Court File and Parties

COURT FILE NO.: FC-20-904-1 DATE: December 17, 2024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jamie Lynn McCarthy, Applicant AND: Matthew Roger Northrup, Respondent

BEFORE: Justice M. Fraser

COUNSEL: Stephen Dam, Counsel for the Applicant Sarah Kennedy, Counsel for the Respondent

HEARD: November 28, 2024

Endorsement

Part 1 - Introduction

[1] The Respondent, Matthew Roger Northrup (“Northrup”) brings a motion asking for unsupervised parenting time with the parties’ two children on alternating weekends. He alternatively asks for supervised parenting time.

[2] Northrup also initially requested an order providing that the parties obtain a s.30 assessment. The parties have settled that aspect of the motion and have agreed upon terms to obtain a s. 30 assessment.

[3] The Applicant, Jamie Lynn McCarthy (“McCarthy”) opposes Northrup’s request for unsupervised access. She also opposes an order permitting Northrup having supervised parenting time unless it is through the Supervised Access Centre or Renew Supervision Services.

[4] McCarthy brings a cross motion asking that there be an order imputing income to Northrup for the purpose of determining his ongoing obligation to pay child support.

Part 2 - Background

[5] The parties were married on June 15, 2014. They separated June 30, 2019. They were divorced April 30, 2023.

[6] The parties have two children together. O.N. is 10 years old, and V.N. is 6 years old (collectively the “children”).

[7] The children initially lived in McCarthy’s primary care immediately following the separation. Once Northrup secured an apartment in October 2019 Northrup began to have parenting time with the children approximately 40% of the time. By February 2020, the parties began a shared week on/week off schedule and this parenting arrangement was formalized into a Final Order made on consent of the parties by Justice Kershman on July 29, 2022.

[8] Northrup then began a relationship with Kaylie Featherstone (“Featherstone”). They moved in together and they have a child.

[9] On March 2, 2023, Northrup was arrested and charged following an incident which occurred while he was with Featherstone and their then two-year-old child. Northrup was charged for using a firearm in the commission of an offence, uttering threats (3 counts), and criminal harassment.

[10] At that time Featherstone also alleged that Northrup had uttered death threats against McCarthy. This resulted in further charges being laid against Northrup.

[11] As a result of his release conditions, Northrup is required to reside with his surety, his uncle, William Fudge (“Fudge”), in Kingston.

[12] Northrup disputes all of Featherstone’s allegations. He maintains they were made in reaction to his ending the relationship with her and his “threat” to notify the child protection authorities regarding concerns he had about Featherstone’s parenting. Indeed, Northrup suggests that Featherstone, in the aftermath of the charges, reached out to his family members offering to retract the allegations she had made against Northrup.

[13] Northrup asserts that when he ignored Featherstone’s “overtures,” Featherstone aligned herself with McCarthy.

Part 3 – Issue: Northrup’s Parenting Time

3.1 Factual overview

[14] McCarthy asserts that since the parties’ separation and divorce, she had became increasingly concerned with Northrup’s behaviour. When she learned of the incident which occurred with Featherstone, including the threats he is alleged to have levelled at her, she became concerned this behaviour would escalate and that Northrup might cause serious physical harm to himself, the children or someone else. McCarthy began to withhold the children.

[15] Since then, McCarthy has permitted Northrup to have some limited time with the children. However, she has required that access occur through the Supervised Access Centre or through Renew Supervision Services. The result of this is that Northrup’s contact with O.N. and V.N. has been considerably less frequent, and significantly more restrictive in its time and nature.

[16] The greatest basis for McCarthy’s concerns is predicated upon the information provided by Featherstone. Featherstone has sworn an affidavit on September 15, 2024, and that affidavit was served and filed by McCarthy to support her position on this motion.

[17] Featherstone asserts that Northrup behaviour changed “dramatically” during the course of her relationship with him. She asserts that there was very little engagement from Northrup when he had O.N. and V.N. in his care and that he relied upon Featherstone to assume a caregiving role. He was focussed on “hockey, gaming, networking events, and going out for his job”.

