COURT FILE NO.: FC-18-444

DATE: 20241231

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kyle Gray

Applicant

– and –

Lindsay Rossi

Respondent

Self-represented

Self-represented

HEARD: November 18-22, 25, 2024

REASONS FOR DECISION

DOUGLAS J.

Overview

[1] This matter came before me by way of trial over 6 years after commencement of applicant father’s application on April 3, 2018. Respondent mother filed an answer dated May 2, 2018.

[2] At commencement of trial applicant father provided a draft order confirming the detailed relief he was seeking. In summary, he seeks:

a) primary residence of the children

b) decision-making authority subject to prior consultation with respondent mother on major decisions

c) imputation of income to respondent mother between $30,000 and $40,000

d) child support from respondent mother for Rylie commencing May 26, 2023

e) child support from respondent mother for William commencing September 3, 2023

f) proportionate contribution to the children’s section 7 expenses

g) respondent mother’s parenting time with William on alternating weekends, Wednesdays for four hours, 2 Weeks in July and August each summer, sharing of March break school holidays, one half of the Christmas school break and so on.

[3] According to her draft order, respondent mother seeks relief summarized as follows:

a) primary residence of William

b) respondent mother to have day-to-day care of Rylie

c) Rylie to choose her place of primary residence

d) William to have parenting time with applicant father three out of four weekends plus a midweek visit during the fourth week from 630 to 9:00 PM

e) during summers applicant father teach Thursday at 6:30 PM until Sunday at 9:00 PM

f) Christmas school holidays to be divided

g) applicant father to pay retroactive child support of $17,280 for the period 2019 2023

h) after the father to pay child support for Ethan James Matthias Rossi, born March 27, 2007, from 2018 until September 2022 in the amount of $100 monthly, fixed in the amount of $5700

i) after father to pay spousal support of $340 per month for five years for a total of $20,400

j) after father to pay child support of $1028 per month assuming William is residing primarily with respondent mother

k) section 7 expenses to be divided proportionately.

Background and Some Agreed Facts

[4] Helpfully, the parties filed a statement of agreed facts which confirms many of the important factual components of their relationship.

[5] Applicant father is 39 years old. Respondent mother is 38.

[6] The parties commenced cohabitation in 2008. They separated on July 8, 2017.

[7] The parties have two children of their relationship namely Riley Elizabeth Rossi Gray, born July 25, 2010 and William Allan Robert Gray, born January 23, 2014. At the time of trial, both children have been residing primarily with applicant father in Orillia since mid-2023.

[8] The respondent also has a son, Ethan Rossi born March 27, 2007, from her prior relationship with Jacob Mathias. She also has twins by her relationship with Kurt Glendenning, being Leo and Brodie (DOB Dec.10/21).

[9] Respondent mother and Mr. Glendenning resided together at Glen Echo Drive in Barrie starting in October/21. Respondent mother says she has not been in a relationship with Mr. Glendenning since February 2023. The current status of this relationship is an issue in dispute between the parties.

[10] Father and Lisa Gray married on September 25, 2021. The have a child, Evan, born June 13/22.

[11] At separation the parties were both residing in Barrie. Applicant father moved to Orillia in fall/22 with Lisa Gray, while respondent mother continued to reside in Barrie until moving to Collingwood in late January 2024. The move to Collingwood triggered some transportation challenges for the parties and conflict arose over responsibility for transportation, with respondent mother maintaining she has no consistent access to a vehicle.

[12] On September 4, 2023 the children started attending school at Orchard Park Public School in Orillia.

[13] Respondent had parenting time with the children for the entire March break week from March 11 until Friday, March 15, 2024.

[14] On May 26, 2024 the respondent attended a baseball game for Riley who was excited the respondent was able to attend. In August 2024 Riley messaged respondent stating she felt the mother was bipolar and that she was cutting contact, except as chosen by Riley. The respondent provided transportation for access that occurred August 24, 2024. On June 2, 2024 Riley was hired at East Side Mario’s in Orillia to work part-time as a hostess. Riley graduated from elementary school with honours on June 27, 2024, receiving an award for visual arts. Riley asked respondent not to attend her graduation ceremony.

[15] Riley graduated from grade 8 of the honour roll and won an award in visual art. She started at Orillia Secondary School this year and has shown a passion for her schooling. She took a geography course and earned her first high school credit in the summer of 2024. Riley started her first job as a hostess at East Side Mario’s on June 22, 2024.

[16] Applicant took Riley to the walk-in clinic in October 2024 and not notify respondent at the time. Riley had pneumonia. Applicant notified respondent of Reilly’s hospital admission on October 21, 2024 after she was admitted and seen by a doctor.

[17] In proceedings between Jacob Mathias and respondent mother, an order dated Nov.17/08 provided for joint custody of the child Ethan Rossi (DOB March 26/07) and primary residence to mother.

Procedural History

Prior to Trial

[18] There have been many temporary orders in the history of this proceeding, some of which I summarize as follows:

a) On May 24, 2018 a temporary order was made that respondent mother have care and control of the children and primary residence subject to supervised parenting time with applicant father on alternating weekends for 10 hours. Applicant father was to pay child support of $1160 per month commencing July 8, 2017 based on income of $61,000. Applicant father was to pay spousal support of $340 per month commencing July 8, 2017. At the time this order was made the parties were both living in Barrie, Ontario.

b) On July 20, 2018 a temporary order was made that respondent mother continue with primary residence and care and control of the children, subject to unsupervised parenting time with applicant father on alternating weekends. Commencing August 1, 2018 applicant father was to pay child support of $996 per month based on income of $65,330 per year. Applicant father’s spousal support obligation was suspended.

c) On September 3, 2018 a temporary order was made that the children attend Willow Landing public school until further order.

d) On October 4, 2018 respondent mother was ordered to pay costs of $500 to applicant father following a motion by applicant father to enforce his ordered parenting time.

e) On June 12, 2020 the father was successful on a motion to enforce his ordered parenting time.

f) On September 22, 2022 respondent mother was unsuccessful on a motion for contempt against applicant father.

g) On November 29, 2022 respondent mother brought an urgent ex parte motion to secure the return of Rylie. It was adjourned for service upon applicant father but there is no record of it having been addressed thereafter.

h) On March 3, 2023 the court requested an update to an earlier report of the OCL. Further orders were made regarding Father’s Day parenting time, Mother’s Day parenting time, parenting time on the children’s birthdays, March break and summer parenting time.

i) On June 22, 2023 an order was made that the parties share care and control of Riley until the resumption of school in September/23 on a week-about basis subject to consideration of her wishes.

j) On July 18, 2023 a temporary order was made that applicant father have parenting time with William every week from Friday at 6 PM until Monday at 9:30 PM. The applicant or his designate, which may include his wife, was to pick William up and drop William off at respondent mother’s home.

k) On August 24, 2023 it was ordered that Riley continue to reside with applicant father subject to parenting time with respondent mother per Riley’s wishes. William was to reside in out their father’s primary care subject to parenting time with respondent mother for at least two weekends each month from Friday at 5:30 PM to Sunday at 8:00 PM. Applicant father was to have decision-making authority subject to consulting in advance with respondent prior to any major decisions affecting the children’s welfare. Parties were to engage in counselling to address parenting in a post-separation environment. William was to attend school in applicant father’s catchment area. Respondent mother was to have parenting time with William every other Wednesday from 5:30 PM until 8:00 PM or as otherwise agreed. Applicant father was to be responsible for transportation for parenting time.

l) On October 24, 2023 the court ordered that child support payable by applicant father under the order dated July 20, 2018 be suspended until further order.

m) On February 12, 2024 the respondent mother brought a motion seeking a reversal of the order made on August 24, 2023 and contempt findings against applicant father. The motion was dismissed.

n) On April 4, 2024 applicant father brought a motion seeking orders regarding transportation, suspension of mother’s midweek parenting time, modification to timing of mothers weekend parenting time, child support and disclosure. The motion was dismissed as non-urgent with nominal costs to mother.

o) On July 4, 2024, applicant father bought a motion seeking changes to the transportation arrangements for parenting time, changing or suspending respondent mother’s parenting time, terminating his child support payments to respondent mother, seeking child support payable by respondent mother, and disclosure. The court ordered suspension of child support payable by applicant father pursuant to the order dated July 20, 2018 effective September 1, 2023, applicant father to continue being responsible for transportation, respondent mother’s midweek and alternate weekend parenting time with William changed somewhat.

p) On July 15, 2024 applicant father brought an urgent motion, without notice, for immediate return of William to his care and for police enforcement. He alleged mother was withholding William on the basis that William did not want to go with the father. The court ordered mother to return William to applicant and police enforcement.

q) On September 19, 2024 father brought a motion seeking orders for child support and disclosure from mother. The motion was served late, and trial was imminent; accordingly, the motion was adjourned to February 2025 in the event trial did not proceed in 2024.

Trial

[19] On behalf of applicant father, I heard evidence from him, Elizabeth Casses (mother of Kurt Glendenning) and Jacob Matthias (a former partner of respondent mother). His intended witness Kurt Glendenning (father of respondent mother’s twins) did not attend although properly served and a witness warrant issued. Applicant father opted to conclude his evidence without securing testimony from Kurt Glendinning.

[20] Respondent mother presented evidence on her own behalf. Additional witnesses for the respondent mother were Katherine Warwick (a mutual friend who supervised applicant father’s parenting time in 2018 and is called “Auntie” by the children) and Dr. Michael Lewin.

[21] Both parties cross-examined Ms. Jeannine Denis from the Office of the Children’s Lawyer.

[22] The parties’ evidence in chief was supplemented by affidavits, as was the evidence of some of their other witnesses. Affidavit evidence that is not clearly based on personal knowledge, or secured from an unidentified source, is not relied upon in this decision.

