COURT FILE NO.: FS-18-92806
DATE: 2024 02 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Saira Naroo
Applicant
Anushka Anthony, for the Applicant
– and –
Naveed Naroo
Respondent
Naveed Naroo, Self Represented
REASONS FOR JUDGMENT
TZIMAS J.
[1] This family law trial was heard February 14-17 and 21-23, 2023. It was adjourned to June 19, 2023. At that time, the court received additional evidence from the parties as well as their closing submissions. The issues in dispute were the following: primary residence, parenting time and decision-making, child support and s.7 expenses, and equalization.
[2] The Applicant, Ms. Saira Naroo, and the Respondent, Mr. Naveed Naroo, were married on March 30, 2004 in Pakistan. About fourteen years later, in 2018, they separated. Their date of separation is in dispute. They have three children: S.N., 17 years old, (d.o.b. 8/30/2006), M.N, 13 years old, (d.o.b. 04/16/2010), and D.N., 9 years old, (d.o.b. 03/26/2014). Their relationship was marked by significant conflict over the years.
[3] For the reasons that follow, I have concluded that the primary residence for all three children shall remain with Ms. Naroo until June 30, 2024. This will ensure stability for the children. From July 1, 2024, S.N. may decide if he will continue to live with his mother or move in with his father. Mr. Naroo will have parenting time on alternate weekends and one weekday per week, as more particularly discussed below. He may also have regular communications by phone, text, or video-calls, to be arranged between himself and the children. The parents will share the holidays on a 50-50 basis.
[4] Child support for the three children is fixed at $621 / month, on the basis of an imputed income of $30,000 for Mr. Naroo. The complete analysis for past and future obligations is outlined below. If, after July 1, 2024, S.N. moves in with Mr. Naroo or ceases to be a dependent, Mr. Naroo’s child support obligations shall be reduced to pay support for two children. Depending on S.N.’s status, Ms. Naroo may have child support obligations for S.N., in accordance with the Guidelines. Section 7 expenses shall be shared on a 50-50 basis.
[5] On equalization, the evidence before the court was insufficient to support an equalization payment. I find that the date of separation is January 2018. Mr. Naroo’s withdrawal of $56,195 from the couple’s joint line of credit occurred after the date of separation. As such it is a post-separation debt to Ms. Naroo that he must reconcile. Accordingly, Mr. Naroo owes Ms. Naroo $28,097.50 on account of Ms. Naroo’s 50 per cent share of that withdrawal.
[6] My reasons for these conclusions follow.
BACKGROUND
[7] The basic chronology of this couple’s relationship is not in dispute. The parties were married on March 30, 2004 in Pakistan. At the time, Ms. Naroo was 21 years old and Mr. Naroo was ten years older. Mr. Naroo sponsored Ms. Naroo and she came to Canada a year following the marriage. Their children were born in the years 2006, 2010 and 2014. S.N. is 17, M.N. is 13, and D.N. is 9.
[8] When Ms. Naroo first arrived in Canada, the couple moved in with Mr. Naroo’s parents. The couple moved into their matrimonial home in 2011. Ms. Naroo remained at home to raise the family’s three children. Mr. Naroo worked at various jobs and managed the family’s finances including their household expenses, bank accounts and income tax returns.
[9] The Naroos also started a bridal business focused on bridal make-up and henna for brides and their bridal parties. Ms. Naroo did the make-up and the henna. Mr. Naroo took care of the marketing and the finding of customers. The business was a cash operation. Any monies paid directly to Ms. Naroo were deposited into the couple’s joint account. On the evidence before the court, it was no clear if they had a separate business account for this operation.
[10] The relationship was not a happy one. In her evidence Ms. Naroo recounted multiple incidents of assault. Mr. Naroo believed that Ms. Naroo was unfaithful to him. Although both parties agreed that they had good times with their children and shared photos of various activities attesting to those times, the difficulties between the couple persisted.
[11] In January 2018 Ms. Naroo told Mr. Naroo that their marriage was over. Ms. Naroo testified that they began to sleep in separate rooms, but Mr. Naroo disputed that fact. In his testimony, he said that the source for their confrontations were his belief that Ms. Naroo was having an affair. He suggested the affair started sometime after January 2018. Ms. Naroo denied that allegation.
[12] In May 2018, Ms. Naroo reported Mr. Naroo to the police for various assaults. Mr. Naroo was arrested on May 9, 2018. Following a trial, Mr. Naroo was convicted for one assault and breach of recognizance. On September 24, 2019 he received a conditional sentence of 30 days, which included 10 days of house arrest and other conditions.
[13] Ms. Naroo commenced her Family Law Application on July 19, 2018. A Case Conference was held on May 23, 2019. The resulting order outlined extensive disclosure requirements, mapped out the steps to be taken for the sale of the matrimonial home and asked for the involvement of the Office of the Children’s Lawyer (OCL). No orders were made for temporary or interim without prejudice arrangements for child support, custody and access, and decision-making.
[14] The matrimonial home was sold on August 30, 2019. The net proceeds were held in trust by the real estate counsel, though certain payouts were made to both parties. At the time of the trial, $132,000 from the sale of the matrimonial home remained in trust. Following the sale of the matrimonial home, Ms. Naroo and the three children moved into a rental property, where they lived for two years. In 2021, Ms. Naroo bought a townhouse in Milton and moved there with the three children.
[15] The OCL assigned a clinical investigator to the file. He delivered an interim report on October 30, 2019 and a final report on December 16, 2020. The investigator’s recommendations and testimony at trial is discussed below.
[16] On October 25, 2019, the court ordered that a lump sum of $15,000 be released to Ms. Naroo on account of Mr. Naroo’s outstanding child support obligations. The funds were to be deducted from Mr. Naroo’s share of the net matrimonial home proceeds held in trust.
[17] On December 27, 2019, following on the OCL’s final report, the parties reached a temporary and without prejudice agreement that resulted in a court order that fixed the children’s primary residence with Ms. Naroo. The court also ordered that Mr. Naroo have parenting time with the children every Tuesday, from 4:30 pm to 8:30 pm, alternate weekends from Saturday at 12:00 p.m. to Sunday at 1:00 pm commencing December 21, 2019 and the sharing of holidays on a 50-50 basis.
[18] The parties agreed to share and exchange documents pertaining to their children’s welfare, have access to all medical and educational records for the children, and to consult each other about major decisions. The court order reflected these terms and therefore included the requirement that the parties make reasonable efforts to consult one another on major decisions affecting the children’s welfare. Both parents retained the right to access all medical and educational records concerning the children without the consent of the other. They were also granted the right to meet with all professionals related to their children’s welfare. Although the OCL recommended that Ms. Naroo retain the final decision-making authority over major decisions pertaining to the children, the parties did not include that term in their agreement. The court order was therefore silent on how the parties were to handle disagreements over major decisions.
[19] In the Fall of 2019, Mr. Naroo was in a motor vehicle accident and sustained serious injuries. Mr. Naroo did not provide many details about what occurred, but he indicated that he had to have surgery for his shoulder and that impeded his ability to work. It did not impede his ability to exercise at the gym and do bench presses with substantial weights. Mr. Naroo posted those images to his own Facebook page, and he was confronted with them at trial. He agreed that he was the one who was depicted doing strenuous exercises.
ISSUES, ANALYSIS, and FINDINGS
[20] The issues in dispute concern parenting, (residence, parenting time and decision-making), child support and s.7 expenses, and equalization. This trial proved to be very challenging because both parties had difficulties focusing on the evidence that was relevant to the issues to be determined. Both parties resorted to hearsay evidence for context and they had difficulties cross-examining the opposing side. The court had to contend with serious disclosure deficiencies, even though there were multiple orders leading up to this trial that required the parties to complete their disclosure obligations.
[21] The evidence by both parties was further clouded by their respective degree of anger, resentment, hurt, denial and trauma associated with the marriage break-up. These sentiments were compounded by Mr. Naroo’s serious financial difficulties, his compromised mental health as a result of losses in his own immediate family, and his fundamental refusal to take any responsibility for his own actions. In his attempt to make excuses for his predicament, Mr. Naroo contradicted himself before the court and put his overall credibility into serious doubt. Ms. Naroo, on balance, was more credible than Mr. Naroo, though on certain issues, she too was less than forthcoming.
