Court File and Appearances

Court File No.: FC-24-661
Date: 2025/05/06
Court: Superior Court of Justice - Ontario

Applicant: Karyn Alison Lemoine
Respondent: Kurt Wayne Tesokwen Mitchell

Before: K.A. Jensen

Counsel:
Virginia Ollerhead, Law Office of Virginia Ollerhead, for the Applicant
Jessica Dumont, Delaney’s Law Firm, for the Respondent

Heard: April 15, 2025

Endorsement

Introduction

[1] The Applicant, Karyn Lemoine, brings a motion for interim spousal support, retroactive to July 1, 2024, in the amount of $4,242 per month based on the total 2023 income of the Respondent, Kurt Mitchell, $181,151.

[2] Mr. Mitchell brings a cross-motion seeking one additional overnight of parenting time with the child, W.M., in a two-week period. He also seeks to be permitted to travel to Akwesasne Reserve in New York with the child. Mr. Mitchell identifies as First Nations. His community is on the American side of Akwesasne.

[3] The parties began residing together in or around April 2022 and separated in March 2024, for a total period of cohabitation of 1 year and 11 months. There is one child of the relationship, W.M, who is currently 2 and a half years old.

[4] The parties attended a Case Conference before Associate Justice Perron on August 16, 2024, during which the parties agreed on terms that were incorporated in a Temporary Consent Order (the "Consent Order"). The relevant provisions of the order are as follows:

a. Beginning on June 1, 2024, Mr. Mitchell shall pay child support in the amount of $1,523 per month based on his annual income of $181,151;
b. On a temporary and without prejudice basis, Mr. Mitchell shall pay $2,500 per month in spousal support beginning on August 19, 2024;
c. On a temporary and without prejudice basis, Mr. Mitchell shall contribute $338.20 (86%) towards the daycare expenses for the child;
d. Mr. Mitchell shall maintain his existing group health and dental insurance benefits for Ms. Lemoine and the child for as long as these benefits are available;

[5] Ms. Lemoine states that she has been unable to work since January 2022 due to medical issues. Ms. Lemoine previously had a home-based hair salon business and was self-employed prior to the arrival of the child.

[6] Ms. Lemoine, with Mr. Mitchell’s consent, arranged for their child to attend daycare since September 2024 on Mondays, Wednesdays, and Fridays from 9:30 a.m. to 2:30 p.m.

[7] Ms. Lemoine has been working to build her home-based businesses in photography and hair styling while W.M. is at daycare. She states she has been earning about $1,000 per month (before expenses and tax) at her businesses and is increasing her revenue slowly.

[8] Mr. Mitchell is employed full-time at Delupka Equipment Rentals as a crane operator. He is a dual US/Canadian citizen who has lived in Ottawa most of his life. Mr. Mitchell owns a condominium in Toronto and a house in Kanata. He receives a net rental income of approximately $49,102.00 from these properties. His gross income in 2023 was $181,151.00.

[9] Mr. Mitchell currently exercises his parenting-time every Tuesday and Thursday from 5:00 p.m. to 7:30 p.m. and Saturday from 5:00 p.m. to Sunday at 6:00 p.m.

Analysis

Spousal Support

[10] In Kalkanis v. Domingues, 2022 O.J No. 751 (S.C.J.), at para. 17, this court held that the following principles apply with respect to a claim for interim spousal support:

a. The party claiming interim spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum of support. The merits of the case in its entirety are to be dealt with at trial.
b. In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.
c. The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.
d. The court achieves rough justice at best on a motion for temporary spousal support and does not embark on an in-depth analysis of the parties' circumstances. The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.
e. Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs.

[11] I find that Ms. Lemoine has established a prima facie case of entitlement to spousal support. There is evidence that for the short duration of the parties’ relationship, Ms. Lemoine stayed at home with the child and looked after the household. Ms. Lemoine’s evidence is that she supported Mr. Mitchell’s career and his long hours away from the home.

