ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Alexander Nesta
Applicant
– and –
Shannon Nesta
Respondent
Kevin D. Zaldin, for the Applicant
Self-Represented
HEARD: November 17-20, 2025
Corrected Decision: The text of the original Decision was corrected on February 20, 2026 and the description of the correction is appended.
REASONS FOR DECISION
R.S. JAIN J.
Introduction and Background
1This is a story of a young couple who fell intensely in love, got married, had children and worked towards their goals of building a happy life together. They experienced stress, disappointment, and disillusionment in their work and family life, and in each other. They experienced some serious health issues with their children. Instead of helping them grow closer, these challenges contributed to the parties growing distant. They allegedly started spending time on their phones, or at work, or with other people instead of each other. They allegedly started misusing substances like alcohol and marijuana. They fought in front of their children, using very disrespectful and derogatory language. They didn’t communicate in a healthy way. They blamed each other, and hurt each other, and shared their personal troubles with their families, friends, and social media. They separated once in 2018 and reconciled. Then, the conflict unfortunately escalated to a point where there was no turning back. The parties separated on a final basis in 2023. The children are the only innocents in this story.
2There is very little redemption in family court. In my experience, nobody really wins. By the time a matter reaches a trial, the parties are deeply entrenched, and they have exhausted all settlement options and experienced a great deal of emotional and financial loss. This trial had a sadly distinct and unique level of conflict, in that a member of the respondent’s family (her mother) was called to give evidence in support of the applicant (and against her own daughter). The self-represented respondent not only had the distinct difficulty of having to cross-examine the applicant, but also had to cross-examine her own mother. I found the level of pain, estrangement, distrust, and dysfunction in this family to be profound and intense. This trial decision will hopefully give the parties some insight and finality, so they can reduce or avoid future conflict and move forward.
3The parties began cohabiting in 2009 and married on October 9, 2010. They have three children together, namely Marco aged 14, Carmella aged 10, and Milania aged 9 at the time of the trial. The parties separated on April 12, 2023. The Applicant, Michael Alexander Nesta (hereinafter “the applicant” or “Mr. Nesta” or “Michael” or “the father”) was 39 at the time of separation and 41 years old at the time of trial. The Respondent, Shannon Nesta (hereinafter “the respondent” or “Ms. Nesta” or “Shannon” or “the mother”) was 37 at the time of separation and 40 years old at the time of trial. The Application was commenced May 16, 2023. All three children were residing with the applicant in Bradford, Ontario, at the time of separation and continue to reside with him to this day.
4Pursuant to temporary minutes of settlement, the parties agreed to interim parenting time in the Temporary (Without Prejudice) Consent Order of Christie J. dated November 16, 2023 (“the Christie Order”). The Christie Order was varied on consent by way of the Temporary (Without Prejudice) Order of Sutherland J. dated January 9, 2024 (“the Sutherland Order”). Paragraph 3 of the Sutherland Order set a date for the respondent to bring a motion “for additional parenting time,” however, that motion never occurred.
5A Voice of the Child (“VOC”) Report was completed on March 15, 2024. A Temporary and Partial Final Order was made by Douglas J. on June 24, 2024 (the “Douglas Order”). The Douglas Order was temporary regarding parenting issues (communication via WhatsApp, respondent’s parenting time, and summer camp) and was final regarding the sale of the matrimonial home to the applicant for an agreed upon price – leaving the parenting and child and spousal support issues, as well as equalization and post-separation adjustments for determination at trial. The Office of the Children’s Lawyer (“OCL”) also completed an updated VOC Report on February 27, 2025. The respondent’s claims to spousal support and occupation rent were abandoned on consent, pursuant to the May 13, 2025, endorsement of Douglas J.
6The issues for this trial are decision-making responsibility, primary residence, and a parenting time schedule for the children; child support (ongoing and retroactive), equalization, and divorce. The divorce was granted at the end of the trial. The Divorce Order is dated November 20, 2025.
7The applicant is seeking sole decision-making responsibility, primary residence and care of the children. The applicant seeks a parenting time schedule that would have the children in the respondent’s care on a regular schedule of alternate weekends as well as shared holidays. The respondent seeks joint decision-making and a parenting time schedule that would have the children spend equal time with each parent. The applicant seeks ongoing and retroactive child support, s. 7 expenses and an equalization payment payable by the respondent to him. The respondent seeks ongoing set-off child support payable by the applicant to her. She asks that there be no retroactive arrears of child support or equalization payment payable by the respondent to the applicant.
Issues
8What decision-making arrangements are in the children’s best interests?
9Is it in the best interests of the children to reside primarily in the applicant’s care, or equally in the care of both the applicant and the respondent? What should the parenting time schedule be on a go forward basis?
10What is the income of both the applicant and respondent for child support purposes? Should the court impute income to either, or to both of them?
11What is the ongoing child support and s. 7 expenses? Should the court order retroactive child support and s. 7 expenses?
12What is the equalization payment?
Decision
13For the reasons set out below, I find it is in the best interests of the children for the applicant to have sole decision-making responsibility for the child Marco, and for the applicant and respondent to have joint decision-making responsibility for the younger children, Carmella and Milania. The applicant shall have final say in case of disagreement on any issue. The primary residence and care of the younger children Carmella and Milania shall be equal (week about) with the applicant and the respondent. The primary residence of the eldest child Marco shall be with the applicant. The respondent’s parenting time with Marco shall be in accordance with Marco’s wishes. There shall be a shared holiday schedule for the applicant and respondent and the younger children Carmella and Milania. The income of the applicant is $72,767.00, and the respondent is imputed to approximately minimum wage full-time income of $35,776.00. Commencing March 1, 2026, the applicant shall pay the respondent set off child support. There shall be retroactive child support owed by the respondent to the applicant of $3,570.00. I find there is an equalization payment owing from the respondent to the applicant of $31,747.19.
Law
14In making my decision, I am bound to follow the relevant and applicable sections of the Divorce Act, (hereinafter “the DA”), the Family Law Act (hereinafter “the FLA”) and the Children’s Law Reform Act (hereinafter “the CLRA”).1
15Regarding decision-making responsibility and parenting time for the children, I am bound to follow and consider the best interests of the children criteria as listed in s. 16 of the DA, and s. 24 of the CLRA. When considering the factors in determining the best interests of the children, I must give primary consideration to the children’s physical, emotional, and psychological safety, security, and well-being. The factors relating to the circumstances of the children 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 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 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 chid; (j) any family violence or history of family violence and its impact.
