Reasons for Judgment on Motion to Change
Court File No.: FC-18-00000612-0001
Date: 2025-05-15
Ontario Superior Court of Justice
Between:
Alekhya Lakkineni, Applicant
– and –
Leela Pilli, Respondent
Appearances:
O. Chaudhry, counsel for the Applicant
M. Slade, counsel for the Respondent
Heard: April 7, 8, 9, 10, 11, 14, 15, 16, and 17 and May 2, 2025 at St. Catharines
Justice: K. Bingham
Introduction
1Devansh is a seven-year-old boy who is curious, energetic, loved by both of his parents and has some special needs. For most of his life, he lived with his mother. Since March 2024, he has lived with his father. This trial was about whether his parenting arrangements should change and, if so, how.
2Two final orders were granted in 2019: the final order of Justice L. Sheard dated October 18, 2019 [1] and the final order of Justice L. Walters dated October 25, 2019. Pursuant to those orders, the applicant mother (the “Mother”) has sole decision-making responsibility and primary care of Devansh. The respondent father (the “Father”) has parenting time. Provisions restrict the Mother’s ability to travel to India with Devansh; this includes requiring her to pay a deposit as security for her return and obtaining a mirror order in India. The Father paid child support to the Mother.
3In 2023, Devansh was diagnosed as being autistic. He also has ADHD.
4In March 2024, the Mother left Devansh with the Father and travelled to India without telling the Father. She left to provide care to her father, who was ill at the time. This decision upended Devansh’s life. Devansh had to change schools and the Father was required to take steps quickly to try and reestablish stability and support services for Devansh.
5Since the Mother’s departure, Devansh has lived with the Father. The Mother returned to Canada in September 2024 and Devansh resumed spending time with her on weekends.
6The Mother wants the parenting arrangements under the final orders from 2019 to resume, such that she has sole decision-making responsibility and primary care of Devansh. While she commenced the motion to change for the purpose of removing the restrictions on her travel, she indicated in closing submissions that she is not seeking this relief and instead is only asking to remove the requirement that she obtain a mirror order in India prior to travel. She asserts that the travel restrictions should remain in place as there has been no material change in circumstances.
7The Father wants to vary the final orders so that the parents have joint decision-making responsibility and Devansh continues to reside primarily with him. He is asking for an order prohibiting Devansh from travelling to India or, in the alternative, wants the travel restrictions to remain in place. However, he is agreeable to removing the requirement for the Mother to obtain a mirror order in India, as this is not possible. Finally, he is seeking to change child support to reflect that Devansh lives with him.
8I have determined that it is in Devansh’s best interest for the Father to have sole decision-making responsibility after consulting with the Mother, and for Devansh to continue to reside with the Father and to have parenting time with the Mother. I have concluded that there has been a material change in circumstances with respect to the travel provisions of the final order and a variation of these provisions is necessary to maintain the child’s best interest. Finally, child support shall be varied to reflect the parenting arrangement.
History of Care
9For most of his life prior to March 2024, Devansh has resided with the Mother. After the parents separated, the Father’s parenting time was limited. He did not have overnight parenting time prior to the final order of October 25, 2019.
10Commencing October 25, 2019, the Father had regular parenting time three out of four weekends from Saturday at 9:00 a.m. until Sunday at 6:00 p.m. and on the fourth weekend on Sundays from 9:00 a.m. to 6:00 p.m.
11The Mother is a citizen of India. The Father is a citizen of Canada who immigrated from India. The Mother lives in St. Catharines, Ontario. The Father lives in Hamilton, Ontario. The Mother is not employed. The Father works full time at McMaster University.
12The Mother has strong family ties in India and owns property there. It has been her wish since separation to relocate with Devansh to India. While she understands that the court order does not permit the relocation and it is opposed by the Father, she continues to try to persuade him to let her relocate or to seek information to return with Devansh to India.
13The maternal grandmother maintains strong ties in India, where her husband resides, but she also spends extended time in Canada supporting the Mother and Devansh. She is unable to travel to India independently, and the Mother often accompanies her.
14After the final order, the Father would care for Devansh for extended periods of time when the Mother travelled to India. For example, the Mother travelled to India in December 2023 and returned with the maternal grandmother in January 2024. During this approximately three-week period, Devansh stayed with the Father. During prior periods of travel, the Mother did not suggest changes to Devansh’s school, notwithstanding that he would not be able to attend school in St. Catharines while staying with the Father in Hamilton.
