399 (ON CA), 171 O.A.C. 132 , at para. 13.
[249] The expense categories under section 7(1) include:
a. childcare expenses incurred as a result of employment, illness, or disability;
b. medical and dental insurance premiums attributable to a child;
c. uninsured health-related expenses that exceed $100;
d. extraordinary expenses for primary or secondary school education or other educational programs;
e. post-secondary education; and
f. extraordinary expenses for extra-curricular activities.
[250] For the purposes of clauses (d) and (f), whether an expense is “extraordinary” is determined, inter alia, by considering the following: the amount of the expense in relation to the income of the requesting parent; the nature and number of educational programs and extracurricular activities; any special needs and talents of the child; the overall cost; and any other similar factors that the court considers relevant: Child Support Guidelines, s. 7(1.1).
[251] Among the factors that courts have considered in awarding section 7 expenses are: whether the expenses are necessary “in relation to the child’s best interests”, and 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”: Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215, at para. 23.
[252] In her March 2023 order, Justice Shore set Andrew’s share of section 7 expenses at 60 percent, specifically noting the following activities: hockey, volleyball, baseball, and Kumon.
[253] Justice Shore’s interim order does not specify who decides on M.’s activities.
Melody
[254] Melody says she has always organized M.’s activities, including his first swimming lessons at 19 months old, and his introduction to hockey at age 3. She testified that she has paid for most of M.’s activities including daycare, nursery, vacations, clothes, toys, a cell phone, and all of his extracurricular activities. Melody also pays for school lunches and field trips, bikes, scooters, and skateboards. Melody acknowledged that the parties share and exchange M.’s sports gear.
[255] M’s current fall schedule is:
a. Swimming lessons and potential tutoring (Monday)
b. Hockey (Tuesday)
c. Tutoring via Andrew (Wednesday)
d. Muay thai and (likely) tutoring (Thursday)
e. Hockey (Friday)
f. Hockey (Saturday)
g. Hockey (Sunday)
[256] For the past four summers, M. has played baseball. He has also attended camps.
[257] In 2024, Melody enrolled M. in muay thai. She also takes him go-karting which he greatly enjoys. Melody has enrolled M. in hockey skating lessons called “PowerSkate” to improve his performance.
[258] Melody seeks an Order that the parties share the following expenses in proportion to income:
a. baseball [or a replacement activity];
b. hockey [or a replacement activity];
c. muay thai [or a replacement activity];
d. camps;
e. swimming;
f. tutoring; and
g. premiums and non-insured health, dental, and vision expenses.
[259] With the exception of post-secondary and related expenses, which are addressed in the partial consent order, Melody also seeks an Order that the parties only contribute to M.’s additional future section7 expenses if they consent to the expenses in advance, in writing. Neither party should unreasonably withhold consent.
[260] Melody prepared three charts noting M.’s section 7 expenses with backup documentation for 2022, 2023, and 2024 to date. While Andrew objected to some of the expenses included, he did not object to the charts themselves and so I rely on them in my analysis.
[261] According to Melody, Andrew owes the following:
a. $294.53 for 2022
b. $505.20 for 2023
c. $831.77 to January 1 to July 28, 2024
d. $457.30 from July 29 to September 13, 2024
[262] Under cross-examination, Melody said:
a. M. usually has four activities in the fall.
b. Hockey expenses are $3000 for the current year.
c. In July 2024, Melody sought Andrew’s input about hockey through Our Family Wizard. Andrew replied that M. did not want to play. Melody enrolled him anyway.
d. After initially offering to pay for all of hockey, Melody now wants it counted as a section 7 expense.
e. Melody did not consult Andrew about enrolling M. in muay thai and only recently gave him the receipts for it.
f. Melody supplies the following receipts on an ongoing basis: dental, play therapy, and baseball in Markham.
g. Andrew pays for some of M.’s expenses. Melody acknowledged that M. has clothes and some gear at both parents’ homes.
h. When asked why she enrolled M. in her health care plan with Sunlife, Melody explained that Andrew’s plan does not cover 100 percent of expenses.
i. Melody acknowledged that Andrew pays for his own tutoring for M. but questioned the tutor’s credentials. Melody pointed out that the tutor lives with M. part-time.
