Court File and Parties

Court File No.: FC-24-1335 Date: 2025-11-07 Ontario Superior Court of Justice

Between: M.K., Applicant – and – K.A., Respondent

Counsel: Kirsi Ralko, for the Applicant Self-represented (Respondent)

Heard: October 13 and 14, 2025

Reasons for Judgment

Justice Owen Rees

Overview

[1] The parties were married on October 15, 2016, and separated on November 1, 2017. They have one child, D.A. She is seven.

[2] The applicant, M.K., brings this Application for a divorce, and for determination on parenting time, decision-making responsibility, and ongoing and retroactive child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). On June 11, 2025, the parties agreed that the respondent, K.A., would withdraw his claim for an equalization of the parties' net family property and that the claim for divorce would be severed from the corollary issues so that the divorce may proceed on an uncontested basis on the filing of the supporting documentation.

[3] At trial, the parties agreed that D.A. should primarily reside with the applicant. There is no dispute that the applicant shall not change D.A.'s primary residence outside of Ontario without the respondent's prior written consent or a court order. Nor is there any dispute as to the relocation notice provisions proposed by the applicant. I will therefore not address them further.

[4] Thus, the issues for trial were parenting time, decision-making responsibility, and ongoing and retroactive child support. The only evidence at trial came from the parties.

Analysis

Parenting Time

[5] The parties seek competing parenting orders under s. 16.1(1) of the Divorce Act. In making a parenting order, the focus is on the child's best interests: Divorce Act, s. 16(1). Parental preferences or "rights" play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, [1993] 4 S.C.R. 3, at pp. 63-65, 99, and 117.

[6] I must "give primary consideration to the child's physical, emotional and psychological safety, security and well-being", while considering "all factors related to the circumstances of the child": Divorce Act, ss. 16(2)–(3).

[7] While the court is not to consider the past conduct of any person, I may consider past conduct if it is relevant to the exercise of a party's parenting time, decision-making responsibility or contact with a child: Divorce Act, s. 16(5).

[8] In allocating parenting time, the court is required to give effect to the principle that a child should have as much time with each spouse as is consistent with the best interest of the child: Divorce Act, s. 16(6).

[9] In reaching my decision on parenting time and decision-making responsibility, I have considered all the relevant best interest factors outlined in s. 16 of the Act. In particular, I have considered:

a. D.A.'s physical, emotional and psychological safety, security and well-being;

b. D.A.'s needs, given her age and stage of development;

c. The nature and strength of D.A.'s relationship with each parent; and

d. The parenting plans proposed by each party.

[10] The applicant was born in the Democratic Republic of Congo and immigrated to Canada in 2008. She became a permanent resident of Canada in 2014. The respondent was born in Nigeria and became a permanent resident of Canada in 2018.

[11] D.A. was born about a month after the couple separated. D.A. lives in a suburb of Ottawa with her mother and her mother's brother. She attends elementary school within the French Catholic school board.

[12] The parties lived in Montreal, Quebec, during their marriage. On separating, the applicant moved to Ontario to be close to her family, particularly so that she could have their help and support following D.A.'s birth.

[13] The respondent initially remained in Montreal, then moved to Fort Worth, Texas, in the United States.

[14] Since her birth, D.A. has resided continuously with the applicant in Ottawa. The applicant has been exclusively responsible for all of D.A.'s medical and dental appointments, her schooling, and providing for her food, clothing and other necessities.

[15] Although the respondent exercised parenting time with D.A. in person from 2018 until late 2023, when he lived in Montreal, most of D.A.'s contact with her father has been virtual. This has been exclusively the case since the respondent moved to Texas in December 2023. Since then, the respondent's virtual contact with D.A. has been inconsistent.

[16] Most recently, for two months from July to September 2025, the respondent did not exercise any virtual parenting time with D.A.

[17] Following an unspecified incident in 2019, the applicant's evidence is that Children's Aid advised her not to leave D.A. alone with the respondent. But I do not have any supporting evidence regarding this incident and make no specific finding in this regard.

[18] The applicant also testified to an incident in which the respondent made a false complaint to the police alleging that D.A. was dead. The applicant testified that police attended at her home and wanted to take D.A. to the hospital. D.A. was simply sleeping and there was no need for police intervention. The respondent did not controvert this evidence.

[19] The respondent has experienced mental health challenges in the past, but the record on this issue is limited. The applicant's evidence is that the respondent was diagnosed with schizophrenia and bipolar disorder during their marriage, for which he was prescribed medication. There is no supporting evidence in respect of any diagnoses or medication before me. That said, the respondent acknowledged in his evidence that he has experienced mental health challenges when unemployed and that he sought treatment and was hospitalized in July 2024.

[20] The applicant did not argue that there are any safety concerns with the respondent exercising in-person parenting time in Ontario, but rather appeared to lead this evidence as evidence of the respondent's past instability.