Parenting Time and Decision-Making

Evidence of the Office of the Children's Lawyer ("OCL")

[23] In addition to the sources of evidence outlined above, I also had the benefit of two reports from the OCL, one dated 2018 (authored by Sandra Garibotti) and an update dated August/23 (authored by Jeannine Denis). Both were prepared pursuant to s.112 of the Courts of Justice Act. Pursuant to s.112(6) CJA, the reports form part of the evidence in the trial. Neither party delivered a dispute as contemplated by s.112(7) CJA and Rule 21(e) of the Family Law Rules.

[24] It became apparent during the trial that respondent mother disagreed with the updated report, both in the results of the investigation and in the recommendations.

[25] The first OCL report was released November 14, 2018. Broadly, it recommended:

a) Primary care and control of the children to respondent mother

b) Alternating weekend parenting time and midweek visits with applicant father

c) Decision-making to respondent mother after consultation with applicant father.

d) Parties to equally share transportation of the children

e) Week-about schedule during the summer

f) March break to be shared equally

g) Christmas break to be shared equally

h) Both parties free to attend school events

i) Parties use a communication journal or electronic communication tool such as Our Family Wizard to exchange all child-related information.

[26] Some important observations contained in the first report include:

a) The children were doing well at school

b) The children were healthy and well cared for

c) The children appeared to be well-bonded to both parents. Children were comfortable and happy in both homes. They did not report any major concerns.

d) Mother expressed concern regarding father’s past drug use while father denied using illicit drugs for at least a year prior to the report. There was no evidence that any drug or alcohol use had negatively impacted his ability to care for the children.

e) Mother expressed concern that father had not adequately supervised the children. She referenced William’s head injury. Dr. Lewin had confirmed the injury was not suspicious. Children’s Aid had not confirmed any child protection issues.

f) There was no evidence of concerning parenting or poor parenting choices. There was no evidence to suggest supervision was warranted.

g) Although the children had not mentioned many incidents of conflict, Riley was very aware that her parents do not get along. Children’s Aid verified that the children are at risk of emotional harm due to exposure to post-separation conflict as they had received information that Riley was feeling pressured to report how the visits with her father were going. Her statements were very concerning to suggest that her mother would ask if her father was “following the rules” and she felt that she was getting her father in trouble.

h) There was no demonstrated history of healthy communication and shared decision-making.

[27] The updated OCL report is dated August 21/23. Broadly, it recommends:

a) Father to have decision-making authority with respect to both children after consulting with mother through Our Family Wizard

b) Children to reside primarily with father and to attend school within his home district

c) Mother to have parenting time with Riley in accordance with Riley’s discretion. Father to encourage Riley to have a relationship with mother.

d) Mother to have parenting time with William two weekends per month during the school year, including a professional day or long weekend from Friday at 6 PM to Sunday at 7 PM

e) Mother to have parenting time alternating Tuesdays and Wednesdays from 6 PM to 8 PM or overnight if she can drive him to school

f) Father to be responsible for exchanges at mother’s home, avoiding confrontation in the presence of the children

g) Week-about schedule during the summer

h) Christmas break to be shared

i) March break to be shared

j) Parties to communicate through OFW and respond within 24 hours. Communication to be restricted to the children’s health, education, counselling, school curriculum and any other significant information about the children. Communication to be respectful and positive. Several other restrictions and parameters were identified.

k) Father to arrange counselling for William.

l) Mother to give Riley her hedgehog and cage immediately.

m) Mother to immediately pursue individual therapy with New Path about communicating with the children, increasing apathy, learning to listen, dealing with her triggers, with the goal to increase coparenting with the father for the well-being of the children, followed by reintegration therapy with Riley at the therapist’s discretion.

n) Father to attend therapy to enhance his communication and coparenting, deal with the stress of court proceedings, having his children home and his relationship with his wife.

[28] Some important observations contained in the updated report include:

a) The parents reported that they were able to be amicable and follow the court order

b) The conflict started when father began a relationship and married a woman that was a mutual friend

c) The children confirmed that mother spoke negatively of Mrs. Gray and made them aware that she did not want them to be in her care

d) Mother made allegations against father and his wife to the Children’s Aid Society and the OCL claiming some of her concerns were told to her by Rylie. Mother alleged abuse in the household and Mrs. Gray not feeding her baby. In the CAS file mother’s concerns were noted as hearsay and it was questioned if some of them were true. Rylie stated that the allegations were false as she felt influenced by her mother to speak against her stepmother.

e) Rylie was very stressed and her relationship with her mother was not good

f) Mother demonstrated that she was able to see her child was in distress and acted appropriately by taking her to the hospital; however, she appeared to deliberately make it impossible for father to be present while their child was in crisis, showing an inability on mother’s part to place her child’s best interests and needs at the forefront at a critical moment

g) The parties agreed that their communication was not always favourable

h) Rylie was then 13, at her appropriate stage of development. She seemed honest during the interviews, appreciative of having her voice heard, gave her perspective of the situation. She seemed adamant that she wanted to live with her father and maintain a relationship with her mother. She was relieved when she was able to stay with him. Rylie said her mother was not happy about her moving out and made mean comments about father and Lisa. Rylie wanted to take her pet hedgehog with her. Her mother refused.

i) Mother seems to struggle with listening or validating how her children feel

j) William was 9 years old at the time of the report and appeared appropriate for his stage of development. He was a bit overweight. He presented as cheerful, talkative and mischievous. He answered all the questions and seemed truthful. He was doing well in school, academically and socially.

k) William said his mother had to move and he hoped she would find a home in the same school district so he could remain with his friends; if not, he preferred to live with his father and attend the same school as his sister. He enjoys the time spent with both parents. He was happy to hear that the summer schedule with his father had increased. He confirmed that Rylie and his mother argued.

l) The collateral information, interviews and observations indicate mother appears to have great difficulty coparenting with her children’s fathers, including Mr. Gray. She has a history of withholding parenting time that has caused her to be incarcerated and having her two eldest children leave her home to live with their fathers.

m) Mother has shown a propensity to involve the children in adult conflict, inability to keep their best interests in mind, interfere with their relationship with other family members/caregivers because she does not like them and does not consider the emotional impact on the children.

n) Mother has demonstrated that she will punish her children for choosing to maintain a relationship with their father or requesting to live with him primarily by withholding her attention and affection. Therefore, she appears to manipulate her relationship with her children to get her way with them despite knowing this will cause them distress.

o) Mother’s explanations for some of her reasoning seemed unreasonable.

p) Mother can be viewed as under severe stress as a single mother of five children, in court with three fathers of her children and her son and daughter leaving her home and being a new mother of twins. Her vulnerability and stress may explain why she withheld parenting time or is unable to coparent effectively. She has shown poor judgment and even delusional thinking when it came to Rylie’s and William’s health. For mother to deny father to see their daughter in an emergency situation because it was her parenting time was astounding.

q) There is a serious concern for William being in the care of his mother as he is very vulnerable to emotional harm by his mother given the pattern that occurred with Ethan and Rylie. During the last interview, mother reported that William did not like going to his father’s home. William was interviewed after and indicated the opposite. There was concern that mother was beginning the same pattern that she had engaged in with Ethan and Rylie.

The Legal Context

[29] This is not a divorce proceeding, the parties never having married; accordingly, the governing legislation for parenting issues is the Children’s Law Reform Act.

[30] Section 21(1) of the Act permits a parent of a child to apply to a court for a parenting order respecting decision-making responsibility with respect to the child and parenting time with respect to the child.

[31] Section 24(1) of the Act requires that in making a parenting order with respect to a child, the court shall only take into account the best interests of the child.

[32] Section 24(2) of the Act requires that in determining the best interests of a child, 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.

[33] Section 24(6) of the Act requires 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.

[34] Section 24(3) of the Act sets out the non-exhaustive factors related to the circumstances of a child. I intend to use these factors as the framework of my analysis of the evidence presented to me.

Section 24(3)(a): The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[35] Rylie is 14 and William is 10. Both are attending school in applicant father’s catchment area. I take it as given that they both need to continue consistent attendance at school, regular medical attention as required, the love and support of both parents, permission from each parent to have a positive relationship with the other parent, reliable shelter and sustenance.

[36] Rylie has experienced mental health issues. Dr. Lewin (the children’s family doctor) testified and confirmed that in 2021 Rylie developed a tic disorder and in 2022 she was seen regarding anxiety and restrictive eating habits. On January 1 2023 Rylie was sexually assaulted by a female friend who had a sleepover at the respondent’s residence for a New Year’s party. Rylie disclosed the assault to applicant father and Lisa Gray on January 8, 2023. On February 28, 2023 Rylie saw a counsellor at New Path and disclosed she had made a suicide plan. She was sent to hospital for a mental health assessment. Applicant father went to the emergency room but was not permitted to see Rylie due to hospital restrictions. Respondent was already at Rylie’s bedside, and she objected to applicant father’s presence as it was her scheduled parenting time. Rylie was admitted on a Form 1 on February 28, 2023. She stayed overnight in the ER as there were no beds available in the youth mental health ward. Dr. Fielding suggested a plan to get Rylie to the inpatient unit. Respondent wanted to take Rylie home. Rylie was released but the respondent did not take her to another Schedule 1 hospital. Rylie’s medical records dated March 8, 2023 show that her Form 1 admission was due to a sexual assault committed by a friend against Rylie and issues involving peers from school. In spring 2023 she was seen by Dr. Lewin, who had no concerns that either parent was preventing Rylie from accessing appropriate medical attention.

[37] William has also had some health challenges associated with chronic constipation. On April 16, 2022 applicant took William to the hospital and got an x-ray of his small intestine. He was prescribed laxative medication and a two-step process to address his bowel issue. The applicant advised the respondent about this issue through OFW. Respondent mother alleged that applicant father failed to administer prescribed medication to William, contrary to his best interests. Applicant father explained that he delayed administering the medication as he wanted William to have ready access to washroom facilities before taking the medication.

