COURT FILE AND PARTIES
Court File No.: FC-22-00000549-0000
Date: October 10, 2025
Ontario Superior Court of Justice
Between:
Jasmeet Singh Sethi, Applicant
– and –
Tavleen Kaur, Respondent
Counsel:
Amit Singh, for the Applicant
Self-Represented, for the Respondent
Heard: May 23, May 26, May 27, May 28, May 29, May 30, June 2 and June 3, 2025
Before: S. Jain J.
ISSUES
[1] The parties have raised the following issues for determination:
Who should have decision-making authority for the child in this matter, including all incidents of decision-making such as travel?
What should the parenting schedule be? Should there be a requirement for supervision between the Applicant and the child? Should there be a requirement that the Applicant not consume alcohol during his parenting time with the child?
What are the incomes of the parties? While the parties agree to commence child support as of 2021, what is the quantum owed for retroactive child support? What should the incomes be for ongoing child support?
What are the percentages for go forward section 7 expenses? Should the Applicant be required to share in the cost of the recent therapist hired by the Respondent?
Should there be an order for spousal support to either party? If so, what is the quantum?
After considering the 6 outstanding items that are not agreed upon in the Net Family Property Statement, is there an equalization payment owing, and if so, to who?
Are there any post-separation adjustments owing from the Respondent to the Applicant? If so, how much? Does the Respondent owe occupation rent to the Applicant for residing in the matrimonial home?
Are there damages owed from the Applicant to the Respondent for family violence or torts of battery, assault, and intentional infliction of emotional distress?
Are there damages owed from the Respondent to the Applicant for malicious prosecution?
Should there be a restraining order issued restraining the Applicant from coming within certain distances of the Respondent?
Should there be an order for costs?
[2] The relief sought by the Applicant in summary:
That the Respondent's claims (other than life insurance and retroactive child support subject to quantum) be dismissed.
Joint decision-making with the Respondent having primary care of the child.
A graduated parenting schedule to a set parenting schedule.
The Applicant's income be set at $60,000 and the Respondent's income be set at $110,000 for the purpose of child support and s. 7 expenses sharing.
The Respondent pay to the Applicant an equalization payment in the amount of $88,319.89.
The Respondent pay the Applicant post-separation adjustments.
The Respondent pay occupation rent to the Applicant.
The Respondent pay the Applicant damages for malicious prosecution.
Costs in an amount to be determined.
[3] The relief sought by the Respondent in summary:
That the Applicant's claims be dismissed.
Sole decision-making responsibility and ability to travel without the consent of the Applicant.
Supervised parenting time between the child and the Applicant with a review in the future.
The Applicant's income be imputed to $160,000 to $200,000 for the purposes of child support.
All s. 7 expenses to not require consent and to be shared equally.
Based on a constructive trust, she receive all of the funds held in Trust, even the Applicant's half. Additionally, she not have to pay an equalization payment because of this constructive Trust and to allow the child to have the Applicant's half of the proceeds held in Trust.
No spousal support payable to the Applicant. Possible spousal support with no quantum identified. It is unclear if she seeks spousal support.
Damages for family violence, aggravated assault payable by the Applicant to the Respondent.
An order restraining the Applicant. (No details provided other than a restraining order.)
Costs payable from the Applicant to the Respondent on a full indemnity basis.
BACKGROUND FACTS
[4] The parties were married on or about November 17, 2019, in Punjab, India. The parties were divorced by the Order of the Honourable Justice Vallee, dated August 8, 2023.
[5] The parties have one biological child together, namely, Jordan Singh Sethi ("Jordan"), born on November 4, 2020. Jordan was diagnosed with autism in or around February 2024. He has minimal language abilities and has had many behavioural challenges, such as trying to run away. In addition, he has had medical concerns and procedures, such as surgery on his legs.
[6] The parties separated on November 25, 2021.
[7] On November 25, 2021, the Applicant was charged with assault in relation to alleged historic incidents of violence. The charges were later withdrawn, and the Applicant entered into a peace bond on March 31, 2022. The Respondent maintains that the Applicant was abusive throughout the marriage.
Parenting Arrangements
[8] Since the parties' separation, Jordan has been primarily residing with the Respondent. According to the Applicant, the Respondent refused to permit him parenting time forcing him to start the within proceedings in May 2022. The Respondent alleged that the Applicant had alcohol and drug issues and that because he had been abusive to her that he was not safe with Jordan. The Applicant denies any abuse and denies ever having alcohol or drug use issues. He also notes that he is a truck driver for a living and must have zero alcohol in his blood as a requirement for his work.
[9] In December 2022, the parties agreed to have the Applicant commence parenting time with Jordan on a supervised basis at a supervised access centre. According to the Applicant, he only agreed to supervision as it had been one year since he had seen Jordan and not because he agreed that supervision was necessary. He describes that he was an active and involved father prior to the parties' separation.
[10] His supervised parenting time with Jordan commenced in December 2022. Jordan had difficulty adjusting to being in a supervised parenting environment; he even vomited on occasion, seemingly from stress.
[11] The Respondent suggested that her father (the maternal grandfather) also attend with Jordan for the supervised parenting time, so that Jordan could gain comfort by having someone familiar present. This addition assisted Jordan's comfort and eventually, Jordan adapted well to having time with his father.
[12] The Applicant commenced unsupervised parenting time pursuant to a consent order in July 2023.
[13] On August 12, 2023, the Respondent contacted the police to report that when the Applicant arrived to pick up their child for parenting time, the Applicant "grabbed her by the arm", "pushed her" and "slammed the door on her." The police charged the Applicant with assault. These charges were eventually withdrawn after the Crown reviewed video evidence of the parenting time exchange which showed no such assault.
[14] The Respondent unilaterally cancelled the Applicant's parenting time in August 2023, post-charges. The Applicant attempted to negotiate supervised parenting time with one of his friends acting as a supervisor, however, the Respondent would only agree if the friends' wives were also present. The Respondent would also not agree to share in the cost of supervised parenting time with a professional supervisor.
[15] The Applicant did not pay for supervised parenting time on his own and instead has not had any parenting time with Jordan since that time. In or around October 2023, he communicated to the Respondent and to other professionals that he thought it best that he does not have parenting time until Jordan was older and able to understand more. Jordan had not been diagnosed with autism by this point. In this litigation, he indicates that he would like set parenting time. He indicates that he is comfortable proceeding with parenting time, as the parenting time will be pursuant to a final order.
Financials
[16] The parties disagree as to the income of the Applicant. As a result, there is also dispute over the child support quantum, and whether the cost of a therapist, Ms. Raquel Turner, qualifies as a s. 7 expense.
Matrimonial Home and Post-Separation Adjustments
[17] The parties purchased the former matrimonial home, municipally known as 96 Sutherland Avenue, Bradford, Ontario, L3Z 4H4 ("the matrimonial home") as joint tenants in or around April 2020.
[18] Since the date of separation on November 25, 2021, and until the sale of the matrimonial home on June 26, 2023, the Respondent has had exclusive possession of the matrimonial home. As the Respondent refused to sell the home, after a contested motion, Justice R.S. Jain granted an order that the matrimonial home be sold, with conditional exclusive possession to the Respondent.
[19] The Applicant solely paid for the mortgage of the jointly owned matrimonial home from the date of separation to its sale. The parties agree that the Applicant paid $50,354.66 in mortgage payments for the matrimonial home, post-separation.
[20] The parties agree that the Applicant paid a sum of $6,378.35 in Enbridge, Alectra, Rogers Internet and water heater rental payments related to the matrimonial home, post-separation.
[21] The Respondent has never moved out of the matrimonial home, as she began renting the former matrimonial home from its current owners for $3,200.00 per month after its sale in June 2023.
[22] The matrimonial home was sold for $1,190,000.00 on June 26, 2023, and from the net proceeds a sum of approximately $150,164.80 was released each of the Applicant and the Respondent.
[23] The remainder of $150,000.00 continues to be held back in the trust account of the Duggal Law Professional Corporation, pending further court order or written agreement.
[24] The Respondent seeks the entire amount remaining in trust be given to her, so that she can create a fund for Jordan. The Applicant seeks the equalization payment, post-separation adjustments, and occupation rent be paid to him from the Respondent's portion of the proceeds remaining in trust.
Summary of the Evidence of the Applicant
[25] The Applicant testified, and called an expert, Mr. Abhishek Mathews who is a CBV who conducted a valuation of the Applicant's income and business value. The Applicant also tendered many exhibits such as police records, Children's Aid Society ("CAS") records, AppClose communications between the parties, and a significant number of financial documents.
[26] On the issues of parenting, in summary, the Applicant's evidence is meant to demonstrate that the Respondent is purposely and intentionally trying to limit his parenting role and time by making up allegations of abuse. He asserts that the Applicant's allegations about him are intentional lies.
[27] On the issue of decision-making, the Applicant's evidence is that the Respondent does not keep him fully informed or properly consult with him about Jordan.
[28] A key piece of evidence, admitted on consent, are two videos of a parenting exchange which took place in August 2023, wherein the Respondent claims the Applicant assaulted her when the Applicant attended at her home to pick up Jordan for his parenting time. The videos show no assault took place at this parenting exchange. After reviewing the same video evidence, the Crown withdrew charges against the Applicant.
Summary of the Evidence of the Respondent
[29] The Respondent's evidence is primarily focused on suggestions that the Applicant and his parents having been physically and emotionally abusive and that the Applicant has been negligently absent from Jordan's life.
[30] In addition to her own evidence, the Respondent called two witnesses with respect to family violence. One is a colleague (her superior/manager), Mr. Syed Hussaini, who testified that during the parties' marriage, the Respondent had a bruise on her head and hand. When he asked her about these bruises, she told Mr. Hussaini that her husband hits her.
[31] The other witness is a family friend, Mr. Kashmir Singh, who testified that the Applicant showed an "angry side" of himself when he came as an elder to try to mediate and help the parties with their differences.
[32] With respect to finances, the Respondent believes the Applicant is being dishonest. She believes he earned much more during the marriage and is purposefully hiding this high income now.
[33] Additionally, she asserts that she is entitled to forgo having to pay an equalization payment, post-separation accounting or occupation rent, in essence, based on how much work she does to care for Jordan and his special needs. She calls this a constructive Trust and damages.