15In March 2024, when the Mother and maternal grandmother learned that the maternal grandfather was unwell, they planned to return to India to support him. The Mother did not tell the Father of her plan to travel to India. Instead, she informed him that she was in India when the Father returned Devansh after his regular parenting time. The Mother did not tell him before this as she was worried he would refuse to care for Devansh while she was away and she wanted to travel. This decision on the Mother’s part was not child focused and created significant upheaval for Devansh.
16Devansh is a child with special needs. He has been diagnosed with autism and ADHD. The characteristics he experiences because of his diagnoses are significant. He has limited verbal communication and requires constant supervision. Until he went to Hamilton, he was not attending school on a full-time basis because the school could not accommodate his needs for a full day.
17The description of Devansh’s needs differed between the parents. The Mother describes him as a very active child. The Mother does not identify significant limitations with respect to his speech. The maternal grandmother describes that he speaks “well” in both English and Telegu.
18The Father describes him as a child whose chronological age is seven, but his stage of development is more like a toddler. He is beginning to acquire language and will respond to questions when asked instead of repeating the question. He also describes that Devansh can, at times, run away from his caregiver (for example, in a park or a store). The Father explains that, if he identifies when Devansh is out of control early, he can intervene and redirect him.
19The Father filed a letter from Devansh’s teacher. The Mother suggests that the degree of behaviours described in the letter underscores why Devansh should be in her primary care and attend the school in her catchment area. I disagree. The behaviours described are consistent with the behaviours that Devansh was displaying in the Mother’s care. For example, in an email to the Father on May 11, 2023, the Mother described that Devansh pulled the hair of another child and was throwing whatever was in his hands at the Mother, the maternal grandmother, or his teacher. She was understandably concerned and described the steps she was taking to try and support Devansh’s behaviour.
20I prefer the Father’s evidence with respect to Devansh’s needs over the Mother’s. It is supported by the evidence from the school. I find that the Mother’s evidence minimized the extent of his special needs, although the evidence does support that she does a good job meeting his special needs while he is in her care.
21Until December 2023, Devansh was attending school on a part-time basis in St. Catharines. He missed school during the Mother’s travel to India and then towards the end of February 2024 was not attending school at all. The Mother explained that she was unable to have him attend because his behaviours were so significant.
22In these circumstances, the Mother travelling to India, even though it was to go and care for her own father, was destabilizing for Devansh and a huge adjustment for the Father, who was required to make arrangements very quickly to support Devansh and try to provide stability to him. The Father’s evidence about Devansh’s transition to his care was compelling. He recognized how difficult it was for Devansh to lose his primary caregiver and have to change schools, especially given that Devansh is a child for whom transitions are hard.
23The Mother emphasized that she needed to go to be with her father and to accompany her mother on the trip to India. However, as a parent, Devansh needed to be her priority. The decisions she made in March 2024 did not prioritize his wellbeing.
24The Mother’s counsel was critical that the Father contacted a cousin to care for Devansh instead of taking time off work. However, in an email to the Father on March 24, 2024, the Mother suggested that the Father ask his cousin or parents to care for Devansh.
25Regardless of the circumstances of the Mother’s departure, the Father rallied. He looked into schooling options for Devansh and concluded that the public school system was the only affordable option that would meet Devansh’s needs. He registered him for school and participated in the IPRC process to ensure Devansh was identified as a special needs student with full-time educational assistance support. He took time off work to pick Devansh up when he struggled with the transition to school and was initially only able to spend a few minutes in the new school. He attended at the school daily to eat lunch with Devansh because he observed that Devansh was not eating lunch independently. He obtained a pediatrician, commenced medication to support Devansh, and connected him with autism-specific resources.
26While initially a challenging transition, Devansh has settled in his Father’s care. He is attending school on a full-time basis, receiving autism-specific therapies through the Ron Joyce Centre, and learning new skills. The Father has secured after school care for Devansh that is meeting his needs and supporting him in the skills he is learning.
27When the Mother returned to Canada in September 2024, she began having weekend visits with Devansh. This is going well, and Devansh enjoys spending time with her. If she moved to Hamilton, the Father is proposing that Devansh spend more time with her. However, she does not have a vehicle and so transportation is an issue.