[22] These challenges were compounded by Mr. Naroo’s significant deficits in his understanding of the rules of evidence and his grasp of the law. Although this, to some extent could be explained by his decision to represent himself, Ms. Naroo, who had counsel was plagued by similar challenges. In her cases, the difficulties were due in large measure to her counsel’s own limited acquaintance with the rules of evidence and trial procedure generally thus adding significantly to the court’s ability to receive and follow the parties’ evidence..
[23] With these overriding thoughts, I turn to the specific issues in dispute.
I. Residency, Parenting Time and Decision-Making
[24] The most contentious issue in this trial concerned the children’s residency, parenting time and decision-making.
[25] Ms. Naroo asked that the children’s primary residence remain with her. She said that this would provide them with stability, especially given the proximity of her home to their schools. On parenting time, she said she wanted the children to have regular contact with their father. In her closing submissions, her counsel proposed access time to take place three out of four weekends a month and a 50-50 arrangement for holidays. Ms. Naroo opposed midweek access because she considered those visits to be very disruptive to the children’s school schedules and activities. Ms. Naroo explained that, frequently, the two older children do not want to go with their father. On the subject of decision-making, Ms. Naroo indicated that she was prepared to consult with Mr. Naroo but she wished to retain final decision-making, consistent with the OCL’s recommendations.
[26] Mr. Naroo disagreed. He asked for the children’s primary residence to be with him and he suggested parenting time for Ms. Naroo two weekdays a week, alternate weekends and the sharing of holidays on a 50-50 basis. He submitted that he would be agreeable to joint decision-making.
a. Ms. Naroo’s evidence
[27] Ms. Naroo testified that she was the one who took care of the children’s needs both before the separation and afterwards. Since the separation, the children’s primary residence was with her. They moved to Milton soon after the sale of the matrimonial home. The schools the children attend are close to her home and the children have been attending there for four years.
[28] The two older children have their own rooms and the youngest child sleeps in her room. At the time of the trial, Ms. Naroo expressed the hope that if her employment situation stabilized, she would ask the tenant in the basement to leave and allow her eldest son to move there. That way each child would have their own space.
[29] Ms. Naroo testified that since separation she continued to look after the children’s needs. She prepared their meals, took them to their extra-curricular activities, and looked after their medical needs. From time to time she would seek the assistance of babysitters. Mr. Naroo would take the children when he felt like it. She said that he did not follow the agreed upon schedule and that, as a result, she could not rely on him to take them to their extra-curricular activities or other appointments. She did not dispute that the children enjoyed good outings with their father when they did go with him. But she noted that Mr. Naroo did not support their extra-curricular activities and did not attend at parent-teacher interviews. Mr. Naroo did not challenge that evidence.
[30] In the COVID19 lockdown period between 2020 and 2021, Ms. Naroo agreed that the children spent more time with their father than what was anticipated by the court order, especially when school was online. However, when in cross-examination Mr. Naroo presented her with his calendars purporting to record the times when the children were in his care, she disagreed with most of the weekday entries. She was adamant that the children went to their father on weekends.
[31] From December 27, 2020 to February 3, 2021, Ms. Naroo agreed that when she went to Pakistan to visit her ailing father, Mr. Naroo assumed primary care for the children. But before he would agree to take the children, he demanded and she agreed to pay him $1,000 for the children’s expenses for that time period.
[32] Ms. Naroo conceded that S.N. lived with his father for a two-month period in 2021 when school was online. When S.N. told her that his father needed some help and he wanted to go stay with him, she acceded to his request.
[33] Ms. Naroo expressed serious concerns about the extent to which Mr. Naroo was manipulating and turning the children against her. She said that when the children returned from their time with their father, they would confront her with questions and comments that she put their dad in jail and was a “gold digger”. They would tell her that they hated her for setting up their father so that he would get kicked out of the house. They asked her why she refused to receive $50,000 from their father. They told her about seeing their father crying. Her daughter felt embarrassed to be around her paternal relatives because her father would bad-mouth Ms. Naroo to his own family. Ms. Naroo said that these exchanges were most distressing to both her and the children.
[34] In response, she would tell the children that she was doing her best, they were too young to understand what was going on between mom and dad and she would try to redirect the conversation. She also sought counselling and guidance over an extended period of time on how to talk to her children about the situation, what to say to them and ultimately how to support them. In Peel she did a full year of counselling. In Halton she followed the TRIBE program; she attended counseling once a month, for a full year.
[35] Ms. Naroo strenuously objected to Mr. Naroo’s proposition in cross-examination that she chose her boyfriend over her own children, to the point that she called the police on her own children. Ms. Naroo conceded that she encountered pronounced difficulties with S.N., particularly in relation to his interaction with her boyfriend. She described a situation in 2023 when S.N. confronted her about her boyfriend and asked her why she was not married to him. S.N. admitted that his dad was asking those questions. The confrontation escalated to such a point that Ms. Naroo felt obliged to call the police. She said she wanted to calm the situation down and calling the police was the only way to accomplish that.
[36] Ms. Naroo acknowledged that she told her two older children that if they continued to swear and disrespect her, they could go live with their father. Ms. Naroo also acknowledged that there had been numerous calls to the CAS and the police. She described another incident in 2018 when S.N. was calling her names, swearing, and recording the confrontation. Ms. Naroo called the police to get help.
[37] Because of her confrontations with S.N., Ms. Naroo explained that she hoped to remedy the tension by asking the tenant in the basement to leave and offering it to S.N. That way, he would have his own space and be more comfortable. She explained that the tenant, who she later admitted was her boyfriend, was paying $1000 for rent. Once her new employment stabilized, she felt she would be in a position to give up the tenant’s income and allow S.N. to move into the basement.
[38] On decision-making for the children, Ms. Naroo indicated that she wanted to retain the right to sole decision-making for her children’s major decisions. Given the past high conflict between her and Mr. Naroo, she had no confidence that they could engage in any respectful communications and joint decision-making about the children. She gave examples of Mr. Naroo’s resistance or refusal to take the children to their medical appointments to underscore the reasons for doubting the prospects of future joint decision-making. Ms. Naroo also relied on the OCL assessment in her favour to reinforce that view. She agreed that she would be willing to seek Mr. Naroo’s input on the issues requiring major decisions for the children and do what she could to collaborate.
[39] Regarding her move from Mississauga to Milton, which Mr. Naroo described as a unilateral, deliberate and wrongful removal, designed deliberately to take the children away from him and frustrate his parenting time, Ms. Naroo explained that it became necessary to buy a property there because the homes were less expensive than the available options in Mississauga. She expressly denied any intention to undermine Mr. Naroo’s time with the children.
b. Mr. Naroo’s evidence
[40] In his opening statement and throughout his evidence Mr. Naroo submitted that, practically speaking, the children lived primarily with him. He said he did all the drop-offs and pick-ups for his parenting time and therefore, the children’s residence should be changed from Ms. Naroo to him, with a generous access schedule for Ms. Naroo. He said he loved the amount of time he spent with his children and believed that it would be in the children’s best interests to reverse the primary residence in his favour.
[41] In his testimony, Mr. Naroo produced calendars for the years 2020, 2021, and 2022, purporting to document the days the children were with him. He eventually admitted that what he produced was not completed contemporaneously with the children’s visits. He prepared the said calendars after the fact on the basis of his text messages and information he had on his phone. He agreed that he had not previously disclosed these documents to Ms. Naroo for her consideration. He also did not produce the text messages and other phone messages to corroborate the calendar entries.
[42] As much as Mr. Naroo insisted that the children were spending most of their time with him, he also blamed Ms. Naroo for moving away from Mississauga to Milton and depriving him of his ability to see the children on a daily basis. He complained that it was too expensive for him to be driving to Milton on a regular basis. In his closing submissions, he said he wanted to be able to see his children every day, “even if it meant for driving one hour there and back for even 5 minutes seeing them brings me and the children’s joy”. But he had no explanation for why he would buy a home in Curtis instead of Milton and put himself that much further from the children.