[38] Dr. Lewin identified no concerns regarding either parent’s attention to the children’s health needs.

[39] I have no basis for concern regarding the children’s academic performance when in the primary care of either party. Both parties have cited the other's removal of the children from school as a parenting shortcoming. I am not concerned given the children's strong academic performances and overall attendance record.

[40] At separation on July 8/17 the parties were both residing in Barrie. In Feb/18 applicant father began dating Lisa Gray. He and Lisa separated in May/19. Applicant father moved in with his parents in Barrie. In October 2019 applicant father moved in with a friend. Applicant father and Lisa Gray reconciled in August 2020. Around the same time respondent mother commenced a relationship with Kurt Glendenning. Applicant father and Lisa Gray bought a home and moved to 123-25 South St Orillia (a 3-bedroom townhouse) in November/20. They married on September 25/21. Respondent mother and Kurt Glendenning moved to 24 Glen Echo Dr. in Barrie in October/21. Mr. Glendenning was charged with assault upon mother on April 3/23 and thereafter prohibited from attending mother’s residence. The charge was later withdrawn.

[41] In 2023 respondent mother was granted special priority status for her request for subsidized housing. On August 1, 2023 the respondent moved to 19A College Crescent in Barrie, three-bedroom upper-level. On January 31, 2024 respondent mother moved to subsidized housing at 502 Matthew Way, Collingwood, where she continues to reside. Neither party has identified any plans to move.

[42] On this evidence I have little concern regarding father’s residential stability. Mother’s residential stability is more fragile.

[43] Both parties accuse the other of leaving the children without adult supervision. Respondent mother says applicant father and/or Lisa Gray left the children unattended at Wonderland and that Lisa left the children unattended at home. Applicant father says he went to the washroom briefly at Wonderland and the occasion at home was also brief and the children were 10 and 7 years at the time. Applicant father cites a child protection investigation of mother resulting in mother resigning her employment at Oakdale Child and Family Services after it was determined she had been leaving Ethan, Rylie and William without adult supervision while she worked overnight. On the evidence before me I find respondent mother’s parenting choices to have been more concerning given the length of time the children were left unsupervised.

[44] I have no concerns regarding applicant father's relationship stability.

[45] It is apparent both parties have discussed adult topics with the children from time to time. Some such occasions are difficult to avoid, but maligning the other parent or parent’s partner can never assist the children and is always unacceptable.

[46] Rylie has a specialist appointment in December 2024 and has issues such as infections, stomach illnesses and skin issues. William has seen a specialist for his bowel issues and has daily medication.

[47] Rylie is still dealing with mental health issues.

[48] William is very active and enjoys family life in her care. He walks, hikes, swims, plays board games and card games, plays Pokémon, does art, plays with his twin brothers and many other normal activities for a child his age.

Section 24(3)(b): The nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life

[49] The children resided primarily with respondent mother following separation in July/17 until 2023. Rylie has resided primarily with applicant father since May 26/23 while William has resided primarily with him since September 4/23.

[50] It is very clear that Riley’s relationship with respondent mother is not optimal. Her contact with respondent mother since May/23 has been consistent with her wishes and usually occurs at exchanges of William when she chooses to tag along. Her preference to remain in applicant father’s primary care has been confirmed in the updated OCL report of August 2023. Rylie’s struggles with her mother appear rooted in her feeling unheard by mother. A sore point developed when respondent mother refused to release Rylie’s personal belongings to her when she commenced primary residence with applicant father (including her pet hedgehog, which was not released to her until September/23). Respondent mother concedes that this choice has contributed to the deterioration of her relationship with Rylie.

[51] William’s relationship with respondent mother is intact, but vulnerable. While residing primarily with father he has been having regular parenting time with mother including alternating weekends and midweek visits. I am satisfied he enjoys his time with mother, and he seeks more time than is currently scheduled; however, the updated OCL report contains observations that deeply concern me. The mother’s manipulation of the children’s relationships referenced in the report persuades me to cautiously consider William’s stated comfort in his relationship with mother.

[52] It is apparent the children share a close bond with each other, subject to predictable, occasional and minor irritants that one would expect between siblings at their ages.

[53] Ms, Casses, paternal grandmother to the twins and mother to Mr. Glendenning, testified she has not been allowed to see them since October/23. She cites fear of legal reprisal by respondent mother. According to mother, in 2022 and 2023 Elizabeth Casses “gave unhelpful information causing relationship issues between” respondent mother and Mr. Glendenning. Respondent mother says Ms. Casses has had no contact with the twins since, by her choosing. Given the totality of the evidence, I find it more likely that mother’s negative animus toward Ms. Casses is the cause of the latter’s lack of contact with the twins. This behaviour is supportive of the conclusion mother struggles with putting the needs of her children before her own.

[54] Respondent mother says Riley has visited her on June 8, September 9, September 27, October 8, October 9, October 22, October 25, December 6, December 20, December 25, December 26, 2023, January 28, March 12-18, June 6, 2024. She requested other visits but was not able to attend. I accept this evidence. Despite the challenges within their relationship, Rylie and mother manage to stay in touch. This bodes well for the future.

[55] According to Mr. Matthias, he witnessed respondent mother and Mr. Glendenning on August 12, 2023 at an event in Orillia with their twin boys. They were holding hands leading him to conclude that they had reconciled.

[56] For reasons explored more fully below, I am concerned regarding the presence of Kurt Glendenning in the lives of the children, regardless of the real nature of respondent mother's relationship with him. The history this relationship is troubling, and the children have been exposed to their conflict. His ongoing presence in respondent mother's life represents a potentially destabilizing influence.

Section 24(3)(c): Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[57] After the parties initially separated, mother insisted father’s parenting time be supervised. She alleged drug abuse and negligent parenting. A child protection investigation found no basis for concern in this regard. Supervision was terminated thereafter.

[58] In 2018, 2020 and 2024 father successfully brought motions to enforce his ordered parenting time.

[59] This history suggests caution should be applied to consideration of mother’s readiness to support the children’s relationship with father.

[60] There are examples of respondent mother’s willingness to cooperate with applicant father: she was flexible with parenting time around applicant father’s wedding to Lisa Gray, she has accommodated requests for early pick up, she has forwarded photos of the children’s events. Despite this history, the preponderance of evidence supports the conclusion respondent mother has often been resistant to applicant father’s parenting time, even when ordered. In proceedings between her and Mr. Mathias, she was found in contempt of a parenting order. In these proceedings she was ordered 3 times to comply with a parenting order. When asked about her non-compliance, she explained she had not agreed to the orders, belying an ingrained determination to proceed as she feels entitled to do, regardless of the court’s authority. While she went on in her evidence to express respect for court orders, this rings hollow considering the history.

[61] I am also concerned regarding mother’s apparent readiness to interfere with the children’s relationship with Ms. Gray (confirmed in the updated OCL report).

[62] Applicant father, at the time he moved to Orillia from Barrie in November/20, offered to be responsible for transporting the children to facilitate their parenting time with respondent mother. I interpret this as an effort to support the children's relationship with her.

[63] On November 29/22, mother brought an urgent motion for Rylie’s return to her. It was adjourned to December 1/22, subject to it being withdrawn if Rylie was returned by that date. There is no endorsement from December 1/22; accordingly, I surmise Rylie was returned to mother who at that time has primary care of her. This indicates an occasion of father failing to comply with an order regarding primary care of the children.

[64] Given the above, I find father is more likely to support mother’s relationship with the children than vice versa.

Section 24(3)(d): The history of care of the child

[65] Following separation the children resided primarily with respondent mother subject to significant parenting time with applicant father. For Rylie, this changed in May/23 when she started residing primarily with applicant father, subject to parenting time with respondent mother according to her wishes. For William, this changed in early September/23 when he began residing primarily with applicant father subject to significant and regular parenting time with respondent mother.

[66] Lisa Gray has also had a significant role in caring for the children while cohabiting with applicant father. I am satisfied she has a positive relationship with both children.

[67] Kurt Glendenning resided with respondent mother at least from the time she lived in Barrie to February/23. He was charged with assaulting mother in April/23. The charge was withdrawn in July/23. I am not satisfied he currently resides with respondent mother; regardless, he has an ongoing and consistent presence at respondent’s residence and in the lives of the children when they are in respondent mother’s care. He is present at many exchanges, he spends time with William when he is in respondent mother’s care, he has meals at respondent mother’s residence, he often stays overnight and he accompanies respondent mother and William to events.

[68] While it appears William likely has a mostly positive relationship with Mr. Glendenning, this relationship is vulnerable given the uncertain nature of Mr. Glendenning’s relationship with mother and the history of that relationship.

Section 24(3)(e): The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[69] Rylie is 14 years of age. Her views and preferences are worthy of careful and serious consideration. Respondent mother’s draft order in particular contemplates Rylie choosing her place of primary residence. Applicant father also testified in supportive terms of Rylie having significant influence over major decisions about residence and parenting time. It therefore appears to be common ground that Rylie’s views and preferences should be given effect.

[70] The updated OCL report confirms Rylie’s views and preferences in mid-2023. At that time, she wished to reside primarily with applicant father, subject to parenting time with respondent mother as she wished. I am satisfied this is consistent with her current wishes. I am also satisfied that at her age and level of maturity, significant weight ought to be given to Rylie’s views and preferences.

[71] William was 9 when the updated OCL report was prepared. At that time he had been in respondent mother’s primary care subject to week-about care and control during the summer. He appeared appropriate for his stage of development. He answered all the questions and seemed truthful. He was doing well in school academically and socially.

[72] William said his mother had to move and he hoped she would find a home in the same school district so he could remain with his friends; if not, he preferred to live with his father and attend the same school as his sister. He enjoys the time spent with both parents. He was happy to hear that the summer schedule with his father had increased.