Trial Process
[34] The Respondent sought to file significant amounts of material at the commencement of the trial. The Applicant objected as the Respondent had not adhered to any of the timelines and did not serve any of the material (much of it was not served at all) until the weekend before the commencement of the trial. She also sought to add witnesses last minute. She was assisted by a lawyer up until approximately one week before the trial.
[35] While the Respondent was provided some latitude with her evidence throughout the trial given that she was self-represented, she was not permitted to add witnesses at such a late stage.
[36] Ultimately, the Respondent did not call all the witnesses on her original list. She had not served one of her professional witnesses properly, therefore, the witness could not attend. She said that certain friends no longer felt comfortable attending with no specific reasons given. Lastly, she felt it was best that her father not testify given the risk of stress to the state of his health. In this regard, she submitted that now knowing the type of difficult questions counsel for the Applicant will be permitted to ask during cross-examination, she did not want to put her father through such stress.
[37] Mr. Singh, the Applicant's counsel, and the Respondent were able to resolve some matters as the trial moved along. I found Mr. Singh repeatedly helpful to the Respondent, such as by providing her with copies of documents for the court as the Respondent either had no copies or an insufficient number of copies. He also engaged in discussions with the Respondent to help resolve process and substantive oriented aspects of the case. His efforts and professional behaviour did not go unnoticed. The Respondent herself thanked Mr. Singh for his assistance in her closing submissions.
[38] During the trial, the Respondent raised an urgent issue to be discussed. She indicated that counsel for the Applicant, on the previous day, had said she must have permission to travel with the child. She sought assistance of the court as she wanted to be able to travel to India to see her father as his health was a concern. She did not specify what health concern. It turned out that the Respondent did not have a specific plan to travel but wanted to address this issue immediately. She feared that the Applicant would not agree to such travel. She indicated he could either sign a consent or he could take care of Jordan so that she could travel to India. The Applicant's counsel indicated that his client is not opposed to reasonable travel if provided with notice and sufficient detail. He was also willing to care for the child. The parties were left to discuss this matter between themselves, and I was advised that they had resolved this issue.
General Credibility
[39] Credibility and reliability are important aspect of this case given the various allegations. I find both parties have some concerns on the issues of credibility and reliability.
[40] The 2021 decision of Justice Chappel in the case of McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, at paras. 39-41, provides a useful summary of the law related to reliability and credibility, including the following considerations:
a. Assessing a witness's credibility can be a difficult task and "is not an exact science."
b. Triers of fact do not have to believe or disbelieve a witness's testimony in its entirety. They may accept none, part or all of a witness' evidence, and may also attach different weight to different parts of a witness' evidence.
c. Was there a logical flow to the evidence? Were there inconsistencies between a witness' testimony and the documentary evidence?
d. Is there other independent evidence that confirms or contradicts the witness' testimony?
e. Did the witness have an interest in the outcome; did he or she have a motive to deceive?
f. How reliable was the witness' memory?
g. Did the witness' evidence make logical sense or was it inherently improbable?
h. Was the witness candid and straightforward or evasive, hesitant or strategic?
[41] In Baker-Warren v. Denault, 2009 NSSC 59, 277 N.S.R. (2d) 271, at para. 18, Forgeron J. summarizes the principles applicable to the assessment of credibility:
[Credibility assessment is not a science. It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. v. Gagnon 2006 SCC 17, para. 20. I further note that "assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization :" R. v. R.E.M. 2008 SCC 51, para. 49. [Emphasis added].
[42] The Applicant asks me to apply S.C.H. v. S.R., 2023 ONSC 4928, at para. 492. In that case, Justice Finlayson, citing M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 180, notes important considerations for credibility assessment in cases involving family violence:
Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage (Wilson v. Sinclair, 2022 ONSC 2154 (S.C.J) , per Fryer J.; W.A.C. v. C.V.F., at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (S.C.J.) ; Kinsella ; A.E. v. A.E., at paras. 276-281; Lee v. Eckenwiller, 2021 ONSC 6519 (S.C.J.), at paras. 27-29 ).
[43] The Applicant asserts that the Respondent is not credible and has engaged in malicious attempts to use the litigation system to limit the Applicant's parenting time. The Applicant details inconsistent evidence between the Respondent's pleadings, evidence in the police reports and CAS reports, and against her own evidence in the trial. He also notes when she has no corroborating evidence. Given that pleadings do not contain evidence, there are some limits to the weight that can be placed on inconsistencies of facts in the pleadings versus the testimony at trial, though I appreciate the Applicant is attempting to point out a theme of inconsistencies throughout.
[44] The Applicant's cross-examination of the Respondent revealed many credibility/reliability concerns with the Respondent's evidence, and I will address many of these throughout my reasons.
[45] Overall, I found the Respondent bright and capable as a self-represented litigant who put forward necessary evidence throughout the trial. I also find the Respondent not credible and not reliable in many aspects. The Respondent gave inconsistent testimony and misrepresented the parties' communications, the content of the supervised access notes, and professional findings. She did not provide corroborating evidence on many matters. She also misrepresented the evidence of her witness, Kashmir Singh; hyperbolizing his evidence. Hyperbolizing was an ongoing theme on many fronts.
[46] For example, the Respondent presented a series of communications from Our Family Wizard to claim that the Applicant did not show concern for Jordan or respond to her. The Applicant provided evidence of communications that the Respondent not only failed to include in her evidence but, more importantly, that she claimed did not exist. These omissions, seemingly intentional given their level of importance, raised serious credibility concerns. After being cross examined on this issue, she changed her narrative to be that the Applicant did not provide meaningful responses as though that was her intention to have said that all along. However, in her own testimony she submitted a series of OUR Family Wizard messages as proof that there had been NO responses. I did not find her truthful when she changed her narrative from no responses to not meaningful responses.
[47] The Respondent also gave evidence that was contradictory to the supervised access notes. She gave evidence that parenting time visits between Jordan and his father were wholly unsuccessful and were damaging for Jordan, who did not last with his father for more than five minutes. She referenced that he vomited often. A review of the supervised access notes reveals that her claims are exaggerated. Despite many of the initial concerns resolving over time, the Respondent refused to acknowledge these improvements. She refused to acknowledge these improvements in the face of having agreed to unsupervised parenting time because of the improvements. She solely focused on the fact that he had a difficult time adapting as the only reality that mattered. I did not find her assessment of the circumstances reliable or credible.
[48] Even after being challenged or caught with having provided inaccurate information, the Respondent ignored the evidence and continued to assert a different reality. For example, she continued to repeat that the supervision notes reference vomiting. While the notes do reference vomiting, she did not provide any explanation for overlooking that the experience for Jordan improved over time and that the improvement is what lead her to consent to unsupervised parenting time.
[49] Another example of a significant credibility issue, of the Respondent, is the video evidence of the parenting exchange in August 2023 which demonstrates that the Applicant did not assault the Respondent as she claimed to the police. The Respondent continued to assert that the assault occurred with no explanation of how this could have occurred given that video evidence contradicts this possibility. In essence, the video confirms that the Respondent, at least in this instance, falsified charges against the Applicant.
[50] The Respondent did not deny the accuracy of the video evidence. Instead, she relied on it herself. She asked the video to be replayed during her own evidence in chief to point out that on the video she can hear, under the Applicant's breath, the Applicant calling Jordan a derogatory term in Punjabi, which means "whiny baby." She indicated that she could not sleep after the day of the trial when the video evidence was introduced by the Applicant because she heard him using this term. She was so upset that the Applicant "angrily" used this term and what it could mean for her son to be exposed to such emotional abuse by the Applicant. I could not make out the same word on the video myself nor did I hear an angry tone exchange between the parties or between child and parent. I do not condone the Applicant using any demeaning words in reference to his child if he did so. I do not see, however, how this circumstance translates to a dangerous situation as the Respondent described, particularly since the word, if even uttered under his breath, was not said to the child. The Respondent's reaction of significant worry for her child's safety did not match the circumstances.
[51] The Respondent also said the video revealed evidence of how the Applicant is abusive, as it shows that the Applicant was "ordering her around". While I appreciate there can be a subjective element to tone and requests, I did not find that the video evidence showed the Applicant "ordering around" the Respondent. Jordan was crying. The Applicant requested the Respondent put Jordan in his car seat. As a neutral observer, it made practical sense for the Respondent to be the one to put Jordan in the car. I also heard the Applicant attempt to reassure the Respondent by saying he will be fine in a few minutes after they leave. I also heard him acknowledging to Jordan that he is nervous and trying to soothe Jordan by telling him that they will have fun.
[52] I wish to be clear, despite my comments above, based on knowledge of dynamics of family violence, I cannot know for certain if the Respondent was abused during the parties' marriage or not. I do not find the evidence as presented sufficient to establish that family violence occurred. I find, however, that she falsely accused the Applicant of assault on August 16, 2023, based on the video evidence.
[53] With respect to the Applicant, I also find credibility issues. He held himself out as a modern father who was actively involved with his child. He submitted that he was forthright and honest in his evidence. However, I do not find the Applicant was forthright about his reasons for not seeing his child.
[54] I acknowledge that the Applicant found himself in difficult circumstances when facing whether to continue to pursue parenting time despite knowing that may mean he faced more false criminal charges. I did not find him forthright about his worry in this regard during his testimony. He did not admit that by choosing not to see his child he chose self-protection. Instead, he said that he did not want Jordan exposed to conflict and solely blamed the Respondent's actions for him not seeing Jordan. While I can appreciate that exposure to parental conflict is not healthy for a child, there was no evidence that this child was exposed to parental conflict. It is the Applicant who encountered conflict as he faced criminal charges.
[55] I did not find the Applicant fully candid in his testimony about his desire to self-protect as a main reason he did not see Jordan. His reasoning was not logical nor supported by the evidence.
[56] The valuator, Mr. Abishek Matthews, in this matter was credible.