[43] In several instances during his testimony and submissions, Mr. Naroo said he deserved full custody of his children; he saw no reason for his children to be separated from him. At the same time, he asked the court for a parenting plan that would be “fair for all of us”. The only way for him to see his children daily would be to require the children to move back to Mississauga and to live with him. In his view, Ms. Naroo was the one who wrongfully removed the children to Milton and therefore she should be the one to be deprived of the children.
[44] Mr. Naroo did not give any evidence on how such a proposed move would be in the children’s best interests, especially with S.N. being in grade 11 and heading into his last year in high school. He demonstrated no insight on how disruptive his proposed move would be to the children, who by the time of the trial had already been at their “new” schools for over three years.
c. Roy Reid’s Evidence
[45] The court also received evidence from Roy Reid, the OCL clinician who conducted an investigation and completed an assessment pursuant to s.112 of the Courts of Justice Act. Mr. Reid completed an interim report on October 29, 2019 and finalized it on December 13, 2020. He explained that in the intervening period between his interim and finalized report he was led to believe that the parties might reach a settlement.
[46] Mr. Reid’s reports were admitted into evidence. In his interim report, he made the following findings:
• The children were exposed to a lengthy history of domestic violence. The Children’s Aid Society verified that the children were exposed to domestic violence and inappropriate discipline by their parents.
• The children were engaging, humorous and appeared to share a secure bond and enjoy spending time together despite their varying ages.
• There was no basis for an ongoing joint custodial order. The parties had a demonstrated history of not getting along. There was no compelling evidence that would suggest that the parties have been making joint decisions post-separation. The parents had no established pattern of effective communication and had not demonstrated any ability to resolve problems as they arise in parenting decisions. A joint custody order would expose the children to further conflict and emotional trauma.
• The parents had a tumultuous history and their marriage was marked by significant challenges. Mr. Reid relied on his review of the records from Peel Regional Police and the Peel Children’s Aid Society.
• The CAS reported on Ms. Naroo’s acknowledgment to struggling with parenting, especially in relation to her eldest child.
• Ms. Naroo was interested and willing to take parenting courses and family counselling.
• Mr. Naroo demonstrated a clear inability to take ownership and responsibility for his behaviour both during his marriage and since the separation.
• Mr. Naroo influenced his children negatively. He had to learn to keep the children out of conflict and promote a healthy relationship with their mother. It is important for Mr. Naroo to take parenting courses to learn how to support a healthy relationship between the children and their mother.
• There was no doubt that the children and Mr. Naroo had a “wonderful relationship”. The children expressed a desire to see their father and spoke positively about the various events they had with him.
[47] Building on these findings, Mr. Reid made a series of recommendations that included counselling for both parties. He recommended that both parents had to try to consult each other on decision-making regarding their children. He nonetheless concluded that Ms. Naroo ought to retain the ultimate decision-making authority in the event of a disagreement.
[48] On an appropriate parenting plan, Mr. Roy recommended parenting time for Mr. Naroo on alternate weekends and a lunch hour visit on Wednesdays. The lunch hour was something that the children requested. As interim arrangements, Mr. Reid suggested that he revisit the family after 6 months to evaluate their progress. The implications of that suggestion were that the parents’ interaction went well, both the parenting time and the decision-making could be varied in Mr. Naroo’s favour. Some, though not all, of Mr. Reid’s recommendations were incorporated into the Court order of December 27, 2019.
[49] In his final report of December 2020, Mr. Reid commented on the following:
• Ms. Naroo continued to engage in counselling to help her enhance her parenting and learn how to manage behavioural challenges presented by the children.
• The children did not engage in counselling of their own to help them manage their own emotions and the continued exposure to the disputes between their parents.
• Mr. Naroo pleaded emotionally and passionately about various issues that he believe continue to impact his ability to effectively co-parent with Ms. Naroo. It was evident that “Mr. Naroo continue[s] to engage in abhorrent controlling behaviour. This must stop and cannot continue. The harm and impact on his children is immeasurable and the ability to communicate effectively with Ms. Naroo is not viable. His lack of insight into his conduct [is] even more troubling.”
• Ms. Naroo indicated that she wished to follow the children’s lead on seeing their father. She did not have any objections to the children having parenting time with their father.
[50] In his final recommendations, Mr. Reid continued to recommend that the parties make reasonable efforts to consult with one another about major decisions for their children, with the final decision-making authority resting with Ms. Naroo. The parenting schedule switched out lunch on Wednesdays with supper on Tuesdays. Significant emphasis was placed on everyone attending counselling to promote a healthy relationship between the children and their mother and to allow the children to address “the myriad of feelings and emotions that they have surrounding their parent’s separation.” Mr. Reid expressed concern that to that date the only person to undertake any counselling was Ms. Naroo.
[51] In his testimony, Mr. Reid expressed the continued concern that even with a parenting schedule in place, Mr. Naroo had significant difficulties following it. He would “dictate” his own schedule regardless of any agreement between the parties. The schedule, or any parenting agreement, did not matter to Mr. Naroo. Instead, he wanted an arrangement where he could see the children whenever he wanted. In contrast to Mr. Naroo, Ms. Naroo was willing to be flexible and to allow Mr. Naroo to have as much time as he wished to have with the children.
[52] Regarding S.N., Mr. Reid was concerned that although he remained in Ms. Naroo’s primary care, he was on the cusp of leaving her to live with his father. He noted that Ms. Naroo did everything she could to appease and acquiesce to her son’s demands. In his view, S.N. was influenced by his father’s messaging and he mimicked his father’s presentation in the way he engaged with his mother. Those observations deepened his concern that the children were not receiving any counselling or support. He understood from his discussions with Ms. Naroo that the children did not want to attend counselling and she did not want to force them.
[53] Mr. Reid added that Ms. Naroo struggled to manage the care for all three children as a single parent. But he underscored the fact that even in the face of those struggles, at no time did she say anything negative about Mr. Naroo. Independent of Mr. Reid’s observations, there was absolutely no evidence that Ms. Naroo said anything negative to the children about their father. In other words, there was no evidence that she tried to blame Mr. Naroo for her predicament or suggest that he was a bad father to the children.
[54] In his testimony, Mr. Reid also talked about receiving calls from both parents. From time to time, Ms. Naroo would call Mr. Reid to obtain his guidance in response to difficulties she was having with her eldest son. She sought ways to work with Mr. Naroo to facilitate his parenting time. In contrast to Ms. Naroo’s inquiries, Mr. Naroo called Mr. Reid to complain about Ms. Naroo. In those communications, he expressed unrealistic expectations of Ms. Naroo. He would be incensed, often referring to Ms. Naroo as a bad mother. It bothered him to know that when the children were in his care, Ms. Naroo would go out. In his view, Ms. Naroo had to be available to the children 24/7.
[55] To illustrate his point, Mr. Reid described situations when the children were in Mr. Naroo’s care and he would call Ms. Naroo to demand that she pick the children up at a location of his choice. Mr. Reid expressed “grave concerns” about Mr. Naroo’s conduct. He did not find anything in his interactions with Mr. Naroo to suggest that Mr. Naroo had taken any steps to address his behaviours and ameliorate his situation.
d. Legal principles, findings, and decisions
[56] Having regard for the parties’ positions and evidence, I turn to review the governing legislation and legal principles for the benefit of both parties. The parties advanced their parenting claims in the context of a divorce proceeding, and therefore the governing legislation is the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
[57] Section 16 of the Divorce Act sets out the factors and considerations that the court must consider in making a parenting order, essentially, what is in the best interests of the child. The legislative provisions focus on parenting responsibilities for children rather than rights, and the key legal terms refer to “parenting orders”, “decision-making responsibility” and “parenting time”.