[12] Ms. Lemoine deposed that her hair salon, which was previously in the living room, was dismantled when the child arrived. Ms. Lemoine stated that she is slowly building her hair styling business up again. She is also developing a photography business. However, she stated that she is in a more difficult financial situation because she took time off from running her business to have and care for the child. In addition, she provided evidence that her lifestyle is not the same as it was when she was living with Mr. Mitchell.

[13] Mr. Mitchell provided evidence that he did not support Ms. Lemoine’s decision to stay at home with the child, and that she has the ability to support herself. However, at this stage of the process, that evidence does not undermine Ms. Lemoine’s prima facie case of entitlement to spousal support. Mr. Mitchell does not contest the fact that Ms. Lemoine stopped her hair styling business, dismantled her home salon, and assumed the role of primary caregiver for their child. While he alleges that her income is higher than she reports, he does not dispute that she suffered an income loss with the arrival of the child. Mr. Mitchell contends that Ms. Lemoine should be able to work full-time at a hair salon outside of the home. However, there would still be a significant gap in income between the parties. Therefore, I find that Ms. Lemoine has established a prima facie case of entitlement to spousal support.

[14] In terms of the quantum of interim spousal support, I disagree with Ms. Lemoine that she has a prima facie entitlement to $4,242 per month, based on Mr. Mitchell’s 2023 income of $181,151.00, and her reported income of negative $3,864.05 in 2023. In her updated Financial Statement, sworn April 2, 2025, Ms. Lemoine reported a gross income of positive $12,224 in 2024, which she said included spousal support of $2500/month. If she received five months of spousal support in 2024 for a total of $12,500, that would mean that her employment income in 2024 was negative $276.

[15] Ms. Lemoine is 36 years of age. She stated that she has medical issues which started when she was 24 years old. She deposed that she has an autoimmune disorder for which she requires regular medications. She also provided evidence that she suffers from chronic back and hip pain. She stated she is unable to sit or stand for long periods of time without experiencing severe nerve pain.

[16] Her doctor provided a letter in which he stated that while testing has not, to date, revealed an autoimmune disorder, Ms. Lemoine is on the waitlist for a pain clinic. She has been dealing with pain for quite a few years and although she can work as a hair stylist and photographer, her doctor said she requires frequent breaks.

[17] Mr. Mitchell is currently paying $2,500 in spousal support to Ms. Lemoine on an interim, without prejudice basis. He is also paying $4,055 in childcare expenses. Ms. Lemoine’s Financial Statement shows that her monthly expenses are $4,951.72 and her monthly income, including child benefits, child support and spousal support is $5,632.74. Some of that income is pre-tax. Ms. Lemoine states that she is having difficulty meeting her monthly expenses. However, even taking into account taxes, Ms. Lemoine appears to be meeting her expenses.

[18] Mr. Mitchell argued that the court should impute an income of at least $30,000 to Ms. Lemoine. He contends that Ms. Lemoine is capable of working more than she is working and that she could obtain employment in a hair salon where she would earn considerably more than she is currently making as a self-employed hair stylist. Mr. Mitchell further alleged that Ms. Lemoine has failed to report all the cash income she receives and therefore, her stated income is not reliable.

[19] I am prepared to impute an income of $12,000 to Ms. Lemoine, without prejudice to either party’s right to present evidence at trial that challenges that inference. Ms. Lemoine indicated that her business expenses are decreasing now that she has purchased the photography equipment she needs and has re-installed her home hair salon. She is steadily building her book of business and has four days per week when W.M. is either in childcare or with Mr. Mitchell when she can earn an income.

[20] I accept that Ms. Lemoine has chronic pain issues which require her to take rest breaks throughout the day and therefore, the home business is best for her. I also accept that this may reduce her earning capacity. However, I think it is reasonable to infer that Ms. Lemoine will earn a gross self-employment income of $12,000 this year, between her photography and hair styling business. It is simply not reasonable to infer that once again this year, her expenses will be greater than her income. If that appears to be the case, she has an obligation to seek employment that will not result in negative earnings. Ms. Lemoine appears to be capable of earning at least $12,000, which is about 1/3 of what she would earn as a full-time, minimum wage worker.

