Campo v. Houng, 2025 ONSC 4047

COURT FILE NO.: FS-20-17444
DATE: 20250708
ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
Frank Campo Applicant – and – Caroline Houng Respondent

Applicant, Self-Represented
Kristen Normandin and Venessa Sectakof, for the Respondent

HEARD: December 9, 10, 11, 12, 13, 16, 17, 23 2024
Justice J.S. Shin Doi

I. Introduction

1The parties were married for 7 years and separated when their daughter was 7 months old (the “Child”). The Child is now 6 years old. The Child resides primarily with the Mother who has sole decision-making authority. The Father has regular parenting time with the Child.

[2] The parties have settled all issues except for the Child’s parenting time with the Father, child support, section 7 expenses, spousal support, occupation rent, and the Child’s last name. The issues that I am required to determine are as follows:

1. What parenting time for the Father is in the best interests of the Child?
2. How much child support is the Father required to pay?
3. What is the proportionate share of section 7 expenses payable by each party?
4. Is the Father required to pay spousal support?
5. Should the Mother pay occupation rent?
6. Should the Mother be prohibited from changing the surname of the Child to add the Mother’s surname?

3I conclude that it is in the best interests of the Child that the current parenting time schedule for the Father be continued and then increased from 5 nights to 6 nights out of 14 days, commencing in November 2025 when the Child turns 7 years old; and 7 nights out of 14 days, commencing in November 2026 when the Child turns 8 years old. Prior to the increase in parenting time, the Father and any caregivers must complete the allergy and safety protocol as outlined by the Mother and continue to comply with the protocol. The Father is required to pay child support to the Mother in the amount set out below. The parties shall share section 7 expenses proportionate to their incomes as set out below. I deny the request for spousal support for the Mother because the Mother does not qualify for support on a compensatory or needs-based model. I find that the Mother should not pay occupation rent. I conclude that it is in the best interests of the Child that the Mother not be prohibited from changing the Child’s surname from “Campo” to “Houng Campo”.

II. Background Facts

II. Background Facts

4The Father is a general manager in the hospitality industry and the Mother is an employee in the Ontario Public Service.

5The parties started dating in June 2010. The parties were married on October 27, 2012. The parties have one child born on November 6, 2018. The parties separated on June 2, 2019.

6The Father was removed from the matrimonial home on June 2, 2019, following an incident in which the police were called. The police charged the Father with assaulting the Mother. The Father was released on bail that required him to remain at least 100 metres away from the matrimonial home. The Father entered a Peace bond on September 25, 2020.

7The matrimonial home was sold for $720,000.00 on March 11, 2022. The Father also sold two rental properties, one in 2021, and the other in 2022. The Father has an investment property that he rents to tenants.

[8] Since August 2022, the Father has had parenting time with the Child for 5 nights out of 14 nights:
Week One: Wednesday from 3:30 PM to 9 AM Friday (or drop off at school);
Week Two: Tuesday from 3:30 PM to 9 AM on Wednesday (or drop off at school); and Friday from 3:30 PM to 4 PM on Sunday

9The parties jointly retained Dr. Peter Jaffe for a section 30 assessment pursuant to the Children’s Law Reform Act. Dr. Jaffe prepared a report dated November 16, 2023. Dr. Jaffe recommended an increase in the Father’s parenting time and less transitions back and forth between the parents. Dr. Jaffe recommended a review in 2024 to assess the possibility of a move to a 50-50 split of parenting time with a 2-2-3 schedule and an even split of holiday time. The parties have not implemented Dr. Jaffe’s parenting time recommendation.

10By final court order dated November 27, 2024, the Mother has final decision-making responsibility for the Child. In particular, the Mother has final decision-making authority on the issues of health, education, and extracurricular activities. The court order also provides that each parent can share their religious beliefs and traditions with the Child and neither party will take steps to have the Child identified as either Catholic or Buddhist.

III. Analysis

1.What parenting time for the Father is in the best interests of the Child?