[21] The applicant is supportive of D.A. having regular parenting time with the respondent. The applicant proposes a weekly virtual video call, in-person parenting time one weekend per month, and the following holiday parenting time schedule:

a. March Break – D.A. shall reside with the applicant for March Break in even-numbered years, and the respondent shall have the option to exercise additional parenting time in Ontario during March Break in odd-numbered years.

b. Mother's Day – If D.A. is not otherwise in the care of the applicant on Mother's Day, she will reside with her on Mother's Day. If the respondent has elected to exercise parenting time on Mother's Day weekend, D.A. shall be returned to the applicant's care by the Sunday at 10:00 a.m.

c. Father's Day – The respondent shall have the option to have additional parenting time with D.A. within the Province of Ontario on Father's Day from 10:00 a.m. to 7:00 p.m. The respondent shall provide at least 30 days' advance written notice if he intends to exercise his Father's Day time in person.

d. Christmas Eve / Christmas Day – The respondent shall be entitled to in-person parenting time with D.A. during her Christmas Break, including on either of Christmas Eve or Christmas Day upon 30 days' notice to the applicant. Any in-person time shall take place within Ontario.

[22] The respondent argues that he should not have to do all the travel and that there should be exchange visits. The respondent would also like to maintain the two virtual calls per week currently in place as a result of the temporary order.

[23] I am satisfied that the parenting time proposed by the applicant is in D.A.'s best interests.

[24] D.A. has resided continuously with the applicant since birth and has a strong relationship with her mother. Her mother has been her exclusive caregiver. D.A.'s well-being is the applicant's primary consideration. For example, the applicant has carefully considered D.A.'s schooling. She has raised D.A. in English at home and enrolled her in a French school so that she will be bilingual. She has also enrolled D.A. in a Kumon learning centre for further English tuition. The applicant believes it is important for D.A. to speak both languages in Canada.

[25] D.A. has had no in-person contact with the respondent since late 2023. D.A. requires time to forge a stronger relationship with the respondent through more consistent virtual and in-person parenting time in Ontario. There is no evidence that D.A. has been separated from her mother for any meaningful length of time since birth. She is only seven. Given all this, exchange visits with the respondent outside Ontario—particularly in the US—would not be in her best interests.

[26] Although I do not find, based on the limited evidence regarding the respondent's mental health, that there are safety concerns with the respondent exercising the in-person parenting time in Ontario that the applicant proposes, the evidence of his recent hospitalization weighs against permitting the applicant to exercise parenting time or travel with D.A. outside Ontario.

[27] The respondent would like to continue with virtual parenting times on Friday and Sunday at 5 p.m., which is what is in place under the temporary order. But I am not persuaded that this is in D.A.'s best interests. The applicant's evidence, which I accept, is that D.A. is reluctant to engage twice a weekend given her age and that she is reluctant to turn on her camera during video calls. D.A.'s reluctance to engage with her father virtually is unsurprising given the respondent has been inconsistent in exercising his virtual parenting time on the weekends.

[28] In my view, it is in D.A.'s best interests to have consistent virtual parenting time with the respondent once a week. Consistency and predictability will hopefully lead to the development of a stronger relationship between D.A. and the respondent.

Decision-Making Responsibility

[29] The applicant seeks sole decision-making responsibility. The respondent opposes this and seeks joint decision-making responsibility.

[30] I find that ordering sole decision-making responsibility by the applicant is in D.A.'s best interests. The applicant has continuously exercised sole decision-making responsibility since D.A.'s birth, and she has done so with D.A.'s best interests in mind. Accordingly, the applicant's sole decision-making will provide needed stability and continuity for D.A. Further, I am not satisfied that the respondent has demonstrated either consistency in or the level of communication with the applicant necessary for effective joint decision-making. There is also a significant history of discord between the parties, and it is unlikely that they will be able to reach a consensus on core issues regarding D.A.'s care.

[31] The applicant has proposed that she consult with the respondent on matters relating to D.A.'s health; education; culture, language, religion, and spirituality; and significant extra-curricular activities. The consultation is non-binding. I agree that this is in D.A.'s best interests.

Access to Information

[32] The parties agreed at the hearing that both parties may make enquiries and be given information regarding D.A.'s schooling, health care, and any other professionals involved with her, subject to D.A.'s right to privacy and consent to the release of such information when she reaches a level of maturity to exercise her right to privacy.

Travel

[33] The respondent raised a concern with the applicant travelling with D.A. outside Canada, the United States, and Europe. He was particularly concerned that the applicant might travel to the DRC with D.A., despite the ongoing conflict in the DRC.

[34] I am not persuaded that there is any basis to restrict the applicant's ability to travel with D.A. I am satisfied that her primary concern is D.A.'s well-being and safety. I accept the applicant's evidence that she has no intention of travelling to the DRC. The applicant would like to travel with D.A. to the United States so that they could visit Disneyland. She would also like to travel to Kenya where she has some family. I also accept that the applicant has no plans to move outside Canada with D.A.