[57] The two witnesses who testified for the Respondent also were credible. The first witness was Mr. Kashmir Singh. The Respondent and Mr. Kashmir Singh met at the airport when the Respondent was taking her first trip to Canada for the purposes of immigration. Mr. Kashmir Singh was with his family, and he gave evidence that he established a father/daughter/protector type of relationship with the Respondent from the moment they met. He gave evidence that contradicted the Respondent's evidence. The Respondent claimed that Mr. Kashmir Singh loaned her money. His testimony was that he loaned the Respondent's father money which was partially paid back to him by the Respondent's father to date. I found him to be an honest witness.
[58] Mr. Kashmir Singh described the Applicant as having some angry displays in his behaviour, but his testimony did not confirm that the Applicant abused the Respondent as she asserted in her closing submissions. Rather, he testified that he still hoped that the parties could reconcile. Given this desire, I do not see his testimony as having confirmed that the Applicant was abusive to the Respondent.
[59] Mr. Kashmir Singh seemed to suggest that the Applicant's parents were a source of marital conflict and that the Respondent and Applicant needed independence from the Applicant's parents. I do not find Mr. Kashmir Singh's evidence corroborates the Respondent's narrative of the marriage or her own summary of his evidence.
[60] Of note, in the Applicant's evidence he referred to the Respondent as "rebellious", as she was defiant toward his parents. He was not able to give good examples of her "rebellious behaviour" or why that term was a fitting description for an adult other than to say she did whatever she wants. The parties' marriage was arranged and involved the payment of a dowry. His use of the term "rebellious" may reveal his views of how a "traditional" wife should behave around his parents. He did not provide me with a clear sense of family dynamics. While I am not concluding that because the Applicant was traditional that he or his parents engaged in family violence or that family violence occurred, rather, I find the Applicant's choice of words inappropriate and gave credibility to Mr. Kashmir Singh's evidence. The Respondent is an adult and rebellious is not a word commonly used to describe an adult with full freedom. I found the Applicant curiously silent on the role his parents may have had in this traditional marriage other than to deny there was ever any wrongdoing by him or his family. They were not called by either party as witnesses.
[61] The second witness, Mr. Hussaini, is a work colleague of the Respondent's. He testified that while the parties were still married, he saw bruises on the Respondent's hand and head. When he asked her about these bruises, she told him that her husband hit her. I found the witness credible in this regard. I believe he was told this information. He did not witness the alleged incident himself.
[62] While I find them credible, I do not find these two witness' testimony confirms family violence occurred as the Respondent sets out in her closing submissions. Rather, they seemed honest about their own observations. Their evidence does not confirm that family violence occurred.
ANALYSIS
Issue 1: Who should have decision-making authority for the child of the marriage, and issues incidental thereto, including travel?
Law
[63] Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (C.A.), speaks to the need for a historical pattern of cooperation to make parenting decisions together. If no historical pattern exists, sole decision-making or a parallel parenting model is appropriate.
[64] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
[65] The legal test to be applied with respect to the parenting issues is the best interests test at s. 24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA"):
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;
(b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
(c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent;
(d) the 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 co-operate, 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 co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take 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 the person's ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person's decision-making responsibility, parenting time or contact with respect to the child.
[66] Also relevant is s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which sets out the best interests of the child test, as follows:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
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.
Factors relating to family violence
(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.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
[67] The Supreme Court has held that a child's best interests must be analyzed from the child's perspective, and not from the perspective of either parent. The focus must always remain on the child, not on the needs or interests of the parents. Consequently, "parental preferences and 'rights' play no role," except in so far as they are necessary to ensure the best interests of the child: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 69 (3); Young v. Young, [1993] 4 S.C.R. 3, at para. 159.
Analysis
Decision-Making
[68] The Respondent has taken the lead with respect to the care for Jordan. Jordan's needs are significant, and, as a result, are demanding both physically and emotionally.
[69] The evidence confirms that the Applicant has not had difficulty with the Respondent's decisions in relation to Jordan, other than the cost of one clinician being involved with Jordan, namely, Ms. Raquel Turner. The Applicant is not seeking to stop Jordan receiving therapy from this therapist. Rather he asserts that he should not have to pay for it as a s. 7 expense because he was not properly consulted, and the expense seems excessive and unclear. I will address the fees for this therapist in the s. 7 expense section of this decision.
[70] The Respondent seeks sole decision-making because the Applicant has chosen to be absent and knows nothing about Jordan. She sees the Applicant as unable to parent and asserts he has not been meaningfully engaging with her.
[71] The Applicant seeks joint decision-making, as he believes without it, there is a high risk that he will be cut out of Jordan's life. He gave evidence that the Respondent did not keep him informed until the trial of this matter became close, at which point she began informing him of matters more clearly.
[72] The evidence of the parties' communications shows that the Applicant has engaged in communication with the Respondent and has shown concern on important issues contrary to the Respondent's version of the events. However, the hard work, organization, resourcing, and awareness of Jordan's issues, emanate from the Respondent.
[73] The Respondent claimed to have kept the Applicant fully informed, but the evidence revealed that she did not communicate about relevant clinical supports. Of importance, the Respondent claimed that the Applicant did not even bother to ask about Jordan at important points. The Respondent, in her evidence, claimed no responses to certain AppClose communications about Jordan, when in truth she just did not produce his communications and rather selectively only produced her own communications. The Applicant brought evidence of communications, responses, and inquiries made on various topics by the Applicant in direct response to the Respondent. In her closing submissions, the Respondent changed her narrative, and instead suggested the Respondent's communications were not "meaningful" communications. Her evidence during the trial, however, was that there was no communication which was shown to be false during cross-examination. These omissions coupled with an evolving narrative dampen her credibility significantly.
[74] During her cross-examination, when she admitted to not sharing information about the clinician Ms. Racquel Turner, she asked counsel for the Applicant how she is supposed to remember to inform and consult with the Respondent, when he has no parenting time, and she does everything herself. I understood her to be justifying not having communicated with him, and yet up until this point she unequivocally blamed the Applicant for not communicating with her. Further, what seems overlooked by her is her own participation in creating this circumstance of having to do everything by herself.
[75] While I do not condone the Applicant for simply accepting no contact with Jordan, I find both parties responsible and having contributed to Jordan not having had parenting time with his father. The Respondent has raised many barriers for the Applicant to have parenting time with Jordan. These barriers appear to be without merit. I cannot only blame the Applicant.
[76] What was not adequately explained by the Applicant is why he did not engage more fully with professional third parties involved with Jordan. It is his lack of full participation with third parties that gives me pause around joint decision-making.
[77] As I stated earlier, I find that the Applicant resolved to self-protect when he chose not to see his son after the second set of charges against him. He could have chosen to pay for a professional supervisor on his own. He could have brought a motion for parenting time and costs of the supervisor. Instead, he intentionally decided to not have parenting time. Ultimately by not seeing Jordan until a final order could be made, he overlooked the difficulty on Jordan's well-being with respect to the loss of a significant person and the need for another future difficult adaption yet again.
[78] He also did not seek out active involvement directly with third party professionals when he was finally provided with relevant information.
[79] Given that his decisions were not focussed on Jordan's best interests, I must question whether a joint decision-making regime is appropriate.
[80] At the same time, I share the Applicant's worry that the Respondent may not involve him adequately. Ultimately, I think the Applicant should have made more efforts to be involved in understanding Jordan's health. By not doing so, I believe he has confirmed that he trusted the Applicant to take adequate care of these decisions for Jordan.
[81] I find there has generally not been conflict over decisions with respect to Jordan, other than with the associated costs of the recent therapist. A requirement to pay for services for a child is not subsumed by the decision-making regime.
[82] The evidence suggests that it is possible that the parties can make decisions together. But it is difficult to know if the Applicant will disengage at a future point. He clearly has no concerns about the Respondent's decision-making for Jordan. Accordingly, an order for the Respondent to have final decision-making is in Jordan's best interests, taking account only of Jordan's best interests. The Respondent must properly consult before being able to make a final decision and if she does not do so, the Applicant can seek relief from the court.
[83] Travel with Jordan, as an incident of decision-making, is to only occur with the written consent of the other parent and I will detail this below in the Order. Given the evidence at the trial, I will make an order that both parties only be permitted to travel with Jordan with consent in advance and in writing.
[84] Each party is to make day-to-day decisions independently, while the child is residing in the relevant party's care.
Issue 2: What should the Applicant's parenting time be? Should there be a condition that he not consume alcohol during parenting time? Should the parenting time be supervised?
Law
[85] The law to be applied for the parenting time issue is the best interests test, pursuant to both the CLRA and the Divorce Act.
[86] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.
[87] A custodial parent must not just accommodate access, they must facilitate it. See; Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551; D.E.S.A. v. N.B., 2025 ONCJ 279.
[88] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. See: Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family) ; Wilson v. Wilson, 2015 ONSC 479 ; V.D. v. A.L., 2015 ONCJ 367.
[89] The right of a child to visit with a non-custodial parent and to form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances: See: D.G. v. A-G.-D., 2019 ONCJ 43 at paras. 127-131 ; Ayub v. Al-Haq, 2022 ONSC 7054.
[90] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ) ; Dayboll v. Biyag, 2022 ONSC 6510.
[91] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.
Analysis
[92] The Respondent seeks that the Applicant have supervised parenting time. It is a high threshold test to meet. Yet, The Respondent has not provided evidence that supports that the Applicant is a danger to Jordan or that he has alcohol or drug addiction issues. The strongest evidence against supervision is that she, herself ,is willing to have the Applicant care for Jordan while she travels to India to visit her father.
[93] Given the length of time that has passed since the Applicant has had parenting time with Jordan, it is in Jordan's best interests to have a gradual step-up parenting plan. It is unfortunate that Jordan will have to go through another adjustment period, and this is ultimately a responsibility that is shared by the parties. I do not see supervision as necessary. I, however, suggest that both parties have individual sessions with the various professionals involved with Jordan to see if someone who is familiar to Jordan can be present for the first three parenting visits between Jordan and the Applicant, as well as to gain advice on how to make the transition easier on Jordan.
[94] In my Order, I will set out a step-up parenting plan to arrive at Jordan having parenting time with his father every other weekend and every other Tuesday evening. I will not require supervision for the Applicant.
[95] In 2 years, the parenting time should be reviewed to determine if it would be appropriate for the Respondent to have additional parenting time.