III. Analysis

11It is in the best interests of the Child that the Father’s current parenting time schedule be continued and then increased from 5 to 6 nights out of 14 nights in November 2025 when the Child turns 7 years old and increased to 7 nights out of 14 nights when the Child turns 8 years old in November 2026. The Father requests that his parenting time be increased to 6 nights out of 14 nights in January 2025 and then 7 nights out of 14 nights in January 2026. The Mother opposes the increase in parenting time and argues that the Child should have no overnights with the Father until the Child turns 8 to 10 years old. The Mother is concerned about the Father’s handling of the Child’s allergies and the ability of the Child to manage her allergies given her young age.

12The court shall take into consideration only the best interests of the Child in making a parenting order (Divorce Act, s.16(1)). Subsection 16(2) states that when considering the factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Subsection 16(3) sets out the factors to be considered as follows,

Factors to be considered
(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.

13The past conduct of a parent is not to be considered unless it is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order (s.16(5)).

14The Divorce Act, s. 16(6) stipulates that a child should have as much time with each parent.

Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

15The Child’s needs include the management of her anaphylactic food allergies. Dr. Miller, the allergy expert, reported that the Child is outgrowing allergies to milk and egg, but still has sesame and tree nut allergies. On October 5, 2024, Dr. Miller provided a plan for the Child to “continue to have milk in baked goods and pancakes and also try cooked and uncooked cheese in lactose free forms and see if that helps her stomach; sesame and tree nuts (except almond) should be strictly avoided.” The Mother reported to Dr. Miller that the Child was given her macaroni and cheese with regular cheese and melted whole cheese on bread and then had symptoms. During the trial, Dr. Miller testified that the Child was at step 3 of the allergy Milk Ladder (a clinical tool for reintroduction of milk) and that the parties disputed whether the Child was at step 4 of the Milk Ladder. The Milk Ladder for cow’s milk allergy shows that step 3 included cooked butter, pizza, and boiled milk. Step 4 includes uncooked butter, cheese, yogurt, ice cream, and milk.

16The Father argues that the Mother’s continued reliance on the Milk Ladder is both unnecessary and solely within her control. The Father argues that the Child has not been anaphylactic to milk since September 2022. I find that the Father does not fully appreciate the Child’s allergies and intolerances, and the Father takes more risks with the Child’s food. For example, in June 2024, the Father fed the Child ice cream which is part of step 4 of the Milk Ladder. The Child suffered allergic reactions in March 2023 when she ate walnuts at the paternal grandparents’ home and in August 2023, when she ate a peppermint candy with hazelnut. The Mother, on the other hand, closely monitors and manages the Child’s food and is risk adverse.

17The Child has suffered allergic reactions to food in the care of both parents. The Mother admitted to administering the EpiPen and antihistamine while the Child was in her care. The Father has denied that he has administered an EpiPen and antihistamine. However, I am persuaded that the Child has suffered allergic reactions to food that required an EpiPen or antihistamine while in the care of the Father. The Mother submitted a photo of an EpiPen injection mark on the Child when the Child was returned from the Father’s care. The Mother reported to the allergist, Dr. Miller that she believes the Child has had four EpiPen injections administered in the past year by the Father. Dr. Jaffe also notes that the Child stated that the Father gave her a shot when she ate a green nut and had a reaction. The Mother’s testimony about the handling of the Child’s allergies by the Father is credible. I find the Father’s testimony less credible given the evidence submitted by the Mother and the denials made by the Father.

18The Child has a history of eczema and skin conditions. The Mother tracks and treats the eczema and keeps track of the Child’s symptoms with particular foods. The Mother believes that the eczema and skin issues are exacerbated by certain foods. Dr. Miller confirmed that acidic foods are a known irritant for eczema such as tomatoes and strawberries. I am persuaded by the photographic evidence that the Father has continued feeding the Child both strawberries and tomatoes despite his knowledge that they irritate the Child.

19The Mother is vigilant. Prior to the Child’s trip to Italy with the Father, she prepared allergy cards that explained the Child’s allergies, taught the Child to recite her allergies in Italian, and prepared an allergy lanyard for the Child to wear. I am persuaded that the Father is not as vigilant as the Mother. The Mother states that the Father took away the Child’s allergy cards, and the Child ate cheese, had diarrhea, and was sick in Italy.

20The Father states that he seeks what is genuinely best for the Child: a life filled with stability, love, and equal access in the care of both her parents.

