Reasons for Judgment

Court File No.: FS-24-41615
Date: 2025-05-13
Ontario Superior Court of Justice

Between:
Varinder Kaur Dhillon, Applicant
and
Khushdeep Singh Sidhu, Respondent

Heard: In Writing

Judge: M. Kraft

Introduction

[1] The parties were married on November 16, 2016 in India. They separated six years later, on November 12, 2022. They are the parents of a 4-year-old child, D., who resides primarily with the applicant mother.

[2] When the mother issued this Application on March 12, 2022, she sought a divorce, decision-making responsibility for the child, ability to travel with the child without the consent of the father, spousal support, child support, and communication with the father through a co-parenting web application.

[3] The mother served her Application, the automatic order for disclosure, her 35.1 parenting affidavit, and a MIP notice on the father by special service through a process server, on April 24, 2024. Despite having been duly served, the father did not file an Answer or Claim to the mother’s Application.

[4] As set out in Rule 10(5) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), if a respondent does not serve and file an answer, the consequences set out in paragraphs 1-4 of subrule 1(8.4) apply. Rule 1(8.4) allows the applicant in such circumstances to proceed with an uncontested trial of the case.

[5] On July 8, 2024, the mother swore a Form 23C, affidavit in support of her uncontested trial, and served it on the father. There was no response by the father.

[6] The mother’s uncontested trial has been heard by me in writing. These reasons set out my findings and disposition of the matters at issue.

Issues to be Determined

[7] The issues to be determined at this uncontested trial are as follows:

a. What decision-making responsibility order is in D.’s best interests?
b. What parenting schedule is in D.’s best interests?
c. Should the father be imputed with an income for child support purposes?
d. What quantum of child support should be paid by the father to the mother retroactively and on an ongoing basis?
e. Is the mother entitled to spousal support and if so, what is the quantum and duration of spousal support the father should pay her?
f. Should the mother be permitted to travel with the child without the need for the father’s consent?
g. Should the mother be permitted to renew the child’s government issued documentation without the father’s consent?

Background Information

[8] The parties are both from India. They were married for 6 years and separated on November 12, 2022. According to the mother, the separation was due to the father’s aggressive behaviour toward her.

[9] After the marriage, the mother and father resided together in India from November 16, 2016 to August 17, 2017.

[10] On August 18, 2017, the mother came to Canada and resided in Brampton, Ontario on a study permit. On May 18, 2018, the father came to Canada on an open work permit, as the mother sponsored him as a spouse.

[11] During the marriage, the mother described a relationship plagued with family violence that she endured at the hands of the father. The mother deposes that the father regularly engaged in a pattern of emotional, verbal, and physical abuse toward her; his conduct toward her was consistently rude and irritable; he often threatened to kill her parents and created situations making their relationship untenable.

[12] During the mother’s pregnancy, the father subjected the mother to mental and emotional harassment; he broke household items and caused a commotion around her, even when the mother and child were sick. The mother believes that the father has significant behavioural and anger management issues, often escalating to shouting and physical violence over minor issues, including breaking her cell phone, hitting the mother against the wall, and hitting the child.

[13] The mother alleges that the father was involved in extra-marital affairs since 2018.

[14] Since the separation, the father resides in Brampton and the child resides with the mother in Scarborough.

[15] The mother submits that during the marriage, the father made minimal contributions toward the household expenses and groceries, leaving her to struggle financially. She states that between January and March 2022, tension escalated due to the father’s inconsistent employment and irregular work schedule.

[16] The separation was precipitated by the mother finding a debit card with a woman’s name on it, with whom the father was having an extra-marital affair. When the mother inquired with the father about the debit card, the father became furious and started assaulting her physically. As a result, the mother reported the incident to the police and the father was arrested with charges relating to three separate incidents that took place in January, April, and November 2022.

[17] The mother deposes that she has been the primary parent for D. since his birth. She submits that D. has resided with her at all times; she is the sole parent responsible for all of the daily and major decisions regarding D.’s care and upbringing without the father’s involvement; and she was the parent responsible for managing all of D.’s activities and looking after his needs, including bathing, feeding, sleeping, attending all doctor’s appointments, even when the parties were still married.

[18] According to the mother, the father showed no interest in the well-being or upbringing of D. She deposes that the father would show indifference and irritation toward the child. Since the separation on November 12, 2022, the father made no efforts to meet or contact the child.