Child Support

[35] The applicant seeks ongoing and retroactive child support to 2021. In this regard, I note that the Application was issued on July 2, 2023.

[36] The respondent's employment has been inconsistent. Based on his evidence, I find that he is a qualified software engineer but because Artificial Intelligence is disrupting the software sector and leading to the loss of some programming jobs, work has been hard to find. He has worked on a number of contracts over the years, most notably for his brother's software company.

[37] His reported income during the relevant period is as follows:

a. 2021: $75,719 b. 2022: $114,959 c. 2023: $0 d. 2024: $2,726.01 USD

[38] The respondent did not work in 2023, and he did not work for most of 2024. He went to live with family in Texas in December 2023. Initially, he intended to visit for the first six months. He then sought and obtained a work permit in June 2024, but did not work right away. He obtained work in December 2024.

[39] There is some evidence that the respondent experienced mental health challenges in 2023 and 2024 due to his unemployment. He was not in school.

[40] His employment in 2025 has been inconsistent. He has applied for jobs in his field but has been unsuccessful. He is occasionally employed by his brother's software company. While his income from employment by his brother's firm is not regular, he testified that he is earning $2,400 a month USD. His family has helped him out by giving him money to keep going.

[41] During the years that he earned less than the minimum wage, there is no evidence that he sought work outside of the software engineering field. He was not in school.

[42] Thus, I find that the respondent was intentionally under-employed. I impute income in 2023 and 2024 at the minimum wage rate. I find that he habitually resided in Quebec in 2023 and 2024 for the purpose of the Federal Child Support Guidelines, S.O.R./97-175: s. 3(3)(a)(ii). I am not persuaded that the respondent demonstrated a settled intention to relocate to Texas before the end of 2024.

[43] As of 2025, however, the respondent has habitually resided in Texas. He has lived there for over 18 months, resides in his brother's house there, and works for his brother's company there. He has a US work permit and files US income taxes. He has no clear ongoing connection to Quebec.

[44] Because I have found that the respondent resides outside Canada as of 2025, the Ontario table under the Guidelines is applicable, as the province in which the applicant resides: s. 3(3)(b).

[45] Accordingly, I make the following support calculations:

Year	Income Amount	Income Source	CSG Table	CSG Amount (Monthly)	CSG Amount (Annual)
2021	$75,719	Employment	Quebec	$678.33	$8,139.96
2022	$114,959	Employment	Quebec	$986.90	$11,842.80
2023	$30,500	QC Minimum Wage	Quebec	$305.70	$3,668.40
2024	$31,500	QC Minimum Wage	Quebec	$314.60	$3,775.20
2025	$28,800 USD ($39,456 CAD)	Employment (declared during trial)	Ontario	$352.38	N/A
TOTAL 2021 – 2024:					$27,426.36

[46] The respondent argues that he should not have to pay according to the Ontario table amount and that the exchange rate should be taken into account because he lives in Texas and his cost of living is in US dollars.

[47] I reject this submission. Section 20(1) of the Guidelines provides that where a spouse is a non-resident of Canada, the spouse's annual income is determined as though the spouse were a resident of Canada. Further, as discussed, s. 3(3)(b) of the Guidelines requires that his income be calculated based on the residence of the applicant because the respondent lives outside Canada.

[48] There is no evidence before me that the respondent is taxed at a higher effective rate in Texas than if he were resident in Canada.

[49] Further, there is no basis in law to reduce the respondent's Guidelines income to account for a higher cost of living in a foreign jurisdiction: McGouran v. Connelly (2006), 79 O.R. (3d) 434 (C.A.); Issa v. Haidar, 2024 ONSC 4629, at para. 165.

[50] The applicant has made some child support payments between 2021 and 2024, totalling $11,818. I have taken those payments into consideration in the calculation of retroactive child support owing.

[51] The respondent shall therefore pay $15,608.36 in retroactive child support. The child support arrears are repayable in $500 installments commencing on December 1, 2025 and continuing the first day of each month until the amount has been repaid in full.

[52] The child support payable by the respondent for 2025 shall be based on his evidence at trial that he is earning $28,800 USD per year (based on $2,400 USD per month).

[53] Finally, I am satisfied that the parties should contribute proportionally, based on their incomes, to D.A.'s section 7 special and extraordinary expenses.

Disposition

[54] The applicant's Application is granted in accordance with these reasons. The claims made by the respondent in his Answer are dismissed.

[55] The applicant is presumptively entitled to costs. At trial, the respondent asked to make written costs submissions. The parties may thus make written submissions on costs of no more than 1,000 words within 15 days of the release of these reasons. They may email them to my judicial assistant.

[56] The applicant shall provide me with an updated draft order.

Justice Owen Rees

Released: November 7, 2025