(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

21The Child has a strong relationship with each spouse, her maternal grandmother, and paternal grandparents. Dr. Jaffe concludes in his report that the Child has a “positive relationship with each parent”. The parties admit that the Child has a loving relationship with both parents. The Mother stated that she knows that the Father cares for the Child and that the Child would benefit from both her parents’ love. The Father agreed.

22I find that the grandparents play an important role in the Child’s life. The Child lives with her maternal grandmother in addition to the Mother. The maternal grandmother has been assisting with exchanges post-separation when the Child is not in school or camp. The maternal grandmother testified that she understood her role and her objective that the transitions be smooth, safe, and timely.

23The Child regularly spends time with her paternal grandparents during the Father’s parenting time. The Child has family meals with her paternal grandparents at their home during the Father’s parenting time.

24The Child expressed to Dr. Jaffe that she had good relationships with her extended family members on both sides.

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

25I find that each spouse has some difficulty supporting the development and maintenance of the Child’s relationship with the other spouse. The Father describes the Mother as a “gatekeeper”, restricting his access to the Child. The Mother has concerns about the Father, keeping the Child safe. Dr. Jaffe notes that the Mother finds the Father to be controlling and aggressive and dismissive of her concerns about the Child’s allergies and overall well-being. Dr. Jaffe also notes that the Father finds the Mother to be anxious and paranoid about everything he does with the Child and feels that he is constantly criticized or being controlled.

26The Mother’s reluctance to support the development and maintenance of the Child’s relationship with the Father is indicated by the fact that she has not followed Dr. Jaffe’s recommendations that the Child needs more time with the Father. The Mother seeks to remove all overnights with the Father. Another example of the Mother’s reluctance is her refusal to allow the Child to bring her violin to the Father’s house so that the Child could play for the Father and his family.

(d) the history of care of the child

27The Mother has been the Child’s primary caregiver from birth until separation. The Mother has arranged for and attended the Child’s medical appointments, attended to the Child’s academic needs, and enrolled her in various extra-curricular activities.

28The parties agree that the Child is doing well in the Mother’s care.

29The Father has had overnight parenting time with the Child since 2022. The Father also had overnight parenting time with the Child in 2024 when he travelled with the Child to Italy for a family wedding.

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

30The Mother testified that the Child has indicated to her that she does not understand why she has to “go back” to the Father’s home after her disclosure in the hospital that the Father was violent towards her and that she is scared of him. The Father denied this allegation. As discussed below, I find the Mother’s testimony credible.

31Dr. Jaffe reported in 2023 that the Child stated that the Mother was in her family as was her grandmother, and that the “Child loves the Father’s house because he has great things”.

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

32The Mother is of Taiwanese heritage and the Father is of Italian heritage. Both parents promote their cultural heritage with the Child. The Child speaks English and Mandarin with the Mother. The Mother also teaches the Child to speak Italian, French, and Spanish.

33I find that both parents appreciate each other’s culture. However, at times, they are reluctant in supporting each other’s culture. The Father was reluctant in supporting the Mother’s traditional one-month post-partum healing period. The Mother was reluctant in supporting the Father’s tradition of the extended family greeting the Child after birth. The Mother has expressed disdain for the Father’s cultural food fed to the Child due to the Child’s allergies. The Father has expressed disdain for the Mother’s cultural identity and heritage.

34The Mother is Buddhist and the Father is Catholic. The Mother states that the parties agreed that the Child would be exposed to different religions. The court order dated November 27, 2024 addresses religion, as noted above. The Child has not been baptized or indoctrinated into a religion. The Mother is supportive of the Father’s religion and ensures that the Child spends Easter with the Father and his family.

35The Father is supportive of the Mother’s cultural celebration of Lunar New Year and supports the Child spending time with the Mother during that celebration.

(g) any plans for the child’s care

36The Mother provides a comprehensive plan of care for the Child.

37The Child attends the neighbourhood public school in the French Immersion program. The Child is doing well academically. The Mother has arranged her work schedule so that she can pick up the Child from school each day.

38The Mother takes the Child to her allergist appointments and keeps the Father informed and provides him with updates. The Father has taken the Child to one of her allergist appointments. The Mother maintains an allergy free home for the Child. The Mother regularly communicates with the Father about the food reactions that the Child has had. The Mother has set out a detailed allergy and safety protocol for the Child that caregivers should follow. The protocol includes anaphylaxis training and allergy management protocol from the Child’s allergist.