[19] The mother deposes that during the parties’ relationship, the father was earning an annual salary of approximately $45,000 CAD as a warehouse worker and food delivery services.

[20] The father has paid no child support to the mother since the separation.

Issue One: What decision-making order is in the child’s best interests?

[21] Given that the parties are married, the Divorce Act, RSC 1985, c 3 (2nd Supp.) governs the parenting matters.

[22] In making any parenting order the only thing the court must take into consideration is the child’s best interests: s.16(1) of the Divorce Act.

[23] The court is to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being: s.16(2).

[24] The best interests factors are set out in s.16(3) of the Divorce Act and are as follows:

• (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.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

• (a) the nature, seriousness and frequency of the family violence and when it occurred;
• (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
• (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
• (d) the physical, emotional and psychological harm or risk of harm to the child;
• (e) any compromise to the safety of the child or other family member;
• (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
• (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
• (h) any other relevant factor.

[25] Based on the record before me, I find that it is in the child’s best interests that the mother have sole decision-making responsibility of the major decisions that impact the child for the following reasons:

a. Given the child’s young age of 4 and his need of stability and sense of security, it would be in his best interests for the mother to continue to have decision-making responsibility over the major decisions that impact him, such as education, health care, religion or extra-curricular activities.

b. The mother is the parent who has a strong and bonded relationship with the child, being the sole parent who has played that important role in his life. It is in the child’s best interests that the mother continue to be the decision-making parent for him.

c. The mother has demonstrated a willingness to support the child’s relationship with the father. The father, however, has shown no interest in pursuing his relationship with the child.

d. The mother is the only parent who has historically looked after and cared for the child.

e. The father has shown no ability, interest or willingness to look after the child, care for him, or meet the needs of the child.

f. Given the history of family violence, it does not make sense to make an order requiring the mother to cooperate, consult and agree with the father on major decisions that would impact the child.

g. There was a pattern of coercive control and family violence on the part of the father toward the mother and the child. As a result, it could compromise the psychological and physical safety of the child, if the mother were required to obtain the father’s consent and approval for the important decisions that impact the child.

h. The mother expresses fear for her own safety in the presence of the father. For this reason, it is in the child’s best interests that the mother be the parent empowered to make the important decisions for the child without the need to obtain the father’s consent or to consult with him.

Issue Two: What parenting schedule is in the child’s best interests?

[26] The mother seeks an order that the child reside with her primarily and that the father have no parenting time with the child.

[27] The father has taken no steps to reach out to the child through the mother or through any other third party.

[28] Given the history of family violence and the fact that the father has exercised no parenting time or skills to have parenting time with the child since the separation over two years ago, I find that it is in the child’s best interests for the father not to be awarded automatic parenting time with the child. If the father expresses interest in having parenting time with the child, then he shall be permitted to ask the court for parenting time to be either supervised or to engage in a therapeutic process with the child before he can re-enter the child’s life without safeguards being put in place.

Issue Three: Should income be imputed to the father for child support purposes?

[29] Pursuant to s.15(3) of the Divorce Act a court may make a child support order in accordance with the applicable Federal Child Support Guidelines, SOR/97-175.

[30] Section 19(1) of the Federal Child Support Guidelines allows the court to impute income to a spouse as it considers appropriate in the circumstances, which circumstances include the spouse being intentionally under-employed or unemployed (s.19(1)(a)); or the spouse has failed to provide income information when under a legal obligation to do so (s.19(1)(f)).

[31] The leading authority on imputation of income remains Drygala v. Pauli, 2002 ONCA 41868. There is no requirement of bad faith in s.19(1)(a) of the CSG (at para. 29). Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their child. In order to meet this legal obligation, a parent must each what he or she is capable of earning: Drygala, at para. 32.

[32] There is a duty to seek employment in a case when a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income; Drygala, at para. 38.

[33] Once it has been established that a spouse is intentionally underemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs: Drygala, at para. 38.

[34] In this case, the father did not respond to the mother’s application. He has not put forward an argument that he has educational needs that prevent him from being employed full-time. Nor does the court have any information regarding whether the father is working full-time or earning more or less than the $45,000 the mother seeks for the court to impute him with.