[73] Applicant father testified that at William’s age and maturity his views and preferences should be considered but he should not be able to dictate what happens with parenting issues. At age 10, I agree with this general statement. Given William’s age and stage of development I attach reduced weight to the statement of his views and preferences from last year, but I nevertheless consider it in determining parenting time.

Section 24(3)(f): The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[74] There are no significant considerations in this regard.

Section 24(3)(g): Any plans for the child’s care

[75] Applicant father’s plan of care is that the children continue in his primary care. Rylie would have parenting time with respondent mother in accordance with her wishes, while William would have a fixed schedule with respondent mother including alternating weekends, Wednesday evenings if she can provide transportation, half of major holidays including summer, March Break and Christmas. Applicant father would have decision-making authority after consultation with respondent mother.

[76] Respondent mother’s plan of care is that she have primary residence of William, subject to parenting time with applicant father including 3 weekends out of 4, one Thursday evening each month, half of major holidays including March Break and Christmas. In summer applicant father would have care of William for one uninterrupted week, but also each Thursday evening to Sunday evening (or Monday if a statutory holiday). Rylie would choose her primary residence and school. Rylie would choose her parenting schedule but within the requirement that she reside with respondent mother between 50% to 60% of the time.

[77] Father’s plan of care is built upon a status quo of approximately 1.5 years. The evidence satisfies me that it has largely been working for the children. Mother’s plan involves imposition of a parenting schedule upon Rylie that is inconsistent with her wishes. This appears to represent another example of mother failing to hear Rylie.

[78] Regarding transportation, shortly after moving to Collingwood respondent mother sold her vehicle and she used Mr. Glendenning’s work truck transport the family. Respondent mother is opposed to doing any of the driving for parenting time, including for her midweek parenting time on Wednesdays for 1.5 hours. She proposes that both applicant father and Lisa Gray be responsible for transportation of the children in facilitating parenting time by the parties. Respondent mother does not have a vehicle at this time. She relies upon the public transit and borrowing or renting Mr. Glendenning’s vehicle from time to time.

[79] It is not reasonable for her to look to others to support all her parenting time with the children. A balance should be struck as below, as the children benefit from the time they have with her.

[80] Between the two plans, father’s is more consistent with the evidence and the wishes of the children, weighted as I have indicated above.

Section 24(3)(h): the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child

[81] I have no reason to believe that either party is unable to meet the children’s basic needs such as shelter, food, clothing and so on.

[82] However, there are other areas of concern.

[83] There have been multiple child protection complaints regarding applicant father’s parenting of the children, and one regarding Lisa Gray’s parenting of Evan. The complaints span 2018 to this past summer. None of these resulted in any finding of need for protection, including a complaint in September/18 pertaining to William’s head injury while in applicant father’s care.

[84] On June 25, 2018 respondent mother initiated a child protection complaint regarding applicant father. On August 8, 2018 the Society confirmed by letter there were no verified concerns about the applicant; however, concerns were verified regarding mother’s behaviour creating a risk of emotional harm based on exposure to ongoing post-separation caregiver conflict. The risk related to mother’s comments to Rylie regarding father’s new partner.

[85] On July 6/22 the Society confirmed it was closing its investigation regarding a complaint of neglect of Evan in Lisa Gray’s care, with no child protection concerns. The Society advised respondent mother that it was not appropriate for Ethan to care for his siblings overnight while she worked.

[86] It would appear that child protection complaints by respondent mother have revealed no child protection verifications regarding applicant father and Lisa Gray; ironically, her complaints have revealed the above-noted concerns regarding her own parenting choices. Her behaviour suggests a readiness to exploit perceived parenting shortcomings of others as an opportunity to gain advantage and to weaponize child protection investigations as a litigation tool.

[87] When Rylie was hospitalized regarding her suicide planning, respondent mother refused to allow applicant father to see her, relying on the hospital’s one-visitor rule, and the order in place at the time that defined the date of attendance as her parenting time. In doing so, it is difficult to escape the conclusion respondent mother put her own needs ahead of Rylie’s, in a moment of crisis and Rylie’s obvious need for the love and support of both parents.

[88] It is apparent Rylie does not feel heard by respondent mother and that this is part of the foundation of Rylie’s discomfort in her relationship with her mother.

[89] According to the updated OCL report, the collateral information, interviews and observations indicate “mother appears to have great difficulty coparenting with her children’s fathers, including Mr. Gray.” She has a history of withholding parenting time that has caused her to be incarcerated. She has shown a “propensity to involve the children in adult conflict, inability to keep their best interests in mind, interfere with their relationship with other family members/caregivers because she does not like them and does not consider the emotional impact on the children.” She has “demonstrated that she will punish her children for choosing to maintain a relationship with their father or requesting to live with him primarily by withholding her attention and affection.” She “appears to manipulate her relationship with her children to get her way with them despite knowing this will cause them distress.” She “has shown poor judgment and even delusional thinking when it came to Riley and William’s health.”

[90] Regarding William in particular, the updated OCL report expressed “a serious concern for William being in the care of his mother as he is very vulnerable to emotional harm by his mother given the pattern that occurred with Ethan and Riley.” Further, “during the last interview, mother reported that William did not like going to his father’s home... William was interviewed after and indicated the opposite.”

[91] Respondent mother says applicant father has medicated William while sick and sent him to school while ill with a fever of 105. Respondent mother does not identify the source of her belief that William was presenting as ill or feverish when applicant father sent him to school. With this uncertain evidentiary foundation, I make no finding in this regard.

[92] Considering the foregoing, it is apparent applicant father is better equipped to answer all the children’s needs, both physical and emotional.

Section 24(3)(i): the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child

[93] During the six days this trial unfolded before me, the parties were unfailingly polite, respectful and appropriate. If only all litigants before me so conducted themselves.

[94] Thus, it is apparent the parties can communicate respectfully with one another, at least in the courtroom where behaviour is being scrutinized. But with this decision, the court’s immediate scrutiny comes to a long-awaited end. I must look to more reliable indicators of their likely behaviour toward one another beyond the confines of the courtroom. Those indicators are to be found in the history of this proceeding.

[95] This is clearly a high-conflict file. This observation has been repeated by my colleagues many times in the long history of this proceeding. The multitude of motions brought by the parties, the police attendances to enforce parenting orders, the many complaints to child protection, all speak to the degree to which the parties do not trust one another.

[96] Many of the parties’ OFW communications were put into evidence. A significant number of applicant father’s messages had not been read at all by respondent mother, or, if they had been read, they were read long after delivery.

[97] There have been instances of both parties failing to give timely notification to the other regarding significant issues pertaining to the children. Respondent mother did not notify applicant father of her decision to enroll William in a separate school. On October 25, 2024 Riley was taken to hospital by applicant father and admitted with pneumonia. Applicant father subsequently notified respondent mother by OFW late that evening. Applicant father also failed to notify respondent mother that he had taken Riley to a clinic prior to the hospital visit resulting in an x-ray requisition. In October 2024 applicant father notified respondent mother that he had acquired passports for the children. He did so without respondent mother’s knowledge or consent.

[98] These are but a few examples.

[99] I conclude the parties are generally unable to reliably communicate with a focus on the needs of the children.

Section 24(3)(j): 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, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child and that is relevant to the safety, security and well-being of the child.

[100] There are no allegations of physical violence between the parties.

[101] I am satisfied respondent mother has involved the children in her dispute with applicant father. She has been critical of Lisa Gray to at least Rylie. She has questioned the children about their time in applicant father’s care as though he is someone to be feared, when there is no significant evidence that he represents a threat to the children. This behaviour is emotionally abusive of the children.

[102] The children have been exposed to adult conflict and possibly physical violence while in respondent mother’s care. Her allegation of violence against her by Kurt Glendenning resulted in a criminal charge against him, later withdrawn.

[103] Mr. Glendenning was subpoenaed to present evidence as part of applicant father’s case. He failed to attend and a warrant issued for his arrest. Applicant father chose to close his case without this evidence. Curiously, it later was revealed that Mr. Glendenning had been providing care for respondent mother’s children while she was attending trial. She therefore knew where Mr. Glendenning was and when. This information was not shared with the court in a timely way; in fact, she testified she did not share it earlier as Mr. Glendenning had asked her not to.

[104] In her evidence, respondent mother did not meaningfully explain the events leading to the criminal charge. When asked directly whether Mr. Glendenning assaulted her, she avoided a direct response and instead stated: “According to police, it was assault.” Eventually she conceded: “He pushed me.” The context suggests Brodie had suffered an injury while Mr. Glendenning was present, but the mechanism of injury had not been witnessed by respondent mother. She was sufficiently concerned to take a photo of the injury. She testified she took “no comfort” from Mr. Glendenning’s explanation of the injury.

[105] Respondent mother's testimony may be compared to evidence in her affidavit sworn April 10/23, in which she details “Kurt Glendenning History + Abuse.” She references his "mental/emotional abuse toward me and kids, drug use around kids, financial abuse, fighting around kids, reckless driving, driving while under the influence, negligence and anger." She describes calling the police in September 2022 due to "domestic abuse". She attended the women’s shelter on September 27, 2022 "seeking assistance from Kurt’s abuse toward me and the children." On February 9, 2023 "Kurt once again verbally abused and attacked me in front of all four younger children" and "Kurt physically held Brodie and...continued to name call, accuse me of being bipolar, threatened, bully for money and break household items by throwing in anger." On February 23/23 police were called to "assist with Kurt and his temper...Kurt had verbally attacked Leo and physically block me from the baby while holding him moving sporadically and with temper still full force...My daughter came to assist and call the police as she witnessed the screaming from Kurt. William was also aware and heard the screaming from Kurt to Leo." On Saturday April 2/23 "while at the park Brodie was injured by Kurt." On April 3, 2023 she called the police for assistance after Kurt woke up angry and once again Brodie was injured by Kurt.