28Family violence was found to have occurred during the relationship. This was a factor in crafting the terms for parenting Devansh. There has been no physical violence since the first trial, but the Mother alleges that some of the Father’s communication to her constitutes family violence. I have found that the communication by both parents should be improved, but that it does not rise to the level of family violence.
Issues to be Determined
Law and Analysis
Parenting Order
29The Supreme Court of Canada in Gordon v. Goertz, para 49, established the two-stage process for determining a motion to change parenting time or decision-making responsibility:
a. First, the parent seeking the change must meet the threshold requirement of demonstrating a material change in circumstances affecting the child.
b. If the threshold requirement is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
30The party seeking the variation must establish that there has been a material change in the circumstances of the affected child that has altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Brown v. Lloyd, 2015 ONCA 46, para 7.
31The changes must be substantial, continuing, and if were “known at the time, would likely have resulted in a different order”: L.M.P. v. L.S., 2011 SCC 64.
32Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie; there is no legal presumption in favour of maintaining the existing arrangements: Persaud v. Garcia-Persaud, 2009 ONCA 782.
33The best interest of Devansh on this motion to change is determined in accordance with the provisions of the Divorce Act, RSC 1985, c 3 (2nd Supp.).
The Temporary Order
34At trial, the Mother focused on the Father’s actions in obtaining the temporary order for decision-making responsibility in August 2024. She argues that he was not forthcoming with the court and the court should be critical of his actions. Specifically, his affidavits in support of the motion indicate that the Mother “relocated” to India in March 2024 and she submits that he knew this was not true.
35I find that the Father did not mislead the court in his affidavits. The Mother had left the country without telling him in March 2024 (his affidavits were sworn in July 2024), she had not told him when she would be returning, she was no longer leasing a property in Canada, she sold her vehicle shortly prior to her departure in March 2024, and immediately after her travel to India in March 2024 she authorized the Father to change Devansh’s school from St. Catharines to Hamilton. This was something she had never previously permitted during extended periods of travel. The Mother did not advise the Father until August 24, 2024 that she was planning to return to Canada soon, and she eventually returned in September 2024.
36The trial is not an appeal of the temporary order. The temporary order was granted on notice to the mother and at a time when she was represented by counsel. She did not participate or file responding material.
37In reaching my decision, I am required to consider the events between the final orders of October 2019 and the trial. Specifically, I have approached my analysis on the basis that the status quo is that Devansh resides with the Mother and that she has sole-decision making responsibility.
Decision-Making Responsibility
38I am satisfied that there has been a material change in circumstances with respect to decision-making responsibility such that a new analysis of what is in Devansh’s best interest is necessary.
39The material changes include:
a. Devansh was diagnosed with autism February 1, 2023. This is the most significant change because it affects the level of care that Devansh requires to meet his needs.
b. The Mother left Devansh in the Father’s care without notifying him of the extended nature of the change. This caused a significant disruption in Devansh’s life. This period of travel was shortly after her trip to India from December 2023 to January 2024. While the Mother maintains connections to her parents in India, Devansh’s needs must be prioritized and the Mother, through her actions, has not done so.
c. The Mother stopped giving Devansh prescribed medication without direction from his treating pediatrician. This change to his medication coincided with a period of time in early 2024 when Devansh was not attending school at all, even on a part-time basis.
40The Mother suggests that there has been no material change in circumstance and the final orders should prevail. Alternatively, she suggests that she is the parent better able to make decisions for Devansh.
41The Father suggests that joint decision-making responsibility is in Devansh’s best interest.
42Family violence is an important consideration as it was present during the relationship. There has been no physical violence since separation, but there continues to be communication between the parties that is problematic. The Mother suggests that the Father’s communication towards her rises to the level of family violence. For example, the Father will demean her intelligence and suggest that she cannot comprehend a particular issue. He also emailed her to tell her he was hoping not to have to deal with her anymore.
43However, the Mother’s communication to the Father is equally troubling. For example, as recently as March 2025, she wrote to him that he and his parents do not have “any value to their lives” and that he should stop emailing and disturbing her.
44I find that neither communication rises to the level of family violence, but both should ensure they are communicating in a more respectful manner.
45The Mother is critical that the Father did not tell her important information when he began caring for Devansh in March 2024, including that his cousin was caring for the child. I do not accept this criticism. The Father was required to make the day-to-day decisions given the Mother’s choice to leave the country abruptly. She also suggested by email March 24, 2024 that he ask his cousin to care for Devansh.