16Every parent is obligated to support their children. Before I can make any child support order, I must determine the parties’ incomes. In doing so, I am bound to follow s.15.1 of the DA and the Child Support Guidelines2 (hereinafter “the CSG’s”). Although they are called “Guidelines,” they are the law. Child support is the right of the child (in this case – Marco, Carmella, and Milania). The CSG’s contain a chart of the appropriate child support amounts the court sets based on the number of children and the payor’s ability to earn income. The CSG’s also set out requirements for financial disclosure, and what the court can do when those disclosure requirements have not been met (i.e. the court can make adverse – or negative findings against a payor and impute income to them). When a payor’s income is in dispute, there is also caselaw that helps guide the court on when and how it is appropriate to impute income to a payor.
17Sections 4 and 5 of the FLA are the key property settlement provisions of the FLA. Section 4(1) of the FLA contains definitions of net family property, property, and valuation date 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 deducting 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;
“property” means any interest, present or future, vested or contingent, in real or personal property and includes,
(a) Property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,
(b) Property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and
(c) In the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date;
“valuation date” means the earliest of the following dates:
The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
The date a divorce is granted.
The date the marriage is declared a nullity.
The date one of the spouses commences an application based on subsection 5(3) (improvident depletion) that is subsequently granted.
The date before the date on which one of the spouses dies leaving the other spouse surviving.
18After the NFP has been calculated, the next step is to “equalize” the NFPs under s. 5 by requiring, as a general rule, the spouse with the larger net family property to pay half the difference to the other spouse. Section 5(1) of the FLA reads:
EQUALIZATION OF NET FAMILY PROPERTIES – (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume 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.
19Section 5(7) sets out the purpose of s. 5 and reads:
PURPOSE – The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable consideration set out in subsection (6).
20In addition to the above, under s. 9 of the FLA, in an application for equalization of net family property, the court may order:
(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;
(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;
(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold.
Facts and Analysis
Parenting - Decision-Making, Primary Residence, and Parenting Time
Background
21The most contentious issues in this trial are decision-making responsibility, primary residence, and the parenting time schedule for the children. The remaining issues of the trial were regarding income determination, ongoing and retroactive child support, and equalization. During the trial, both parties adopted and relied upon the evidence in their trial affidavits.3 They both provided some additional oral evidence and were cross-examined on same.
22It is undisputed that the children have resided in the applicant’s care since separation. The reasons for this and the parenting time arrangements prior to separation and after separation are highly disputed. The applicant is seeking sole decision-making responsibility, primary residence, and care of the children. The applicant further seeks a parenting time schedule that would have the children in the respondent’s care on a regular schedule of alternate weekends and shared holidays. The respondent seeks joint decision-making and a parenting time schedule that would have the children spend equal time with each parent.
23The parties began dating in or around 2003 and began living together in 2008. The applicant’s father passed away in 2009 and the applicant and his sister inherited their father’s home on Poplar Crescent in Aurora (hereinafter “the Poplar home”). The applicant later purchased his sister’s interest, and the Poplar home was transferred to the applicant. The parties married on October 9, 2010. The respondent was educated and worked briefly as a dental assistant, but she stopped working when she became pregnant with Marco shortly after the marriage. Marco was born in May 2011. He had some significant health issues, as he was born with Gastroschisis and had to undergo surgery immediately. In 2011, the Poplar home was sold, and the parties and Marco moved to another home in Bradford. The parties had two more children, Carmella in 2015 and Milania in 2016. The parties separated in or around 2018, but later reconciled. They moved again to the matrimonial home at Miller Park in July 2019 (hereinafter “the matrimonial home”).
24It is undisputed that the applicant worked full-time and was the main financial support and provider for the family. The applicant began to work in the construction industry in or around 2006 as a labourer. Then, with his experience as a forklift operator, in 2011 he joined the Operators Union Local 793, and then in 2017 he transferred to Local 183. He registered as a sole proprietor business in 2021 and subcontracts for “a single company at a time basically as an employee.” The respondent did not work outside the home after Marco was born. She remained home to care for the children and the home.
25It is undisputed that the applicant was the primary income earner during the relationship. During the relationship, the respondent did not maintain employment outside the home. She primarily cared for the family and the house. The applicant alleges that the respondent misuses alcohol and drinks wine on a daily basis. He says that he primarily cared for the children when he was not working. The respondent denies the applicant’s allegations and says that she was always the primary caregiver for the children and that the applicant worked long hours. She also asserts that the applicant abuses marijuana and that he was unpredictable, aggressive, and subjected her to emotional abuse and threats of harm throughout the relationship.
26Prior to the birth of the parties’ first child, the respondent worked as a dental assistant. After the children were born, the respondent did not return to work outside the home. She was a stay-at-home parent. She returned to work on a part-time basis in October 2022. However, from April 12, 2023, onwards until present, she has been largely unemployed and was not in receipt of any spousal support. She abandoned her claim for spousal support. The respondent has not provided any child support for the children since separation. The applicant has not provided any spousal support for the respondent since separation.
27There were many confrontations, arguments, and fights leading up to the separation in April 2023. The applicant asserts that the respondent was having an on and off extra-marital relationship with a man named Mr. Shazad Ali. The respondent denied the allegation and said that Mr. Ali was “just a friend.” On April 12, 2023, the date of the separation, the respondent called the police. She alleged that the applicant was ripping up their wedding pictures and later alleged that he had threatened her. However, after police reviewed the applicant’s video, the respondent was charged with assault. The resulting charges and undertakings required the respondent to leave the matrimonial home, which she did, leaving all three children in the applicant’s care.
28The respondent resided with her mother for a short time. This arrangement was short lived due to conflict that arose between the respondent and her parents. The respondent then moved in with Mr. Ali whom the respondent continued to assert was “just a friend.” At first, she resided with him in a basement apartment in Mr. Ali’s parents’ home. Then, in or around the fall of 2023, the respondent moved with Mr. Ali into a two-bedroom apartment. Both of them are on the lease, and they remain residing together. The nature of the respondent’s relationship with Mr. Ali and the character of Mr. Ali was the subject of a lot of the conflict between the parties leading up to the separation and afterwards. It was further raised during the trial by the applicant as being relevant to the decision-making and parenting time issues. The applicant says that all three children have indicated that they are not comfortable with Mr. Ali. The applicant asserts that the respondent and Mr. Ali’s conduct and their relationship has affected the best interests of the children.
29The respondent denied that her relationship with Mr. Ali was anything more than friendship. She did not agree that their relationship or Mr. Ali’s character had any bearing or relevance on the parenting issues or determining the best interests of the children. She did not call Mr. Ali as a witness in the trial, so I have no direct evidence about him or from him. The majority of the evidence that was presented about Mr. Ali was the personal perspectives, speculation, and hearsay from each of the parties, and their witnesses, as well as some pictures of him and the respondent, and him and the younger children. I also received the views of the children about Mr. Ali as expressed through the OCL and the VOC Report. During cross-examination of the respondent’s witness and friend Ms. Garrett, the witness advised the court that the respondent and Mr. Ali were in a romantic relationship and called them “a couple”. Neither she nor the respondent could provide specific evidence to pinpoint when the relationship went from being a friendship, to a romantic relationship.