39The Mother has taught the Child to read ingredient labels and speak up for herself about her allergies.

(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

40Both parents are able and willing to care for and meet the needs of the Child. However, the Father does not manage or monitor the Child’s allergies as carefully and diligently as the Mother which puts the Child at some risk. The Mother is concerned about the Child’s health and safety due to the management of the Child’s allergies.

41Dr. Jaffe notes that the Father sees the Mother as a caring and competent parent. Dr. Jaffe also notes that the Father is an involved and active parent.

(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

42Each party has a limited ability and willingness to communicate and cooperate with each other in matters affecting the Child. The communication between the parties has not improved since their separation. Dr. Jaffe notes that their communication problems are highlighted in dealing with the Child’s allergic reactions. The Father argues that the Mother did not disclose that she had administered an EpiPen to the Child when the Child was in the Mother’s care. The Father complains that when the Father stated that the possibility of a rash around the Child’s mouth was due to dry air, cold temperature, and the Child liking her lips, the Mother alleged it was due to the food that the Father was feeding the Child. Neither party trusts the other party. The parties agree that it is in the Child’s best interests for the parties to limit parental communication and limit face-to-face contact.

43Dr. Jaffe found that on occasion the Father has made emotionally abusive comments to the Mother on Our Family Wizard. Dr. Jaffe states that the Father needs ongoing counselling to understand the difference between assertiveness and aggression. The Father denies problems with anger. Dr. Jaffe noted that both parties found conflict resolution challenging from the outset of their relationship.

44Dr. Jaffe concludes that the conflict and lack of trust undermines any chance of a co-parenting and joint decision-making plan for the immediate future.

(j) any family violence and its impact

45Family violence is alleged. The Father is alleged to have assaulted the Mother in 2019 prior to separation. The Mother states that she was afraid of the Father and still fears the Father and feels threatened by him. The Mother also states that she feared having the Father’s private investigator follow her. She alleges that the Father can not control himself.

46The Father is alleged to have assaulted the Child in January 2024. The Mother took the Child to the hospital to have the Child’s bruises on her legs examined. The Father denies assaulting the Child. I accept the testimony of the Mother about the incident in January 2024.

47There has not been another family violence incident since January 2024.

Conclusion

48In considering all the factors related to the circumstance of the Child, I conclude that it is in the best interests of the Child that the current parenting time schedule for the Father be continued. The overnight parenting time for the Father shall be increased from 5 nights to 6 nights in November 2025 when the Child turns 7 years old, and 6 nights to 7 nights in November 2026 when the Child turns 8 years old; on the condition that the Father and caregivers shall complete and comply with the detailed allergy and safety protocol set out by the Mother. I am mindful of Dr. Jaffe’s recommendations to increase parenting time for the Father. His recommendations were made in 2023 before the allergy and assault incidents involving the Father and the Child in 2024. I note that the Mother has raised concerns about Dr. Jaffe’s report including methodology and delegation of work. Also, the Father has not asked that the parenting time schedule be increased to a 50-50 shared parenting schedule at this time. The Father asks for one additional night (Sunday night) in January 2025 and a second additional night in one year in January 2026. The Father and caregivers will have time to complete the allergy and safety training. The Child will also have time to continue to work on the Milk Ladder with the Mother. There is some risk to the Child’s safety if the Father and caregivers do not manage and monitor the Child’s allergies carefully, so it is important that the Father and caregivers comply with the allergy and safety protocol. The Mother is managing and monitoring the Child’s allergies effectively during her parenting time. I agree with the Mother that the Child will be able to manage and monitor her own allergies as she grows older. I disagree that removing all the overnight parenting time for the Father is in the best interests of the Child. The evidence shows that the Father and the Child have a loving relationship and that the Father is an active and involved parent. The Child should have as much time with the Father as is consistent with her best interests.

2.How much child support is the Father required to pay?

2. How much child support is the Father required to pay?

49The Father is required to pay child support for the Child. The Mother has primary residence of the Child. The Father is required to pay child support for the Child pursuant to the Divorce Act, s. 15.1. The Federal Child Support Guidelines “establishes a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation.”