Issue 3: What are the incomes of the parties? Is there child support and s. 7 proportionate sharing owed on a retroactive basis? What should the ongoing child support quantum and apportioning of s. 7 expenses be? Should the parties be required to obtain life insurance to secure support?
Analysis
Respondent's Income
[96] The Respondent did not make full financial disclosure of her income. There is no clarity of the total Ontario Disability Support Program ("ODSP") income she receives in addition to her salary if she does. There is no clarity of the Disability Tax Credit she receives though this would not form part of her income.
[97] The Applicant appears to be willing to accept her salaried income for the purpose of calculating child support, as he made no request to impute any income to her. I will rely upon her Notice of Assessment income.
Applicant's Income
[98] The expert, Mr. Mathews, CFA, CBV, AM conducted a valuation of the Applicant's business as well as his income for the purposes of child support for the years 2022 to 2024.
[99] The Applicant gave evidence that he has been working in the trucking industry since 2011. Between 2011 and 2016, he has worked in the capacity of truck administrator and truck driver roles. Since 2016, he has been working as a truck driver.
[100] Prior to becoming an owner, the Applicant was paid his employment income through a corporation, 11377272 Canada Inc. ("Corporation 1137") for his services as a driver. Corporation 1137 was incorporated on April 26, 2019. The Applicant is the sole shareholder, owning 100% of the shares, and is the only director. Since 2021, there has been no corporate income for Corporation 1137, as it has been dormant.
[101] There were two bank accounts held by Corporation 1137; one was closed April 7, 2022, while the second was not closed. Disclosure of these accounts were made to the Respondent.
[102] The Applicant's income has varied over the years. In or around September 2020, the Applicant partnered with Mr. Deonarine N. Maloo and incorporated the corporation 2775616 Ontario Inc ("Corporation 2775"). Both are shareholders, each owning 50% of the shares, and both are named directors. There is no shareholder agreement between them.
[103] As of September 14, 2020, Corporation 2775 was contracted as owner and operations for United Petroleum Transport Limited ("UPTL"). Corporation 2775's main asset is a transport truck ("the Truck"). UPTL delivers products between terminals and into retail gas stations. The Truck is plated and marked with UPTL branding; therefore, the Truck cannot be used for any other company. UPTL charges fuel at a capped rate of $0.54/litre and insurance at $100.00 per day. These deductions are deducted directly from the payroll and are not remitted to Corporation 2775's account.
[104] Mr. Mathews prepared a calculation of the Applicant's guideline income for the years 2022 to 2024. The scope of review of the said report included:
a. Personal tax returns of the Applicant for 2022 to 2024;
b. Personal bank accounts of the Applicant for 2022 to 2024;
c. Business bank accounts of both the corporations 11377272 Canada Inc. and 2775616 Ontario Inc. for 2022 to 2024;
d. T2 Corporation tax returns of both the corporations 11377272 Canada Inc. and 2775616 Ontario Inc. for 2022 to 2024;
e. General ledgers of 2775616 Ontario Inc. for 2022 to 2024; and
f. Letters from various individuals and discussions with various collaterals.
[105] Mr. Mathews testified that he analyzed the income with both the "Corporate Income Approach" and "Dividend Approach" and chose to adopt the "Dividend Approach", as this method led to the Applicant's income being higher than the "Corporate Income Approach."
[106] Mr. Mathews testified that there was no revenue generated by Corporation 1137 between 2022 to 2024 and the only revenue generated was from Corporation 2775.
[107] It is Mr. Mathews' finding that the trucking industry has suffered in general. The Respondent disputes this but did not provide evidence to support her contention that the trucking industry is doing better since the pandemic. She did not present a critique of the expert report or her own expert report.
[108] Corporation 2775 is paid per load and the number of loads has gone down. Additionally, the Truck was in a repair shop for approximately one month in 2024. Given that the main asset was not operational, Mr. Mathews found it understandable that the Applicant's income lowered that year. The Applicant also testified that the only truck owned by Corporation 2775 was being repaired for about one month in 2024. This explains some of the variability in the Applicant's income.
[109] In determining the Applicant's income, Mr. Mathews added back discretionary expenses as well as an income-tax gross-up on the discretionary expenses for the years 2022 to 2024.
[110] The Respondent argued that the Applicant's income should be imputed to earning between $160,000 to $200,000. This is based on her belief that the Applicant is suppressing his income and that he has cash income. She pointed to payments from the corporate account for a different truck as proof there is hidden income. I accept the Respondent's evidence that there was a previous truck that was decommissioned around the time the current Truck was purchased as an explanation as to why there were indeed payments for a different truck.
[111] The Respondent claims that although the Applicant is residing in a rental unit, there are no rent payments on his bank statements and the lease is registered in his brother's name. The Respondent suggests this is proof of concealment or suppression of the Applicant's income. The bank statements she references are not in evidence, nor is the lease. Therefore, I cannot place any weight on this argument.
[112] The Respondent also argues that it is impossible that the Applicant has no personal expenses, as these expenses are not listed on his financial statement. She concludes that because he did not set out any personal expenses, he is hiding income. I do not see the nexus between not declaring personal expenses and hiding income. In addition, the Respondent's personal expenses are set out on the Applicant's sworn Financial Statement of May 16, 2025.
[113] The Respondent further argues that there are no expenses in his business for things such as a lease, therefore, I should conclude that he has cash income. I do not understand this argument. There is no lease in evidence, but there is also no evidence of any request for disclosure, such as a lease. I cannot infer or conclude as she asks.
Child Support and s.7 Expenses
[114] I accept the below chart produced by the Applicant as an accurate summary of income and table child support payable across the years. In his chart he tallies what is owed retroactively as he admits he owes retroactive support to 2021 and that some of the monthly payments were missed by him which he owes.
| Year | Line 15000 Income as per Notice of Assessment of the Applicant | Line 15000 Income as per Notice of Assessment of Respondent | Proposed income of Applicant for Child Support | Child Support owed | Child Support paid | Deficit (-) / Surplus |
|---|---|---|---|---|---|---|
| 2021 | $74,125.00 | $28,915.00 | $74,125.00 | 1 month x $692.00 per month = $692.00 | (-) $692.00 | |
| 2022 | $56,548.00 | $66,088.00 | $66,000.00 | 12 months x $615.00 per month = $7,380.00 | (-) $7,380.00 | |
| 2023 | $55,750.00 | $98,890.00 | $65,000.00 | 12 months x $605.00 per month = $7,260.00; 6 months x $745.00 = $4,470.00 | (-) $2,790.00 | |
| 2024 | $43,000.00 | $100,984.00 (excluding ODTC, CCB) | $53,000.00 | 12 months x $489.00 per month = $5,868.00; 12 months x $745.00 = $8,940.00 | (+) $3,072.00 | |
| 2025 | n/a | $100,984.00 (estimated, excluding ODTC, CCB) | $60,000.00 (estimated projections) | 6 months x $556.00 per month = $3,336.00; 6 months x $745.00 = $4,470.00 | (+) $1,134.00 | |
| Total, to June 4, 2025 ( - Updated to include June 2025)* | (-) $6,656.00 |
[115] In keeping with the quantum of child support set out in the chart, the Applicant owes retroactive child support to the Applicant in the amount of $6,656.00 plus $1,668.00 for a total of $8,324.00 to the end of September 2025. The new tables are to apply to child support as of October 1, 2025.
[116] The Respondent sought the Applicant to share in section 7 expenses and only identified that the Applicant had not yet provided his proportionate share for therapist Ms. Turner. She conceded that he had paid towards other section 7 expenses.
[117] The Applicant did not consent to the cost of Ms. Turner as he had researched other services which are less expensive and commonly used to assist families and children diagnosed with autism. The Applicant paid towards all other section 7 expenses as requested by the Respondent but for Ms. Turner.
[118] The Respondent admitted during cross-examination that she did not obtain the consent of the Applicant prior to engaging Ms. Raquel Turner's services. She also did not explain to the Applicant why the other options he presented were not viable options as services. Ultimately, she went ahead on her own to secure an expensive service. It very well may be benefitting both the Respondent and Jordan, but she pursued this on her own with an unexplained departure from the types of more commonly used services such as Kinark. She also has not provided clarity on what coverage she may have received for this service. I find she actively did not involve the Respondent adequately for him to be equipped to understand the departure.
[119] As such, the Applicant is not required to share in the cost of the services of Ms. Raquel Turner for her initial retainer of $10,000 only. Her future services; however, may be a s. 7 expense if proper consultation has occurred. The Applicant should become involved in this service and should not withhold consent unless he has actively investigated the service and has a good reason not to have it continue. If he fails to engage and does not provide adequate reasoning, it should be seen that he is withholding consent unreasonably.
[120] The Applicant references that the child tax credit was not included in the Respondent's income. The child tax credit does not get included in her income. The child resides primarily with her, which is why she receives the child tax credit. Therefore, the child tax credit has already been factored into the child support calculation.
[121] The s. 7 expenses for proportionate sharing should be set at 63 percent from the Respondent and 37 percent from the Applicant and updated each year. The percentages are calculated based on the parties' respective proportion of their total net combined income.
[122] The percentages apply to the net cost of the expense. Therefore, the Respondent can either share the disability tax credit with the Respondent or determine the net cost prior to setting the Respondent's proportionate share.
[123] All s. 7 expenses should be agreed upon in advance before either party must pay their proportionate share.
Issue 4: Is spousal support owed to either party?
Analysis
[124] During the trial, the Respondent indicated she sought spousal support if she is entitled to it; however, she did not seek a specific quantum.
[125] In her closing submissions, the Respondent did not seek spousal support, rather, she sought to dismiss the Applicant's claim for spousal support against her.
[126] In the Applicant's closing submissions, he did not seek a spousal support order.
[127] Given the income differential, with the Respondent earning more than the Applicant in this matter, the Divorce Mate tools do not demonstrate that any spousal support is owed.
[128] No evidence was lead on entitlement of support.
[129] There will be no order for spousal support to either party.
Issue 5: Is there an equalization payment owed from one party to the other and if so, how much?
Law
[130] As stated in Ramezani v. Najafi, 2021 ONSC 7638, by Justice Kraft, at paras. 63-67, pursuant to Part I of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), when married spouses separate with no reasonable prospect of a resumption of their cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them: see FLA, s. 5(1).