[58] Section 16(7) refers to a parenting order. Section 16(1) directs that the court shall take into consideration “only the bests interests of the child of the marriage in making a parenting order or a contact order.” Section 16(3) sets out a number of factors that the court must weigh when it engages in a best interests analysis. The specific factors to be considered are the following:
16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including,
a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
d) the history of care of the child;
e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g) any plans for the child’s care;
h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
j) any family violence and its impact on, among other things,
i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[59] Given Mr. Naroo’s focus on his personal needs and his silence on his children’s best interests, it is especially important to underscore the legislative imperative that parenting arrangements, including residency and decision-making, be decided with reference to the best interests of the child. Such decisions are not about what one parent or the other prefers or wants for themselves. All parties bear the evidentiary onus of demonstrating where the best interests of the child lie.
[60] In S.V.G. v. V.G., 2023 ONSC 3206, 93 R.F.L. (8th) 77, at paragraphs 89 to 93, the court summarized in a comprehensive way the general principles that govern a best interests analysis. Such an assessment must consider all the relevant information regarding a child’s needs and ability of the parties to meet those needs: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. In Barendregt v. Grebliunas, 2022 SCC 22, 71 R.F.L. (8th) 1, at para. 8, the Supreme Court of Canada held that the inquiry into the child’s best interests “is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult – the court must choose between competing and often compelling visions on how to best advance the needs and interests of the child.” The best interests inquiry is highly contextual because of the numerous factors that may impact a child’s well-being.
[61] When it comes to deciding on whether it is in a child’s best interests to order joint decision-making, S.V.G at para. 111 outlines twenty considerations. Of those considerations, the following are relevant to the facts of this case:
• There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (C.A.); Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 (C.A)).
• Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children (Kaplanis; T.E.H. v. G.J.R., 2016 ONCJ 156 (O.C.J.), at para. 446; McBennett, at para 97).
• To grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. Where there is a history of significant conflict that has impacted the functioning and parenting of the parties and the wellbeing of the child, these factors will support an order for sole decision-making responsibility (Roth v. Halstead, 2017 ONCJ 593 (O.C.J.), at para. 299). The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement (Kaplanis; Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.), reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct.); Brown v. Brown, 2021 ONSC 1753 (S.C.J.)).
• The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children. As Quinn J. remarked in the often-quoted case of Brook v. Brook, 2006 CarswellOnt 2514 (S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.” The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord.
• The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact negatively on the well-being of the children.
• If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the turmoil reasonably well and make decisions in the child’s best interests when necessary, an order involving joint decision-making may be appropriate. The issue for the court’s determination is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop).
• When analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision- making in their favour on the basis of lack of cooperation and communication (Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.); Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)). Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision- making in favour of the other party (Alqudsi v. Dahmus, 2016 ONCJ 707 (O.C.J.); Liu v. Huang, 2020 ONCA 450 (C.A.)).
• A party’s failure to financially support their children in a responsible manner may militate against an order for joint decision-making responsibility, as this reflects poor judgment and an inability to prioritize the child’s interests and needs,(Jama; L.B. v. P.E).
[62] With these guiding principles, I turn to my assessment of the evidence, findings, and decision on primary residency, a parenting schedule for Mr. Naroo, and decision-making.
i. Primary Residence
[63] On the children’s primary residence and an appropriate parenting schedule, I conclude that it is in the children’s best interests that their primary residence remain with their mother. In S.N.’s case, I recognize that he will soon be turning 18 and should be completing grade 12 at the end of this coming June. Therefore, beginning in July, S.N. may decide where he would like to live. That decision may be impacted by whether S.N. continues to pursue full-time education or joins the workforce.
[64] I have come to this conclusion based on the following findings. Ms. Naroo has done everything in her powers to offer the children a stable home environment. I am satisfied that their living arrangements are suitable, though at some point, D.N. should be sleeping in his own space. Ms. Naroo’s hope to be able to offer S.N. his own space in the basement demonstrated real sensitivity to S.N.’s needs.
[65] I am also satisfied that Ms. Naroo has been most responsive to the children’s needs, including the preparation of their meals, their health-related appointments, and their attendance at various extra-curricular activities, including classes for the study of the Koran. The home in Milton is in very close proximity to the children’s current schools. They have been attending those schools for the past four years. To reverse their residence from their mother to their father would be most disruptive to their education and their established social networks. This would not in their best interests.
[66] In contrast to the children’s existing living arrangements with their mother, Mr. Naroo offered only marginal evidence on the space he would make available to his children. He complained about his dire financial situation that forced him to live with his parents, until they passed, and then his brother. His evidence did not offer any reassurance that he could offer the children a stable living environment that would meet their needs. In short, Mr. Naroo gave no reliable evidence on where the children would live if their residency were to change, or how he would go about to meet their needs.
[67] On the subject of Ms. Naroo’s unilateral move to Milton and Mr. Naroo’s view that this conduct alone should justify a reversal of the children’s residency, I disagree. As much as Mr. Naroo made this issue the focal point of his submissions and his request that children return to Mississauga, on the evidence before the court, it was not clear if Mr. Naroo even lived there any longer. His court documents list Vaughan as his formal address. The Court also heard about the impending purchase of a home in Curtis. More significantly, there was no evidentiary foundation to Mr. Naroo’s allegation that Ms. Naroo moved the children to Milton to take them away from him. If that were her intention, Ms. Naroo could have moved much further than Milton.
[68] Against Mr. Naroo’s contentions, I found Ms. Naroo’s explanation that she could not afford to remain in Mississauga and was therefore obliged to look for less expensive accommodation reasonable. I accept that Milton was the closets, most affordable location to Mississauga. Ms. Naroo’s evidence became even more compelling when it became clear that Mr. Naroo refused to pay any child support. Mr. Naroo cannot complain about Ms. Naroo’s efforts to locate affordable housing for herself and the three children when his contribution to the children’s needs were nil.
[69] My views on this issue would be different if Ms. Naroo were to move to another province or to a location substantially further away from where the family used to live. For example, a move to Pickering, or further east, would create substantial difficulties for Mr. Naroo’s ability to exercise his parenting time and that would not be in the children’s best interests. I would be concerned about Ms. Naroo’s actual intentions, or the possibility that she might be looking to put a practical distance between the children and their father. Ms. Naroo said in her testimony that she had no intention of moving away from Milton and certainly not to Alberta. Ms. Naroo is cautioned that were she to contemplate a move away from Ontario, that would be highly problematic and could impact the children’s residency and associated issues. At this point, the move from Mississauga to Milton remains justifiable. Milton is not that far from Mississauga, Vaughan or Curtis. Given Mr. Naroo’s fluid residency and business arrangements, nothing is preventing him from moving closer to the children, if he so wishes.
ii. Parenting Schedule
[70] On the subject of an appropriate parenting schedule, I am guided by Mr. Reid’s recommendations. Even though Ms. Naroo raised concerns with the disruption to the children’s schedules when they have weekday visits with their father, I find that the children should not be limited to seeing their father only on weekends. Although I am very concerned with Mr. Naroo’s persistent negativity directed to Ms. Naroo, as well as his inability to respect a schedule, it is appropriate that he and the children develop a predictable parenting routine and schedule. This is especially essential for the two younger children.
[71] Insofar as Mr. Naroo alleged bias against him in Mr. Reid’s analysis, I disagree. Mr. Reid based his conclusions on the strength of his interviews with he parties, the children and collaterals. Admittedly, although the adjectives he used to describe Mr. Naroo’s behaviour were strong, they were well-founded and justified. Mr. Reid referred to Mr. Naroo’s strengths and allowed for those in his recommendations. He demonstrated patience with Mr. Naroo and mapped out a pathway for Mr. Naroo to improve his behaviour. Evidently, Mr. Naroo did not like Mr. Reid’s conclusions. But that, in and of itself is not a reason to reject Mr. Reid’s recommendations or find bias.