30The respondent’s parenting time with the children after the separation was initially inconsistent. There was no real schedule. Both parties blame the other for the lack of a consistent parenting time schedule. However, pursuant to temporary minutes of settlement, the parties agreed to a temporary parenting time schedule in the Christie Order. The Christie Order set out parenting time for the respondent every Tuesday from 7:00 p.m. to 8:30 p.m., every Wednesday from 4:30 p.m. to 8:30 p.m. and every Friday from 6:30 p.m. to 8:30 p.m. The Christie Order also included phone calls, pickup and drop off details. On consent, the Sutherland Order changed this parenting schedule to every Wednesday after school to 8:30 p.m. and every other Friday evening from after school to 8:30 p.m., and every other weekend from Friday after school to Saturday at 8:30 p.m. The pickup and drop offs are to take place at Zehrs which is located across from the matrimonial home. The Sutherland Order imposed a limitation on the respondent in that her “housemate shall not be present during the overnight visit.” The “housemate” in the Sutherland Order was referring to Mr. Ali.
31The parenting time schedule set out in the Sutherland Order has been ongoing and has continued to this day. However, although the Sutherland Order says the respondent’s parenting time is with all three children, Marco has not been attending since approximately the fall of 2023. The parties disagree on whether Marco wanted to see his mother. Currently, Marco does not have a regular parenting time schedule with her, and he does not attend at her residence. The respondent testified that she takes Marco out for lunch at times as arranged between her and Marco.
32The parents disagree on the children’s views. The first witness in the trial was Ms. Sonia Stefanutti who provided two VOC Reports regarding the views of the children to the court. The first was dated March 12, 20244 and the second updating report was dated February 12, 2025.5 Her evidence will be summarized later in the decision.
The Applicant
33The applicant requests an order for sole decision-making and primary residence and care of the children. With respect to Marco, he asks for the respondent’s parenting time to be as arranged between the child and the mother. With respect to Carmella and Milania, he asks that the respondent have parenting time on alternate weekends and that holidays be shared. He no longer requests there be any limitation on whether Mr. Ali is present during the respondent’s parenting time.
34The applicant says he and the respondent do not get along and do not communicate at all. They continue to have a pickup and drop off in a neutral location to reduce the children’s exposure to conflict. He says that the distance between the parents must be maintained because of their communication challenges. As the respondent is holding on to the children’s documents, the applicant asks for a final order for the documents to be held by the father.
35Because the applicant works full-time, he has the help of his mother with his day-to-day arrangements and care of the children. In the applicant’s affidavit, he described the respondent very negatively and painted a picture of her being self-centred, irresponsible, dishonest, a cheater and a complainer, and someone who drank too much wine and could not handle the children. He said that the respondent was “overwhelmed” with three children despite all the support from him and the grandmothers. He said that the respondent would “drink wine daily and was not very active in bringing the girls out to the park or Early On programs.” He said that the respondent refused to bring the children to the doctors or the hospital by herself even if it was an urgent situation. The respondent would call the applicant or his mother to take the children for any medical or dental appointments, tests or procedures.
36When the parties temporarily separated in 2018, Marco was about 7 years old and attending school, and the younger children were just one and two years old. The applicant said that he noticed that the respondent was “dropping the girls off” at her mother’s house and “wouldn’t return for hours at a time.” He said that he discovered that she was spending time with Mr. Ali and when he confronted her, the respondent confessed to “seeing him” behind his back. The applicant said he was heartbroken, but he wanted this family back together. The parties reconciled in 2019 and tried to “start fresh” in a new home in Bradford.
37The applicant described himself very positively as a parent and as a husband. He said that he worked full-time and yet he was still responsible for the children’s night routines on a daily basis, prior to the separation of the parties. He said that when he returned home from work, he usually found that the respondent had already started drinking. He said that “she would be tired and usually go upstairs and say she was going to watch TV and I would take the kids out almost every day either to the gym with me or to the park or even to Blue Mountain skiing even on a school night along with cooking dinners and general chores my focus was to spend as much time with the kids as possible as there were the most important thing to me and knowing that their younger years would fly by and would never come back again.” He said that he also “cared for them daily during the winter as I would be home not working” and due to the flexibility in his work throughout the year, he would “be home on many occasions and care for them as I created a strong bond.”
38According to the applicant, after the separation, the respondent moved in with her parents briefly but was “kicked out” because she was “going out every night and drinking a lot” and her parents and her were having many arguments. He initially brought the children to the respondent’s mother’s house for their visits with the respondent. After she moved out of her parents’ house, he wanted the respondent to take the kids for the full Saturday, but she would only agree to see them twice a week for a few hours at the mall. Even then, the applicant alleges that the visits were inconsistent, and were not focused on the children, as the respondent would basically shop with the girls and let Marco “wander around by himself.” The applicant alleges that the respondent asked the children questions about him and involved them in discussions about the separation and adult issues.
39The applicant says that he tried repeatedly to set up a structured parenting schedule with the respondent through the respondent’s friend Lisa Garett, however, the respondent refused. Finally, at the first appearance court – they set up an interim schedule.6 The respondent was living with Mr. Ali in his parents’ house at the time of first appearance court. The respondent and Mr. Ali moved into an apartment in fall of 2023. The respondent was supposed to begin having overnights at her apartment without Mr. Ali there, but according to the applicant, Mr. Ali was there.7 The applicant says that the respondent didn’t want to comply with this term, and was going to bring a motion to change, but she never did.
40It wasn’t until the respondent and Mr. Ali got their apartment in the fall of 2023 that the respondent began having more consistent parenting time. However, the applicant believes that the respondent was “confusing the children” because she kept insisting that her and Mr. Ali were “just friends” despite her changing her Facebook profile pictures to ones with them together,8 (and Marco saw them). Also, Mr. Ali would “pick up and drop off the kids on every visit” and the children complained about the respondent and Mr. Ali “arguing and drinking and smoking” and “kissing.” The applicant says that Marco expressed his discomfort with the situation to the OCL. After the first OCL VOC Report in early 2024, when the respondent picked up the children from school for her parenting time, Marco said that the respondent started telling him “he could go with his friends” instead of taking him home with her and the girls. The applicant speculated that she did this because the respondent “didn’t want him there because he was speaking up about what was really going on at Shannon and Shazad’s home.” The applicant says that Marco felt pushed away by the respondent.