50The Father currently pays $1900.00 per month in child support to the Mother. The key issue is what is the Father’s income to calculate child support.

51The Father’s Line 15000 income from his tax returns is set out below. The Father includes rental income in his financial disclosure but did not pay tax on the rental income. For the purposes of calculating child support, the Father’s income should be grossed up to account for unpaid taxes on the rental income. A court may gross up “the business income to place a spouse’s real income on a par with the income a person earning a salary would net after income tax….The fundamental principle is to estimate the actual means that the parent has available to pay child support (Riel v. Holland, as cited in Katarzynski v. Katarzynski, 2012 ONCJ 294 at para. 112). In Orser v. Grant, [2000] O.J. No. 1429 (QL) (S.C.J.) at paras. 10-13, the court held that where “a parent arranges his or her affairs to pay substantially less tax on income, the income must be grossed up before the table is applied.”

52The Father states that he is not arguing against the application of a gross-up calculation entirely. Instead, he proposes that 12% to 37% be used based on the range of tax paid by the Mother. The Father argues that his expenses associated with generating the rental income such as mortgage interest, property tax, and maintenance, should be deducted. However, the Father did not submit an accounting of his expenses.

53The Mother submits a chart of the Father’s Line15000 income, undeclared rental income and capital gains and the Father’s income for support purposes including gross up on rental income. The chart shows that the total income including the gross up ranges from 11% to 20% more than the total of the Father’s Line 15000 income and undeclared rental income and capital gains.

54I have added to the chart the Mother’s Line 15000 and the child support payable per month based on Divorcemate calculations as follows.

Mr. Campo’s Line 15000 Income
Mr. Campo’s Undeclared Rental Income and Capital Gains
Mr. Campo’s Income for Support Purposes (Including Divorcemate Auto Gross up on Rental Income)
Ms. Houng’s Line 15000 Income
Child Support per month

2019
$172,272
$42,716
$258,460 (17% more than the actual total)
$85,078
$2,088

2020
$143,584
$32,241
$205,463 (15% more than actual total)
$89,187
$1,698

2021
$150,576
$50,477 (including capital gains of $29,336.50)
$251,818 (20% more than actual total)
$156,391
$2,032

2022
$165,396
$22,690
$209,616 (11% more than actual total)
$144,564
$1,728

2023
$189,488
$37,770
$266,330 (15% more than actual total)
$148,817
$2,137

2024
$189,488 (2023 NOA)
$38,952
$267,973 (15% more than actual total)
$148,817
$2,148

55On November 27, 2024, the court ordered that the Father pay table child support arrears fixed in the sum of $21,500 for the period of June 2, 2019 to December 1, 2024.

56Based on the above calculations, commencing on December 1, 2024, and on the first day of each month thereafter, the Father shall pay to the Mother monthly child support for the Child in the amount of $2,148 per month. For as long as child support is paid, the Father and the Mother must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this court order.

3.What is the proportionate share of section 7 expenses?

3. What is the proportionate share of section 7 expenses?

57The Federal Child Support Guidelines, s. 7(1) provides that a court may provide for special or extraordinary expenses. Subsection 7(2) provides that the guiding principle in determining the amount of an expenses is that the expense is shared by the spouses in proportion to their respective incomes.

58Based on the income calculations above, commencing on December 1, 2024, the Father shall pay 64% and the Mother shall pay 36% of the section 7 expenses. The income calculations above further show that the proportionate shares are: 75% for the Father and 25% for the Mother in 2019; 70% for the Father and 30% for the Mother in 2020; 62% for the Father and 38% for the Mother in 2021; 59% for the Father and 41% for the Mother in 2022; and 64% for the Father and 36% for the Mother in 2023. These percentages are generally in line with the Father’s proposal to share section 7 expenses 60% for the Father and 40% for the Mother.

59The Mother claims retroactive section 7 expenses in the sum of $14,596.00. The Father disagrees with that sum and states that his share of section 7 expenses is $4,100.00. He states that he was not aware of some of the activities and that the Mother is likely double dipping as her insurance would have also paid the Mother. There is no evidence that the Mother has double dipped. The Mother has final decision-making authority on the issue of extra-curricular activities and submits supporting calculations for the sum of $14,596.00. The Father shall pay to the Mother section 7 arrears from 2019-2024 inclusive in the amount of $14,596.36.