[72] In light of the foregoing, I conclude that the children should see their father on alternate weekends, starting at 10 a.m. on Saturday morning and ending at 8 pm on Sunday evening. The parents should share the drop-off and pick-up. I leave it to the parents to decide who will do the drop-off and the pick-up. In the event of a disagreement, I will make the decision. I also leave it open to the parties to consider whether the children go to their dad’s place starting on Friday evening after they are done their extra-curricular activities instead of Saturday morning. They may want to maintain some flexibility on this and I am prepared to consider specific terms to be included in a final order. If there is disagreement, the hours of pick-up and drop-off will remain as I indicated.
[73] In addition, given Mr. Naroo’s submission that he would be willing to drive to Milton even if it meant seeing the children for 5 minutes, it is appropriate that the children see their father for supper one weekday per week, from 5 pm to 8pm. I leave it to the parties to identify the day of the week that would be most convenient to the children and Mr. Naroo. If they are unable to agree, the default evening is to be Wednesday. In the same vein, although I have identified the hours of the visit, as long as the children are home by 8 pm, I would expect the parties to act reasonably and be flexible to particular events or activities that might impact on the beginning of the meeting.
[74] With reference to holiday weeks and summer vacation, the parents should be sharing the time on a 50-50 basis. The parties are asked to identify the holidays and the specific days that the children would have with each parent. That schedule can then be incorporated into a final order.
[75] With reference to S.N., after July 1, 2024, he may make his own arrangements to see his parents.
[76] Finally, given Mr. Naroo’s inability or unwillingness to abide by a parenting schedule, if Mr. Naroo misses parenting time, he will not have a right to make-up time, unless he can demonstrate that the missed time was due to illness or other exceptional circumstances beyond his control. Mr. Naroo will be entitled to make-up time if the postponement of the parenting time is due to a conflict in the children’s schedule. In such an event, the make-up time will be added to either the summer months or the holiday week that is closest to the missed weekend. For example, if the children are unable to see their father on one of the weekends in November, the closet holiday make-up time shall be the December holiday break; they would not have to wait until the summer months to make up that time.
[77] The parties are encouraged to use text messaging or the Family Wizard application for all communications related to parenting.
[78] The children shall also have unlimited communications with their father by phone or video calling (Skype, Zoom, Facetime, or other video platforms available to them). They are encouraged to work out a schedule to allow for regular communications, though this is not a requirement.
[79] The children may travel with their parents, provided such travel is on notice to the other parent, with full particulars concerning the travel itinerary.
[80] Apart from travel activities, the children’s residence shall remain in Milton, Ontario. Ms. Naroo shall not change their address without Mr. Naroo’s consent. This term of the order is added to ensure that Ms. Naroo does not remove the children from their current address. In S.N.’s case, effective July 1, 2024, he may decide where he will live.
[81] If Mr. Naroo and the children are prepared to go to family counselling, it may be possible to revisit the parenting schedule to work towards a possible week-about arrangement. Although such arrangements might also require Mr. Naroo to move closer to the children’s current address, absent the support that family counselling would offer, I see limited prospects for any expansion of the parenting schedule.
iii. Decision-making
[82] On the issue of decision-making for major decisions, joint decision-making by the parents is not realistic and would promote greater conflict between the parties. The most serious impediment to such an order lies with Mr. Naroo’s deliberate attempts to turn the children against their mother. His continued resentment and deep dislike for Ms. Naroo permeated everything he said and did in this trial and generally clouded his judgment. Instead of taking any responsibility for his actions, Mr. Naroo appeared to seek justification by accusing Ms. Naroo of having affairs and being unfaithful during their marriage. Similarly, instead of protecting the children from conflict and turmoil, Mr. Naroo drew them into greater distress through his comments against Ms. Naroo. As long as he continues to disparage Ms. Naroo, he cannot possibly expect the court to have any confidence in his ability to collaborate with Ms. Naroo.
[83] The sad reality is that Mr. Naroo demonstrated no insight on the extent to which his hurtful comments against Ms. Naroo harmed his children. I have no doubt that the source for the children’s comments against their mother was Mr. Naroo. He portrayed Ms. Naroo in the worst possible light and refused to acknowledge her love and support for the children. The submissions he made, and the questions he directed to Ms. Naroo when he cross-examined her, echoed and corroborated the kinds of hurtful comments the children directed to their mother. Without realizing it, Mr. Naroo verified the extent to which he has been turning the children against their mother. As long as Mr. Naroo continues to disparage Ms. Naroo, he cannot possibly expect the court to have any confidence in his ability to collaborate with Ms. Naroo on the major decisions for their children.
[84] But my concerns go even further. Mr. Naroo demonstrated no insight on the significance of the children’s best interests. In blaming Ms. Naroo for his woes and in telling the children that she was a bad mother, he did not stop for a moment to consider the turmoil he created for them. At no point did he consider what effect his comments would have on the children’s young minds. Similarly, in his insistence that the children move back to Mississauga, he did not pause to consider, the dramatic effects that such a disruption would have on the children’s welfare. He viewed it terms of a punishment for Ms. Naroo’s “wrongdoing”. She moved them away from Mississauga and therefore her decision had to be reversed, regardless of the toll that might take on the children.
[85] Although these concerns also informed my decision on residency and the parenting schedule, they were most relevant to decision-making, where both parents must exercise sound judgment in the children’s best interests. Unless and until Mr. Naroo agrees to take some counselling, I have serious concerns that his ability to exercise sound judgment will remain a deficit.
[86] In contrast, Ms. Naroo’s engagement with the children satisfied me that she is able to respond to her children’s issues and arrive at decisions in line with their best interests. That finding is reflected in her overall engagement with her children. For example, in her interaction with the children, Ms. Naroo demonstrated significant insight into the reasons for their confrontations with her. Even in the face of her children’s hurtful comments and unfounded accusations that she was a bad mother, Ms. Naroo did not react emotionally or seek to punish Mr. Naroo by withholding the children from him or responding in kind with negative comments about Mr. Naroo. Rightfully so, she sought the guidance of counsellors to identify appropriate responses. She adopted various redirection techniques and strategies.
[87] Even when she had to call the police or her CAS case worker for support, she did what she could to shield the children from further conflict. In the same vein, Ms. Naroo readily acknowledged her difficulties with S.N. and gave reasonable explanations for seeking the police’s assistance. Her willingness to create more space for S.N. by hoping to vacate the basement tenant underscored her insight into her son’s needs. She testified to these difficulties with grace, but also with resolve to improve the children’s overall welfare.
[88] All that said, it is imperative that both parents be encouraged to collaborate and support their children’s welfare. I therefore adopt Mr. Reid’s recommendations and conclude as follows:
i. There shall be full disclosure between Mr. and Ms. Naroo for all matters affecting the children’s welfare. They shall make all reasonable efforts to consult with one another regarding major decisions affecting the children’s welfare, including but not limited to their education, health and religion.
ii. If Mr. and Ms. Naroo are unable to reach agreement over a major decision affecting the welfare of for one or more of their children, Ms. Naroo shall have the final decision-making authority, such authority being exercised reasonably and with due regard for any concerns that Mr. Naroo may have.
iii. Mr. and Ms. Naroo are to have access to all medical and educational records pertaining to each child. They may obtain information about their children from third party service providers, such as schools, doctors, and dentist/orthodontist, without the consent of the other parent. They shall also have the right to meet with all professions to discuss their children’s needs and welfare.
iv. Mr. and Ms. Naroo shall provide each other with all the names and contact numbers for any professionals involved in the children’s care and development.
v. Communications between Mr. and Ms. Naroo shall be in writing, using Family Wizard, emails, texts, or other communication platforms. They shall ensure that communications concerning major-decision making will occur in a timely manner, with due regard for the time to undertake any required research or consultations that might inform that decision.