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

[36] Further, when imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated as age, education, experience, skills and health of the parent: Drygala, at para. 45.

[37] According to the mother, the father was employed during the marriage as a warehouse worker at a factory and he was involved doing food delivery services as well. The mother deposes that the father was earning approximately $45,000 a year in 2022, at the time of separation.

[38] The mother asks that the court impute the father with an income of $45,000 a year for child support purposes, which assumes the father can earn $20.32 an hour, for a 40-hour, full-time job, as a warehouse worker, amounting to an annual income of about $42,265.60.

[39] The mother, however, is not aware of the father’s current income or his income after they separated.

[40] The best evidence on record is the mother’s evidence that the father was earning about $45,000 at the time of separation in 2022. It is on this basis, that I find it appropriate that the father be imputed with an annual income of $45,000 for child support purposes from the date of separation onward.

Issue Four: What is the quantum of child support payable by the father to the mother?

[41] Despite the separation having taken place on November 12, 2022, the father has not paid any child support. The mother seeks retroactive child support to the date of separation.

[42] Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship (D.B.S. v. S.R.G., 2006 SCC 37, at para. 38; Michel v. Graydon, 2020 SCC 24, at paras. 10, 41, 45, 77; Colucci v. Colucci, 2021 SCC 24, at para. 36).

[43] 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 para. 38; Michel at para. 10).

[44] The purpose and promise of child support are to protect the financial entitlements due to children by their parents (Michel, at para. 38). Having regard for this purpose, the law of child support calls for a “fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (Chartier v. Chartier, 1999 SCC 707, at para. 23, cited in Michel, at para. 40). These objects include serving the best interests of the child. Accordingly, the best interests of the child should be at the heart of any interpretation of child support legislation and principles (Michel, at paras. 40, 102-103).

[45] The amount of child support owed will vary based upon the income of the payor parent, and it is not confined to furnishing the “necessities of life” (D.B.S., at paras. 38-45; Michel, at para. 10; Colucci, at para. 28).

[46] It is the responsibility of both parents to ensure that a payor parent satisfies their actual child support obligation. However, since child support is fundamentally the child’s right, the child should generally 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 obligation, the court may grant relief to correct the failure (D.B.S.; Michel, at para. 47).

[47] Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated (D.B.S., at para. 4; Michel, at para. 80; Colucci, at para. 4).

[48] In D.B.S., Michel and Colucci, the Supreme Court of Canada emphasized that the foundational child support principles outlined above apply equally to retroactive child support claims. It also established the following additional core principles that apply to claims for retroactive child support relief:

a. Retroactive awards are not truly “retroactive” as that term is commonly understood, since they are simply a means of holding payors to the legal pre-existing, free-standing obligation they always had to pay support commensurate with their income (D.B.S., at para. 2; Michel, at paras. 10, 41, 61, 79; Colucci, at para. 37).

b. Unmet child support obligations are a valid debt, whether they are in the nature of arrears or they have not yet been determined and recognized by the court (Michel, at para. 76). While a child support debt may be forgiven by the court, it is nonetheless owed from the moment that it accrued, no matter the length of the delay in pursuing the debt (Michel, at para. 79). The courts should not treat child support as a lesser form of debt where debtors are entitled to an unusual leniency not afforded in other areas of creditor-debtor law (Michel, at para. 109).

c. Although retroactive child support awards involve the exercise of judicial discretion, they are not confined to exceptional circumstances or rare cases (D.B.S., at para. 97; Michel, at paras. 9, 61; Colucci, at para. 37).

d. While retroactive awards may result in unpredictability, this unpredictability is often justified by the fact that the payor parent chose to bring it upon themself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the support or increased amount of support first arose (D.B.S., at para. 97).

[49] This is a circumstance where the mother issued an Application seeking child support fairly quickly. The father was served with the mother’s claim and had ample opportunity to respond. He chose not to do so. In these circumstances, the child support is owed by the father immediately upon separation.

[50] On an income of $45,000 a year, the table child support obligation under the CSG is $418 a month for one child. The mother seeks retroactive child support from December 1, 2022 to today’s date, which totals $12,540, calculated as follows:

a. December 1, 2022: $418
b. Jan. 1/2023 – Dec. 31/2023: $5,016 ($418 x 12 months)
c. Jan. 1/2024 – Dec. 31, 2024: $5,016 ($418 x 12 months)
d. Jan. 1/2025 – May 1, 2025: $2,090 ($418 x 5 months)

TOTAL: $12,540

[51] I find that the father shall be ordered to pay the mother retroactive child support for the period December 1, 2022 to and including today’s date in the sum of $12,540.