[106] From a comparison of her affidavit evidence to her testimony at trial, it is apparent respondent mother was attempting to minimize the troubling history of her relationship with Mr. Glendenning.

[107] While he may not be residing with respondent mother, Kurt Glendenning has meals there, spends time with William at least, and often stays overnight. In short, he has a significant presence in William's life. Respondent mother's own evidence creates a strong foundation for reasonable concern regarding the stability of whatever relationship she has with Mr. Glendenning and concern for his behaviour when the children are present.

Conclusion re Parenting Time and Decision-Making

[108] The evidence outlined above draws me readily to the conclusion that it is in the best interests of the children that orders as below be made. More detail than usual is merited to avoid unnecessary conflict. I remind the parties that regardless of whether they find the terms of my orders agreeable, they must comply, subject to any rights of appeal.

Child Support re Ethan

[109] Before addressing child support, it makes sense to consider whether Ethan should be included in that analysis.

[110] Respondent mother seeks a finding that applicant father stood in loco parentis regarding Ethan, and that child support be payable to her accordingly for the period 2018 to September 2022.

The Legal Context

[111] In Chartier v. Chartier, (1999) 1999 CanLII 707 (SCC), 43 R.F.L. 4th 1 S.C.C. sets out factors to consider:

1. Examine intention. Must look at actions as well as expressed intention.

2. Forming a new family.

3. Does child participate in extended family like a biological child would?

4. Whether the person contributes financially to the family (depending on ability to pay)

5. Whether the person disciplines the child

6. Whether the person represents to the child, the family, the world, either explicitly or implicitly that he or she is responsible as a parent to the child.

7. The nature or existence of the child’s relationship with the absent biological parent.

[112] In Widdis v. Widdis 2000 SKQB 441, [2000] S.J. No. 614 (QB), citing Carole Rogerson, the court indicated: Parental status should not be assigned automatically or from the mere willingness of the stepparent to share with children and to assist with their financial, emotional and physical needs. There must be a relatively clear assumption of responsibility shown by or inferred from the stepparent’s actions over a sufficient period of time for that relationship to constitute a commitment. In finding parental status, a court must take care not to penalize a stepparent for behaving kindly or offering emotional, physical and financial assistance to the natural parent who would otherwise be raising the children alone or with some assistance from the non-custodial natural parent. The threshold for a parental status finding must be pegged at a sufficiently high point that it avoids the imposition of obligations and the acquisition of access and custody rights except where the stepparent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for the natural parent’s role. Factors militating against settled intention are:

1. Poor relationship prior to separation

2. Older child

3. An involved biological parent

4. Short relationship

[113] The length of the relationship is an important factor. Oxley v. Oxley 2003 CanLII 64327 (ON SC), [2003] O.J. No. 5275 (Ont.S.C.J.).

[114] The material time for purposes of determining whether a party stood in the place of a parent to the child is when the family operated as a functional unit. The material time, for purposes of determining the child’s need for support, is the time of the hearing. After-the-fact denials and withdrawals from the relationship are not determinative of the issue. Friday v. Friday, 2013 ONSC 1931.

[115] In Watts v. Watts, 2011 ONCJ 104 , Justice Spence writes:

Someone in [the stepparent’s] shoes would want to demonstrate kindness, cordiality, financial support where it is not otherwise available from his new wife, respect and generally a positive interpersonal relationship. In circumstances such as these, where a new stepfather and a child are living together under the same roof, there is a natural inclination to at least try to get along with one another. None of that, however, equates with demonstrating a settled intention to treat the child as a child of that stepfather. See, for example, Segal v. Qu, 2001 CanLII 28201 (ON SC), [2001] O.J. No. 2646, (Ont. S.C.).

The Evidence

[116] According to the Statement of Agreed Facts, applicant father continued to have parenting time with Ethan after the parties separated (details regarding frequency, duration and so on are not provided). In 2017 Ethan wrote a school report, describing applicant father as his personal hero. Applicant father resumed a relationship with Ethan in 2022.

[117] Applicant father says that when he and respondent mother began dating in 2007 he “took an active role in caring for Ethan.” Immediately after separation in 2017 father included Ethan in his parenting time with Rylie and William. When the parties agreed to terms for an order May/18, Ethan already had scheduled parenting time with his father Jacob Matthias, his stepmother Sabrina Matthias and respondent mother. Applicant father proposed to have Ethan join in visits with Riley and William whenever he would like to work with his schedule. Thereafter, respondent mother terminated all contact between applicant father and Ethan. Applicant father believed this was because respondent mother told him father did not want to see him. This severely impacted applicant father’s relationship with Ethan.

[118] Ethan attended applicant father’s wedding to Lisa Gray in September 2021. Father described himself as a “secondary parent” to Ethan.

[119] Respondent mother says applicant father refused his stepparent rights and responsibilities in 2018 with Ethan, causing Ethan mental health issues. Since 2022, applicant father has resumed the relationship with Ethan, having him for Christmas in 2023 and 2024, playing hockey with him and visiting him many times.

[120] Jacob Matthias describes applicant father as “Ethan’s stepfather since he was two years old.” At some point in perhaps 2018 or 2019 respondent mother asked Mr. Mathias and his former spouse Sabrina Mathias not to permit applicant father to have contact with Ethan. Ethan started residing primarily with Mr. Mathias in May of 2022. Applicant father brought William to Ethan’s hockey games to watch him. Mr. Matthias arranged for applicant father to reconnect with Ethan by attending his hockey games. Ethan spent Christmas with the extended Gray family. Ethan and William get together about 2 to 3 times a month.

Analysis (Guided by Chartier Factors)

[121] The material time for assessing applicant father’s relationship with Ethan is during the relationship, before separation (see Friday, above). I have little evidence of applicant father’s relationship with Ethan prior to separation. I have no doubt he had a positive relationship before separation, but the intention of the parties is unclear to me. Ethan had an ongoing relationship with Mr. Mathias and parenting time per an order made in proceedings between respondent mother and Mr. Mathias. This is consistent with applicant father’s description of himself as a “secondary parent” to Ethan.

[122] I have no evidence regarding who undertook disciplinary tasks pre-separation.

[123] It is clear Ethan viewed applicant father as his “hero” pre-separation, but that does not by itself confer in loco parentis status upon applicant father.

[124] Evidence of Ethan’s post-separation contact with applicant father is imprecise and incomplete. I do not know how often Ethan spent time with applicant father, or for what durations. I know he attended applicant father’s wedding to Ms. Gray and that of his sister, as one would also expect other friends and family to do.

[125] I have no evidence regarding how applicant father presented his relationship with Ethan to the world.

[126] The words of Professor Rogerson, quoted above from Widdis, are particularly resonant in the context I have before me.

[127] On balance, I find that while applicant father had a close and loving relationship with Ethan, such did not rise to the level of in loco parentis. As a result, no child support obligation is triggered.

Child Support

The Parties’ Positions

[128] Applicant father seeks child support from respondent mother for Rylie and William based on income imputed to her between $30,000 and $40,000 and s.7 payments, retroactively to May 26/23 for Rylie and September 3/23 for William. He does not identify a position regarding the level of income to be attributed to him for support purposes.

[129] Respondent mother seeks child support for Ethan from 2018 until September/22 in the sum of $5,700 (basis for calculation unclear), plus $1,028/mo if split care and control, or $1,655/mo if both children reside primarily with respondent mother, based on applicant father's income of $115,000.

The Legal Context

[130] For child support purposes, a party’s income is determined pursuant to Sections 15 through 20 of Ontario’s Child Support Guidelines.

[131] When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid (see Vanos v. Vanos, 2010 ONCA 876.

[132] The court should not do a 3 yr. average, if current income information is available. Miner v. Miner, 2004 CanLII 5064 (ON SC), 2 R.F.L. (6th) 105 (Ont. SCJ); Quiquero v. Quiquero, 2016 ONSC 6696.

[133] When on a balance of probabilities, a payor’s income will be substantially different from historical levels, the calculation for support should not be based on outdated historical information. See: Kajorinne v. Kajorinne, [2008] O.J. No. 2789 (SCJ).

[134] The court ourt should use current year’s income wherever possible. L.(R.E.) v. L. (S.M.), 2007 ABCA 169, 40 RFL 6th 239 (Alb.C.A.). West v. West, (2001) 18 R.F.L. (5th) (Ont. SCJ); Lewis v. Adesanya, 2014 ONCJ 326.

[135] A self-employed person has the onus of clearly demonstrating the basis of their gross and net professional income. Deductions from gross income should reasonably be taken into account in the determination of income for child support purposes. Whelan v. O’Connor, 2006 CanLII 13554 (ON SC), 2006 CarswellOnt 2581 (SCJ). Self-employed parties have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. Meade v. Meade, (2002) 2002 CanLII 2806 (ON SC), 31 RFL 5th 88 (Ont. SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur the expense to understand it. Reyes v. Rollo, 2001 Canlii 28260 (SCJ).

[136] The leading case on imputation of income is Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (OCA)

Three-part Test:

1. Is the spouse intentionally underemployed or unemployed.

2. If so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage, or reasonable health needs.

3. If the answer to #2 is negative, the court must decide whether it should exercise its discretion, and if so, what income is properly imputed in the circumstances.

[137] There is no need to find a specific intent to evade child support obligations before income be imputed. Look at whether the act is voluntary and reasonable. The payor is intentionally under-employed if they choose to earn less than they are capable of earning. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children, in order to meet this legal obligation, a parent must earn what she is capable of earning.