II. Child Support Obligations and s.7 Expenses
[89] Ms. Naroo seeks child support from Mr. Naroo in the sum of $651 per month, based on an imputed income of $30,000. Mr. Naroo opposes the imputation. He says that he is in dire financial straits, is not earning anywhere near the imputed sum, has had to contend with serious injuries as a result of a motor vehicle accident, and that the latter situation has impeded his ability to promote and develop his car detailing business. In any event, Mr. Naroo submitted that in practical reality the children spent more than 60% of their time living with him, especially during the COVID19 lockdowns, and therefore, he should not have to pay any child support. Mr. Naroo also asked the court to take into account Ms. Naroo’s unilateral move to Milton and reapportion any child support he may owe.
a. Ms. Nairoo’s evidence
[90] Ms. Naroo testified that Mr. Naroo did not pay any child support. That changed as a result of the court’s order of October 29, 2019, that permitted the release of $15,000 from Mr. Naroo’s share of the net matrimonial home proceeds for child support. She expressly denied Mr. Naroo’s contention that the children spent more than 60% of their time with him.
[91] Ms. Naroo submitted that she should receive the table amount for child support contemplated by the Federal Child Support Guidelines. She asked the court to impute Mr. Naroo’s income at $30,000, based on Mr. Naroo’s disclosure as follows: $27,988.88 in the tax year 2017, $26,240.00 in the tax year 2016, $37,758 in the tax year 2015. Ms. Naroo also testified that he was working part-time at Ricci Pizzeria and earning $1,154.50 a month. Prior to that, Ms. Naroo said that Mr. Naroo previously worked as a Sales Representative at Bolts Plus Inc. (2014 – 2016), and prior to that was a store manager at Snap-on Tools of Canada.
[92] Ms. Naroo added that Mr. Naroo had obtained a Photography Diploma from Humber College following his studies in the period between September 5, 2017 and April 19, 2019. The tuition for that program was $8,056. Ms. Naroo suggested that it did not make sense that Mr. Naroo would spend that kind of money if the photography was meant to be just a hobby. In her view, Mr. Naroo could use that diploma to work in photography and supplement his income.
[93] Finally, Ms. Naroo pointed to Mr. Naroo’s recent car detailing business to indicate that Mr. Naroo had to be earning significant funds from that activity. Ms. Naroo learned of this activity from her lawyer’s staff, who saw Mr. Naroo driving in a vehicle that advertised the car detailing business. Further research by Ms. Naroo suggested to her that Mr. Naroo had failed to disclose this business and any associated earnings.
[94] Taking all of the foregoing into account, Ms. Naroo submitted that Mr. Naroo must not have any difficulty earning a yearly income of $30,000.
b. Mr. Naroo’s Evidence
[95] Mr. Naroo disagreed that he earned an average income of $30,000. He said he faced severe financial challenges and could not pay the support being claimed by Ms. Naroo. He agreed that he obtained a Photography Certificate but he could not recall how much he paid for tuition. He agreed that he engaged in various cash businesses, but he was vague on what he disclosed to the Canada Revenue Agency. He agreed he worked at Ricci Pizzeria but he could not confirm if he received pay stubs or when he was paid. Mr. Naroo eventually agreed that his business, Sahrish Henna Design N’More, may have generated over $10,000 / month, as he pleaded in his Answer, but he had no explanation for what tax filings were made for that business. He said it was mostly a cash business and that the accountant prepared the tax returns. He also suggested that any earnings may have been reinvested in the business.
[96] When confronted with his Financial Statement he prepared for this proceeding and the noted living expenses of $51,816.12, Mr. Naroo responded that he was living beyond his means and that this was why he was in financial difficulty. With reference to his car detailing business, Mr. Naroo explained that this was only a recent endeavour. Although he had his son S.N. work with him, the business had not yet taken off. Mr. Naroo also explained that he was further compromised by his injuries from the motor vehicle accident and therefore unable to work. But then, he could not reconcile how he could do the very strenuous weight-lifting exercises depicted in his own recent photos and videos that he posted onto Facebook.
[97] Finally, Mr. Naroo was asked about an impending closing on a house in Curtis with a value of $800,000. He was also asked how he could obtain a mortgage on a suggested annual income of $6,000. Mr. Naroo’s answers were less than enlightening. He agreed that he would be closing the real estate transaction. He said that his family was helping him. More specifically, he said that there was somebody out there who was willing to help him close the property. When asked how he intended to meet his mortgage obligations on an annual income of $6,000, he responded that he hoped his business would pick up and that his family would help. He also expressed the hope that he would receive some more funds from the remaining sum of $132,000 still held in trust.
c. Legal Analysis and Findings
[98] Child Support is governed by the Family Law Act, R.S.O. 1990, c. F-3, (FLA), the Federal Child Support Guidelines, and the general legal principles established by the caselaw. Sections 31(1) and (2) establish the basic obligations of parents to provide support to their children who are minors, enrolled in a full-time program of education or are unable by reason of illness, disability or other cause to withdraw from their parents’ charge. Section 33(7) states that the purpose of an order for child support is to recognize that each parent has an obligation to provide support for the child.
[99] It is important to recognize that child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at paras. 10, 41,45, and 77; Colucci v. Colucci, 2021 SCC 24, 56 R.F.L. (8th) 1, at para. 36. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together: D.B.S., at 38; Michel, at para.10. As the child’s right, a child should not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligations, the court may grant relief to correct the failure: D.B.S., at para. 68; Michel, at para. 31.
[100] The starting point for the determination of the amount of child support under the Guidelines is section 3(1), which outlines the presumptive rules respecting the amount of child support, depending on whether a child is under or over the age of majority. Section 16 of the Guidelines is the starting point for the determination of a party’s income. The payor’s income is based on line 150 in the T1 General Form issued by the Canada Revenue Agency, subject to adjustments. One then consults the tables to identify the corresponding support obligation.
[101] Section 19 of the Guidelines provides that the court may impute income to a party in circumstances that include a parent who is intentionally under-employed, unemployed, who fails to disclose information concerning their income, or who derives a significant portion of their income from business income. The list of circumstances for income imputation is not exhaustive.
[102] The imputation of income to a party is a fact-driven exercise that turns on the unique circumstances of the case before the court: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 73; Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 49). Regardless of the basis upon which the imputation occurs, the imputation by the court is discretionary. The Court must consider the purpose of the Guidelines and arrive at a figure that is rational and reasonable based on the evidence before the court: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44; Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7th) 311, at para. 83; Korwin v. Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1, at para. 5; Cheng v. Sze, 2021 ONCA 346, 56 R.F.L. (8th) 264, at para. 10.
[103] The process of imputing income is not an exact science, particularly when the evidence before the court is imprecise or incomplete: Valley v. Hay, 2019 ONCA 770, at para. 10. The onus is on the party requesting the court to impute income is to establish an evidentiary basis for such a finding. However, the onus does not relieve the other party from the basic obligation to provide timely and full disclosure of all relevant information required to reach an accurate finding respecting their income. Once the party seeking to impute income presents evidence to support a prima facie case for the imputation of income, the onus shifts to the opposing party to defend their position respecting their income and to show why that income should not be imputed: Lo v. Lo, 2011 ONSC 7663, 15 R.F.L. (7th) 344, at para. 57; McKenna v. McKenna, 2015 ONSC 3309, 62 R.F.L. (7th) 429, at para. 144.
i. Child Support
[104] Given these guiding principles, I turn to the evidence before me. To begin with, I reject Mr. Naroo’s evidence that the children have spent more than 60% of their time in his care such that he should not have to pay any child support. There is no credible foundation to that position. If that were in fact the case, Mr. Naroo would not be objecting so vehemently against Ms. Naroo’s move to Milton. It would have been an irrelevant consideration.
[105] Similarly, it became painfully clear that the calendars Mr. Naroo produced, purporting to record the dates when the children stayed with him, were nothing more than a desperate attempt avoid paying child support. The calendars were not prepared contemporaneously to the time when the children might have been in his care. Eventually, Mr. Naroo admitted, rather reluctantly, to preparing the calendars for the trial on the basis of entries he said he had on his phone. The calendar and entries were not disclosed to Ms. Naroo in advance of the trial. Mr. Naroo could not verify the entries. Given the overall weaknesses with his credibility, although I admitted the calendars into evidence, as I came to appreciate the extent to which they were unreliable, it also became very clear that I could not give them any weight.