Andrew
[263] Andrew has two complaints about section 7 expenses.
[264] First, Andrew complains that Melody enrolls M. in a bunch of programs. Andrew wants a more balanced approach, both in terms of M.’s schedule and Andrew’s input into it. Andrew thinks M. should “find his own path.”
[265] In Andrew’s telling, he has “a total of 8 useable hours in a two-week period.” I understood this to mean that he has 8 hours where he and M. can truly “chill out” without being required to go anywhere.
[266] Andrew spoke to a series of messages between him and Melody on Our Family Wizard ending on July 30, 2024. These messages reflect the conflict between Andrew and Melody over M’s activities – hockey in particular. M. recently tried out for and made a higher level of team (“MD”) which would increase his hockey playing to four times per week. Andrew thought this should have been a joint decision.
[267] The discussions show Melody asking Andrew on several occasions whether she could sign M. up for the MD team. On July 17, Melody states: “I am still going to sign him up…because I do not want [M.] to miss this wonderful opportunity.”
[268] In response, Andrew wrote (msg 156):
Have you spoken to [M.] about this?...
[M.] will have to accept trade-offs which he does not want to do – and this has an impact on his school…
I’ve tried to encourage him, but his answer has always been no. I support his decision as it is valid. As such, I do not agree.
[269] Andrew insisted that M. frequently tells him that he does not want to participate in all the activities for which he is scheduled.
[270] I have already stated that I will order that Melody cannot schedule new activities for M. on Wednesdays without Andrew’s consent.
[271] Andrew’s second complaint is financial. Andrew says he and Melody are “middle class people.” Andrew objects to what he views as extravagant expenditures like PowerSkate – a specialized hockey skating lesson. Andrew’s counsel pointed out that there is no evidence that M. has a particular talent for hockey that requires nurturing.
[272] Andrew is not convinced that M. needs Melody’s tutoring since he is providing his own through M.’s part-time nanny, I.D.V., who tutors M. for up to four hours per week. However, Andrew did not provide tutoring receipts. I add that, given Andrew’s concerns and his and M’s “down time”, it is puzzling that Andrew would schedule up to 4 hours of tutoring during the one weeknight he spends with M.
[273] With respect to M.’s health premiums, Andrew selected the highest level of insurance under his own employer. Therefore, he does not think that extra premiums for M. are necessary. However, he could not demonstrate that his plan provides 100 percent coverage for M.’s insurable expenses.
[274] Andrew has not submitted any section 7 claims of his own.
[275] In terms of extracurricular activities, Andrew wants to stick closely to Justice Shore’s order. At that time M. played hockey in a non-specialized league, baseball, and volleyball. Andrew accepts swimming as the alternative to volleyball. Andrew does not consent to anything else.
[276] Andrew agrees to paying $270.90 for 2022. For 2023 he removed the amounts Melody paid for the insurance and claims that his actual contribution exceeds the remaining amount.
[277] For 2024, in addition to the health insurance premiums Andrew excluded the following activities as not falling within section 7(1)(f):
a. Private Skating Lessons
b. U0 MD Practice Skate
c. Valour Martial Arts
d. Go Karting
e. Baseball Training Institute
f. Sportchek purchases for hockey
As a result, he claims that his actual contributions exceed the retroactive section 7 expenses Melody claims.
Findings
[278] In order to address the parties’ remaining disputed section 7 expenses I will proceed as follows. First, I will determine whether the disputed expense falls within an enumerated section 7 category. Second, I will examine any of M.’s needs or talents to determine whether an expense is in his best interests. Third, I will look at cost. Fourth, I will look at the family’s previous spending patterns. Fifth, as an additional “similar factor” open to me under the Child Support Guidelines for extracurricular activities, I will look at the family dynamic between these parties on extracurricular activities. This dynamic has been a key contributor to the parties’ conflict, which I find is very detrimental to M.’s emotional well-being. Identifying a better approach is therefore necessary.