[18] She accuses Northrup of putting the caregiver responsibilities on her. When the children were sick, she would be the one to take time off work to care for them. Featherstone maintains that he would often arrive home after the children were already in bed.

[19] During the weeks when O.N. and V.N. were not with him, Featherstone asserts that Northrup was little to no assistance with the child they had together. She claims he would drink at night, and that he would meet up with friends after work or after hockey and drink beer. She recalls an instance when Northrup returned home from visiting a friend having used cocaine.

[20] Featherstone states that “while [Northrup] never physically abused his children, his parenting and the topic of what he was talking about with his children were alarming to [her].” Featherstone asserts that she was alarmed because the subject matter of some of the discussions were inappropriate for discussion with the children. She also maintains that Northrup would say negative things about McCarthy to the children, that Northrup would call McCarthy a “loser and a horrible mom”.

[21] Featherstone asserts that one time Northrup “screamed” at V.N. because she was taking too long to get her boots on. When V.N. started asking for her mom, Northrup apparently opened the front door and told her to leave and go find her mom.

[22] Featherstone accuses Northrup of having commented to her about three or four times in that past about killing her or McCarthy i.e. if Featherstone ever left him and took their child away from him that he would kill her and then kill McCarthy.

[23] Featherstone advises that she and Northrup had multiple disputes leading up to March 2, 2023. She is of the opinion that Northrup was abusing alcohol and drugs and was suffering from mental illness and PTSD.

[24] On March 2, 2023, Featherstone asserts that Northrup arrived home under the influence of alcohol or drugs and that he was very agitated. She states that he became angry when she was “unresponsive to his demands or questions.” She says she became frightened and that she hid the keys to his gun safe. She asserts that he opened his gun safe (by his thumb print) and removed a gun and was holding the magazine with the bullets in his right hand. Featherstone grabbed her son from his room and left and called 911.

[25] Northrup disputes the allegations made by Featherstone.

[26] Given the conflict which occurred between Featherstone and Northrup on March 2, 2023, the CAS investigated and confirmed that their child had been exposed to partner violence with a “risk of dangerousness and lethality” and “risk of mental-emotional harm or developmental condition.” Correspondence from the CAS confirming this finding was appended to Featherstone’s affidavit.

[27] The terms of Northrup’s release order restrict his contact with Featherstone and their son but do not restrict contact between Northrup and McCarthy (they may communicate through a parenting app on child related issues) and no limitations were imposed upon Northrup’s contact and/or communication with O.N. and V.N.

[28] Regardless, McCarthy believes that Northrup poses a risk to the children, and she opposes his having any unsupervised parenting time with the children. McCarthy has been unwilling to agree to supervision by anyone other than professional supervision through the Supervised Access Centre or Renew Supervision Services.

[29] McCarthy maintains that her concerns do not solely arise as a result of the conflict between Featherstone and Northrup. She also makes allegations of threats and harassing behaviour by Northrup which are alleged to have occurred prior to the parties’ separation. This includes an incident in December 2019 when he apparently told her his guns were there and that he intended on killing himself in front of her. All of the incidents relayed by McCarthy appear to have occurred prior to their separation and prior to her agreeing to a shared week-about arrangement for the parenting of O.N. and V.N.

[30] I also note that McCarthy, in her affidavit, makes allegations based upon what she maintains Featherstone told her about Northrup’s parenting skills and behaviour with the children (Affidavit sworn September 15, 2024, paragraphs 38 to 42). This aspect of McCarthy’s affidavit evidence is hearsay evidence to which I am not prepared to give any weight. I would have expected that evidence to be put forward by Featherstone.

[31] Northrup disputes the necessity for supervising his parenting time with the children.

[32] He admits that there is also presently a practical impediment for Northrup exercising the parenting arrangement which had previously been in place in that the terms of his release order require that he reside with his surety, Northrup’s uncle, in Kingston. The children attend school in Ottawa and a week-about regime is therefore not workable in this respect. Northrup accepts that any parenting time must be limited to weekends until his criminal trial has concluded.