41The applicant said that he took care of the children constantly both during the marriage and after separation. He bought season passes for skiing at Blue Mountain, and they were used by him and the children. During the winter, he doesn’t work that much, and he is home with the kids and doing everything with them. He said that the respondent went skiing with them once. The applicant gave evidence about the different health issues experienced by the children, and how he and/or his mother were the ones that shouldered the responsibility because the respondent couldn’t or wouldn’t go with the children to appointments, check ups, or the hospital. The applicant talked about how when Carmella needed stitches, the respondent called him and his mother to take Carmella to the hospital. Then again, when Carmella needed her teeth fixed in an involved procedure, the respondent asked the paternal grandmother to take her instead of the respondent doing it herself. He described these instances as very traumatizing for Carmella. The applicant described how when Marco had a bowel obstruction in June 2022 – he was in Sick Kids and needed surgery - he was there with Marco every day. The applicant was with him before and after work once Marco stabilized. The applicant said that the respondent didn’t come to the hospital although she had the opportunity.
42Post-separation, the applicant says he has been providing all care for the children, as well as booking their dentist, doctors, activities, and school. He says that the children are doing well in school. He works full-time, and he has support from his mother, his ex-mother-in-law, and sometimes his sister. He said that him and his mother take the children to school. He said that he and the children are very close.9 The children get along with his sister’s kids. He knows the children’s friends at school with whom he arranges play dates. The applicant also spoke about how he took all of the children to Mexico on vacation in January 2024. They had a great time. He pointed out that in contrast, the respondent went on a holiday with Mr. Ali without the children. Then later, after the matrimonial home was transferred, the respondent took Marco and Carmella to Mexico to the same all-inclusive that he took them to, but she didn’t take Milania. She left Milania with the applicant.
43Despite the fact that the applicant takes the children to their appointments, and him having primary care since separation, the respondent has kept all the originals for the children’s documents and refused to provide them to the applicant. The applicant only has copies. In my view, this must change if the children continue in the applicant’s primary care.
44The respondent cross-examined the applicant on his decision-making, parenting, and communication. She asked questions trying to insinuate that he is not a good person, and he is not the person that is really making the decisions or providing the parenting for the children; and that he is not really involved or paying for the children’s activities; and that he has a lot of help with the children, but she isn’t allowed to have other people help her. Although it was difficult to be cross-examined by his ex-wife, I found the applicant was able to clearly deny the allegations and answer the respondent’s questions in a matter-of-fact manner. At times, the respondent had to be advised to move on because she would begin to either try and give evidence or argue with the applicant while he was on the stand.
45The applicant admitted to sending some very negative and derogatory texts and communications about her and Mr. Ali prior to separation. However, he explained that the negative texts, communication, and conflict was mutual, and it was prior to the separation. There was a lot of anger prior to and after the separation, and the texts and correspondence between the parties before and after separation reflected it. The texts and correspondence between the parties after separation continue to show they cannot agree or communicate in a healthy way.10 I did not find that any of the respondent’s questions during cross-examination discredited the applicant or reduced his reliability or credibility.
46The court heard evidence from both the paternal and maternal grandmothers of the children as well as two of the applicant’s friends. During the trial, the affidavits were vetted for hearsay. Some parts were struck out completely. I advised both parties that any other hearsay evidence contained in the affidavits will be accorded little to no weight by the court, subject to my discretion and any hearsay exclusions. As will be set out below, the evidence of the paternal grandmother and the applicant’s friends corroborated the applicant’s evidence about the respondent, but there were some weaknesses and some hearsay evidence that was either excluded by the court, or given little weight. The applicant’s witnesses testified positively about the applicant’s parenting abilities and provided negative views about the respondent’s parenting (even if they had not witnessed the respondent’s parenting). This was expected and unremarkable. What was remarkable to the court was the evidence provided by the maternal grandmother against her own daughter.
Evidence of Maternal Grandmother – Mrs. Brenda Krisman
47Mrs. Krisman is the maternal grandmother of the children. She is the mother of the respondent. The court recognized that this was a very difficult situation for both the respondent and the witness. I gave the respondent some guidance regarding how to cross- examine and to avoid arguing with the witness. Mrs. Krisman provided a trial affidavit sworn April 3, 2025, however, the court struck several paragraphs as they contained hearsay.11 Some hearsay evidence was permitted as it was not entered for the truth of its contents. For example, I found that paragraphs 38-41 were relevant and necessary evidence of the mother involving the children in the conflict and in the adult issues.
48Mrs. Krisman said that she and her husband have been married for 45 years. They have two adult children, specifically, they have a son named Steven, and they are also the parents of the respondent, Shannon. Prior to the party’s separation, Mrs. Krisman said she had a good relationship with her daughter Shannon. However, all through her testimony and affidavit, she described Shannon as lacking sympathy, needing a lot of attention, “spoiled”, and if she doesn’t get her way, she gets angry and doesn’t talk to you. Then she will call you out of the blue when she needs something.
49Mrs. Krisman said that the respondent met the applicant about 22 years ago. She said she liked the applicant right away, always has. She said that the applicant has had care of the children since day one. She said she has a lot of respect for the applicant because he has always worked hard and taken care of the respondent and the children. She said that when the parties were together, she would phone Shannon and Shannon would say he was out with the kids. She says that Michael is the “nicest man you would ever meet. He is a good husband to my daughter and good father for his children. The kids light up when Michael comes around.” She says that Michael took Shannon back when they separated in 2018, but she told him not to, “I was against the reconciliation.” She said that Michael keeps his job and takes care of the kids, but Shannon always asked Michael to do everything even though he worked all day.
50Mrs. Krisman said that she “knows about” Mr. Ali. She said, “I have known him a long time. I don’t care for him.” She said that Michael didn’t need to tell her about what was going on between Shannon and Mr. Ali, because she saw it herself. She said that Shannon has been seeing Mr. Ali for years and that she pursues him when he is not available. Mrs. Krisman testified that she had seen Shannon and Mr. Ali together at a restaurant/bar called Wild Wing in the plaza where she shops for groceries. She said that she had seen Shannon’s van there at 8:30-9 p.m. at night. She said that one night she was shopping at the plaza, and she saw them there together. She went into the restaurant and when Shannon saw her mother, Shannon ran into the washroom. Mrs. Krisman said that she confronted Mr. Ali at first, and then went to confront Shannon. She said, “I told her she should be home with her kids.” Mrs. Krisman said that she didn’t observe Shannon’s van leave.
51Regarding the parties’ final separation on April 12, 2023, Mrs. Krisman said that Shannon called her at 10:30 a.m. and told her she was being charged. Mrs. Krisman didn’t know the whole story, but she said that Shannon showed up at 4:30 p.m. and moved in with her. Shannon allegedly said, “I don’t know where the kids are” and then she went out and didn’t come back until 9:30 p.m.