If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations: Woofenden v. Woofenden, 2018 ONSC 4583 at para. 38; Lawson v. Lawson.

[21] The Spousal Support Advisory Guidelines (SSAGs) show that with a self-employment income of $12,000 for Ms. Lemoine and an income of $176,145 for Mr. Mitchell, Mr. Mitchell would be paying $1,487 in child support and somewhere between $3,042 to $4,212 in spousal support. The mid-range amount would be $3,638 per month.

Based on: employment income of $131,238; rental income (net) of $49,102; other employment income of $631 = $180,971; from which union dues of $4,826 are subtracted.

[22] The Court of Appeal for Ontario has cautioned courts not to treat the mid-point of the SSAGs as the default outcome. Rather, the court is required to consider the support factors found in subsection 33(9) of the Family Law Act. As noted above, on an interim motion, the court is not required to conduct a detailed analysis of the factors relating to quantum.

Mason v. Mason, 2016 ONCA 725, at para. 199

[23] In the present case, I have considered the fact that although the relationship was of short duration, a child was brought into the world through that relationship. I have also considered that Ms. Lemoine has some work restrictions relating to her chronic pain condition. However, she is still a young woman and has set herself up well to earn a reasonable income between her photography and hair styling businesses. I accept that Ms. Lemoine needs to be available to pick up the child when she is sick and after daycare. However, it is possible for her to extend the hours the child is in daycare without incurring additional charges. She could, therefore, extend the length of her workday, which would permit her to earn a higher income.

[24] Given that Mr. Mitchell is currently paying $2,500 per month in spousal support and $1,523 in child support, plus $4,055 in childcare expenses, I find that his interim spousal support payments should increase by $500 per month to bring his total spousal support to $3,000 per month.

[25] Mr. Mitchell states that he does not have the financial means to make any additional payments and that he may have to sell one of his properties to be able to do so. While that may not seem fair to Mr. Mitchell, he will have the opportunity at trial to argue that he has overpaid spousal support.

[26] An increase of $500 per month takes into account Mr. Mitchell’s current financial pressures as well as the fact that Ms. Lemoine is meeting her monthly expenses, but with little to spare. It also takes into account the expectation that Ms. Lemoine will earn at least $12,000 in 2025.

Retroactive Spousal Support

[27] I decline to order retroactive spousal support. I agree with Mr. Mitchell that when there are facts in dispute, an interim motion is not the time to order retroactive support unless there are exceptional or extraordinary circumstances. There was no evidence of unusual circumstances justifying an award of retroactive spousal support. That issue is better left for trial when it can be decided on the basis of a full evidentiary record.

The Cross-Motion

Parenting Time

[28] Mr. Mitchell currently exercises his parenting time every Tuesday and Thursday from 5:00 to 7:30 p.m. and Saturday from 5:00 p.m. to Sunday at 6:00 p.m. This amounts to four weeknight visits and two overnights in a two-week period. Mr. Mitchell proposes to increase his parenting-time by one overnight in a two-week period.

[29] Mr. Mitchell has provided two options for a schedule that would include an additional overnight in the two-week period.

[30] Ms. Lemoine opposes both schedules but states that she is willing to let Mr. Mitchell have W.M. for an entire weekend every other week. This would not result in an overall increase in parenting time with the child, but it would provide Mr. Mitchell with a longer stretch of time over one weekend every two weeks. Ms. Lemoine states that W.M. needs consistency and routine, which she does not think will be achieved by either of Mr. Mitchell’s proposed schedules. However, her proposal of one weekend every other week would result in longer stretches of time during which Mr. Mitchell and W.M. would not see each other.

[31] In making a parenting order or contact order with respect to a child, the court shall take into account the best interests of the child as reflected in section 24(1) of the Children’s Law Reform Act.

[32] The factors related to the circumstances of a child include:

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 parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
c. each parent's willingness to support the development and maintenance of the child's relationship with the other parent;
d. the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
e. the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
f. any plans for the child's care;
g. 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;
h. the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
i. any family violence and its impact on, among other things,

• the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
• the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate 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.