[106] Against these difficulties, I prefer Ms. Naroo’s evidence and therefore I conclude that the children spent far less than 60% of their time with their father. Mr. Naroo therefore has an obligation to pay child support.
[107] Turning to the quantum of child support, Mr. Naroo’s evidence on his income was woefully inadequate. His evidence was very difficult to follow. The disclosure was incomplete and most significantly, he admitted to receiving cash payments for various business endeavours over the years, which may not have been declared for tax purposes. To be clear, while I make no finding on whether cash sums earned over the years were properly accounted for, Mr. Naroo’s evidence that in 2022 he had only earned an income of $6,000 strained credulity. Mr. Naroo’s admission to an impending purchase of a home in Curtis for $800,000, was fatal to his projection of himself as somebody in desperate financial means. Even with his own suggestion that somebody out there was going to help him with the purchase, Mr. Naroo had to be earning substantially more than $6,000 to be able to proceed with such a purchase.
[108] Ms. Naroo had the onus to satisfy the court of the proposed imputation of income for Mr. Naroo. I am satisfied that she met that obligation. An imputed income of $30,000 is reasonable and within the income range that Mr. Naroo earned in the years leading up to the parties’ separation. Given Mr. Naroo’s reported expenses in the approximate range of $51,000, Mr. Naroo should appreciate that this imputation is on the low end. The corresponding child support for three children according to the Guidelines comes to $621 / month.
[109] The only question left for my consideration is to decide whether the sum of $621 per month ought to be reduced on account of the children’s move to Milton and the added mileage that Mr. Naroo must incur to see his children. Initially, I considered whether a slight discount might be appropriate. On further reflection, it was not lost on the court that Ms. Naroo may not have had to go all the way to Milton to locate an affordable property if Mr. Naroo had met his childcare obligations from the very beginning. In other words, she may have been able to afford a property closer to Mississauga if she could count on Mr. Naroo’s child support for the children.
[110] In addition, having learned during Mr. Naroo’s cross-examination that his imminent home purchase in Curtis was for a figure that was in the same range as what Ms. Naroo paid for her home in Milton, it did raise the question of why Mr. Naroo would buy a home there, and not in Milton, where he would be much closer to his children. After all, he had no demonstrated attachment to Curtis. Mr. Naroo’s evasive responses in cross-examination on this specific subject and his indication that he did not consider the distances from Curtis to Milton, torpedoed any benefit of the doubt in his favour.
[111] Insofar as Ms. Naroo admitted that S.N. spent a couple of months at Mr. Naroo’s place during the pandemic, that evidence was insufficient to conclude that his primary residence changed sufficiently to require an adjustment to child support for those two months.
[112] In the result, child support is set at $621 per month for three children. Ms. Naroo is asked to prepare a chart reconciling the support payments already received as a result of the release of the $15,000 and to identify the balance owing up to and including the month of January 2024. On the assumption that S.N. continues to live with Ms. Naroo, child support at $621 per month will continue to be paid, at least until the end of June. After July 1, given S.N.’s age, the parties will be guided by the Guidelines. If S.N. continues to live with his mother and remains in school on a full-time basis, Mr. Naroo will continue to pay child support for three children. If S.N. moves in with his father but continues in school on a full-time basis, then Mr. Naroo will pay support for two children and Ms. Naroo shall pay child support for one child. The amount of child support for S.N. will depend on whether he attends school on a full-time or part-time basis and whether he works.
[113] The sum of child support owing up until and including March 2024, once it is determined and reviewed by me, will be payable from Mr. Naroo’s share of the remaining funds held in trust by the real estate counsel.
ii. Section 7 expenses
[114] That leaves s.7 expenses. Mr. Naroo suggested that Ms. Naroo’s income was far greater than $35,000. He pointed to the mortgage she obtained for her home purchase and questioned how she would qualify for such a loan on the strength of her reported income. Evidently, Mr. Naroo did not appreciate the irony in his argument. Ms. Naroo’s home value and that of Mr. Naroo’s imminent purchase was in a similar range. Ms. Naroo bought her home for about $870,000 and Mr. Naroo’s purchase was for about $800,000. Neither party disclosed their documents related to these purchases. However, given that they both used at least some funds from the matrimonial home proceeds as a down payment for their new purchases, I infer that their mortgages would also be of the same magnitude. Mr. Naroo tried to suggest that Ms. Naroo could not possibly obtain a mortgage on the basis of an income of $35,000. But he had no difficulty suggesting that his reported income of $6,000 was sufficient for him to obtain his loan.
[115] In my consideration of the parties’ incomes, neither side was particularly transparent or honest about their true incomes and earnings. Ms. Naroo was just as evasive as Mr. Naroo over her true earnings. She was less than forthcoming on her tenant in the basement and what he was paying. Eventually, the tenant turned out to be her boyfriend. So, just as Mr. Naroo said he had the support of somebody to obtain the loan, so did Ms. Naroo.
[116] Given these weaknesses in the evidence by both sides, their common spending patterns in relation to their homes lead to the conclusion that the parties must have roughly equal incomes, or incomes in similar ranges, whatever the actual figures might be. Accordingly, it leads me to conclude that they should be sharing s.7 expenses on a 50-50 basis.
[117] For as past s.7 expenses, there was no evidence of actual expenses before me to allow for a retroactive reimbursement. However, Ms. Naroo did refer to orthodontic expenses for her daughter, basketball and swimming activities for the children, as well as Koran classes. If she is able to produce receipts for these activities, she may submit them for my consideration. Going forward, Ms. Naroo will advise Mr. Naroo of anticipated s.7 expenses and give him the opportunity to have a say in the proposed activity. Mr. Naroo shall not refuse reasonable expenses associated with the children’s well-being. Once Ms. Naroo produces the associated receipts, Mr. Naroo shall have 30 days to reimburse Ms. Naroo for his contribution, equalling half the price.
III. Equalization
[118] The equalization claims by the parties and their respective evidence was the most confusing part of the trial. The evidence was very difficult to follow and many of the suggested figures were unsubstantiated. The parties also filed various Net Family Property statements suggesting a range of equalization payments.
[119] In her trial record, Ms. Naroo included an NFP Statement dated January 24, 2023 that indicated an equalization payment in the sum of $24,405 owed by Mr. Naroo to Ms. Naroo. By the time of her closing submissions, Ms. Naroo revised her NFP Statement and concluded that Mr. Naroo owed Ms. Naroo an equalization payment of $42,963.05.
[120] In his Opening Statement document, Mr. Naroo attached three different NFP statements, and therefore three equalization payment scenarios. Those scenarios went from an equalization payment of $9,112.09 owed by Ms. Naroo to Mr. Naroo to an equalization payment of $23,162.03 owed by Mr. Naroo to Ms. Naroo.
[121] The contested variables to this analysis concerned the date of separation, the treatment of Mr. Naroo’s withdrawal of $56,195 from the couple’s joint line of credit, Mr. Naroo’s alleged payment of $30,000 in cash to Ms. Naroo, and the treatment of a $40,000 payment Mr. Naroo received from his brother on September 23, 2019.
i. Date of Separation
[122] Beginning with the date of separation, Ms. Naroo’s evidence persuaded me that the parties separated on January 1, 2018. I accept that even if the couple continued to live under the same roof, they lived separately. Ms. Naroo’s description of their difficulties was more consistent with a gradual breakdown in their relationship and her decision to end the marriage. Mr. Naroo associated the separation with his arrest and his removal from the matrimonial home. But he did not dispute that there was friction between him and Ms. Naroo, well before his arrest. In his own evidence, Mr. Naroo agreed there were difficulties in their relationship well before May 9, 2018 and blamed Ms. Naroo for those difficulties.
ii. $56,195 Withdrawal from Joint Line of Credit
[123] Concerning the sum of $56,195, Mr. Naroo conceded that he withdrew it from the couple’s joint line of credit on April 19, 2018. There was no evidence by either side on why Mr. Naroo required those funds or how he used them. Since that withdrawal occurred after the date of separation, it is a sum that must be reconciled as a post-separation adjustment. The debt owed to the Bank of Montreal was settled from the sale proceeds of the matrimonial home. Since Mr. Naroo withdrew those funds from the couple’s joint line of credit, he must now reimburse Ms. Naroo with her 50 per cent share, which comes to $28,097.50.
iii. Cash payment of $30,000
[124] The next issue to reconcile relates to the $30,000 cash that Mr. Naroo said he gave to Ms. Naroo. Mr. Naroo said that in 2019 he handed to Ms. Naroo $30,000 in cash, in two brown envelopes and in $100 bills. In his cross-examination of Ms. Naroo he suggested he made the payment in 2018. According to Mr. Naroo, Ms. Naroo said she would be prepared to reconcile with him if he gave her the money and he agreed. The exchange occurred in his car. Ms. Naroo then went home to drop off the money and the whole family went to The Marche for ice cream. From there they all went back to Ms. Naroo’s place where they watched a movie. Later that night Mr. Naroo, who was out on bail, returned to his brother’s home where he was staying. There he was arrested for breaching his bail conditions that required him to stay away from Ms. Naroo. Mr. Naroo thought that it was Ms. Naroo who reported him to the police for breaching his bail conditions. Mr. Naroo produced banking records to show his withdrawal of $30,000.