[33] Northrup is requesting an order permitting him to have parenting time with the children in a manner which can better ensure that his relationship with the children is preserved. He asks that if the Court finds that supervision is warranted, that Fudge, his uncle and surety, be approved as an appropriate person to supervise his parenting time with the children.

[34] Fudge has provided an Affidavit in which he confirms his willingness to supervise the parenting time. Fudge’s affidavit speaks to the fact that he and his wife have enjoyed a relationship with the children since they were very young and that he is prepared to supervise any parenting time permitted and for them to stay with them at Fudge’s home in Kingston for that parenting time.

[35] McCarthy also asserts that Northrup has not attended supervised access visits regularly and she suggests that Northrup has demonstrated poor judgment at his supervised access visits and during virtual parenting time which has been provided to him.

[36] McCarthy has not provided specifics of this “poor judgment” and the notes from Northrup’s supervised access through Renew were appended to Northrup’s affidavit. A review of those notes is unremarkable and seem to support the conclusion that Northrup’s visits with O.N. and V.N. were well received by them, positive and without incident.

[37] Northrup’s ability to pay for supervision is limited. The criminal charges resulted in the loss of his employment. He has not succeeded in finding an alternative source of income.

[38] The children have had less than a dozen visits with their father since March 2023.

3.2 Legal Considerations

[39] Any parenting order must be made in accordance with the best interests of the children. The only test is the best interests of the children. Primary consideration shall be given to the children's physical, emotional, and psychological safety, security, and well-being. Section 16 of the Divorce Act, RSC 1985, c. 3 (2nd Supp.) (the “Divorce Act”) sets out a non-exhaustive list of factors that the court must consider that relate to the circumstances of a child. Pursuant to s. 16(6), in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with their best interests.

[40] In the context of this decision, I have considered all the best interest factors listed in s. 16 of the Divorce Act to the extent that evidence relevant to those factors is available to me on this motion.

[41] The key factor McCarthy relies upon to support her position that any parenting time exercised by Northrup ought to be supervised at the Supervised Access Centre and/or through Renew Supervision Services is almost wholly based upon her allegations of family violence that she asserts were perpetrated by Northrup against McCarthy and Featherstone.

[42] Pursuant to s. 16(4) of the Divorce Act, domestic violence must be considered when determining the best interests of a child and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.

[43] More specifically, when considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[44] Family violence is broadly defined in s. 2(1) of the Divorce Act as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person. In the case of a child, family violence includes the direct or indirect exposure to such conduct.

[45] Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse.

[46] On an interim motion such as this, where there are allegations of family violence and outstanding criminal charges, the court must examine the situation from the perspective of “what if” the allegations are true and the potential strength of the allegations: J.R. v. W.M., 2021 ONSC 1698, at para 14.

[47] In this respect, the issue of whether supervision should be required for Northrup’s parenting time, and in what form, was made the focus of argument on this motion.

[48] The person seeking supervised access bears the burden of establishing that supervision is necessary: Klymenko v. Klymenko, 2020 ONSC 5451; C.S. v. K.M., 2023 ONCJ 106. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240 at para. 38.

[49] To the extent that one parent argues that access by the other parent must be supervised by a third party, that parent bears the burden of demonstrating that supervision is justified.

[50] Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.

[51] The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)

3.3 Analysis

[52] There is little doubt that Northrup’s actions as alleged by McCarthy qualify as family violence under the Divorce Act if those allegations are proven.

[53] The challenges in assessing the credibility of family violence claims are multiplied when the court is required to assess the veracity of family violence allegations in the context of interim motions based on untested written evidence in the form of affidavits.

[54] While some of the allegations led to criminal charges being laid against Northrup, the fact that charges were laid does not mean that that the criminal conduct alleged has indeed occurred.

[55] Also, the additional allegations asserted by McCarthy to support her position appear to involve adult conflict between the parties which mostly predate the Final Order by which a shared parenting arrangement was agreed to. This is a reason to receive those allegations with due caution, therefore, understanding that these allegations are untested and are being asked to support a position that is quite possibly inconsistent with the position taken by McCarthy herself at an earlier time.