52For the short time Shannon resided with Mrs. Krisman, things did not go well. Mrs. Krisman said that Shannon paid for nothing while she lived there, and that she went out every day early with the van, and came back late. She said that she heard Shannon on the phone with Mr. Ali and his brother. She heard Shannon calling her parents “mentally retarded” with whomever she was talking with over the phone. Mrs. Krisman speculated that Shannon was angry with Mrs. Krisman because “she knew I didn’t like what she was doing.” Mrs. Krisman did not speak positively about the few visits Shannon had with the children at Mrs. Krisman’s home. She said that on the first visit, Shannon used Marco to go to Bradford to get her stuff. The second visit, Shannon told the girls to go downstairs with grandma and grandpa. The children came over Saturday afternoon overnight and Shannon would leave from the late afternoon and stay out drinking until very late at night coming home at 1-2 a.m. Shannon allegedly got angry with Mrs. Krisman when she allowed the applicant to take the van back. Mrs. Krisman alleged that Shannon called her derogatory names like “douchebag” and said terrible things to her like, “I hope you get breast cancer.” Apparently, Mrs. Krisman is a survivor of breast cancer. All of this culminated on April 30, 2023, when Mrs. Krisman alleges that Shannon assaulted her. Mrs. Krisman told Shannon she had to leave. The police were called. Mrs. Krisman told the police about the assault, but she didn’t want Shannon charged, she just asked for her to leave.12
53After the respondent began having parenting time with the children in her apartment, Mrs. Krisman said that Marco would call her sometimes, but Shannon did not like that, and it caused a terrible conflict. Mrs. Krisman also said that the children talk to her and have told her some of the negative and derogatory things that Shannon and Mr. Ali said about the applicant, involving them in the conflict.13
54The respondent presented copies of text messages and social media posts between her and Mrs. Krisman, however the dates and completeness of all messages and posts were unverified.14 Mrs. Krisman confirmed that on February 4, 2023, she posted something positive about Michael because she appreciated him as a father. Mrs. Krisman also confirmed that she reposted things that Shannon posted about herself and Mr. Ali, and she knew these were things the children could see. This appeared to show that Mrs. Krisman was not likely protecting the children from their parents’ conflict. In my view, I think it is safe to assume that much like Mrs. Krisman’s allegations about the respondent, Mrs. Krisman herself may have spoken negatively about the respondent with or in front of the children.
55Mrs. Krisman described Marco as “very smart, intelligent, funny, loving.” He calls her sometimes and they “talk for hours.” She said that Carmella is “sweet, sensitive, shy.” She described Milania as “sweet, sensitive, funny.” She said that they all get together and have family gatherings and sleep overs.
56Mrs. Krisman clearly cares for and loves her grandchildren and the applicant. Mrs. Krisman’s testimony and affidavit also confirmed the obvious, which is that she has a lot of animosity towards the respondent. The respondent denied much of Mrs. Krisman’s evidence. Her cross-examination of Mrs. Krisman confirmed the terrible rift between the mother and daughter. There is certainly no trust or healthy communication between them. A large portion of Mrs. Krisman’s evidence was hearsay, or based on her personal feelings about Shannon and thoughts about Mr. Ali, (whom in my view, she doesn’t actually know personally). I found most of her evidence was completely irrelevant and unhelpful to the issues. It seems to me that the applicant called this witness just to say negative things about the respondent, and to contradict the respondent’s allegations about the applicant being a “neglectful” dad and a “controlling” husband. However, as this evidence was already provided by the paternal grandmother and the applicant’s friend, I was left wondering why I needed to hear any of this from this particular witness. Calling the respondent’s mother as a witness appeared to just rub salt into some very deep wounds. It reminded me of the circus-like talk shows where people air private family drama on daytime television. In my view, the court should discourage this type of evidence if it can be provided in another way. I found it to be a terribly sad and low point of the trial.
Evidence of the Paternal Grandmother – Ms. Anuziata Nesta
57The paternal grandmother and mother of the applicant, Ms. Anuziata Nesta, adopted and relied upon her trial affidavit, and provided oral evidence in the trial.15 She confirmed that she is the applicant’s mother and respondent’s mother-in-law, and the grandmother to Marco, Carmella, and Milania. She said she has other grandchildren as well. She advised that she was a teacher for 25-30 years and is still a supply teacher. She said she taught in elementary and secondary in French immersion, and then she became a mediator and moved to the public school board. She said she taught special education and art.
58The paternal grandmother confirmed that when her ex-husband Ettore Nesta died in 2009, he left his home to the applicant and the applicant’s sister Elisa. The applicant bought out his sister, and the respondent and applicant lived in the house together from 2009 to 2011.
59The paternal grandmother described a difficult time for the family that took place early in the parties’ relationship. Marco was born with Gastroschisis. The paternal grandmother felt that Shannon shut her out and was very hurtful for the first three years of Marco’s life. However, when Carmella was born, Marco was about 4.5 years old, and Shannon needed some help. Marco was not really socialized before kindergarten. She said she helped Shannon, and they went together to the school. When Milania was born, the paternal grandmother described how Shannon was overwhelmed. She went over about two times per week and took Marco and Carmella often to give Shannon time with Milania. Shannon became open to her assistance and the paternal grandmother was helping Shannon while Michael was at work. She said that Michael took on as much work as he could to take care of his family.
60The paternal grandmother described a few incidents prior to and after the first separation and reconciliation when Shannon needed help with the children’s medical care. Prior to the first separation, Shannon asked her to take Carmella to the hospital for medical help. Carmella had to get 3-4 stitches. She said that Shannon would not even take Carmella to get the stitches out. The paternal grandmother had to take Carmella to Aurora and two doctors had to hold her down to take out the stitches. The paternal grandmother did not speculate on why the mother wouldn’t take the child to the hospital for treatment, but she described the entire incident as very traumatic and upsetting for Carmella.16 A second incident happened in 2020-2021 when Carmella had damaged her teeth. The repair was arranged but Shannon was “scared” of the required anesthesia, so the paternal grandmother took Carmella for the procedure.17 She said that it was another traumatic incident where she provided the care when the child “needed her mother” but Shannon was too uncomfortable. Lastly, she described how in June 2022 when Marco was sick, instead of asking the paternal grandmother to stay home with the younger children, Shannon asked that she bring Marco to the hospital. She did, and she waited 11 hours with Marco. After testing showed a twisted bowel, Michael came after work and went with Marco in the ambulance to Sick Kids. Marco had surgery and it was described as a difficult time. After the separation, the school called the respondent twice about Carmella being sick and then Milania was sick. The paternal grandmother said that Shannon told the school to call the paternal grandmother instead. Another time, Marco developed an eye problem and needed to go to the walk-in clinic. Shannon would not give them the children’s health cards.18 The paternal grandmother provided her views that in all of these circumstances, Shannon’s anxiety or discomfort “took precedence over her kids that needed to be comforted during dramatic time in their lives.” She said that in her view, Shannon shows a “lack of emotional affect for her kids.”19
61In 2018, the paternal grandmother knew that Michael and Shannon were having problems. She said that she didn’t understand the extent of the problems. Michael came to live with her and during that time, the kids came over every weekend (for the whole weekend) for the applicant’s parenting time. It was a very difficult time for all of them. Michael and Shannon reconciled after many months.