[131] The FLA provides for equalization of net family property ("NFP") in s. 5(1). NFP is defined at s. 4 as follows:
"net family property" means the value of all the property, except property described in subsection (2) that a spouse owns on the valuation date, after deducting,
a) the spouse's debts and other liabilities, and
b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deduction the spouse's debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.
[132] When it comes to deducting either the value of debts and liabilities or the net value of pre-marital assets, s. 4(3) of the FLA places the onus of proving those deductions on the person claiming them.
[133] Once each party's NFP has been calculated, the FLA says in s. 5(1), "the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them." The process of doing so is called equalization of NFP, by way of an equalization payment from the spouse with the greater NFP to the spouse with the lesser.
[134] As pointed out by Justice Kiteley in Meade v. Meade (2002), 31 R.F.L. (5th) 88 (Ont. S.C.), at para. 42:
It is incumbent on the owner of assets at valuation date to (a) disclose the existence of the asset; and (b) provide documentation in his possession, power or control which verify the value which he attributes at valuation date.
[135] In Delongte v. Delongte, 2024 ONSC 3454, at para. 16, the court notes:
The law is clear. The party who asserts a value has a duty to provide credible evidence as to its value: Virc v. Blair, 2017 ONCA 394, 138 O.R. (3d) 191, at para. 59 ; Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 38.
Analysis
[136] During the trial, the parties entered into a Statement of Agreed Facts with respect to all items, with the exception of six items that remained in dispute for the purposes of equalization of net family properties.
[137] The following items remain in dispute:
The value of the jewelry held by the Applicant as of the date of valuation. The Applicant's position is that it is estimated to be worth $1,000.00 and the Respondent's position is that it is estimated to be worth $4,000.00.
The value of the jewelry held by the Respondent as of the date of valuation. The Applicant's position is that it is estimated to be worth $20,000.00 and the Respondent's position is that it is estimated to be worth $30,000.00.
The value of the Respondent's personal loan from her father, Mr. Satpal Singh. The Applicant's position is that it is $0.00 as of the date of valuation. The Respondent's position is that it is $25,000.00 as of the date of valuation.
The Respondent's personal loan from Mr. Kashmir Singh. The Applicant's position is that it is $0.00 as of the date of valuation. The Respondent's position is that it is $10,000.00 as of the date of valuation.
The value of the business interest of the Applicant in Corporation 2775 as of the date of valuation. The Applicant's position is that it is $36,000.00 and the Respondent's position is that it is $100,000.00.
The value of the business interest of the Applicant in Corporation 1137 as of the date of valuation. The Applicant's position is that it is $1,500.00 and the Respondent's position is that it is $50,000.00.
Jewellery
[138] The Respondent did not lead any evidence with respect to the value of the jewellery, whereas the Applicant testified about purchasing jewellery from Michael Hill, along with relevant estimates. I accept his values for the jewellery. It should be noted that the value provided by the Respondent leads to her owing a higher equalization payment and therefore, the Applicant's proposed value is to her benefit.
[139] There is an additional issue with respect to the jewellery, in that the Respondent claims the jewellery is in the possession of the Applicant. He denies having this jewellery. He says the jewellery owned by the Respondent is in her possession or it could be in the safety deposit box at the bank. The Applicant proposes to open the safety deposit box in the presence of the Respondent, who can bring a support person with her, and she can have the contents of the safety deposit box but for two personal items of the Applicant. The Respondent is not agreeable; however, I find his proposed solution reasonable. I do not have jurisdiction to force her to a meeting. I suggest if she does not attend, she will have to accept whatever the Applicant finds in the safety deposit box and gives to her as he has suggested. As such, the Applicant is to schedule (with the Respondent's availability in mind, should she provide such availability) a date for his attendance at the bank to open the safety deposit box and to inform the Respondent of the date and time. Both parties shall bring support persons to this meeting. If the Respondent does not attend, the Applicant is to send the Respondent the contents, minus his two personal items.
Loans
[140] The Respondent gave evidence that her father lent her money as well as Mr. Kashmir Singh. Mr. Kashmir Singh's evidence is that he lent Mr. Satpal Singh the money not the Respondent. Therefore, I agree that no value be attributed for this loan.
[141] With respect to the Respondent owing her father money, Mr. Satpal Singh did not testify. The Respondent did not provide adequate proof of her father giving her a large sum of money, as she claims it was given in cash. She testified that her brother arranged for the cash to be provided to her through a friend. While this may be a culturally specific way of providing money to a relative, I do not have sufficient evidence to find a loan owed by the Respondent to her father.
[142] Of note, cross-examination of the Respondent demonstrated that despite her indicating that she was forced to borrow money because she has no funds, it was determined that she had at least $25,000 in her account available to use. She also chose to upgrade her car to a Mercedes and increased her monthly car payment by over $500 a month. This is while the Applicant was paying for the matrimonial home on his own, as well as paying child support to the Respondent. These facts make it even more unlikely that the Respondent's version of the events is accurate.
Values to Corporations 1137 and 2775
[143] With respect to the value of the businesses, the Applicant relied on Mr. Mathews' valuation report.
[144] Mr. Mathews testified that from the date of marriage to the date of separation, the Applicant had a beneficial interest in two corporations, namely, Corporation 1137 and Corporation 2775.
[145] Mr. Mathews testified that there was no commercial goodwill for either corporation as of the date of separation. Mr. Mathews determined that there was no commercial goodwill for Corporation 2775 after a few considerations. The Applicant and Mr. Maloo had only one major asset through Corporation 2775, namely, the Truck which is plated, branded, and insured in the name of UPTL. In his assessment, because the corporation is structured to service one company, goodwill should not be attributed. Secondly, these are relatively new businesses, therefore, goodwill has not developed.
[146] As he concluded that there was no commercial goodwill, he adopted the "book value approach" when determining the value of the two corporations.
[147] Mr. Mathews attributed a 5% minority discount while calculating the Applicant's interest in Corporation 2775 because there are two shareholders, owning 50% of the shares each, with no written shareholder agreement, and neither of them have control. He specifically pointed to a relevant case, Matthews v. Accent Lines (1988) Ltd., 1998 ABQB 180, at para. 78, aff'd 1999 ABCA 355, 250 A.R. 29, as instructive to his conclusion. He noted that anything beyond a 5% reduction would be aggressive and subject to the discretion of the court. The minority discount led to a reduction of $1,500.00 in the Applicant's interest in Corporation 2775, arriving at a value of $36,000.00.
[148] Mr. Matthews did not attribute a minority discount to the Applicant's interest in Corporation 1137, as the same above factors were not present. The Applicant's interest in Corporation 1137 as of the date of separation was concluded to be $1,500.00.
[149] The Respondent, while she disagrees, did not provide any evidence to the contrary. I accept the Applicant's values for these outstanding items.
Equalization Payment
[150] The Respondent owes to the Applicant a sum of $88,913.89 for the equalization of the net family property.
Issue 6: Are there any post-separation adjustments? Should the Respondent pay occupation rent to the Applicant?
Post-Separation Adjustments
Analysis
[151] The parties agree that the Applicant paid the mortgage and some carrying costs on the matrimonial home post-separation. These amounts were $50,354.66 in mortgage payments and $6,378.35 in Enbridge, Alectra, Rogers Internet, and water heater rental payments.
[152] The Respondent paid the property taxes in the amount of $10,733.86. The Respondent does not seek that the Applicant be responsible for paying her back his half; however, the Applicant seeks to pay her his half.
[153] The Applicant seeks to be repaid for the differential, and the Respondent disagrees. Her reasons, in summary, for not wanting to pay her share of the mortgage are:
a. She was on maternity leave at the time;
b. She paid the property taxes in the total amount of $10,733.86;
c. She is willing to equalize the Ontario Disability Tax Credit;
d. She had to borrow funds from her father to pay legal fees during this time; and
e. She has taken on the care of their child with special needs. She wants to put aside the remaining proceeds from the sale of the matrimonial home for Jordan.
[154] The Respondent also argues this as a constructive trust claim. A constructive trust claim is not applicable in the way that she attempts to argue it here. She provided no evidence and no law to support a constructive trust claim.
[155] It is typical that the parties share in the cost of the matrimonial home, as it is a joint asset. It is also typical that the party who resides in the home also pays for carrying costs of the home while residing there. I see no basis for the Applicant and the Respondent not to share in the mortgage costs. The Respondent should also pay for the carrying costs of the matrimonial home while she had exclusive possession and before its sale. The property taxes paid by the Respondent should also be shared. While the Respondent may wish to set aside funds for Jordan, and this is admirable, this desire is not a basis for post-separation adjustments not to be made.
[156] I find the request for post-separation adjustments in the amount of $26,188.75 payable to the Applicant to be reasonable. This is calculated as the $25,177.33 owed to the Applicant, which represents 50% of the mortgage payments related to the former matrimonial home, less $5,366.93, which represents 50% of the property tax and property insurance paid by the Respondent, plus $6,378.35, which represents 100% of the sole carrying costs of the matrimonial home for the Enbridge, Alectra, Rogers Internet and water heater rental expenses, paid by the Applicant.
Occupation Rent
Law
[157] Occupation rent is a discretionary remedy, used as a tool for balancing competing equities: Jasiobedzki v. Jasiobedzka, 2023 ONCA 482, at para. 15.
[158] In Delongte at paras. 240-241 and 243-244, the court states:
The issue of occupation rent was recently before the Court of Appeal for Ontario. In that decision, it was made clear that an award for occupation rent must be reasonable but does not have to be exceptional: Nom Chhom v Green 2023 ONCA 692 at para. 8.
The factors which I should consider when deciding if occupation rent is warranted is the timing of the claim, the duration of the other spouse's occupancy, the inability of the non-resident spouse to realize their equity in the property, any reasonable credits to be set off against occupant rent, and any other competing claims: Griffiths v. Zambosco at para. 49, cited in Chhom.
The remedy must be assessed in relation to the affairs of the whole family, including the claims for child and spousal support: K. v H. 2024 ONSC 112 at para. 114.