[56] However, this does not make those accusations irrelevant. The historical narrative provided by McCarthy form the context in which the allegations now made by Featherstone should be considered. McCarthy suggests they are indicative of escalating anger issues on the part of Northrup.

[57] As a result of these charges being laid against the father, the Children’s Aid Society (“the CAS” or “the Society”) became involved and correspondence from it has been provided indicating that Featherstone’s allegations were verified. The benefit of the particulars of the investigation conducted by the CAS does not form part of the evidence before me.

[58] A section 30 assessment was sought by the father as party of this motion. It was not an issue for this motion as this has been agreed upon by the parties. I would expect that any mental health issues or personality disorders, violent predisposition or abusive, controlling behaviour and the extent to which such behaviours at play might impact the children will be identified as part of that assessment. A s. 30 assessment will give the court a much deeper and clearer understanding of the dysfunctional dynamics between the parties, as well as a better understanding of the children’s perspectives of past events, and their wishes and preferences in relation to their parents’ proposed parenting plans. All of these factors are issues which need to be ultimately considered when determining what parenting arrangement is in the best interests of the children.

[59] At this stage in the proceeding, I am of the view that both parties have been loving and capable parents to the children and that the children should not be lightly deprived of their right to have meaningful parenting time with both of their parents. Indeed, the notes from the supervised access visits Northrup has had through Renew Supervision Services seems to confirm that the ongoing positive relationship the children have with their father.

[60] With respect to Featherstone’s assertion that Northrup has exercised “bad judgment” in his communications with the children, I am of the view that even if true, these communications in and by themselves, do not, in my view, provide a basis to impose a measure as restrictive to the parenting arrangement as an order for supervision would entail. Featherstone’s evidence concerning Northrup’s parenting abilities must be viewed cautiously giving regard to the fact that 1) Featherstone has her own ongoing conflict with Northrup given they have a child together; and 2) Featherstone’s narrative seems inconsistent with her actions and representations while Featherston and Northrup were together.

[61] The main concern which arises from the evidence before me is really how to implement that parenting time for the father in light of the seriousness of the allegations of family violence and the fact that those allegations are as yet untested and untried. This must be managed until the court is in a position to better determine whether there are any appreciable risks to the children based upon the concerns expressed respecting Northrup’s past behaviour.

[62] I acknowledge that Northrup denies the allegations which have been made. However, given the conflict in the evidence, I nonetheless feel that a cautionary approach is warranted at this stage. As such, I am not prepared to make an order for unsupervised parenting time between Northrup and the children at this time.

[63] In my view, what is crucial is to ensure that the children are given as much meaningful parenting time with their father as is consistent with their best interests in a manner which guards against the potential safety concerns which have been raised and which the court has not yet had the opportunity to properly determine.

[64] In my view, requiring that Northrup’s parenting time be supervised is an appropriate temporary mechanism to ensure that contact between Northrup and the children can continue in a manner which is protective of the safety concerns raised by the allegations.

[65] Requiring supervision to occur through the Supervised Access Centre or Renew Supervision Services restricts the time and quality of any parenting time the children can have with Northrup. It is not a home environment. It is costly. It limits the frequency and length of his parenting time with the children. In my view, this is not the preferred option if another workable alternative exists.

[66] Northrup asks that he be permitted to exercise his parenting time supervised by Fudge with the children being permitted to stay with them in Kingston during the weekend visits. I am satisfied that the terms of the release order that is in place significantly assists in ensuring that any parenting time with the children is in an environment that would be conducive to protecting the interests and safety of the children. As Northrup’s surety, Fudge is to ensure Northrup’s compliance with the terms of his release. Fudge has consented to overseeing any supervision of Northrup’s parenting time.

[67] In my view, McCarthy has not put forth any compelling basis for rejecting the proposal that Fudge supervise Northrup’s parenting time. This form of supervision allows the children to have time with Northrup for expanded time and in a normal home environment.