[138] Homsi v. Zaya, 2009 ONCA 322:The approach mandated by this court in Drygala v. Pauli 2002 CanLII 41868 (ON C.A.), (2002), 61 O.R. (3d) 711 requires a consideration of whether the spouse is intentionally unemployed or under-employed, and, if so, what the appropriate income is under the circumstances. The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding. However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income. Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[139] Once you establish underemployment, the onus shifts to the payor to show one of the exceptions of reasonableness. Parents can take jobs with less money, as long as the decision is reasonable. The onus of proving the payor is intentionally underemployed is on the recipient. If proved, the onus then shifts to the payor to establish a medical excuse. Rilli v. Rilli, 2006 CanLII 34451 (ON SC), 2006CarswellOnt 6335 SCJ.

[140] Cook v. Burton 2005 CanLII 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen 2006 CanLII 24124 (ON SC), [2006] O.J. No. 2902 (SCJ) set out that cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work.

[141] A party who wishes to have her medical condition taken into account as a basis that she cannot work bears the onus to establish material disability. This goes beyond testifying that she suffers from depression and anxiety: she must establish that the extent of her condition disables her from work. This onus cannot ordinarily be discharged solely on the basis of the party’s testimony…She would need to produce medical records and expert evidence about her condition, prospects and treatment. Geishardt v. Ahmed, 2017 ONSC 5513; Wilkins v. Wilkins, 2018 ONSC 3036.

[142] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

[143] Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position. See: Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4785.

[144] Questions to ask to determine if an educational course is reasonable: How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the payor is excused from pursuing part-time work? Could the program be completed over a longer period with the payor taking fewer courses so that he or she could obtain part-time employment? If the rigors of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the payor take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs: See: Ibrahim v. Hilowle, 2018 ONCJ 726.

[145] While a self-employed party does not have an obligation to produce an income analysis if their income is called into question, a self-employed party has an obligation to satisfy the court of their true income: See: Sargalis v. Sargalis, 2019 ONSC 530 (Sup. Ct.), para. 11. This may require an expert. See: Lafazanidis v. Lafazanidis, 2020 ONSC 5496.

Applicant Father’s Financial Circumstances and Employment History

[146] Applicant father worked as a project manager at Bertram Construction from 2009 until 2015. He worked at Quinan Construction in Orillia as a project manager from August 2015 to July 2021. On October 17, 2023 the applicant started a new job at Helix Contracting in Severn Bridge.

[147] Applicant father’s financial evidence is summarized as follows:

a) 2014 Notice of Assessment Line 150 Total Income $52,965

b) 2015 Notice of Assessment Line 150 Total Income $67,305

c) 2016 Notice of Assessment Line 150 Total Income $79,818

d) Financial statement March 29/18

i. Gross income last year $61,330

ii. Total yearly income $61,330

iii. Employed at Quinan Construction

iv. Total yearly expenses $61,785

e) 2019 Notice of Assessment Line 15000 Total Income $86,328

f) 2020 Notice of Assessment Line 15000 Total Income $98,228

g) 2021 Income Tax Return Line 15000 Total Income $81,205 (including $73,128 employment income and $8,077 other income)

h) 2021 Notice of Assessment Line 15000 Total Income $81,205

i) February 24/22 Financial Statement

i. Gross income last year $89,300

ii. Employed by Greystone Project Management

iii. Total yearly income $89,300 (from employment)

iv. Total yearly expenses $144,153

v. T4-2022 $89,300

j) July 10/23 Financial Statement

i. Gross income last year $89,300

ii. Employed by Greystone Project Management

iii. Total yearly income $89,300 (from employment)

iv. Total yearly expenses $144,153

k) 2022 Income Tax Return Line 15000 Total Income $89,300 (employment income)

l) 2022 Notice of Assessment Line 15000 Total Income $89,300

m) 2023 Income Tax Return Line 1500 Total Income $75,631 (employment income)

n) 2023 Notice of Assessment Line 15000 Total Income $75,631

o) March 26/24 Financial Statement

i. Employed by Helix Contracting

ii. Gross income last year $75,631

iii. Total yearly income $92,307

iv. Total yearly expenses $146,965

p) July 30/24 Financial Statement

i. Employed by Helix Contracting

ii. Gross income last year $75,631

iii. Total yearly income $92,307

iv. Total yearly expenses $144,949\

v. Living with Lisa Gray who contributes $3,500/mo

q) October 18/24 Financial Statement

i. Employed by Helix Contracting

ii. Gross income last year $75,631

iii. Total yearly income $115,546 (from employment)

iv. Total yearly expenses $152,714

v. Living with Lisa Gray and 3 children. Ms. Gray contributes $3,000/mo.

[148] Applicant father’s income is relatively uncomplicated and uncontroversial, subject to gaps in 2017 and 2018 for which I could find no disclosure attached to his several financial statements. The order of July 20/18 imputed an additional $4,000 of income to applicant father regarding benefits received through employment, an adjustment I preserve for that year, as below.

[149] Considering the foregoing evidence, I find his income history to be:

Year

Income

2017

$61,330, based on assertion in Mar/18 FS

2018

Unknown, apart from assertion in Mar/18 FS that he was earning at the rate of $61,330 that year, plus $4,000 imputed per July 20/18 order = $65,330

2019

$86,328

2020

$98,228

2021

$81,205

2022

$89,300

2023

$75,631

2024

$115,000

Respondent Mother’s Financial Circumstances and Employment History

[150] Respondent mother’s financial history is more complex.

[151] According to the Statement of Agreed Facts, respondent mother has worked as a hairstylist since 2003. She worked as a hairstylist at Michael J. Alexander salon from 2008 until the business was closed by the owner in 2014. While employed there she earned commission, tips and hourly minimum wage. In 2014 respondent mother started a home salon located at the parties’ residence. The respondent worked primarily evenings, nights and weekends from 2015 to 2020. On May 1, 2020 the respondent took a leave of absence from Oakdale Child and Family Services because she was unexpectedly required to care for the children (following the child protection investigation noted above) and applicant father could not do so due to Covid 19 issues.

[152] Respondent mother’s financial evidence may be summarized as follows:

a) 2015 Notice of Assessment Line 150 Total Income $4,960

b) 2016 Notice of Assessment Line 150 Total Income $7,817

c) May 2/18 Financial Statement

i. Gross income last year $7,817

ii. Self-employed under Lindsay’s Beauty Bar (from her residence)

iii. Total yearly income $28,924 (including $575/mo self-employment income, $340/mo spousal support and $1,495/mo CTC)

iv. Total yearly expenses $62,364

d) 2019 Notice of Assessment Line 15000 Total Income $9,698

e) 2020 Income Tax Return Line 15000 Total Income $20,992 (including $9,251 employment income, $11,741 EI benefits)

f) 2020 Notice of Assessment Line 15000 Total Income $20,992

g) 2021 Income Tax Return Line 15000 Total Income $21,744 (including $21,774 EI benefits)

h) 2021 Notice of Assessment Line 15000 Total Income $21,774

i) 2022 Income Tax Return Line 15000 Total Income $15,669 (including $13,152 spousal support and $2,517 self-employment)

j) 2022 Notice of Assessment Line 15000 Total Income $15,669

k) 2023 Notice of Assessment Line 15000 Total Income ($290)

l) February 27/23 Financial Statement

i. Gross income last year $37,000

ii. Self-employed under Lindsay’s Beauty Bar

iii. Total yearly income $40,474 (including $300/mo self-employment income and $3,073/mo CTC)

iv. Total yearly expenses $87,576

v. Living with Kurt Glendenning (contributing $2,100/mo)

m) July 12/23 Financial Statement

i. Gross income last year $15,669

ii. Self-employed under Lindsay’s Beauty Bar

iii. Total yearly income $16,656 (including $300/mo self-employment income and $1,088/mo CTC)

iv. Total yearly expenses $77,076

n) April 17/24 Financial Statement

i. Self-employed under Lindsay’s Beauty Bar

ii. Gross income last year $21,500

iii. Total yearly income $30,408 (including $1,200/yr self-employment, $10,188 spousal support and $19,020 CTC)

iv. Total yearly expenses $27,684

v. Living alone

o) June 6/24 Financial Statement

i. Self-employed under Lindsay’s Beauty Bar

ii. Gross income last year ($290)

iii. Total yearly income $20,220 (including $1,200/yr self-employment and $19,020 CTC)

iv. Total yearly expenses $27,684

v. No disclosure of cohabitees nor confirmation living alone

p) August 1/24 Financial Statement

i. Self-employed under Lindsay’s Beauty Bar from Collingwood residence

ii. Gross income last year ($209)

iii. Total yearly income $20,134 (including $1,200/yr self-employment and $18,936 CTC)

iv. Total yearly expenses $24,337

v. Living alone

vi. Statement of Business Activities shows gross sales of $1,555 against sole expense of $5,866 rent for the year.

q) September 5/24 Financial Statement

i. Self-employed under Lindsay’s Beauty Bar

ii. Gross income last year $1,839

iii. Total yearly income $20,134 (including $1,200/yr self-employment and $18,936 CTC)

iv. Total yearly expenses $25,224

v. Living alone

r) October 18/24 Financial Statement

i. Self-employed under Lindsay’s Beauty Bar from Collingwood residence

ii. Gross income last year $1,839

iii. Total yearly income $22,051 (including $1,200/yr self-employment and $20,844 CTC)

iv. Total yearly expenses $22,052

v. Living alone with 2 children

s) November 18/24 Financial Statement

i. Unemployed since September 11/24

ii. Gross income last year $1,839

iii. Total yearly income $31,076 (including $10,224/yr from social assistance and $20,844 from CTC)

iv. Total yearly expenses $22,052

v. Living alone

[153] As can be seen, respondent mother’s self-employment income, as reported, has been consistently minimal. She says she has been physically unwell for years, suffering from ulcers since 2017, a skin condition since 2018, arthritis in 2022, a kidney stone in March 2023 and a pinched nerve that mimics carpal tunnel since 2008. I reject this explanation for her low income. There is little in the way of medical evidence to support any suggestion she is incapable of pursuing gainful employment for medical reasons. During the trial, her family physician (Dr. Lewin) confirmed he was not aware of any medical issues preventing respondent mother from working. She has not discharged the evidentiary burden she bears in this regard (see Geishardt and Wilkins, cited above).