In Higgins v Higgins, at para 53 Justice Quinn reviewed the law on occupation rent and laid out the considerations when determining whether such an award is appropriate:
a. the conduct of the non-occupying spouse, including the failure to pay support;
b. the conduct of the occupying spouse, including the failure to pay support;
c. delay in making the claim;
d. the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;
e. whether the non-occupying spouse moved for the sale of the home and, if not, why not;
f. whether the occupying spouse paid the mortgage and other carrying charges of the home;
g. whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;
h. whether the occupying spouse has increased the selling value of the property; and
i. ouster is not required, as once was thought in some early decisions. [Emphasis added].
Analysis
[159] The Applicant seeks occupation rent for the following reasons. The parties were married short-term, the Respondent resisted the sale of the home requiring a contested motion, the house sold for less due to the Respondent's delay, the Applicant depleted his savings to pay for the mortgage and carrying costs of the matrimonial home, and all the while he also paid child support to the Respondent during this time.
[160] According to the Applicant, the delay in the sale created a significant reduction in the profits from the sale of the matrimonial home. He did not lead any evidence to establish that the reduction specifically occurred because of the delay in sale. I appreciate it is a well-known fact the market has fluctuated dramatically over the past few years. Regardless, I cannot conclude that the matrimonial home sold for $500,000 less as he claims and as a basis that he obtains occupation rent.
[161] The Respondent opposes occupation rent for the same reasons she opposed paying the Respondent any funds for post-separation adjustments.
[162] There are many factors to consider in this matter and I am not persuaded that occupation rent is appropriate. The reality is that the stability of being in the same home has been beneficial to Jordan who is a child with special needs. The Respondent was able to continue providing such stability to Jordan post-sale of the home by continuing to remain in the home as a renter. The rental market is different each year and I have no evidence of what would have been the appropriate market rent at the time occupation rent is being sought.
[163] The Applicant's claim for occupation rent is dismissed.
Issue 7: Are there any damages owed to either party?
Damages Sought by the Respondent for Family Violence
Analysis
[164] The Respondent essentially seeks damages due to family violence.
[165] Given the state of Ahluwalia v. Ahluwalia, 2023 ONCA 476, leave to appeal granted and appeal heard and reserved February 12, 2025, [2023] S.C.C.A. No. 529, a tort of family violence is not available for the court to consider.
[166] Even if I were to consider the Respondent as really intending to make a claim for the torts of battery, assault, and intentional infliction of emotional distress, this is done on an incident basis rather than assessing the pattern of violent and controlling behaviour over the course of a spousal relationship. The evidence she has about incidents are primarily her version of the events – her word. However, her credibility is at issue with the video recording of the exchange that does not support that an assault occurred.
[167] While I do not seek to condone the use of surreptitiously recorded video evidence, the video recording was admitted into evidence on consent and was relied upon by both the Applicant and the Respondent. In any event, even if it were necessary for me to consider whether to admit the video recordings, the court retains discretion when the evidence's probative value outweighs the strong policy against it: Van Ruvyen v. Van Ruyven, 2021 ONSC 5963, 62 R.F.L. (8th) 451, at para. 33.
[168] The Respondent did not dispute its contents. She did not offer any further explanation of how the assault could have occurred as she described to the police. Instead in her closing submissions she simply says the assault at the exchange was witnessed and did occur. There was no witness that came forward on this issue at the trial.
[169] The main evidence she has about violence is:
a. Description of acts of violence that are based on her word only and are not consistent with her various reports to the police and CAS;
b. A hole in the wall she says the Applicant made which is denied by the Applicant;
c. A work superior who states that the Respondent told him that the bruises on her head and hand were from being hit by her husband; and
d. A camera angled at the crib and at her bed as proof that the Applicant was controlling and watched her every move. I do not find this evidence persuasive as the crib is beside the bed and it is common for a camera to be in a child's room. In this instance the child happens to share a room with his parents. I cannot conclude what the Respondent asks me to conclude.
[170] As I stated earlier, I cannot know if the Applicant was abusive during the marriage for certain, but the evidence the Respondent is relying upon is insufficient for a finding at a threshold that is necessary to establish the torts that are related to violence. The Respondent also has not established sufficient evidence to demonstrate damages.
[171] The Respondent's request for damages in the amount of $150,000 is dismissed.
Damages sought by the Applicant for Malicious Prosecution
Law
[172] In Nelles v. Ontario, [1989] 2 S.C.R. 170, at pp. 192-193, the Supreme Court of Canada set out the test for malicious prosecution. This test was reaffirmed by the Supreme Court in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 53-56:
The proceedings must have been initiated by the defendant;
The proceedings must have been terminated in favour of the plaintiff;
The absence of reasonable and probable cause; and
Malice, or a primary purpose other than that of carrying the law into effect.
[173] To make a finding of malicious prosecution, each of the four elements must be established on a balance of probabilities.
[174] The consensus in the case law is that the bar for a malicious prosecution is high as set out in Curley v. Taafe, 2019 ONCA 368, 146 O.R. (3d) 575, at para. 20. This is especially so when a claim of malicious prosecution is brought against a private person. In D'Addario v. Smith, 2018 ONCA 163, at para. 24, the Court of Appeal for Ontario explained that it is more difficult to establish malicious prosecution against a private person than a police officer.
[175] In Ramezani, at paras. 351-69, the husband sought damages for malicious prosecution after the wife falsely alleged that he sexually assaulted her, which led to the husband being detained, sexual assault proceedings being initiated against the husband, and the husband losing his job and his parenting time with his son. The trial judge found that malice was made out because the wife made a police complaint to gain an advantage in the family law proceedings, as she must have known that the allegations would lead her to have exclusive possession of the matrimonial home, which would assist her in her family law proceedings, including with respect to parenting and child support. Malicious prosecution was established, and the husband was granted $40,000 in general damages and $10,000 in punitive damages.
[176] In Chatha v. Uppal, 2018 BCSC 6, at paras. 445-490, the husband brought a claim for malicious prosecution alleging that the wife made false allegations that he assaulted her with a weapon. This led to charges being laid against the husband, stringent bail conditions being imposed, and an unsuccessful prosecution of the charges resulting in costs to the husband for his criminal defence. The trial judge considered the totality of the evidence and concluded that the wife initiated a prosecution against the husband for the improper purpose of a collateral advantage of her and her family gaining ownership of a coveted property, or alternatively, an advantage in family law proceedings.
[177] The husband's claim was successful, and he was awarded $20,000 in general damages and $10,000 in special damages to cover his legal costs. Looking at the final element of "malice" in proving malicious prosecution, Justice Harvey noted, at para. 470:
[A] successful prosecution for malicious prosecution need not entail identifying the underlying motive; simply allowing the court to conclude that the motive giving rise to the initiation of the prosecution, and that there was an absence of reasonable and probable cause for initiating it, is sufficient for the purposes of founding the action if that person's primary purpose was other than properly carrying the law into effect."
[178] In D.S.B.L. v. K.B.C.L, 2005 BCSC 1178, at paras. 32-57, the husband brought a claim for damages for malicious prosecution after the wife alleged to police that he assaulted and threatened her. This led to charges being laid and a trial being held, where the husband was acquitted because the trial judge did not believe the wife. The wife's desire to advance her position to succeed in her claims for relief in her action against her husband amounted to "malice." The husband was successful in his malicious prosecution claim but was only awarded damages of $9,970 for the amount he spent on legal fees relating to the criminal proceeding.
Private Litigant or the Police
[179] The Court of Appeal for Ontario held in Konstan v. Berkovits 2024 ONCA 510, 172 O.R. (3d) 524, at para. 32, as a general rule, the Court will view the police officer who laid the charge as having initiated the prosecution. However, there are a narrow set of "exceptional circumstances" where private citizens will be taken to have initiated a prosecution even though they did not lay the charges that commenced the prosecution.
[180] A non-exhaustive list of the exceptional circumstances was set out in Kefeli v. Centennial College of Applied Arts and Technology, at para. 24, including the following:
a. the complainant desired and intended the plaintiff to be prosecuted;
b. the facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the professional prosecutor or police officer to exercise any independent discretion or judgment in determining whether or not to lay the charge (the "virtually impossible standard"); and
c. the complainant procured the institution of proceedings by the professional prosecutor or the police officer, either by furnishing information relevant to the determination of whether or not the charge should be laid that he knew to be false, or by withholding information that he knew to be true, or both.
[181] The virtually impossible standard in the context of falsely and maliciously providing information that leads to a prosecution was explained in the House of Lords decision of Martin v. Watson, [1995] UKHL 25, at para. 15:
Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.
[182] Subsequent Court of Appeal decisions have held that the initiation requirement can also be met in other exceptional circumstances that fall short of the virtually impossible standard. For instance, in McNeil v. Brewers Retail Inc., 2008 ONCA 405, at para. 50, the Court of Appeal for Ontario explained:
[A] person may be regarded as the prosecutor or the individual who initiated the action if "he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information in the knowledge of which the police would not prosecute." [Citations omitted].
[183] Similarly, in Konstan, at para. 37, the Court of Appeal for Ontario stated the following:
The question is not whether criminal charges would have been laid in the absence of the complainant's report to the police. Rather, the question is whether, through knowingly supplying misinformation or withholding evidence, or through other wrongful conduct, the complainant compromised the police investigation and/or the independence of the decision by police to lay charges.
Analysis
[184] Although a reading of the paragraphs from McNeil and Konstan may suggest that a court could find that a private person initiated a prosecution by proving they misled the police or withheld exculpatory information, in Konstan, the court noted that since McNeil, the Court of Appeal for Ontario "has imposed a more rigorous standard.": at para. 33. One example of this is the case of D'Addario v. Smith, 2015 ONSC 6652, aff'd 2018 ONCA 163, where the defendants were found to have provided false statements to the police that led to the plaintiff being charged. The trial judge held that the false statements were not enough to satisfy the requirement that the defendants initiated the prosecution. The trial judge stated, at para. 49, that there had to be "evidence that the defendants withheld exculpatory evidence; that they pressured the police in laying the charges or somehow compromised the independence of the investigation." This reasoning was upheld by the Court of Appeal for Ontario on the grounds that the police officer relied on her own independent discretion to lay the sexual assault charge.