[52] Starting June 1, 2025 and on the first day of each following month, the father shall pay child support to the mother in the sum of $418 a month for the one child.

Issue Five: Is the mother entitled to spousal support and if so, what is the quantum and duration of the father’s spousal support obligation?

[53] The mother seeks spousal support on the basis that she was not able to maintain continuous employment during the marriage because the father refused to assist with the household or childcare responsibilities, leaving all of this responsibility to her.

[54] However, the mother did not provide the court with any evidence as to her educational background, employment training. Further, the mother did not swear a financial statement for these proceedings, nor did she file an income tax return or notice of assessment. It is, therefore, impossible for the court to determine whether her entitlement to spousal support, if any, is based on a compensatory or needs basis.

[55] Given the lack of evidence on record, the mother’s claim for spousal support is hereby dismissed subject to her having leave to file further and better evidence as to her income during the marriage, her employment background, so the court can establish the basis for entitlement, after which the quantum and duration of spousal support can be assessed.

Issues Six and Seven: Should the mother be permitted to travel with the child without the need for the father’s consent? Should she be able to renew the child’s government issued documentation without the need for the father’s consent?

[56] The court is permitted to make an order regarding parenting for a definite or indefinite period and may impose terms, conditions, or restrictions in connection with the order as it thinks fit and just: s.15.1(4).

[57] Given that the father has essentially abandoned the child since separation, demonstrated no interest in having a parent-child relationship with him, and/or having any contact with him, it would not be in the child’s best interests if the mother were not permitted to travel with him without first obtaining the father’s consent. Similarly, if the mother needs to apply for government issued documentation for the child, such as a birth certificate, passport or social insurance number, she ought to be able to do so, without the need to have the father’s consent, given that he has taken no steps to have any contact with the child since the separation on November 12, 2022.

[58] Accordingly, I find that it is in the child’s best interests for the mother to be permitted to travel with the child inside and outside of Canada without the need for the father’s consent.

[59] I also find that it is in the child’s best interests for the mother to be permitted to apply for any and all government issued identification for the child without the need for the father’s consent or signature.

[60] The mother asks for costs on a full recovery basis. She did not, however, submit a Bill of Costs with her Form 23C. If the mother continues to seek costs of the uncontested trial, she shall serve and file written costs submissions of no more than 3 pages, not including a Bill of Costs or an Offer to Settle within 14 days of the release of these reasons.

Disposition

[61] Order to go as follows:

a. The applicant shall have sole and final decision-making responsibility for the child, Daiven Sidhu, born April 10, 2020.

b. The primary residence of the child shall be with the applicant.

c. The respondent shall have no parenting time with the child that is unsupervised without the consent of the applicant or further court order.

d. The respondent shall be imputed with an income of $45,000 per year for child support purposes from November 12, 2022 onward.

e. The respondent shall immediately pay the applicant retroactive child support for the child, Daiven Singh Sidhu, born April 10, 2020 in the sum of $12,540, calculated as $418 a month for the period December 1, 2022 to and including May 1, 2025.

f. Starting on June 1, 2025 and on the first day of each following month until further court order or agreement of the parties, the respondent shall pay child support to the applicant for Daiven Sidhu, born April 10, 2020, in the sum of $418 a month, based on an imputed income of $45,000 a year.

g. The applicant shall be permitted to travel with the child in and outside of Canada without the need of the respondent’s consent.

h. The applicant shall be permitted to obtain and renew government issued documentation for the child without the need for the consent of the respondent.

i. The applicant’s claim for spousal support is dismissed without prejudice to her right to renew her claim upon serving a sworn financial statement and better evidence as to her entitlement to spousal support.

j. If the applicant seeks costs, she shall serve and file written costs submissions of no more than 3 pages, not including a Bill of Costs or Offers to Settle within 14 days of the release of these Reasons.

k. The applicant shall be permitted to proceed with the divorce on an uncontested basis pursuant to Rule 36 of the Family Law Rules.

M. Kraft
Released: May 13, 2025