[68] I am satisfied that supervision by Fudge is a sufficient and proportionate response to any concerns that have been raised as a result of the allegations made respecting Northrup. I am satisfied that this arrangement will adequately protect the children if the circumstances warrant intervention.

[69] As such, in my view, I conclude that Northrup should have parenting time with O.N. and V.N. on the “every alternate weekend” basis, as requested, and that such parenting time be supervised by Fudge.

Part 4 – Issue: Imputation of Income

4.1 Factual overview

[70] For the purpose of determining the issue of child support, McCarthy asks that an order be made imputing an income of $90,000. to Northrup.

[71] In this respect McCarthy argues that Northrup is intentionally underemployed within the meaning of Section 19 of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines").

[72] Northrup has a high school education and he is a unilingual English speaker. He joined the Canadian Armed Forces at a young age. He retired from the CAF approximately ten years ago, whereupon he started his own company, which he operated for approximately three years. He then obtained employment with FINTRAC, following which he assumed a position in cybersecurity with Ernst & Young.

[73] Northrup maintains that he was happily working at Ernst & Young and that he was advancing in his career within the organization when the criminal charges were laid against him. As a result of the charges, Northrup’s employment was terminated.

[74] Northrup maintains that it is unrealistic to expect that he can find alternate employment before the outcome of the charges is determined.

[75] Prior to the charges, Northrup did not have a history of unemployment. His income was steadily increasing since the parties’ separation in 2019 as follows:

2021: $84,698 2022: $96,873 2023: $117,907 (comprised of $32,573 of income from employment, $20,150 in EI payments, $32,988 in income received from a LIRA withdrawal, and a $25,089 RRSP withdrawal)

[76] Northrup asserts that he is not intentionally unemployed. Rather, he was involuntarily terminated. His response was to put his efforts into starting a company with his cousin who lives in New Brunswick. He asserts that this business is in its early stages and has not yet produced income or significant assets.

[77] The business acquires properties which ultimately will be liquidated. It appears it began with an injection of capital with contributions from Northrup and his cousin in the total amount of $30,000 and now has assets worth $240,000. Northrup asserts that the company is not yet able to pay out dividends. He is hopeful this will be possible in another year or two.

[78] McCarthy asserts that Northrup ought to have access to funds to contribute toward the support of the children. She suggests he also has access to other assets that could be used to pay support and the fact that he has $180,791.36 in RRSP and money in his bank account.

4.2 Legal considerations

[79] Section 19(1)(a) of the Guidelines provides the statutory authority to impute an income to a support payor if they are intentionally under-employed or unemployed, unless the under-employment or unemployment is required by their reasonable educational, health or child related needs.

[80] In the leading case of Drygala v. Pauli, the Court of Appeal for Ontario has set out the three-part test that governs that inquiry, which were expanded upon by Chappel J. in the more recent decision of V.K.G. v. I.G., 2023 ONSC 6329 as follows:

i. The court must first determine if the party in question has been deliberately under-employed or unemployed. If the answer is no, the inquiry is at an end.

ii. If the court finds that the party has been deliberately underemployed or unemployed, it must then determine whether this has been required by the needs of any child or by the reasonable educational or health needs of the party. If the court is satisfied that one of these reasons has been established, it cannot impute an income to the party.

iii. Even if none of these reasons is satisfied, the court must still determine if there is any other reasonable basis for declining to impute an income to a deliberately underemployed or unemployed party. Section 19(1)(a) is not mandatory. The court has a wide discretion with respect to imputation of income, and in the context of deliberate underemployment or unemployment, the exercise of that discretion will turn on the overall reasonableness of the support payor's decisions and actions in relation to their income, taking into consideration all of the relevant circumstances: V.K.G. v. I.G., 2023 ONSC 6329 supra at para. 260.

[81] The onus is on the party seeking to impute an income to establish a prima facie case that the other party has been deliberately unemployed or under-employed. It is only if this hurdle is crossed that the onus then shifts to the other party to satisfy the court that their situation falls within one of the exceptions set out in Section 19(1)(a) or that their underemployment or unemployment is otherwise reasonable and justified: Drygala v. Pauli at paras. 38 – 42.