[185] Justice Healey's comments at para. 20 of Bullock v. Doe, 2025 ONSC 947, are also instructive in describing the standard for the initiation requirement:
a. Showing that a complainant deliberately withheld exculpatory information or misled the police is not enough to establish the first factor. Decisions from the Court of Appeal for Ontario show that these cases are highly fact-driven, focusing on the nature of the complainant's wrongful conduct and its direct effect on the police investigation and decision to lay charges.
[186] The limits on the police's discretion to lay charges may also be a relevant factor in determining whether a private person initiated a prosecution. In D'Addario (ONSC), at paras. 26-33, the court listed domestic assault, sexual assault on a minor, and sexual assault when there are no other witnesses, as examples of complaints where the police can be said to have no independent discretion in laying a charge because of their mandatory nature. The argument that police officers have no discretion in laying charges for domestic violence in Ontario was raised by the plaintiff to establish the initiation requirement in Bobel v. Humecka, Patten, 2021 ONSC 852, at para. 124. However, the trial rejected this argument, noting that (in addition to the lack of evidence that the defendant initiated the prosecution), the test for establishing initiation is high and dependent on the facts of each case.
[187] While there appears to be some discretion or differences in view set out in the caselaw on the issue of the police laying charges in family violence situations, I find that given the video recordings the first three prongs of the test have been met. The alleged assault did not occur at the morning parenting exchange as the Respondent alleged to the police. When there is clear evidence that a litigant has falsified charges, I find the logical conclusion to be that the Respondent initiated these proceedings. The charges were withdrawn by the Crown after review of the same video evidence. I find the video recordings demonstrate that there was no reasonable and probable cause.
4th Element: Malice
[188] The fourth element of the malicious prosecution test requires proof that the defendant was motivated by "malice, or a primary purpose other than that of carrying the law into effect": Miazga, at para 3.
[189] The consensus in the case law is that a lower threshold applies for establishing malice where a claim for malicious prosecution involves a private person than when the action is against the Attorney General or the Crown.
Defining Malice
[190] At its core, malice in the context of a malicious prosecution claim means the "use of the criminal justice system for an improper purpose": Oniel v. Marks (2001), 195 D.L.R. (4th) 59 (C.A.), at para. 42. The widely accepted definition of malice derives from Nelles, in which the Supreme Court explained at p. 193, "the required element of malice is for all intents, the equivalent of "improper purpose." It has according to Fleming, a "wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage": (J.G. Fleming, The Law of Torts, 5th ed. (Sydney: The Law Book Company Ltd., 1977), at p. 609).
Establishing Malice
[191] In St-Jacques v. Doyle, Justice Ferrier explained the following about establishing malice, at paras. 8 and 9:
Malice is established by showing that the actual motive was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the defendant. The burden is on the plaintiff to show malice.
With respect to allegations of malice, a suit for malicious prosecution must be based on more than recklessness or gross negligence. The test for malicious prosecution requires that the plaintiff show that the actual motive was improper or demonstrate that the prosecution can only be explained by imputing a wrong motive. Neither bald allegations of malice, nor inferences in the face of other explanations, nor assumption and innuendo will satisfy the elements of the test. [Emphasis in original].
[192] The Court of Appeal for Ontario provided some guidance on improper motives as evidence of malice in Oniel, at para. 46, citing J.F. Clerk, Clerk & Lindsell on Torts, 18th ed. (London: Sweet & Maxwell, 2000), at p. 841:
Improper motives "Malice in this context has the special meaning common to other torts and covers not only spite or ill-will but also improper motive." The proper motive for a prosecution is, of course, a desire to secure the ends of justice. If a claimant satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and probable cause. The jury, however, are not bound to infer malice from unreasonableness; and in considering what is unreasonable they are not bound to take the ruling of the judge. [Emphasis in original].
[193] Moreover, in Miazga, at para. 87, the Supreme Court explained that with respect to private parties, malice has historically been inferred from a finding that the prosecution was initiated absent reasonable and probable grounds because " why else would a private person initiate a prosecution based entirely on facts not believed to be true, or worse still, known to be false ?" The jurisprudence does not provide a clear consensus on whether malice can be inferred from the surrounding circumstances, with cases both supporting and opposing such an inference.
[194] In Drainville v. Vilchez, 2014 ONSC 4060, at para. 17, m alice has also been established where it is found that the defendant had reason to lie about the allegations and was fully aware of the consequences of making false allegations to the police. In Curley v. Taafe, 2018 ONSC 3150, at para. 74, rev'd on other grounds, 2019 ONCA 368, 146 O.R. (3d) 575, a defendant has also been found to have a malicious intent by virtue of their motivation in providing the information to the police to charge the defendant which only they could know was false.
[195] The fourth part of the test is to find malice. Based on the definitions outlined above, I find that the Respondent either intended to have the Applicant charged or intended to have the Applicant stop having unsupervised time with Jordan.
[196] In either scenario, there is clear and cogent evidence that she made up false allegations to get an intended result which is not the intention of the charges. The prosecution can only be explained by imputing an improper motive, and as a result, I find she engaged in malice.
[197] I find that the Applicant has established that the Respondent engaged in malicious prosecution by alleging false claims to the police that led to his charges. Family violence is a serious societal issue that requires the police to trust victims who bravely come forward to address theirs and their children's safety. Victims of violence often do not wish the perpetrator to be in trouble, simply that they wish the behaviour to stop. In this instance, even if I give the Respondent the benefit of the doubt and believe there was no ill will towards the Applicant, and, rather, she intended to protect her child from unsupervised time with his father, I cannot condone her behaviour. Intentionally providing the police with false information to subvert a court order is sufficient to establish malicious behaviour.
[198] I now turn to damages. The Applicant seeks $10,000 in damages to cover his legal fees, his humiliation, and because the Respondent's malice resulted in him not seeing his child for the past two years.
[199] I do not agree that the Applicant lost parenting time entirely because of the Respondent's actions. It is the Applicant who elected not to pursue supervised parenting time or the involvement of the court to assist with parenting time. I find that it was his desire to engage in self-protection that led him to not see his child. I appreciate that it must be traumatic to endure false charges, however, blaming the Respondent for him not seeing his child is overlooking his own role and responsibility in the circumstances within which he finds himself. He chose self-protection.
[200] There are cases where a parent may elect not to see a child to protect them from the other parent's manipulation or ongoing harm until matters can be resolved. I do not find this to be the case considering the age and special needs of Jordan. Rather, I find this to be a case where the father put his own interests first. His decision to not to see his child was for self-protection, and not to protect his child.
[201] I appreciate that there must be embarrassment and humiliation associated with having been charged but I do not find that alone sufficient for damages.
[202] I find in favour of damages for his criminal lawyer fees only. There will be an order for $3,000 for damages for malicious prosecution payable from the Respondent to the Applicant.
Issue 8: Should there be an order restraining the Applicant from the Respondent?
Analysis
[203] The Respondent seeks a restraining order. She gives no evidence to support why it is needed. The Respondent's request is dismissed.
Issue 9: Should there be an order for costs?
[204] Both parties seek costs in this matter. If the parties are unable to resolve costs, the parties shall submit, to the Trial Co-ordinator's Office to my attention, their costs submissions of no more than 3 pages each along with any Offers to Settle and Bill of Costs on the following timeline:
a. The Applicant to submit by October 20, 2025.
b. The Respondent to submit by October 27, 2025.
c. The Applicant to submit any reply by October 29, 2025.
DISPOSITION
[205] Order to go as follows:
Decision-Making
The Respondent shall have sole decision-making responsibility for the child of the marriage, namely, Jordan Singh Sethi, born November 4, 2020 ("the child") on a decision related to health, education or religion after consulting with the Applicant.
In the event that a decision is made by the Respondent without first consulting with the Applicant, the Applicant may bring a Motion to Change decision making authority.
The child shall primarily reside with the Respondent.
The party residing with the child at the relevant time shall make day-to-day decisions related to the child.
The party residing with the child at the relevant time shall make the emergency medical decision(s) relating to his welfare and inform the other party at the earliest possibility.
The Respondent shall hold the originals of the government IDs of the child, child's OHIP Health Card, and passport and provide a digital version and a notarized copy of the same to the Applicant, forthwith and within 10 days of any subsequent renewals.
The parties shall prefer the child's interest to their own. The parties shall:
(a) Exchange information regarding the child;
(b) Encourage the child to have a good relationship with each parent; and
(c) Refrain from making disparaging remarks about the other parent to the child or in his presence.
Neither party shall attend the others home or work, without prior written consent.
The parties shall use AppClose to communicate with each other on the parenting issues, except for in the case of emergency, at which time they may call each other.
Neither party may discuss any other issues via AppClose other than those directly related to the child.
Neither party shall travel with the child, outside of Canada, without the prior written consent of the other or court order. Neither party shall withhold consent unreasonably.
If a party plans a vacation with the child, that party shall give the other party a detailed itinerary at least 30 days before the vacation begins, or as soon as it is practical if plans are made less than 30 days before the vacation begins, including the name of any airline carrier and flight times, accommodation including address and telephone numbers, and details about how to contact the child during the trip.
The parties shall have equal rights to get information from, and provide inputs to, any of the professionals/agencies involved with the child, including but not limited to doctors, therapists, counsellors, teachers, dentists, daycare, school, and so forth. If needed, the parties shall execute any written consent necessary for those purposes, forthwith.
The parties shall follow the relevant provisions of the Divorce Act, before undertaking any relocation.
The parties shall keep each other informed of their latest contact information, including but not limited to address, cell phone number, and e-mail address.
Parenting Time
The child shall continue to reside primarily with the Respondent.
Subject to any further written agreement between the parties, the Applicant shall have the following gradual unsupervised parenting time with the child:
Phase 1
(a) Commencing immediately and for the next two months (mid October to mid December):
i. Every Monday: from after school to 8:00 pm;
ii. Every Tuesday: from after school to 8:00 pm;
Phase 2
(b) For the following three months (mid December, January, and mid February):
i. Every Tuesday: pickup from school to 8:00 pm;
ii. Every Saturday from 10:00 am to Sunday at 12:00 noon;
(c) From mid March 2026 forward:
i. Every Tuesday: pickup from school to drop-off at to 8:00 pm;
ii. Every other Friday: pickup from school to Sunday at 6:00 pm;
- Unless agreed otherwise in advance and in writing, all the parenting time exchanges shall take place at school (if the parenting commences or ends at such time) or at the South Simcoe Police station located at 81 Melbourne Drive, Bradford, Ontario (in case of holiday or not at school time).