62Around the period of the COVID-19 pandemic, the paternal grandmother went to help Shannon with the kids. She says she felt that Shannon’s “focus was elsewhere” and she found it strange/unusual when Shannon would ask if she wanted a glass of wine in the early afternoon. When it came to helping with Carmella’s reading, instead of learning how to do the work, the paternal grandmother said that Shannon went upstairs with her phone.20
63At the time of the final separation (April 12, 2023), the paternal grandmother said that Shannon called her and told her Michael was breaking their pictures. The paternal grandmother arrived at the house and the police came in right away. The police were there for 4 hours. The paternal grandmother described how she was comforting the children, and the police arrested Shannon and took her out. She described how, for a while she was relaying the messages between the parties because they were not permitted to contact each other directly. She said that Shannon asked to see the kids “here and there” but never on a consistent basis. She felt this meant, “whenever I want, for a few hours.” Shannon chose to meet the children at the mall, so the paternal grandmother would take the children to see her at the mall. She said that she witnessed phone calls between the children and Shannon, and most of what she heard was an “interrogation” with lots of questions about who is there and what they ate. It was not affectionate.21
64The paternal grandmother said that she advised Shannon to go to a shelter to help rebuild her life after the separation, but this was taken negatively. She said that Shannon became abusive. She said that “I have 48 pages with messages sent before the separation and after. Before she was respectful and polite after she was abusive, disrespectful and hurtful.”22 The language and behaviour was polite and respectful prior to separation. Now, every time she meets with her to exchange the children, Shannon turns her back, so she doesn’t look at her. She doesn’t greet the kids when they meet at Zehrs. She brings Marco, Carmella, and Milania for the exchanges at Zehrs, but Shannon only takes Carmella and Milania.
65The paternal grandmother described the applicant as adventurous. He likes to do things. He has tried many things. In the teenage years, there were ups and downs. She said that she is really proud of the man he is today. She described how the applicant has always been doing so many things with the kids.23 He was always there for them, doing everything before and after separation. She said that Michael always helped around: he prepared for parties; he took Marco to activities.24 She described how the kids always ran to meet and play with Michael when he came in the door. Most of the time he worked daytime in construction. He had days off when it was raining and, in the winter, he spent time at home with his kids and family.
66The paternal grandmother described all three children with a great deal of understanding, knowledge, and love. She described Marco as a bright child. He has been able to do a lot by himself. He learns quickly. He had some trouble last year, but he overcame the challenges and started soccer when he was 12. He was selected for rep level soccer. She described Carmella as very sensitive, bright, and always thinking about things. She laughs a lot and is easygoing. She was described as a great kid. The paternal grandmother described Milania as creative and interested in cooking (she made her first Rice Krispie squares and French toast). She said she was struggling with school and found it very difficult to ask for help. The paternal grandmother said that she has been working with her to improve her reading.
67Since the children have been in the applicant’s care since separation, the paternal grandmother described how the father gets fresh panino for the children’s lunches before he goes to work. When he comes back from work, he has a list of things to do for the kids, soccer, tutoring, activities. He cleans and cooks and takes them to the doctor. When the school calls, he goes to pick them up. She said that for Marco’s confirmation May 14, 2024, and Milania’s confirmation June 1, 2024, Shannon didn’t attend. Shannon did attend for Carmella’s confirmation. She said that Michael has arranged and organized the kid’s birthday parties. He calls the parents. She said that the father is “really there for the children.” She said that “I am helping, but I am not doing the job of parenting. Michael is doing that job.”
68The respondent did not contradict or cross-examine the paternal grandmother on any of her evidence. She did ask her about some pictures taken by the respondent that she said showed the paternal grandmother videotaping during the exchanges. The paternal grandmother said she didn’t remember the event.25
69I found the evidence of the paternal grandmother to be somewhat helpful with respect to understanding the applicant’s parenting skills, however, her evidence was unbalanced. It was hard to believe that she had nothing positive to say about the respondent after about 15 years of marriage to her son and bringing three children into the world. It was clear that some of the paternal grandmother’s perspectives about the respondent were based on information provided to her by the applicant and it was therefore hearsay, and it could not be given any weight. She struck me as a loving grandmother that was caught in a difficult spot, wanting to support her grandchildren and her son, and dealing with the confusion and emotional pain of the parties’ separation.
Evidence of Applicant’s Friends: Mr. Daniel Shevakh and Ms. Victoria McFadden
70The applicant called two friends as witnesses to give evidence regarding his parenting and character. These witnesses were Mr. Daniel Shevakh and Ms. Victoria McFadden. They both provided brief trial affidavits which were adopted and relied upon.26 These two witnesses have been married for five years and in a relationship for fifteen years. They have two children together.
71Mr. Shevakh and the applicant have known each other since grade 6. He said that he knows the parties’ children as well. In the time he has known the applicant, Mr. Shevakh described him as a family man, and a devoted, dedicated father. He said that the applicant works hard and “all he does is talk about his kids.” He said they go out for dinner, soccer, baptism parties. He said that the applicant and him have been very good friends, and that the applicant was “always there for me.” He described the applicant as “loyal and committed, a wonderful man.” Mr. Shevakh said that he has seen the applicant with the children numerous times and he “can personally attest to his amazing parenting.”27
72Mr. Shevakh said that he knew about the first separation in 2018. The applicant told him that Shannon was having an affair, and he was really hurt and upset. There was a reconciliation, because the applicant loves his family so much, and he wanted to patch things up because he loves his kids and wanted to keep his family together. Mr. Shevakh said that since the final separation, he has “never seen Mike so happy.”28 He said that their families spend a lot of time together, and that the applicant always includes the children. When he is not at work he is with his kids. The children and him are very close and attached. He said that he “learned a lot” from the applicant because the applicant tells the kids he loves them, and the kids are “crazy about him.” He described the applicant as very affectionate. He said the applicant’s relationship with the children reminded him of the movie Mrs. Doubtfire, because he is so passionate and close with his children and always tries to give them the best. Mr. Shevakh said that “the children are the applicant’s first and ‘#1 priority.’” He said that the applicant is a wonderful person and then expressed his opinion that the kids should be with him.