[279] Turning first to the relevant category under section 7, the remaining disputed expenses are:
a. Additional health coverage: section 7(1)(b)
b. Non-insured health/dental expenses (play therapist): section 7(1)(c)
c. Tutoring: section 7(1)(d)
d. Extracurricular activities: section 7(1)(f)
[280] Turning next to whether the claimed expense meets a need or talent and is therefore related to M.’s best interests, I find the following:
a. Additional health coverage: I am persuaded that this meets M.’s need since Andrew’s plan does not provide 100 percent coverage.
b. Non-insured health/dental expenses: Given M.’s emotional struggles as demonstrated in the VOC and CAS reports, I am persuaded that play therapy meets a need for him.
c. Tutoring: I am persuaded on a balance of probabilities that tutoring meets a need for M. Melody has procured a former school principal as M.’s tutor. Given the lack of detail Andrew provided about the tutoring that M. receives from his part-time nanny, I.D.V., I am not persuaded on a balance of probabilities that I.D.V.’s tutoring is necessary. Andrew remains free to submit a tutoring plan for M. that demonstrably meets a need that the current tutoring sessions arranged by Melody do not. At present, I find Andrew’s tutoring expenses are not necessary.
d. Extracurricular expenses: I am persuaded that M. enjoys being active and loves sports. However, there is no evidence that M. has particular talents that require nurturing. The only evidence before me is that M. was selected to join a more competitive hockey league. There is no evidence about the level of competition involved in this new league or the talent M. was required to show in order to be selected for it. Nor is there specific evidence about any of these activities meeting a particular need for M. Therefore, I find that pursuing some extracurricular activities is necessary to promote M.’s best interests but the exact suite of activities Melody proposes is not.
[281] Turning to cost, I find the following:
a. The cost of M.’s additional health coverage is modest. However, Melody does not dispute that through Andrew’s employer’s program, he already pays 90 percent of the cost of premiums. Andrew’s current proportionate share of section 7 expenses is 68 percent. Andrew pays a disproportionately high share of M.’s health premiums. I therefore find that it is not appropriate to include Melody’s Sun Life premiums as a reimbursable section 7 expense.
b. M.’s play therapy costs $110 a session. I find this to be reasonable. Andrew seeks to contribute only 50 percent of this cost. He gave no justification for departing from the default principle that section 7 expenses are to be shared proportionately. I therefore will order that Andrew contribute to all non-insured health and dental expenses, including play therapy, on a proportionate-to-income basis (currently, 68 percent).
c. I accept that Melody’s tutoring for M. is $50 a session, of which there are approximately two every month. I find Melody’s cost to be reasonable.
d. The costs of M.’s extracurricular activities have increased:
i. Hockey has increased from $425 in 2023 to $3000 in 2024.
ii. In 2023, Justice Shore noted the cost of baseball as $837. In 2024, M. attended a spring “Baseball Training Institute” at a cost of $900. This is in addition to the baseball program he is enrolled in during the summer. The Baseball Training Institute appears to be a new cost, and Andrew objects to it.
iii. In 2024, M. started muay thai, which costs $62.14 a session. Equipment costs an additional $100. When the lessons are running, M. goes approximately every two weeks.
iv. In 2024, M. also started go-karting which costs between $90 and $160 a session. Thus far, go-karting expenses have been $430.
e. For the period of January 1 to September 13, M.’s 2024 extracurricular activities and gear, as calculated by Melody, total $1381. This is only one category of M.’s section 7 expenses.
[282] Looking next at family spending patterns, M. swam and played baseball and hockey before separation. Baseball and hockey have become more expensive as M. matures and Melody enrolls him in more elaborate programs. Melody has also added to his activities.