46The Father did switch Devansh’s pediatrician and started him on Vyvanse again without the Mother’s consent. He should have advised her of these decisions. However, the Mother arranged for Devansh to change schools and the medication was required for him to attend successfully. I infer that the Mother was aware of this because Devansh stopped attending school when she stopped administering his Vyvanse as prescribed by his physician.
47Neither parent has been perfect. Both have taken actions unilaterally when they ought not to have, and both have failed to advise the other of important information relevant to the child’s wellbeing. However, the focus must be on what decision-making regime is in Devansh’s best interest.
48Justice Walters at the first trial concluded that joint decision-making responsibility was not an option in this family. Her conclusions were rooted, in large part, as a result of the family violence.
49Devansh has now been identified as a child with significant special needs. A further level of caution is required when considering joint decision making for a child with special needs; for these children, important decisions concerning their health and education need to be made frequently. A stable regime for making these decisions is required: Ciutcu v. Dragan, 2014 ONCJ 602, para 33.
50I too am not satisfied that joint decision-making responsibility is in the child’s best interest, particularly given the increase in Devansh’s needs since the first trial. While the parents can communicate, they do not agree on the best course of action to meet Devansh’s significant special needs, and I am concerned that this conflict could delay decisions being made for Devansh. Given his needs, there are many decisions that will need to be made with respect to his education and therapies. A requirement for joint decision making may lead to a delay in decisions and this is inconsistent with Devansh’s wellbeing.
51I find that sole decision-making responsibility to the Father is in Devansh’s best interest for the following reasons:
a. The Father supports Devansh’s relationship with his Mother and actively fosters this relationship. This is contrary to the Mother’s view of Devansh’s relationship with his Father and her repeated desire to relocate with Devansh to India. For example, in a text message with a friend on June 2, 2024, the Mother was critical that the Father would not let her live peacefully raising Devansh by herself.
b. The Father shows insight and responsibility when making decisions for Devansh. For example, when trying to enroll Devansh in school, he looked at private and public options to assess which would best support the child.
c. The Father prioritizes Devansh’s full-time attendance at school and has taken steps to support his continued attendance. The Mother never prioritized his full-time attendance at school. I find that Devansh’s continued attendance is in his best interest and the Father is better able to make decisions in this regard.
d. The Father obtained medical and educational supports for Devansh quickly when he assumed responsibility for his care. He supported the child to attend full-day school and meets with the child’s neurodevelopmental team to support him.
e. The Mother criticizes the Father’s inaction in registering Devansh for further therapies, however, the Father has accessed therapies that are available for Devansh. Devansh remains on a waitlist for provincial funding to access additional services. The Mother did not register Devansh in therapies while he was in her care. She attended some online programming related to his diagnoses. Devansh has had more support while in his Father’s care than in his Mother’s care from February 2023 (diagnosis) to March 2024.
f. After the Mother returned to Canada in September 2024, the Mother stopped giving the child his prescribed medication without telling the Father that she was not administering it to the child. This resulted in the child experiencing increased distress at school on Mondays. Most concerningly, the Mother returned the pill bottle without the pills. I infer she did this to make the Father think she was administering the medication. Similarly, the Father stopped administering the homeopathic medication for Devansh without telling the Mother that he was doing so. She continued to spend money to send the medication to the Father. These actions undermine a conclusion that joint decision-making responsibility is feasible.
g. The Mother and Father have a difference of opinion as to how to support Devansh and meet his special needs. The Father has connected him with a pediatrician and team of medical specialists at the Ron Joyce Centre in Hamilton. The Mother was on the waitlist for supports through Bethesda in the Niagara Region but also relies on the child’s autism doctor in India. This doctor has prescribed homeopathic pills for Devansh that the Mother believes should be administered. The Mother continues to support Devansh receiving medical care from the physician in India. The prescribed medications are not compatible (i.e., Devansh cannot be given the medication prescribed by his Canadian pediatrician and the homeopathic medication prescribed by the Indian physician at the same time). Given the difference of opinion, making medical decisions jointly is not feasible.
h. No expert evidence was adduced with respect to the two medical plans of care. I find that the Father’s plan of care is in Devansh’s best interest because it has resulted in his full-time attendance at school.
Parenting Time
52Devansh has been in the Father’s care since March 2024. This was the Mother’s choice when she left abruptly.
53Devansh has settled into the Father’s care and acclimated to a new school, new service providers, and his new home.