73During cross-examination, Mr. Shevakh confirmed that he was Michael’s friend, not Shannon’s. He was not a “family friend” and he didn’t really observe the family home or their parenting together during most of the parties’ years of marriage prior to separation. The respondent provided commentary and tried to minimize the value of Mr. Shevakh’s evidence. She said that for 20 years, he wasn’t a part of their lives, and he wasn’t invited to their house. She submitted that his knowledge of Michael as a father is only after separation and as a result of things Michael has shared with him or posted on social media. Mr. Shevakh denied these comments.
74Ms. Victoria McFadden said that she has known Michael since 2011 through her husband. She said she only knows Shannon through Michael, but that she knows the parties’ children as well.29 She confirmed that Michael and her husband would get together throughout the years, but that because there was some “tension” in the parties’ relationship, she never met the respondent until 2019, after the parties separated and reconciled. She said that the applicant had told them that he reconciled with the respondent because he felt it was important for the children to have their mother despite the infidelity.
75Ms. McFadden describes the applicant as a “nurturing father” who “goes above and beyond to provide for all three children.” She said that she has witnessed his parenting by going to the family home. She has witnessed Michael with the children at family get togethers and she has seen the smiles on the children’s faces. She has seen the homework and the cards on the fridge. She said the kids are generally happy in his care, and she says that Michael is “emotionally available”, and he praises them for a job well done, hugs them and celebrates them. The applicant takes the children to activities and on vacations and he is overall available emotionally and financially for the children.
76During-cross examination, Ms. McFadden confirmed that she and the respondent are not friends, and she doesn’t really know the respondent, nor has she spent much time with her. She confirmed that she never witnessed Shannon’s parenting of the children. Ms. McFadden confirmed that she is friends with Michael, not Shannon, and she never really knew their children before the parties separated.
77The court asked Ms. McFadden about her comments in paragraph 18 of her affidavit wherein she said that the respondent’s “neglect and approach on motherhood wouldn’t typically meet the standards of care and responsibility of a mom.” Ms. McFadden confirmed that she never really witnessed Shannon’s parenting. She has only witnessed Michael’s parenting. She also confirmed that she did not have any special qualifications for the court to rely on her opinion about the applicant or respondent’s parenting skills, or what makes an “effective parent” or a “good mom.”
78The court found that the evidence of Mr. Shevakh and Ms. McFadden as it related to the respondent and care of the parties’ children prior to the separation, was primarily hearsay and did not give it any weight.
The Respondent
79In addition to oral evidence and cross-examination, the court received evidence from the respondent by way of her trial affidavit dated April 10, 2025, which she adopted and relied upon in the trial.30
80The respondent believes that it is in the best interests of the children to be in the equal care of both parents. She wants equal parenting time in the form of a 2-2-3 schedule or week about. She says that the parties get along better now, and she denies that the children do not like or do not feel comfortable with Mr. Ali. She believes that the applicant and his family and friends are alienating her from the children. She opposes any order that gives the applicant sole decision-making or primary care. She doesn’t believe that the applicant is truly the primary parent when the kids are in his care. She believes that his mother is doing the parenting and is controlling the applicant and the children. She described her own mother Mrs. Krisman, and her father as unsupportive. She said that her mother was unstable and suffered from mental health issues, and her father did “crack, drank and smoked weed.”
81The respondent said that she is the children’s mother, and she is “entitled to 50/50.” She asserts that she gave up her career to stay home and care for the children. She denies all the negative allegations about her parenting abilities and allegations about her misuse of alcohol. She acknowledges she was charged on April 13, 2023; however, she denies the assault. She said that Marco and the girls want to be with her.
82The respondent provided her evidence about the history of the party’s relationship since 2003 and their parenting. She said that in the beginning of their relationship, she was a “really big support” for the applicant when he was “getting off of heroin.”31 She said they fell in love and moved into an apartment together in 2008. She attended dental school and got a job through the school program. She said that when the applicant’s father became sick, they were going to move in and help him, but he passed away in 2009. The applicant and his sister inherited their father’s house, and the respondent said that “me and Michael talked about paying his sister out so we can keep the house and start a family one day.” They got married in Italy in 2010. They had their first child Marco soon after they married. The respondent spoke about things being hard, but she had nothing positive to say about any extended family, (including her mother, and the applicant’s mother and sister) providing emotional support or company when she was home with Marco as an infant. She also alleged that the respondent was “hardly around” so their “love died out.”32
83After the respondent’s grandmother passed away, she and her brother received an inheritance. The respondent said that they used this money to help buy a house in Woodbridge and they also travelled to Italy so that Marco could be baptized there. They had their second child, Carmella. Again, the respondent said that she was always “alone while Mike worked.” She said she took care of the kids and the house and the cooking with very “little help from family.” She said that she had one close friend, Ms. Lisa Garrett whom they all spent time with. She said that the applicant was “smoking weed” and leaving her alone so that “everything was on me.” She alleged that by the time their third child Milania was born, the parties were not spending much time together. She said that the applicant “would go out with people to smoke” and so she “started to go out after work in the hopes that he would miss me and bond with our children. That seemed to make it worse.”33 The respondent said this is when she started talking and spending time with Mr. Ali. The respondent described how the parties separated temporarily in 2018 and then reconciled. They went to counselling one time. The children were soon all in school and this was a “happy time.” The respondent began working part-time at the children’s school in October 2022 as a supervisor.
84The respondent said that she took care of everything for the children and the family. She cooked and cleaned and planned outings on the weekends. She said she had a “passion for cleaning and taking care of the house” while the applicant worked. She said she raised the family while he worked. She said that she took the children to all doctors and dental appointments while he was at work. She received the child tax benefits and held all the health cards.
85The respondent denied the applicant’s allegations about the assault on the day of separation. She said that the applicant was jealous of her and Mr. Ali, he was angry, and he had “bugged the kitchen” so he could hear her talking to Mr. Ali and his brother. She said that the applicant told the children she was a “cheater.” The respondent denied the allegations made by her mother, Mrs. Krisman. She said that Mrs. Krisman was never a help with the children. She said that during the short period of time that she lived with her after the separation, Mrs. Krisman would yell and take videos while the children were there for their parenting time with the respondent. After she moved in with Mr. Ali, the respondent alleged that Mrs. Krisman would walk by the house with the children and tell the children, “this is where your mother lives and left you for these bums.” The respondent alleged that the applicant and her mother “stole” pictures that the respondent posted of her and Mr. Ali on social media.