Child's Illness
If the child becomes ill at school, the parent that is supposed to have him later that day will be responsible for picking him up and either taking him to their home or going to the doctor.
If the child becomes ill during a parent's time, it is that parent's responsibility to inform the other parent, particularly if their parenting time is concluding the following day. The parent with the ill child is responsible for providing care until 4:30 p.m. the next day, unless otherwise mutually agreed upon.
Thanksgiving Weekend
- Commencing January 1, 2026, the child shall spend this holiday alternately residing with each parent. Whichever party has the child in accordance with the regular schedule will have him from Friday after school or 4:30 p.m. until Monday at 9:00 a.m., and the other party will have him from Monday at 9:00 a.m. until Tuesday at the commencement of school.
Christmas School Vacation
This holiday commences from the last day of school in December until the commencement of school in January.
Commencing 2026, for the December holiday break, the child shall reside in alternate years in the care of one party from after school on the day that the Christmas School Vacation period begins (normally a Friday) until December 25th at 12:00 p.m., and with the other party from December 25th at 12:00 p.m. for eight (8) consecutive nights ending at 5:00 p.m. the following day (January 2nd), and with the former party for the balance of the Christmas school vacation period, if any, ending on Monday morning at the commencement of school. The regular schedule would then resume.
For 2026, the Applicant shall have the child for the first part of the holiday so that the child shall reside with him from when the Christmas School Vacation period begins until December 25 at noon. The Respondent shall have the child from December 25th at 12:00 p.m. for eight (8) consecutive nights ending at 5:00 p.m. the following day (January 2nd). The Applicant shall pick up the child on January 2nd at 5:00 p.m. for the balance of the Christmas school vacation period until the start of school.
Other Long Weekends
- Commencing 2026, the child shall reside with the party that has him that weekend as per the regular schedule. The party returning the child to the other party on a long weekend must do this by 6:00 p.m.
March School Break
The child shall spend March break with both parents. The Monday to Wednesday at 5:00 p.m. portion of that week shall be the parenting time of the party who has the child for the weekend prior to the March break. The Wednesday at 5:00 p.m. to Friday portion of that week shall be the parenting time of the party that has the weekend following the March break.
Arrangements for any travel out of the country during the March break vacation period are to be made no later than January 15th of each year.
In the event that one party requests to take the child on a vacation out of the country for March break, such request shall not be unreasonably denied. The non-travelling party will have the same opportunity to do the same thing the following March break.
Long Easter Weekend
- Commencing 2026, the child shall spend this holiday alternately residing with each parent. In odd-numbered years commencing in 2027, the child shall reside with the Applicant during the long Easter weekend from Thursday after school or 4:30 p.m., if they are not in attendance at school until Saturday evening at 7:30 p.m. The child shall reside with the Respondent from Saturday evening at 7:30 p.m. until Tuesday morning at 10:00 a.m. or the commencement of school. In even-numbered years, the schedule will be reversed.
Father's Day/Mother's Day
- Commencing 2026, the child shall reside with the Applicant each year on Father's Day from 9:00 a.m. until 7:00 p.m., if the child is not otherwise in his father's care that weekend. The child shall reside each year on Mother's Day with the Respondent from 9:00 a.m. on Mother's Day until 7:00 p.m. that same day, if the child is not otherwise in his mother's care on that weekend.
The child's birthday and the parents' birthday
The child shall have contact with each party on their respective birthday each year for a three-hour period. Since both parents of the child have birthdays in the summer, the party that does not have the child when it is their birthday can elect whether they want to celebrate the birthday over the lunch or dinner hour period. The lunch period is 12:00 p.m. to 3:00 p.m. and the dinner period is 4:00 p.m. to 07:00 p.m.
The child's residency will not change when a party has their own birthday.
Commencing 2026, the Respondent may arrange/organize the child's birthday party with friends in even-numbered years and the Applicant may arrange/organize the child's birthday in odd-numbered years, if they elect to have one. Each party can organize a separate birthday party for their own family.
Summer School Vacation
Commencing 2026, each party shall have four non-consecutive one-week periods with the child during the summer period from the end of school in June until the commencement of school in September. In the summers when there are 9 weeks, the child shall spend the extra week on a shared basis with each parent.
The arrangements for summer vacation periods are to be made no later than March 1st of each year. The Applicant is to have first pick of these weeks in even-numbered years and Respondent to have first pick of these weeks in odd-numbered years.
Child Support
Commencing October 1, 2025, the Applicant shall pay to the Respondent child support based on an income of $60,000.00 per annum.
A party shall only contribute to a child's s. 7 expenses, special and/or extraordinary expenses, inclusive of extra-curricular activities, if that party consents to the expense(s) in advance and in writing. Neither party shall unreasonably withhold his or her consent.
The parties shall maintain the child on their extended health, medical, and dental benefits available to them through employment (if any) for as long as it is available for the benefit of the child.
As per the Federal Child Support Guidelines, SOR/97-175, the parties shall contribute equally toward the agreed upon s. 7 expenses, special and/or extraordinary expenses of the child. The apportionment of such expenses shall be done after considering all of the tax benefits, work benefits, subsidies, insurance, tax credits, social assistance, and so forth, which may be received by the Respondent. For the year 2025, the proportions shall be 37.3% by the Applicant and 62.7% by the Respondent.
The proportionate share of the net agreed upon s. 7 expenses shall be paid by the non-incurring party to the incurring party within 5 days of providing a receipt and details of any benefits, tax credits, and subsidies received by the party incurring the expense via AppClose. The incurring party shall provide such receipt and proof of the payment to the non-incurring party no later than 30 days of incurring the expense.
Either party may seek a variation (i.e. change) in child support (table and s.7 expenses) if there is a material change in the condition, means, needs or other circumstances of the Applicant, the Respondent or the child, that would affect child support.
A material change in the condition, means, needs or other circumstances of the Applicant, the Respondent or the child, may be foreseen or unforeseen, foreseeable or unforeseeable, and may include:
(a) a material change in either party's financial position;
(b) a change causing undue hardship for either party or the child;
(c) a change in the child's living arrangement (i.e. parenting time with the parties, and/or residence of the child) that impacts the amount of child support under the Guidelines;
(d) the child turning the age of majority; or
(e) a change in the child's need for support.
When an event terminating or varying child support occurs, the Respondent shall immediately notify the Applicant and the Family Responsibility Office (if applicable) in writing. If the Respondent does not notify the Applicant and the Family Responsibility Office (if applicable), and the Applicant must end or vary his support obligation by court procedure, the Respondent shall reimburse the Applicant for any overpayment of support and costs as may be determined by the court.
As of September 30, 2025, the retroactive child support payable by the Applicant to the Respondent shall be fixed at $8,324.00 and the same shall be deducted from the equalization payment owed by the Respondent to the Applicant.
Equalization / Property
The Respondent owes to the Applicant a sum of $88,913.89 for the equalization of the net family property.
The remainder of the net proceeds ($150,000.00) from the sale of the former matrimonial home, municipally known as 96 Sutherland Avenue, Bradford, Ontario L3Z 4H4 held in the trust account of the lawyer, Ankit Duggal (Duggal Law Professional Corporation), shall be dealt with as follows:
(a) The Applicant's presumptive share of $75,000.00 shall be released to the Applicant; and
(b) The Respondent's presumptive share of $75,000.00 shall be released to the Applicant, in partial satisfaction of the equalization of the net family property payable by the Respondent to the Application as per this order.
As a result of the release of the funds mentioned above and adjustments for the retroactive child support payable by the Applicant to the Respondent, the remainder of the equalization of the net family property payable by the Respondent to the Applicant shall be fixed at $5,589.89 and shall be payable forthwith. This is the equalization payment owed $88,913.89, less the $75,000.00 to be released from the sale proceeds in trust, and less $8,324.00, the retroactive child support payable to the Respondent.
The Applicant, together with a representative of the Respondent (with or without the Respondent), may attend at the safety deposit box held by the Applicant at TD Canada Trust in Bradford, ON (Box #376, Prep Key #497) on a date set by the Applicant in consultation with the Respondent's availability, and the belongings kept therein shall be divided as follows:
(a) The Applicant shall remove and retain the men's diamond ring and the gold bangle (kara); and
(b) The representative of the Respondent shall remove all other articles in the safety deposit box and provide them to the Respondent.
- In the event the Respondent elects not to attend, the Applicant may proceed with the attendance at the Bank and provide items set out in (b) above to the Respondent.
Post-Separation Adjustments
- The Respondent shall pay to the Applicant a sum of $26,188.75 of post-separation adjustments for the expenses related to the former matrimonial home, municipally known as 96 Sutherland Avenue, Bradford, Ontario L3Z 4H4, payable forthwith.
Occupational Rent
- The Applicant's claim is dismissed.
Life Insurance
- The Applicant to obtain life insurance in the amount of $250,000.00 as security for child support with the Respondent as beneficiary.
Damages for Malicious Prosecution
- The Respondent shall pay to the Applicant, damages in the amount of $3,000.00.
Others
- The following claims, set out in the Respondent's Answer, shall be dismissed:
(a) The Respondent's claim for a restraining order.
(b) The Respondent's claim for spousal support.
(c) The Respondent's claim "for damages under common law doctrine of Unjust enrichment, Resulting trust, Constructive Trust, the amount of which is to be further specified."
(d) The Respondent's claim "for general and aggravated damages to the Respondent from the Applicant, the amount of which is to be further specified for assault and battery in relation to multiple instances of physical, verbal and emotional/ mental abuse/ harm/ suffering."
(e) The Respondent's claim "for punitive damages from the Applicant in the amount to be declared."
(f) The Applicant's claim for occupation rent.
This order bears post-judgement interest at the rate of 5.0% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
Costs submissions are set out above.
S. JAIN J.
Released: October 10, 2025