[154] Respondent mother further maintains that Covid affected her business from 2020. She downsized and removed salon equipment, had a high-risk pregnancy and twin boys (born Dec./21, now 3 years). She was in three, now two, high-conflict court battles as a self-represented litigant. Income from self-employment, to the extent it is discernable from her disclosure, ranges from $6,900 in 2018 to $1,200 in 2024. I have not seen income tax returns or notices of assessment for 2017 and 2018 and the 2020 notice of assessment does not break down the sources of the declared income of $20,992 in that year. Again, there is no medical evidence to support her assertion the “high-risk” pregnancy interfered with her ability to earn income. As a self-employed party, respondent mother has the onus of clearly demonstrating the basis of her gross and net income (see Whelan, above). Self-employed parties have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established (see Meade, above). Respondent mother, in operating her business, worked out of her home. I have only seen one statement of business activities (attached to her August 1/24 financial statement, indicating gross income of $1,555 and sole expense of $5,866 for rent). The rental expense is not real in that it is not an expense triggered by and solely relating to operation of her business. There is no evidence she secured larger living quarters to accommodate operation of the business. She has produced no records by which she tracks her income. She has not explained how she calculated her self-employment income each year. There is inconsistency in her documentary evidence; for example, her October 18/24 statement deposes she was self-employed under Lindsay’s Beauty Bar, while her November 18/24 statement deposes she has been unemployed since September 11/24. These assertions cannot both be true. As a result, I ascribe a degree of unreliability to respondent mother’s financial disclosure. In short, I am not satisfied respondent mother has discharged the burden of proof she bears in establishing her income.

[155] Applicant father asks that income be imputed to respondent mother on the basis she is deliberately underemployed. In considering this issue, I look to the 3-part test in Drygala (see above).

[156] First, I find respondent mother is intentionally underemployed, in that she is capable of earning more (see also Hergert v Hergert, [2022] O.J. No. 478 (Ont. Div. Ct.).

[157] Second, as noted above, there is no medical evidence of a reason for her not to be employed on a full-time basis. Further, the twins were born 3 years ago. She returned to work mere months after the births of Rylie and William (according to the evidence of applicant father and Mr. Mathias, which I accept). She has not fully explained why she has not done so with the twins. I reject the explanation that she had to direct attention away from employment in favour of self-representation in this or other proceedings; a litigant cannot avoid or reduce exposure to a child support order on account of litigation choices made by that litigant. I note respondent mother has not been self-representing throughout this proceeding. She has had the benefit of counsel of record from time to time, including Mr. Chan, Ms. Nagessar and, most recently, Mr. Beleskey. It is not clear to me why she has not had counsel on occasion.

[158] Third, as to income to be imputed, it is reasonable to expect an able-bodied adult to earn income at minimum wage on a full-time basis. In Ontario today, that is about $35,300/yr. In 2018, it would be approximately $29,000 (based on provincial minimum wage changes from time to time and assuming 40 hours per week for 52 weeks per year). In 2020 it would be approximately $29,600. In 2022 it would be approximately $31,000. In 2023 it would be approximately $34,400.

[159] I would however accord respondent mother 6 months following the births of the twins in Dec./21 during which her income-earning ability would be interrupted by childcare responsibilities for 2 infants.

[160] For these reasons, I would make the following findings regarding respondent mother’s income history:

Year

Income

2018

$29,000

2019

$29,000

2020

$29,600

2021

$29,600

2022

$0 for Jan – June 30, at the rate of $31,000/yr for Jul – Dec.31

2023

$34,400

2024

$35,300

[161] With the finding of mother’s income in 2024 of $35,300, she should pay ongoing child support to father for Rylie and William in the amount of $536/month commencing January 1, 2025.

[162] Mother also has an obligation to pay child support for Ethan. Her most recent financial statement puts her obligation at $158/month; however, the parties’ Statement of Agreed Facts confirms she has not paid child support for Ethan since an order was made on November 2, 2023. There is no claim before me for a finding of undue hardship under s.10 of the CSG. For these reasons, I make no finding of undue hardship.

Retroactivity

[163] Under s.34 of the Family Law Act, in making an order for child or spousal support the court may make an order “requiring that support be paid in respect of any period before the date of the order.”

[164] Respondent mother says applicant father was ordered in 2018 to provide annual income disclosure. She says he refused yearly and support was never changed despite respondent mother’s requests. She asserts he is currently over $17,000 in arrears in support. It is not clear how she calculates this sum.

[165] On May 24/18 the court made a temporary order that applicant father pay child support to respondent mother for Rylie and William, in the amount of $1,160/mo based on his estimated income of $61,000, plus spousal support of $340/mo, with both obligations commencing July 8/17. It was also ordered that “All child and spousal support is paid up to and including May 2018.” Additionally, both parties were required to provide annual financial disclosure on the order’s anniversary.

[166] On July 20/18 the court made a temporary order that applicant father pay child support in the amount of $996/mo, based on income of $65,330 (including value of benefits received by father through employment such as motor vehicle, gas and insurance). Respondent mother was imputed income of $28,000 (her 2017 NOA showed income of $5,653). Father was to contribute 70% of s.7 expenses including child care, medical, dental, swimming lessons, and any other agreed expenses related to the children. Proof of the expense was to be provided and payment made within 30 days. Father’s spousal support obligation ordered to be “nil until there is a future court order ordering a new spousal support obligation.”

[167] On October 24/23 the court made a temporary order that child support payable per the order of July 20/18 be suspended until further order.

[168] I am not aware of any other support orders in this proceeding.

[169] Considering the foregoing, and applying the above findings regarding the parties’ respective incomes, I summarize child and spousal support paid and potentially payable as follows:

Year

AF income

RM income

Childn with

CS per CSG

CS paid (enf by FRO)

SS per SSAG

SS paid (enf by FRO)

Diff[^1]

2018[^2]

65,330

29,000

RM

996 x 7 mos

1,160 x 2 mos, 996 x 5 mos

0/0/0

340 x 2 mos

CS 328 SS 680

2019

86,328

29,000

RM

1303 x 12 mos

996 x 12 mos

0/0/0

0

CS (3684)

2020

98,228

29,600

RM

1450 x 12 mos

996 x 12 mos

0/233/611

0

CS (5448) SS (2746)

2021

81,205

29,600

RM

1229 x 12 mos

996 x 12 mos

0/0/54

0

CS (2796) SS 0

2022 Jan-Jun

89,300

0[^3]

RM

1342 x 6 mos

996 x 6 mos

920/1123/1331

0

CS (2076) SS (6738)

2022 Jul-Dec

89,300

31,000

RM

1342 x 6 mos

996 x 6 mos

0/0/189

0

CS (2076) SS 0

2023 Jan through April

75,631

34,400

RM

1148 x 4 mos

996 x 4 mos

0/0/0

0

CS (608) SS 0

2023 May through August

75,631

34,400

R with AF, Wm with RM

408[^4] x 4 mos payable by AF

996 x 4 mos paid by AF

0/104/434

0

CS 2352 SS (416)

2023 Sept through Dec

75,631

34,400

AF

0 by AF 523 x 4 payable by RM

996 x 2 mos[^5] paid by AF

340/397/453

0

CS 1992 overpaid by AF CS 2092 underpaid by RM SS (1588)

2024

115,000

35,300

AF

0 by AF 536 x 12 mos, payable by RM

0

601/701/801

0

CS 6432 underpaid by RM SS (8412)

[170] The calculation above reveals:

a) Total net underpayment of child support by applicant father in the amount of $3,492 (total credits of $13,196 against total underpayment of $16,688), and

b) Total net underpayment of spousal support by applicant father in the amount of $19,220 (total credits of $680 against total underpayment of $19,900).

[171] The sum of $19,220 in underpaid spousal support is worth roughly $12,500 to respondent mother in after-tax dollars. Combined with underpaid child support, applicant father potentially owes respondent mother $12,500 + $3,492 = $15,992 in after-tax dollars.

[172] It is reasonable to assess retroactivity since the start of these proceedings as from that time, both parties were aware of the claims of the other and neither can claim inability to arrange their financial affairs accordingly. I also consider applicant father’s financial circumstances. Further, child support is the right of the children and should not be lightly denied or unaccounted for.

[173] For these reasons, orders as below.

Section 7 Expenses

[174] Given my conclusion regarding primary residence of the children, applicant father has a claim for s.7 expenses commencing in May/23 (when Rylie came into his primary care), while respondent mother has a claim from separation.

[175] In his draft order, applicant father seeks an order that respondent mother contribute to the children’s s.7 expenses, but no detailed terms are proposed.

[176] In her draft order, respondent mother seeks a 70/30 sharing of s.7 expenses to be agreed upon in writing, with contributions to be made within 15 days (of receipt of proof of the expense, presumably).

[177] Neither party specifically seeks a ruling regarding unpaid s.7 contributions to date. If I had been asked to do so, I would have denied the request on the basis of insufficient evidence to satisfy me of the qualification of claimed expenses to date under s.7 (which requires that such expenses be necessary in relation to the children’s best interests, reasonable in relation to the parties’ means, those of the children and the family’s spending pattern prior to separation, and that the expense falls within one of the enumerated categories under s.7).

[178] On July 20/18 applicant father was ordered to contribute 70% of the children’s s.7 expenses, including “childcare/medical/dental/swimming lessons and any other agreed in advance expenses related to the children.” This order remains unchanged.

[179] During trial I heard evidence of various expenses for the children, including counseling, baseball (Rylie), Jujitsu (William), childcare, glasses and summer camp.

[180] There shall be an order going forward, as below.

Spousal Support

[181] According to her draft order, respondent mother seeks spousal support of $340/month for 5 years (total $20,400). Her Answer claims spousal support pursuant to the SSAG retroactively to date of separation.