[283] Looking, finally, to what I call family dynamics, I find that Melody’s approach to M.’s activities is peremptory. She tends to inform Andrew about M.’s activities, not seek his input. This has happened with muay thai, go-karting and M.’s more competitive, M.D. hockey league.
[284] Melody stresses that Justice Shore’s order does not require that Andrew consent to any of these activities. While that is true, Justice Shore also does not award Melody the authority to select M.’s activities and insist that Andrew contribute to each one.
[285] Melody does not view any of M.’s extracurricular activities as falling within her table child support. She regards every one of M’s extracurricular activities as “special or extraordinary” but, apart from listing them in charts, she has not explained why.
[286] The court must balance the following factors: M.’s needs and interests; the costs of the activities; and the fact that, in order to merit a contribution over and above table child support, an extracurricular expense must be “extraordinary.”
[287] On a balance of probabilities, I find that, for this family, baseball and hockey count as “extraordinary extracurricular expenses.” M. has been engaged in these activities for several years. Their costs exceed what Melody might reasonably be expected to cover from the table child support she receives from Andrew. I am persuaded that they meet physical and emotional needs for M. Therefore, I will order Andrew to share these costs on a proportionate to income basis. However, I find it necessary and reasonable to limit those costs in order to maintain some predictability for the parties and avoid future conflict. I set out those limits below.
[288] I am not satisfied on a balance of probabilities that, for this family, muay thai and go-karting are “extraordinary extracurricular expenses.” These are new activities that Melody selected for M. in the past year. Neither activity is nearly as expensive as baseball and hockey. I am not persuaded that they fall outside of Andrew’s table child support. Both activities are discretionary or ad hoc in the sense that M. attends them on a per-class or per-visit basis. I am not persuaded that they are necessary to meet M.’s best interests.
Conclusion
[289] I shall therefore order Andrew to pay all retroactive expenses as reflected in the 2022, 2023, and 2024 charts prepared by Melody with the exception of:
a. SunLife
b. Muay thai
c. Go-karting
[290] Going forward, the parties shall share the following section 7 expenses on a proportionate to income basis:
a. Baseball, or a replacement activity that does not exceed the costs of baseball in any given year by more than 10 percent;
b. Hockey, or a replacement activity that does not exceed the costs of hockey in any given year by more than 10 percent;
c. Swimming;
d. Camps, including those that focus on baseball during the summer;
e. Tutoring; and
f. Non-insured health, dental, and vision expenses, including play therapy.
[291] For clarity, “baseball” includes:
a. Team registration and equipment
b. Related travel and accommodation costs for M.
c. Two weeks per year at the “Baseball Training Institute” or comparable training that costs no more than 10 percent of the Institute’s costs in any given year.
[292] For clarity, “hockey” includes:
a. Team registration and equipment in whatever league M. qualifies for.
b. Team-related travel and accommodation costs for M.
c. One additional skating lesson per week through PowerSkate or a comparable program that costs no more than 10 percent of the cost of PowerSkate in any given year.
[293] The parties shall treat the cost of M.’s cell phone as a section 7 expense.
[294] Currently, on a proportionate-to-income approach Andrew is to pay 68 percent, and Melody is to pay 32 percent.
[295] With the exception of post-secondary and related expenses, the parties shall contribute to M.’s additional future section7 expenses only if they consent to the expenses, in advance, in writing. With respect to section 7 expenses the parties shall not unreasonably withhold consent.