[33] In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child: s. 24(6) Children's Law Reform Act.

[34] As a rule, the status quo will be maintained on an interim motion in the absence of compelling reasons indicating the need for a change to meet the children's best interests. Ultimately, however, the applicable test remains that of the best interests of the child.

S.A. v. M.L., 2019 ONSC 1930 at para. 18; Pereira v. Ramos, 2021 ONSC 1737 paras. 33-34, 38-42.

[35] The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party.

Batsinda v. Batsinda, 2013 ONSC 7899, para. 28 and Kimpton v. Kimpton, [2002] O.J. No. 5367 (SCJ), para. 1.

[36] In the present case, Mr. Mitchell stated that Ms. Lemoine decided the parenting time schedule when they separated, and he had no say in it. He admitted that prior to the separation he worked long hours, and that Ms. Lemoine was the primary caregiver. However, he stated that prior to the separation he was actively involved with the child’s care when he came home from work. He took care of the child’s evening routine while Ms. Lemoine worked on her photography business. Mr. Mitchell argued that he is not asking for a major change in the parenting schedule. He simply wants to have one more overnight.

[37] For the following reasons, I find that it is in W.M.’s best interests to have additional parenting time with Mr. Mitchell in accordance with either one of the two schedules proposed by Mr. Mitchell:

1. The child has a very good relationship with both parents. She appears to be safe and well-cared for in both homes.
2. Both parents have shown the ability to promote the relationship between the child and the other parent.
3. Mr. Mitchell is Indigenous and part of the Mohawks of Akwesasne. It is in W.M.’s best interests to maintain a connection with her paternal family members and recognize her Indigenous cultural heritage. While Ms. Lemoine has shown a willingness to expose the child to her cultural heritage, she has not consented to Mr. Mitchell taking her to the Akwesasne Reserve, where Mr. Mitchell’s family resides.
4. It is in the child’s best interests to strengthen her relationship with her father by spending more time with him.
5. Adding an additional overnight to Mr. Mitchell’s parenting time is not a significant change in the status quo.
6. Mr. Mitchell has demonstrated a willingness to be flexible by providing two schedule options for the parenting time increase. One of the schedules provides Mr. Mitchell with parenting time from 6 pm Sunday to 7:30 pm on Monday every other week.
7. Ms. Lemoine objects to the schedule that permits Mr. Mitchell to have parenting time with W.M. on Monday because she says Mr. Mitchell should be working on Monday, not spending time with the child. She also thinks the child should be in daycare three days per week. However, Mr. Mitchell has spoken with his employer and can work on Saturday instead of Monday, so he will not be reducing his income. Furthermore, it is positive that Mr. Mitchell is willing to rearrange his work schedule to spend more time with W.M. The child’s daycare schedule may be rearranged so that she will have three days other than Monday at daycare. This will have the added benefit of giving Ms. Lemoine an additional day to work.
8. There is no history of violence or criminal/civil proceedings that would impact on the child’s well-being.

[38] For all of these reasons, I find that it is in the child’s best interests to have an additional overnight with Mr. Mitchell in accordance with one of the two proposed schedules. Ms. Lemoine may choose which of the two schedules she prefers.

Travel

[39] Since separation, Ms. Lemoine has not consented to Mr. Mitchell’s requests to travel to the Akwesasne Reserve to visit his family. The Akwesasne Reserve is located in New York and approximately an hour and a half from the parties' residences.

[40] Mr. Mitchell's most recent proposal to travel to Akwesasne was on July 31, 2024. Mr. Mitchell requested Ms. Lemoine’s consent to take W.M. with him to see his parents. He set out a detailed plan with addresses, assured Ms. Lemoine that he had the appropriate medical insurance in place in case of emergencies and offered to provide his parent's phone number. However, Ms. Lemoine did not consent to Mr. Mitchell's travel plans.

[41] Ms. Lemoine provided evidence that she is apprehensive about travel to the United States right now. She stated that Mr. Mitchell has not agreed that he will remain with W.M. at all times when he is visiting his family. At the hearing, however, Mr. Mitchell indicated that he is prepared to agree to that condition.