54The Mother suggests that she is home full time and available to care for Devansh on a full-time basis in St. Catharines. She proposes that he attend a new school (because she has moved since March 2024) that she suggests will better meet his needs.
55The Father proposes to maintain the current status quo for Devansh.
56I find that it is in Devansh’s best interest to remain in the Father’s primary care. Routine and structure are particularly important for Devansh and the Mother’s request regarding parenting time would uproot him yet again.
57The Father has demonstrated an ability to meet Devansh’s needs. A change to his primary residence would be a further disruption to Devansh. He has progressed in the Father’s care: he is attending school on a full-time basis where, immediately prior to the Mother’s departure to India, he was not attending school at all. He is also connected with a medical care team.
58Weekday parenting time is not possible given the distance between the parent’s homes. Parenting time between the Mother and Devansh should continue to occur on the weekends. I find that it is in Devansh’s best interest to have this parenting time three out of four weekends from Friday to Sunday. The fourth weekend will allow the Father to have some weekend parenting time with Devansh, when he is not working, and Devansh is not in school.
59The Father has proposed that if the Mother moved to Hamilton, the parenting schedule could change so that the Mother would have significantly more time with Devansh. I am not prepared to make that order as the Mother’s evidence is that she does not plan to relocate to Hamilton, although I accept that it would be to Devansh’s advantage for her to live closer to him and it would remove the additional expense of after school care. I find that the Father has supported and facilitated the Mother’s relationship with Devansh and I am confident that he will provide her with more parenting time on weekdays if this is consistent with Devansh’s best interest. The Father testified that if the Mother were in Hamilton and available to parent Devansh from after school until 6:00 p.m. daily, the after-school care that he is paying for would not be necessary. This would, potentially, free up additional finances for critical therapies for Devansh while he remains on the waitlist for provincial funding.
Travel Provisions
60Pursuant to the final order of October 25, 2019, the Mother is permitted to travel to India with Devansh for four weeks every year, but prior to her any trip being booked, she must obtain a mirror order in India and deposit the sum of $10,000 with her lawyer as security.
61The Mother desperately wants her father to meet Devansh.
62There is no question that it would be to Devansh’s benefit to travel to India for a vacation to meet his extended family, but it is also important that he return to Canada.
63The final order recognized the value of travel to Devansh, while providing safeguards to the Father given the Mother’s repeated requests to relocate with Devansh and the fact India is not a signatory to the Hague Convention.
64The Mother asserts that, apart from the requirement for the mirror order, there has not been a material change in circumstances and the safeguards set out in the final order of October 25, 2019 should remain in place.
65The Father consents to the removal of the requirement for the mirror order. These are not available in India.
66His primary position is that the order should be varied to preclude the option of Devansh travelling to India. Alternatively, he suggests that the security should be increased to $15,000.
67Prior to varying the travel provisions, the court must be satisfied that there is a material change in the circumstances of the child since the making of the order.
68I find that there have been changes in the circumstances of the child:
a. He has been diagnosed with autism;
b. He is now residing primarily with the Father.
69What variation to the order, if any, was a difficult determination.
70The Mother has been very conscientious in her compliance with the terms of the order. She has not sought to travel with Devansh contrary to the terms. At one time, she could have left with the child. She had plane tickets and all the required travel documents, but the court prohibited her travel with the child, and she complied with the order.
71She has travelled to India on multiple occasions without Devansh.
72However, she has never been in a position where she has met the conditions of the final order by paying the required deposit to her solicitor.
73The Mother’s original application sought relocation to India. She did not pursue this request at the first trial. In the summer of 2020, she again renewed this request to the Father to be permitted to relocate with Devansh to India. He did not consent.
74Most concerning, when she was in India between March and September 2024, she consulted with a lawyer and attended at the Indian Embassy to try and learn whether there was a way to have Devansh come to India, notwithstanding the terms of the final order. I infer that she did so hoping to obtain a legal option in India that would circumvent the final order.
75I am also concerned that, during the Mother’s most recent trip to India, she testified she was unable to return sooner than September 2024 because it took time to acquire the funds to purchase a return ticket. There is no requirement in the final order that she purchase round-trip tickets prior to her departure from Canada.
76The Father’s concern that she will not return with Devansh to Canada remains valid and the change in Devansh’s health and living situation requires a variation in the travel provisions.