[125] Ms. Naroo denied ever receiving such a payment. She denied any attempt at a reconciliation, and she had no idea what Mr. Naroo was talking about. She had a vague recollection of an outing to The Marche but she said that happened prior to their separation. Ms. Naroo said that they would not have gone out in 2018 after their separation because there was a restraining order against Mr. Naroo. Finally, when in cross-examination, Mr. Naroo put to Ms. Naroo that she told their son S.N. that she would reconcile with his father if he returned the funds he withdrew to their joint bank account. Ms. Naroo disagreed that she had such a conversation or that she wanted to reconcile with Mr. Naroo. She also did not recall watching a movie together as suggested by Mr. Naroo.
[126] On the evidence before me, Mr. Naroo’s story about handing Ms. Naroo an envelope in cash and then going with the family to Marche for dinner was highly suspect and improbable. Although his bank statement shows a withdrawal of $30,000, there was no other evidence to allow the court to follow the money. Nor were there any substantial purchases, such as a vehicle, a vacation, or any investment to demonstrate who may have received those funds. made no sense.
[127] In her evidence, Ms. Naroo talked about how her 9-year-old child at the time asked her why she would refuse $50,000 to settle the case. The comments were made in relation to Mr. Naroo being in jail. It leads me to believe that the case the child was referring to concerned the criminal charges. But whatever the child was referring to, there was no evidence that Ms. Naroo ever wanted to reconcile with Mr. Naroo. Given Mr. Naroo’s overall perspective and denial of any wrongdoing, it would not surprise me to learn that he may have attempted to resolve the criminal charges by paying off Ms. Naroo. But that is far cry from any reconciliation. Nothing in the evidence before me suggested that Ms. Naroo was ever interested in any reconciliation, and given the outcome of the criminal trial, there never was any reconciliation.
[128] In light of the foregoing, whatever Mr. Naroo did with the $30,000 withdrawal there is no credible or reliable evidence that he gave such funds to Ms. Naroo.
iv. $40,000 on account of an investment
[129] The next figure that requires an explanation concerns the $40,000 payment to Mr. Naroo from his brother. Ms. Naroo sought to include that sum in the NFP analysis suggesting that it represented Mr. Naroo’s share in an investment property he owned jointly with his brother and sister in-law. For the following reasons, I find no evidence to support the inclusion of these funds in Mr. Naroo’s NFP.
[130] Mr. Naroo’s sister in-law, Shazea Naroo, was called to give evidence on the purchase of an investment property. She testified that the Naroo brothers entered into an agreement of purchase and sale for a preconstruction property on May 31, 2016. The transaction was supposed to close in May 2018. Eventually it closed in September 2018. At some point prior to May 2018, Naveed Naroo’s name was removed from the transaction. When the purchase closed, the property was registered only in Shazea’s name. She obtained a mortgage and was responsible for paying it. Apart from a payment of $1150 traced to Naveed Naroo, Shazea did not know if he made any contribution towards the downpayment or if he was subsequently reimbursed. She agreed that she produced to Ms. Naroo’s counsel a copy of a money transfer receipt showing a transfer of funds from her husband to Naveed Naroo. The transaction receipt was dated September 8, 2019.
[131] In cross-examination, Mr. Naroo thought he may have given a deposit of $13,000 or $14,000. He offered no other evidence about this investment. He said he could not recall if his brother reimbursed him.
[132] On the totality of the evidence, the evidence before me is insufficient to conclude that Mr. Naroo had some kind of an interest in the noted investment. On the date of separation, he was not on title. At point in time, the closing was into the future. Apart from a payment of $1150, there is no evidence that he made any contribution towards the investment. While I cannot preclude that the brothers had some understanding between them, there is no evidence that the investment ever materialized. What is know for certain is that by the time of the closing, Mr. Naroo had no interest.
[133] As for the sum of $40,000 shown on the transaction receipt, it is pure speculation on Ms. Naroo’s part that it is somehow connected to the investment property. On its face, it shows a payment to Mr. Naroo from his brother, and nothing more than that. Whatever the reason for the payment, this transaction receipt is no smoking gun. Mr. Naroo’s brother may have transferred such funds for any number of reasons. For example, knowing that it was in and around the time of this transaction that Mr. Naroo was tried and convicted of assault and breach of recognizance, it could be that Mr. Naroo’s brother was assisting Mr. Naroo with legal fees or other financial obligation. I use this as an example to illustrate that there could be any number of reasons for this transaction. Having occurred well after separation, there is no basis to bring this transaction into an equalization analysis.
v. Net Family Property and Equalization
[134] That brings me to the various NFP statements filed and the various figures associated with the parties’ vehicles, their jewellery, and the furniture. Simply put, there was no evidence before the court to substantiate any of the figures claimed. What I received from both parties were “guestimates” at best, and those figures were all over the map. On the listed bank accounts, the figures more or less cancelled each other out.
[135] In the result, there is nothing to equalize between the parties. This is not entirely surprising to see. The major asset for this couple was their matrimonial home. Over the years, they earned income and held it in joint accounts. Some funds they declared as income. Some funds were unaccounted. They had two vehicles, and the shared furniture and jewellery. All told, they more or less had equal debts. At this point, the only sum left to reconcile is Ms. Naroo’s 50% share from the joint line of credit.
CONCLUSION
[136] In the result, Ms. Naroo shall prepare a draft judgment reflecting my decision on parenting (primary residence, parenting schedule, and decision-making), child support and s.7 expenses, and the payment of $28,097.50 as discussed. I will require in writing a breakdown / reconciliation of what matrimonial home funds remain in trust, what the respective shares are, what child support has already been paid, and what remains to be paid up to and including the month of March 2024. Thereafter, a support deduction order is to issue.
[137] The parties shall also consult with each other on the specific parenting schedule details that speak to holiday time, the weekday access, and the pick-up and drop off times and location.
[138] The Applicant shall submit to my office the draft judgment, together with the supporting documentation shall be submitted to my office by March 1, 2024. All materials are to be sent to my office.
[139] The only outstanding matter is the issue of costs. I strongly urge the parties to reach an agreement and not expend additional resource on this issue. To the extent that it may assist the parties in their consideration of their options, Ms. Naroo was successful on parenting, child support and s.7 expenses, but she was not successful on her claim for equalization.
[140] If the parties are unable to settle costs, Ms. Naroo shall have until February 16, 2024 to serve and file her submissions and Mr. Naroo shall have until March 1 to respond. Such submissions are to be limited to four pages, double-spaced, in 12 pt. font, exclusive of offers to settle and Bills of Costs to support their positions.
Tzimas J.
Released: February 5, 2024
COURT FILE NO.: FS-18-92806
DATE: 2024 02 05
ONTARIO
SUPERIOR COURT OF JUSTICE
Saira Naroo
– and –
Naveed Naroo
REASONS FOR judgment
TZIMAS J.
Released: February 5, 2024