The Legal Context

[182] Section 30 of the Family Law Act provides that “Every spouse has an obligation to provide support for himself or herself and for the other spouse in accordance with need, to the extent that he or she is capable of doing so.”

[183] Section 33(8) provides that a spousal support order should:

a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

b) share the economic burden of child support equitably;

c) make fair provision to assist the spouse to become able to contribute to his or her own support; and,

d) relieve financial hardship, if this has not already been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[184] Section 33(9) specifies, non-exhaustively, the circumstances to be considered by the court in making an order for spousal support. I do not repeat those considerations here, but they do guide my analysis.

The Evidence

[185] Respondent mother says she became a stay-at-home mother primarily to care for the children in 2014 and supported applicant father while he got his university degree and career, being the default parent taking care of the children when they were ill, had appointments or any additional requirements from a parent. She says she was the primary parent to all five of her children leading to 2022 (when Ethan started residing primarily with Mr. Mathias). She says she has not been able to work for years and plans to return to school for a new career, something she has been trying to do for years. This will happen once the twins start school.

[186] According to applicant father, respondent mother worked in 2008 at a salon called Michael J Alexander salon in Barrie. She took maternity leave shortly before Riley was born until Riley was approximately six months old. Riley attended daycare while respondent mother returned to work at the salon. Respondent mother took a short maternity leave after William was born in January 2014. Thereafter, respondent mother started a new business, Lindsay’s Beauty Bar, instead of returning to the salon.

[187] Where respondent mother’s evidence differs materially from that of applicant father, I prefer that of applicant father. He gave his evidence in a balanced manner, and readily acknowledged shortcomings in memory or reliance upon hearsay. I found respondent mother’s evidence to be less reliable (for example, inconsistencies noted elsewhere in these Reasons, in her sworn financial statements, her insistence she was unclear whether she was ever found in contempt, despite her having been incarcerated for same, after denying ever having rented a vehicle other that a moving truck she conceded having rented a vehicle from Mr. Glendenning).

Analysis

[188] The parties cohabited for 9 years. Applicant father finished school during this time and respondent mother applied herself to caring for the children for a few months after the births of each, and to earning income through her hair-styling efforts. While respondent mother’s income has been historically lower than that of applicant father, I have made findings as above regarding imputation of income to her, reducing the income gap between the parties. Neither party has significant assets or savings, and prospects in this regard are difficult to predict. I have found there is no medical impediment to respondent mother contributing meaningfully to her own support. At 38 years of age, she has good prospects in the employment marketplace. She intends to pursue retraining, but plans are uncertain in this regard. I received scant evidence regarding the parties’ accustomed standard of living while cohabiting, but I am satisfied it was not luxurious. Respondent mother has obligations to support 3 children not residing primarily with her (being Ethan, Rylie and William). She has the twins in her primary care and is entitled to $849/mo in child support from their father, with no provision for childcare. I have little doubt the arrival of Rylie and William had an impact upon respondent mother’s ability to earn a living, but I am left without a clear picture as to the extent.

[189] The SSAG suggest ranges of spousal support for each year, summarized in the chart above. It is not required that spousal support be consistent with the SSAG, but the SSAG represent the best place to start an analysis (see Fisher v Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (Ont. C. A.)). I see no good reason not to apply the ranges to this analysis. In the support summary, I have used the mid-point of each range as a fair figure at which to assess support where, as here, the respondent mother has not identified the foundation of her entitlement. I find entitlement is made out on a means and needs basis, given the considerations above and the parties’ financial history and circumstances.

[190] As for duration, the SSAG suggest 4.5 to 9 years. The May 24/18 order calculated spousal support from July/17, when the parties separated, but acknowledged applicant father was “paid up” through May/18. The support summary covered a period of about 6.5 years, commencing June/18, through December/24. Thus, if the calculation herein is implemented, respondent mother will have received the benefit of spousal support calculated over a period of 7.5 years. This falls within the suggested range and represents a reasonable duration in the circumstances before me.

[191] For these reasons, orders as below.

Conclusion

[192] For all these reasons, judgment to issue as follows:

1. The children Rylie Elizabeth Rossi Gray born February 25, 2010 and William Allen Robert Gray born January 23, 2014 shall reside primarily with applicant father.

2. Rylie shall have parenting time with respondent mother in accordance with her wishes.

3. William shall have parenting time with respondent mother as follows:

a) alternating weekends from Friday at 6:30 PM (Thursday if Friday is a PA day) until Sunday at 8:00 PM (Monday if it is a holiday). Pickup time may be changed to 4:00 PM if respondent mother can provide transportation at the commencement of this parenting time;

b) each Wednesday from 4:00 PM until 8:00 p.m., but only if respondent mother is able to provide all transportation;

c) alternating weekends shall be suspended during the summer school holidays each year in favour of 2 Weeks in July and August each summer (with at least 2 weeks between), with exchanges occurring on Sundays;

d) March break in odd-numbered years from the Friday at 6:30 PM to the second Sunday at 8:00 PM and excluding March break for the same period in even-numbered years;

e) regardless of any other parenting schedule, Mother’s Day each year from 1:00 PM to 8:00 PM but excluding Father’s Day each year from 1:00 PM to 8:00 PM;

f) one half of the Christmas school holiday each year, including from the last day of school at 6:30 PM to December 26 at 2:00 PM in even numbered years (and excluding this period in odd-numbered years) and January 2 at 2:00 PM until 8:00 PM the evening prior to school resumption (and excluding this period in odd-numbered years);

g) liberal and generous telephone parenting time;

h) such further and other parenting time as may be agreed upon in writing.

4. Parenting exchanges shall be at the foot of the driveway of the parent receiving the child or children as the case may be. Applicant father shall be responsible for picking up the child or children as the case may be at the conclusion of respondent mother’s non-midweek parenting time, at the foot of her driveway. Respondent mother shall be responsible for picking up the child or children as the case may be at the commencement of her non-midweek parenting time, at the foot of applicant father’s driveway.

5. Both parties shall be entitled to travel outside of Canada with the child or children (as the case may be) during their scheduled parenting time (or as otherwise agreed in writing) subject to the following:

a) each party shall provide the other at least 14 days’ notice of proposed travel in writing;

b) each party shall provide the other the following travel details in writing at least 14 days prior to scheduled departure: flight number, airline name, terminal number, address at destination, phone number at destination.

c) neither party will unreasonably withhold written consent to such travel.

6. Applicant father shall retain the children’s important documents such as birth certificates, passports, health cards and social insurance cards, subject to reasonable access by respondent mother.

7. Applicant father shall consult with respondent mother in advance of making major decisions affecting the welfare of the children, including those of a medical, dental or academic nature. In the event of disagreement, applicant father shall have final decision-making authority.

8. The children shall attend school in the catchment area of applicant father.

9. The parties shall keep each other informed as to the children’s health, education, welfare and extracurricular activities via Our Family Wizard. The parties shall respond to such messages within 48 hours of receipt. The parties may communicate with one another by text regarding unexpected late exchanges or emergencies. The parties shall contact one another immediately by telephone, if necessary, in case of an emergency regarding either child. Neither parent shall disallow any contact with a child in an emergency situation.

10. Both parties shall be fully entitled to communicate with and received documentation from any person or institution or agency involved in the lives of the children. The parties shall execute such authorizations and directions as may be reasonably necessary to facilitate access to such.

11. Both parties shall have the right to attend parent-teacher interviews and any functions at the children’s school that are open to parents.

12. Neither party shall denigrate the other nor permit third parties to do so in the presence of the children.

13. Each party shall provide to the other at least 30 days written notice of any proposed change in primary residence.

14. Applicant father owes respondent mother $15,992 in after-tax dollars regarding underpaid child support ($3,492) and underpaid spousal support ($19,220 pre-tax, or approximately $12,500 after-tax). The sum of $15,992 shall stand as a credit in favour of respondent mother against her obligation to pay child support.

15. Commencing January 1/25 respondent mother owes child support to applicant father for the children in the amount of $536/mo, based on imputed income of $35,300/year; however, commencing January 1/25, $400/mo of this amount shall be applied in reduction of the $15,992 owing by applicant father, until applicant father's $15,992 obligation is exhausted. The remaining net amount of $136/mo ($536 - $400 = $136) shall be paid by respondent mother to applicant father by way of child support commencing January 1/25 until the applicant father's $15,992 obligation is exhausted, whereupon respondent mother shall commence payment of the full monthly amount payable (being $536/mo or as otherwise ordered).

16. The parties shall share the children's special or extraordinary expenses pursuant to s.7 of the Child Support Guidelines on a 70% to applicant and 30% to respondent basis. Such expenses shall include counseling for the children and such other expenses as may be agreed upon in writing or ordered by the court. The parties shall not unreasonably withhold consent. Required contributions shall be remitted within 30 days of receipt of proof of the expense and payment thereof.

17. The parties shall maintain for the benefit of the children such benefits as may be available to them through employment.

18. Each party shall provide to the other a complete copy of their respective income tax return and notice of assessment by May 31 each year.

19. All remaining claims dismissed.

20. If unable to agree on costs, parties may provide written submissions to me at jennifer.smart@ontario.ca and barriescjfamily@ontario.ca (restricted to 3 pages excluding bills of costs and offers to settle, double-spaced, 12-point font) as follows:

a) Applicant father by January 17/25

b) Respondent mother by January 31/25

c) Applicant father in brief reply, if desired, by February 7/25.

Justice P.A. Douglas

Released: December 31, 2024

[^1]: Assuming mid-point SSAG, calculating amount potentially owing by AF

[^2]: Commencing June 1/18 as May/18 order provides all CS/SS paid through May/18

[^3]: Post-birth of twins

[^4]: Set-off amount per CSG

[^5]: CS payable by AF per July/18 order suspended effective Oct.24/23