77Obtaining a passport has been an issue between the parties. The Father will not consent to the application because he is concerned that the Mother will travel with Devansh without his knowledge.
78Given the new parenting arrangement, I find that it is in the child’s best interest to have the ability to travel with either parent – a passport may be required. I have ordered that the Father be the custodian of the passport.
79In terms of travel, neither parent shall be permitted to travel outside of Canada with the child without the consent of the other parent, which shall not be unreasonably withheld, or further court order.
80In making this order, I have considered the Father’s evidence that he will not consent to the child travelling with the Mother. Unfortunately, there is no other order that the court can make at this time with respect to future travel. The Mother wants to be able to travel with Devansh. The Father is afraid he will not return. The court has concerns about the Mother’s actions to date, but I also find that the Father’s concerns are overstated. I am not prepared to conclude that Devansh can never travel to India with his Mother as requested by the Father, but I am also not prepared to find that it remains in Devansh’s best interest to travel for four weeks annually with the Mother.
81An order permitting either parent to travel with the permission of the other or further court order strikes the appropriate balance between the advantages of travel to Devansh and the safeguards to ensure that he returns to Canada. If the Father will not consent, his refusal can be reviewed by a court and, if the court is of the view that he is being unreasonable, the Mother will be permitted to travel with the child.
Child Support
82Since Devansh resides primarily with the Father, the child support provisions need to be varied to reflect the change in circumstances.
83The Father concedes that he owes retroactive support to the Mother as a result of increases in income. The total owed by the Father to the Mother is $4,812 as of December 31, 2023.
84The Father seeks support from the Mother commencing April 1, 2024.
85The Mother’s reported income is zero. She has not been employed since April 1, 2024 and has no current source of income. The Father’s position is that she should have an income imputed to her of $31,870. This is based on the expenses reflected in her financial statement, which she is able to meet. The Mother opposes any income being imputed to her, primarily because her standard of living is modest.
86The Mother covers her expenses through monetary gifts from her Father to her and/or her mother (who often resides with her), some rental income she receives from family property in India, and funds provided to her by her Father when properties are sold.
87The Child Support Guidelines permit the court to impute an income to the payor as it considers appropriate in the circumstances, for example, where a payor is intentionally unemployed or underemployed, unless the unemployment is required by the needs of any child. Presently, Devansh is in the Father’s care and will remain there.
88Payor parents must arrange their financial affairs to prefer the children over their own interests. It is also incumbent on a payor parent to earn what she is capable of earning to provide support for a dependent child: D.B.S. v. S.R.G., 2006 SCC 37, Drygala v. Pauli, para 32.
89The court may impute an income that it considers appropriate when a rational and solid evidentiary foundation has been laid. Factors for consideration when determining “what income is appropriate” includes the payor’s age, experience, skills, health, number of hours that could be worked, and a reasonable hourly rate. A payor’s lifestyle may also be relevant to the issue of income imputation: Homsi v. Zaya, 2009 ONCA 32, Michaud v. Kasali, 2016 ONSC 443, paras 49-51, Bak v. Dobel, 2007 ONCA 304, para 43.
90The Mother has a degree in information technology. She continues to be enrolled in post-secondary education. While she was unable to work when she first came to Canada, she has obtained jobs since obtaining her permanent residency.
91She is currently studying supply chain management and logistics and anticipates that she will earn an income of $74,000-$84,000 when she finishes this program.
92The Mother has not needed to find employment because her expenses are being covered by her family. By her own evidence, she has obtained employment in Canada and most recently earned $20 per hour working at a home-based business that monitors ATM and POS terminals.
93I find that the gifts received by the Mother from her parents should be imputed as income for support purposes. The gifts cover her annual expenses; they entirely support, not supplement, her lifestyle: M.K.-C. v. C.C., 2023 ONSC 7097, paras 185-186.
94Her income for support purposes shall be imputed at $31,870.
Final Order
95For these reasons, a final order shall issue as follows:
a. Paragraphs 1 and 2 of the final order of Justice L. Walters dated October 25, 2019 shall be varied as follows:
i. The respondent shall have sole decision-making responsibility for the child.
ii. Prior to making an important decision for the child, the respondent shall advise the applicant of the decision that needs to be made, the options he is considering, and the deadline for the decision. The respondent shall take any input offered by the applicant into consideration. The respondent shall advise the applicant of the final decision, including full particulars of any service providers or service details.
iii. The child shall reside primarily with the respondent.
iv. The applicant shall have a parenting time with Devansh:
Three out of four weekends from Friday after school or 3:00 p.m. until Sunday at 6:00 p.m. If Friday is a statutory holiday or a PA/PD day such that there is no school for the child, the applicant’s parenting time shall begin Thursday after school or 3:00 p.m.