[42] In deciding whether to grant a parent permission to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks. The court considers:

a. The best interests of the child: the court considers the physical, emotional, and psychological safety, security and well-being of the child. The court also considers the child's age, cultural, linguistic, religious, and spiritual upbringing and heritage.
b. The risk of abduction: the court must consider whether there is any credible evidence that the travelling parent may abscond with the child. A country being a signatory to the Hague Convention is a significant mitigating factor in this respect. Even where a country is not a signatory to the Hague Convention, an Order preventing travel is not justified in the absence of evidence indicating the possibility of the child being abducted.
c. Risk of danger: the court will look at any issued travel advisory with respect to the proposed location of travel.

Badar v. Danish, 2014 ONSC 3942; Hamid v. Mahmood, 2012 ONCJ 474; Purushothaman v. Radhakrishnan, 2014 ONCJ 300

[43] In the present case, there is no evidence that it would be dangerous for the child to travel to the Akwesasne Reserve in the United States with her father. There are no travel advisories warning against travel to the United States. While there has been media coverage of certain incidents where people who are not U.S. citizens have been detained at the border, this is highly unlikely to be an issue with Mr. Mitchell and W.M. Mr. Mitchell is a dual citizen of both the United States and Canada. He is also a member of the Mohawks of Akwesasne. It is unclear whether the child also has dual citizenship, but it is unlikely that she will be detained at the border with Mr. Mitchell.

[44] Similarly, there is little risk that Mr. Mitchell will abduct the child. He has a job in Canada, owns property in Canada and is firmly established in Ottawa. The United States is a signatory to the Hague Convention and therefore, the risk that the child would not be returned to Canada if she is abducted is low. Ms. Lemoine appeared to concede that Mr. Mitchell is unlikely to abduct the child.

[45] I find that it is in W.M.’s best interests to visit Akwesasne Reserve in the United States with her father. The child shares her father’s Indigenous heritage. It is the child’s right to experience her culture and learn about her heritage with her father and his family. Although Ms. Lemoine stated that she has taken W.M. to powwows on the Canadian side of the Akwesasne Reserve, that is not the same as attending events and visiting her paternal family with Mr. Mitchell on the American side of Akwesasne, where they live. Mr. Mitchell has given Ms. Lemoine his assurance that he will not leave W.M. with anyone else while they are in the U.S. He has ensured that the child is covered by the appropriate medical insurance. He stated that he will provide an itinerary for the visits. I find that Mr. Mitchell has taken all appropriate steps to ensure that W.M. will be safe and well-cared for during her visits to the United States.

[46] Ms. Lemoine requested that Mr. Mitchell be required to obtain her consent each time he wishes to travel with W.M. to Akwesasne. I find that it is not in the child’s best interests to require consent from Ms. Lemoine. She has demonstrated a reluctance to provide consent in the past and I am not convinced that she will be able to overcome her fears in the future. While I understand Ms. Lemoine’s concerns, they do not justify depriving W.M. of the family and cultural experiences that she deserves. W.M. is now two and a half years old. Her paternal grandmother expressed concern that very few members of her family in Akwesasne have had the opportunity to meet her. I find that it is necessary to dispense with Ms. Lemoine’s consent for the purposes of travel to the Akwesasne Reserve in the United States, but only with respect to that one location. Travel to other locations can only be done on the mutual consent of both parties, but consent must not be unreasonably withheld.

Conclusion and Costs

[47] Ms. Lemoine was successful on her motion for increased interim spousal support. Mr. Mitchell is ordered to pay $3,000 in spousal support, without prejudice to his right to argue that he has overpaid support.

[48] Ms. Lemoine’s request for retroactive spousal support is denied, without prejudice to her right to claim that at trial.

[49] Mr. Mitchell was successful on his cross-motion for increased parenting time and for an order permitting him to travel to the Akwesasne Reserve in New York, United States of America without Ms. Lemoine’s consent.

[50] Given the parties’ divided success on the motions, each party shall bear their own costs.

Justice K.A. Jensen
Date: May 6, 2025