ORDER
[296] In conclusion, I made the following order:
a. Paragraphs 1-2, 4-14, 18-28, and 33-36 in the Draft Final Order prepared by Melody as “Schedule A” to her closing submissions are hereby endorsed.
b. Effective immediately, the alternating weekend schedule shall be flipped so that M.’s regularly scheduled weekends with Melody occur at the same time as her partner A.D.’s regularly scheduled weekends with his son. This order only applies to the regularly scheduled weekends, not holidays, summer vacations or occasional changes to A.D.’s parenting schedule. It does not tie Andrew’s parenting time to A.D.’s parenting schedule in perpetuity. Subject to the parties’ consent or further court order, the schedule will not be flipped again.
c. During Andrew’s mid-week parenting time (currently, Wednesday overnight), Melody shall not schedule any new extracurricular activities for M. without Andrew’s consent.
d. Andrew’s request for a reduction in child support is dismissed.
e. Andrew shall pay $1,754.00 on account of table child support owing for the period June 1, 2022 to December 31, 2022 within thirty (30) days.
f. Andrew shall pay $2,706.00 on account of table child support owing for the period January 1, 2023 to December 31, 2023 within thirty (30) days.
g. Andrew shall pay $1,290.00 on account of table child support owing for the period January 1, 2024 to June 30, 2024 within thirty (30) days.
h. Andrew’s alleged arrears for the period July 1 to September 30, 2024 shall be subject to FRO verification, which it shall be Andrew’s responsibility to procure. Should Andrew fail within 30 days of this order to provide proof to Melody that he has paid $1377 per month since July 1, 2024, he shall forthwith pay $645 in additional arrears.
i. Andrew’s table child support shall continue to be paid at the amount of $1377 per month based on an adjusted income of $160,766.00, and such payments are to be made on the 1st day of each month.
j. For as long as child support is to be paid, Andrew and Melody shall provide updated income disclosure to the other each year within 30 days of the anniversary date of this order in accordance with section 24.1 of the Child Support Guidelines.
k. Referring to the three charts prepared by Melody as part of her closing submissions in this trial, Andrew shall pay to Melody the amounts owing for section 7 and other expenses in 2022, 2023, and 2024 excluding:
i. SunLife
ii. Muay thai
iii. Go-karting
l. On a go forward basis, the parties shall share the following section 7 and other expenses on a proportionate to income basis, currently 68 percent (Andrew) and 32 percent (Melody):
i. Baseball, or a replacement activity that does not exceed the costs of baseball by more than 10 percent in any given year;
ii. Hockey, or a replacement activity that does not exceed the costs of hockey by more than 10 percent in any given year;
iii. Swimming;
iv. Camps including those that focus on baseball during the summer;
v. Tutoring;
vi. Non-insured health, dental and vision expenses including play therapy; and
vii. Cell phone
m. For clarity, “baseball” includes:
i. Team registration and equipment.
ii. Related travel and accommodation costs for M. The parent who accompanies M. shall be responsible for any additional travel and accommodation costs they incur, such as plane tickets, meals, or a separate hotel room.
iii. Two weeks per year at the “Baseball Training Institute” or comparable training within 10 percent of the Institute’s cost in any given year.
n. For clarity, “hockey” includes:
i. Team registration and equipment in whatever league M. qualifies for.
ii. Related travel and accommodation costs for M. The parent who accompanies M. shall be responsible for any additional travel and accommodation costs they incur, such as plane tickets, meals, or a separate hotel room.
iii. One additional skating lesson per week through PowerSkate or a comparable program within 10 percent of the cost in any given year.
o. With the exception of post-secondary and related expenses, Andrew and Melody shall contribute to M.’s additional future section7 expenses only if they consent to the expenses, in advance, in writing.
p. With respect to additional future section 7 expenses, the parties shall not unreasonably withhold consent.
q. The parties shall forward eligible section 7 expenses to each other within 30 days of the expense being incurred. They shall reimburse each other for any eligible expense within 14 days of receiving it.
r. For clarity, a Support Deduction Order shall issue.
s. The parties may forward for my signature a Draft Final Order incorporating the terms of this Order.
t. The costs submissions and Draft Final Order may be sent to my attention care of Linda.Bunoza@ontario.ca.
u. This order bears interest at the post-judgement interest rate set out in the Courts of Justice Act of ____% per year effective from the date of this Order. A payment in default bears interest only from the date of default.
Mathen, J.
Released: December 11, 2024