60I find that the Child’s section 7 expenses are reasonable and in the best interests of the Child. The Child’s section 7 expenses consist of uninsured medical/dental expenses, summer camp, dance, chess, tutoring and learning enrichment, Mandarin language lessons, music lessons, swimming, and figure skating. The Father may add Italian language lessons given the Child’s dual heritage, Karate, and soccer to the section 7 expenses. There shall be an automatic review of section 7 expenses prior to the Child commencing any post-secondary education to consider each party’s contribution. The parties shall contribute to the Child’s additional or future section 7 expenses if the parties consent to the expenses in advance, in writing. Neither party shall unreasonably withhold consent.

4.Is the Father required to pay spousal support?

4. Is the Father required to pay spousal support?

61The Father is not required to pay spousal support to the Mother because the Mother does not qualify for support on a compensatory or needs-based model. The Mother seeks spousal support in the amount of $1,074 per month. The Mother seeks spousal support arrears in the amount of $40,288 for the period of June 2, 2019 to December 1, 2024.

62The court is required to consider the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse pursuant to the Divorce Act, s. 15.2(4). The court may require a spouse to pay spousal support as the court thinks reasonable, fit, and just: ss.15.2(1) and (3). Under s.15.2(6) of the Divorce Act, the objectives of spousal support are to (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

63“According to Bracklow v. Bracklow, [1999] 1 SCR 420 (S.C.C.) entitlement to spousal support must be established prior to determining the quantum and duration of a spousal support order. The three groups of entitlement to spousal support are (a) compensatory; (b) contractual; and (c) non-compensatory” (Fatima v. Akhtar Agha, 2024 ONSC 7040 at para. 96). As stated by the Mother in her closing submissions: “Compensatory claims are grounded in the factors and objectives in ss. 15.2(6) (a) and (b) of the Divorce Act. In considering the means, needs, and circumstances of the spouse, the court must recognize that a spouse’s inability to support herself may relate to foregoing career opportunities during the marriage to care for home and family. Contractual claims are grounded in any agreement between the parties. Non-compensatory claims are need-based claims, grounded in the objectives in section 15.2(6)(c) and (d) of the Divorce Act. Spouses should be compensated on a marriage breakdown for losses and hardships caused by the marriage.”

64“Formulating an appropriate spousal support award is a highly individual and discretionary exercise that requires the court to carefully balance the numerous support objectives and factors set out in the Divorce Act in the context of the particular facts of the case before the court” (Racco v. Racco, 2014 ONCA 330 (C.A.), cited in Fatima v. Akhtar Agha, para. 99).

65The parties cohabited for approximately 7 years and separated when the Child was 7 months old. The Mother took a voluntary extended parental leave of 18 months consisting of 7 months during the marriage and 11 months when the parties were separated. The Mother maintained the same employment position and received salary increases. The Mother states that she has not advanced in her career since the marriage, but I find that the marriage and the separation did not impede her career progression. The Mother states that she could have gone to work at an international organization but was held back by the Father. There is no supporting evidence about that role. The evidence indicates that the Mother’s current employer has supported her to have a family. I do not find that the Mother suffered any economic disadvantage due to the breakdown of the marriage or any financial hardship after separation. The Mother lives with her mother in a house, rent-free and her mother assists with childcare transitions. The Mother has means which meet her needs. I am not satisfied that the Mother has established entitlement to spousal support.

5. Should the Mother pay occupation rent?

5. Should the Mother pay occupation rent?

66In my view, the Mother should not pay occupation rent.

67“The relevant factors to be considered when occupation rent is in issue in a family law context are: the timing of the claim for occupation rent; the duration of the occupancy; the inability of the non-resident spouse to realize on their equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation: Griffiths v. Zambosco, at para. 49” (Non Chhom v. Green, 2023 ONCA 692 at para. 9).