Other times as agreed upon in writing in advance between the parties.
b. The holiday parenting schedule set out in paragraph 2 of the final order of Justice L. Sheard dated October 18, 2019 shall continue, with the exception that paragraph 2(g) shall be corrected to refer to the child “Devansh” instead of “Riley.” These paragraphs shall be incorporated into this final order.
c. Paragraphs 3(a), 3(f), 3(g), 3(h), 3(j), 3(l), 4, and 5 of the final order of Justice L. Sheard dated October 18, 2019 shall continue and be incorporated into this final order.
d. Paragraphs 7-10 of the final order of Justice Walters dated October 25, 2019 shall be varied as follows:
i. Neither parent shall be permitted to travel with the child outside of Canada without the written consent of the other parent, which shall not be unreasonably withheld, or further court order.
ii. Prior to travel, the travelling parent shall provide all details about the travel to the non-travelling parenting in terms of the date, the flight, the departure date, the return flight, the arrival date, and information as to where the child and the parent can be reached throughout the period of travel.
e. Paragraphs 3, 5, and 6 of the final order of Justice Walters dated October 25, 2019 shall continue and be incorporated into this final order.
f. The applicant and respondent shall apply for a passport for the child. Each parent shall sign the passport application. The respondent shall be the applicant for the purpose of the application and any subsequent renewal applications. The respondent shall retain the passport. He shall give the passport to the applicant for the purpose of the child’s travel. The applicant shall return the child’s passport to the respondent at the next parenting time exchange.
g. The arrears of child support owed by the respondent to the applicant on account of retroactive child support shall be fixed at $4,812 as of December 31, 2023.
h. The child support arrears owed by the applicant to the respondent shall be fixed at $3,794 as of May 31, 2025.
i. The difference of $1,018 owed by the respondent to the applicant shall be paid by way of a delay in the commencement of the applicant’s child support payments. The applicant shall be deemed to have paid child support to the respondent in the amount of:
i. $271 for June 2025;
ii. $271 for July 2025;
iii. $271 for August 2025; and
iv. $205 for September 2025.
j. For September 1-30, 2025, the applicant shall pay to the respondent child support for the child, Devansh, in the amount of $66, being the difference between the ongoing amount of $271 and the $205 owed to her by the respondent.
k. Paragraph 6 and 6(a) of the final order of Justice Sheard dated October 18, 2019 shall be varied as follows:
i. Commencing October 1, 2025, the applicant shall pay to the respondent, child support for the child, Devansh, in the amount of $271 per month based on an imputed income of $31,870.
l. The applicant shall advise the respondent of any change in her income or employment, including providing full particulars of same, within 10 days of any such change.
m. Paragraphs 7, 8, and 9 of the final order of Justice L. Sheard dated October 18, 2019 shall continue and shall be incorporated into this final order.
n. The applicant and respondent shall name the child as a beneficiary on any extended health benefit plan available to him or her through employment.
o. Support deduction order to issue.
p. The parties shall engage in meaningful discussions respecting the issue of costs.
q. If they are unable to resolve the issue of costs, the respondent shall serve and file written submissions, no more than three pages, double spaced (with case law hyperlinked), plus a detailed bill of costs and copies of any offers to settle by May 30, 2025. Responding submissions, no more than four pages, double spaced (with case law hyperlinked) plus a detailed bill of costs and copies of any offers to settle, shall be served and filed by June 13, 2025. Reply submissions, no more than two pages, double spaced, if any, shall be served and filed by June 20, 2025. If a party does not meet these deadlines, there shall be no costs payable to that party. If no submissions are received, the parties will have been deemed to have settled the issue of costs as between themselves. In addition to being filed with the court, a copy of the submissions shall be directed to my attention by email to St.Catharines.SCJJA@ontario.ca.
Justice K. Bingham
Date Released: May 15, 2025
1On March 4, 2020, Justice Reid varied the term of the final order of October 18, 2019 which contained a typographical error relating to the sharing of the Christmas schedule (both parents had parenting time at the same time). The Mother is asking that this corrected term remain in force and be incorporated into the final order of October 18, 2019.