[82] In determining whether a party is intentionally under-employed or unemployed, the court should consider the party's capacity to earn income in light of their age, education, health, work history, the availability of work that is within the scope of the party's capabilities and the amount of income that the party could reasonably earn if they worked to capacity: Drygala v. Pauli at para. 40.

[83] The use of the word "intentionally" in Section 19(1)(a) highlights that the provision does not apply to situations that are beyond the party's control. Rather, the word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

[84] “Intentionally” means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than they are capable of earning. A parent is intentionally unemployed when they choose not to work when capable of earning an income: Drygala v. Pauli at paras 25-26 & 28.

[85] Even if an income should be imputed, the court in Drygala v. Pauli notes that Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala v. Pauli at para. 44.

[86] The approach mandated by this court in Drygala v. Pauli 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 also establish an evidentiary basis for such a finding: Homsi v. Zaya, 2009 ONCA 322.

[87] The analysis cannot be done in the abstract: Charron v. Carriere, 2016 ONSC 4719; Gee v. McGraw, 2014 ONCJ 87; Miller v. Volk (2009), 74 R.F.L. (6th) 61 (Ont. S.C.). Where the recipient alleges the payor should have been able to find substitute employment if they had looked hard enough, a contextual analysis is required. The payor’s situation, options, and opportunities must be considered in the context of other individuals – or in the case of mass plant closures, groups of individuals – facing similar circumstances. The Court must be mindful of employment rates and trends, and economic conditions as a whole.

4.3 Analysis

[88] In this case, the evidence is not in dispute concerning Northrup’s unemployment and the reasons for that unemployment. The uncontroverted evidence is that Northrup was terminated solely because of his criminal charges. He disputes those charges, and he has plead ‘not guilty’ to those charges.

[89] Northrup’s criminal charges have not yet resolved, and he has yet to be given a trial date.

[90] Northrup’s evidence is that he is therefore largely unemployable at this time.

[91] I am being asked to conclude that income should be imputed to Northrup on an interim motion with very scanty evidence on the issue. It is clear that his existing employer was unwilling to continue to employ him while the charges laid against him were outstanding. I think it is a great leap of faith to believe other employer’s would readily employ him while charges of this nature are outstanding.

[92] I therefore accept Northrup’s claim that he is unemployable for the most part pending the determination of his criminal charges.

[93] However, for the purpose of this motion, I recognize that is a matter of pure conjecture not supported by evidence. That stated, McCarthy has not provided any evidentiary basis to counter Northrup’s evidence.

[94] Northrup’s initiative to repair his unemployment situation by pursuing a business opportunity is not an implausible solution. Nor is it unrealistic to believe that a business that is being started would not yet be in a position to provide Northrup with dividend income or salary.

[95] I am therefore not prepared to conclude that Northrup is deliberately under-employed or unemployed. The evidence before me does not support this conclusion. I therefore am unprepared to make an order imputing income to Northrup in the circumstances at this interim stage of the proceeding. This analysis needs to occur once a more fulsome evidentiary record is available to the court at the ultimate hearing of this Motion to Change. It is premature to make an order on this issue at this time and I decline to do so.

Part 5 - Disposition

[96] With respect to Northrup’s motion, a temporary order shall issue as follows:

1. The Respondent shall have parenting time with O.N. and V.N. every alternate weekend, to be supervised by his uncle, Fudge, commencing on Fridays at the end of the children’s regularly scheduled school day and ending on Sundays at 5:00 pm; and
2. Northrup shall be responsible for picking up the children at the commencement of his parenting time and returning them to the care of McCarthy at the end of his parenting time.

[97] With respect to McCarthy’s cross motion requesting that income be imputed to Northrup, an order shall issue dismissing that motion.

[98] If the parties are unable to agree on the issue of costs for this motion, Northrup may file submissions concerning costs on or before January 13, 2025. McCarthy may file submissions concerning costs on or before January 20, 2025. In that event, cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs.

M. Fraser J. Date: December 17, 2024