68The Father argues that he was excluded from the matrimonial home, but he was under a restraining order that prevented him from going within 100 metres of the matrimonial home and thereby prevented him from living in the matrimonial home. The Father then entered a Peace bond on November 8, 2019, preventing him from going within 100 metres of the matrimonial home. The Father argues that the Mother could have moved to another property that she owned. However, the Child was an infant. The Child required stability, and it would have been in the best interests of the Child to remain in the matrimonial home. The Mother lived in the matrimonial home for approximately 17 months during which time the Mother prepared to move into a condominium and then her mother’s home. The Mother contributed to the costs of the matrimonial home during her occupancy. The Father was able to sell one of his rental properties in 2021 and realize on his equity in the matrimonial home when it was sold in 2022. I disagree with the Father that there was unjust enrichment and that the Mother should pay occupation rent.

6. Should the Mother be prohibited from changing the surname of the Child to add the Mother’s surname?

6. Should the Mother be prohibited from changing the surname of the Child to add the Mother’s surname?

69The Mother should not be prohibited from changing the surname of the Child to add the Mother’s surname.

70The Change of Name Act, R.S.O. 1990, c. C.7 deals with an application to change a child’s name. As the custodial parent, the Mother may apply to the Registrar General of Ontario to change the Child’s surname, unless a court order prohibits the change (ss. 5 (1), 5(1.1)). Subsection 5(2) provides that written consent is required by any other person with lawful custody, any person whose consent is required by a court order, and the child if the child is 12 years old or older. Subsection 5(4) provides that if the consent cannot be obtained or is refused, a person seeking the change can apply to the court for an order dispensing with that consent. The court is required to determine the application in the best interests of the child (s. 5(5)).

Application to change child’s name
5 (1) Unless a court order or separation agreement prohibits the change, a person described in subsection (1.1) may apply to the Registrar General in accordance with section 6 to change,
(a) the child’s forename or surname or both; or
(b) the child’s single name, if the child has a single name. 2016, c. 5, Sched. 4, s. 4.

Same
(1.1) Subsection (1) applies to a person with lawful custody of,
(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or
(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made. 2016, c. 5, Sched. 4, s. 4.

Consents required
(2) The application under subsection (1) requires the written consent of,
(a) any other person with lawful custody of the child;
(b) any person whose consent is necessary in accordance with a court order or separation agreement; and
(c) the child, if the child is twelve years of age or older. R.S.O. 1990, c. C.7, s. 5 (2).

Same
(2.1) If a person is declared under section 10, 11 or 13 of the Children’s Law Reform Act to be a parent of a child and obtains an order under section 17 of that Act changing the child’s surname, an application under subsection (1) also requires that person’s written consent. 2016, c. 23, s. 37 (1).

Where child lacks capacity
(3) Clause (2)(c) does not apply if a legally qualified medical practitioner states in writing, not more than one year before the application is made, that in his or her opinion the child does not have capacity to consent. R.S.O. 1990, c. C.7, s. 5 (3).

Application to dispense with consent
(4) If the required consent cannot be obtained or is refused, the person seeking to change the child’s name may apply to the court for an order dispensing with that consent. R.S.O. 1990, c. C.7, s. 5 (4).

Same
(4.1) If the consent that cannot be obtained or is refused is the consent required under subsection (2.1), the application under subsection (4) may be made to the Ontario Court of Justice, the Family Court or the Superior Court of Justice. 2009, c. 11, s. 2 (2).

How application determined
(5) The court shall determine an application under subsection (4) in accordance with the best interests of the child. R.S.O. 1990, c. C.7, s. 5 (5).

Notice to persons with access
(6) The applicant under subsection (1) shall give notice of the application to every person who is lawfully entitled to access to the child. R.S.O. 1990, c. C.7, s. 5 (6).

Notice to spouse
(7) An applicant who proposes to change the child’s surname to the surname of the applicant’s spouse shall give the spouse notice of the application. 2020, c. 34, Sched. 3, s. 4.

[71] In Hermanson v. Kiarie, 2017 ONCJ 598 at para. 22, Justice Sherr set out the factors for the court to consider in determining whether a prohibition of a name change is in a child’s best interests. These factors include:
a) Whether the proposed name change will exclude the name of the non-custodial parent.
b) The length of time a custodial parent has had sole custody of the child.
c) Whether there is a continuing close relationship between the child and the non-custodial parent.
d) Whether there would be any serious effect on the non-custodial parent.
e) Whether either parent has displayed any malice or improper motivation.
f) The age of the child and the weight to be given to the child’s wishes, in light of that age.
g) The length of time the child has had its name.
h) The surnames of any siblings.

See: Hornan v. Hornan, [2007] MBQB 261; Skoglund v. Dimmery (1989), 59 Man. R. (2d) 154 (Man. Q.B.); Herniman v. Woltz, supra; Melvin v. Burwell, supra; Zho v. Chen, supra.

72The Mother has been the primary caregiver and custodial parent since the Child was 7 months old. The Mother argues that the addition of her surname would acknowledge her and her contributions to the care of the Child. I am mindful that it is not about the Mother’s interests but rather the Child’s best interests.

73The Father opposes the change of name and argues that the Child’s surname is integral to her identity. He states that removing or altering the name Campo risks diminishing her connection to him at a time when their bond has already been strained. I disagree that adding the Mother’s surname erases or diminishes the Child’s connection to her Father. The Father’s surname is not being eliminated from the Child’s surname. There is no evidence that the change would have any serious effect on the Father. The Child and the Father would continue to have a close relationship regardless of the change in the Child’s surname.

74I disagree that allowing the name change will “reward the [alleged] controlling behaviour” of the Mother and “undermine the principle that both parents play a meaningful role in the Child’s life.” Contrary to the Father’s assertion, a combined surname may indicate that both parents play a meaningful role in the Child’s life.

75I further find that the Child is young – she has had her surname for only 6 years. The Child is bright and can easily adapt to the surname Houng Campo. I disagree with the Father that the Child or others will be confused by the change (Hermanson v. Kiarie at para. 33). “A surname that includes the names of both parents cannot be rejected simply on the basis that the status quo should prevail particularly when the Child has a close relationship with both parents that has all the incidents of continuing to be close going forward” (Noureldin v. Mohr, 2023 SKKB 166 at para. 25).

76I have also considered the importance of the recognition of the Child’s heritage both from her Mother and her Father. The Father has displayed malice; in particular, the troubling instances of racial discrimination against the Mother’s heritage. The Father has disrespected the Mother’s name in communications. I am persuaded that the Father has also encouraged the Child to disrespect the Mother’s heritage, which is part of the Child’s own heritage. The addition of the Mother’s surname to the Child’s surname will provide the Child with a sense of her own dual heritage and dual cultural belonging.

77It is in the best interests of the Child not to prohibit the Mother from changing the surname of the Child from “Campo” to “Houng Campo”. If a consent is required from the Father, I order that the Mother may dispense with the Father’s consent.

IV. Disposition and Costs

IV. Disposition and Costs

78I order that the Father’s parenting time schedule continue and that the Father’s parenting time be increased from 5 nights to 6 nights (adding Sunday night in week 2) out of 14 days, commencing in November 2025 when the Child turns 7 years old; and 7 nights out of 14 days, commencing in November 2026 when the Child turns 8 years old; on the condition that the Father and any caregivers complete and comply with the allergy and safety protocol as outlined by the Mother in her draft order.

79Commencing on December 1, 2024, and on the first day of each month thereafter, the Father shall pay to the Mother monthly child support for the Child in the amount of $2,148 per month. For as long as child support is paid, the Father and the Mother must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this court order.

80The parties shall share section 7 expenses proportionate to their incomes. The Father shall pay 64% and the Mother shall pay 36% of the section 7 expenses commencing on December 1, 2024. The Father shall pay retroactive section 7 expenses fixed in the sum of $14,596.00.

81I dismiss the Mother’s spousal support claim.

82I dismiss the Father’s claim for occupation rent.

83I conclude that it is in the best interests of the Child not to prohibit the Mother from changing the Child’s surname from “Campo” to “Houng Campo”. The Mother may apply to change the Child’s surname and the parties shall cooperate in signing any documentation necessary to change the Child’s surname to “Houng Campo”. If a consent from the Father is required, the Mother may dispense with the Father’s consent. Following the change in surname, neither party shall change the Child’s name without the other party’s written consent.

84Given the divided success of the parties, I am inclined to order that each party shall bear their own costs. If the parties are unable to agree, then the parties may make written submissions as to costs within 30 days.

Shin Doi, J.