86The respondent alleged that the paternal grandmother was a “non-caring woman” at the time of the separation because she was very mad at her. She said the children “didn’t like” the applicant’s mom helping take care of them and that they cried and begged her to come home. The respondent said she tried to make a parenting schedule with Michael, but nothing worked out. In September 2023, the respondent and Mr. Ali moved out of his parent’s home and into an apartment together in Bradford. The respondent said this was so that she could be closer to the children. She said that the Mr. Ali helped her with money and support. She said that on October 9, 2023, Carmella met Mr. Ali, and they were very comfortable together. The respondent said it was the applicant who didn’t want the children to meet or spend time with Mr. Ali. The respondent said that the parties’ daughters, Carmella and Milania, both enjoy going fishing, having dinner and games with her and Mr. Ali.34 She said they are always happy in her care, but they are scared that their father will not like them enjoying their time with their mother and Mr. Ali. The respondent alleged that the applicant and her mother regularly say negative things and put her and Mr. Ali down in front of the children, calling them “drunks” and “ugly” and saying racist things about his skin colour.35 The respondent doesn’t want the children spending time with the maternal grandmother without her knowledge. She said she has told the applicant that it is wrong, but he doesn’t agree.
87The respondent said that the applicant has not discussed any parenting issues with her since their separation. She alleged that he has made unilateral decisions about the children’s school, dental, health, and activities without discussing them with her first.36 She said that she has been asking for more time with the children since the beginning, but the applicant and his mother have been resistant and controlling. She did not explain why she did not go forward with the motion to increase her parenting time on the date that had already been scheduled in the Sutherland Order.
88The respondent told the court that once she got a car and a job as a house cleaner, things have gotten “better with the children,” and now “it is great.”37 She said that she has asked the applicant if he would go to counselling and dinner with her and the children. She wanted to show them a healthy life and that they could work on coparenting. She said that all three children need both parents in their lives, and that both parents love the children.38 She said that when the parties began using WhatsApp last year, some of their messaging has been good and some has been bad. She is willing to use Our Family Wizard, but she doesn’t want to use a third party for communication anymore because they “don’t need others in our business for the rest of our lives.”
89The respondent said that she has regular parenting time with the girls, but it is not enough. She said that she started working at their daughter’s school providing supervision to be around her daughters more. She has two shifts during the day of 40 min each (about 1.5 hours per day) and is paid $21.50 per hour. She has also been focused on being a cleaner for offices, industrial, residential – and she works 4-5 hours in the evenings and on weekends almost every day earning $21.50 per hour. She said it is a number one priority to be there for the kids. She confirmed that Marco has not been coming out for parenting time on Wednesday and Fridays and Marco doesn’t come for the overnights either. The respondent said that “we talk here and there. I see him on lunch. I would like to have alone time with Marco that is separate, one on one without his sisters.” She said that she used to take the children out separately. She said that when Marco calls, “I run. I want it to be flexible.”
90The respondent said that her relationship with Mr. Ali started about 7 months ago. She said she had money from the inheritance and the sale of the matrimonial home that was supporting her, but she was also trying to save it. She said the children are very comfortable in her care, and they like Mr. Ali, “my daughters like him and accept him.” She acknowledged that her son Marco “doesn’t care either way. He is not ready to meet him. I will wait till Marco is ready to meet him.”
91The respondent attempted to discredit the applicant’s friends Mr. Shevakh and Ms. McFadden by making numerous negative and salacious allegations in her affidavit about them and their past.39 She did not ask them any questions about these allegations in cross-examination. She did not give them a chance to respond. I completely disregarded the respondent’s allegations and commentary about these witnesses except for the fact that they are not her friends.
92The respondent denied that she wouldn’t take the children to important urgent medical appointments or procedures. She said that with respect to Marco’s surgery at Sick Kids, she was home with the younger children, and she called Michael at work, and he told her to call his mother. She said that both her and Michael were scared and emotional about Marco’s health and the outcome of the surgery.
93The respondent showed the court a video that she took on April 3, 2023, just prior to the separation.40 The video was just 49 seconds (less than one minute). It showed both of the parties arguing loudly prior to the separation in front of their 6-year-old child who was home sick from school, lying under a blanket on the couch. It showed the applicant standing over the child, yelling and discussing the party’s relationship and his allegation of the respondent “cheating.” The respondent is yelling as well and taking a video of the incident. It is clear to the court that they were both upset, and yet they both could not regulate their behaviour and protect their young child who was sick at home, watching and listening to her parents’ fight. The respondent said that they both fought in front of their children. She regretted it, but she wants her children to see them getting along and she is willing to do it for their children. This video was another low point in the trial, but it was also quite compelling. In my view, it showed that both the parties have issues with their immaturity, anger, and emotional regulation.
94The respondent said “I have a good relationship with my children. I intend on continuing to make and keep it good and focus my attention on Marco. He needs me now too. We go to spa, beach with the girls, get together with cousins and friends.” She said she takes Marco and his friends for lunch breaks. The respondent described doing a lot of arts and crafts with the kids. She said that she has done skating in the past with the kids. Now that the kids are growing up, she is trying fit in with their hobbies. She said her daughters sleep with her in her bed when they stay overnight. She described there being four beds in the apartment plus the couch. When the girls are over. We sleep together. The girls have their own room that they share. The respondent described it as “a temporary living situation.” She said she still wants to live in the Bradford area so that she can be close for the children. She said she wants equal parenting time and to be able to see her children every day if possible. She said, “My daughters need a mother to be there. They are going to grow up and get their periods and have boyfriends. I feel like a visitor. I can’t parent from a distance. I don’t feel like a parent.”
95The respondent described her children very positively and talked about how much she loved them. She expressed hopes for the relationship with Marco to get better. She said that she and the younger girls are very close, and they both want to spend more time with her. She expressed hopes that the communication with the applicant would improve. She has suggested they all attend counselling, and she hopes they will go.
96During cross-examination, Mr. Zaldin tried to obtain clarity from the respondent on her relationship with Mr. Ali. He put some pictures and social media posts to the respondent and asked to explain how it supports her position that they were “just friends.”41 Throughout her evidence on the subject, the respondent was defensive of both herself and Mr. Ali, and argumentative. She confirmed the pictures and messages as accurate, but she denied that any of them could appear to cause confusion about her relationship status or show that she is in a relationship with Mr. Ali. The respondent was consistently evasive about when her relationship with Mr. Ali changed from friendship. On the stand, she finally said that she “was not in a relationship with Mr. Shazad Ali until 7-8 months ago.” The respondent never updated her trial affidavit or 35.1 affidavit to reflect their relationship status. Her evasiveness on this issue had a negative effect on the respondent’s credibility. It leads the court to believe that the respondent has sworn false and contradictory affidavits.
97What was also contradictory in the respondent’s evidence was how protective she was of Mr. Ali. She told the court that he was irrelevant to her parenting plan, and yet she talked about how good he was with the children and defended his character. When she was asked why she didn’t call him as a witness since he was such an important friend, she said she didn’t want him hearing how the applicant and other witnesses talked about him.
98The respondent said that her mother’s evidence was all false. Mr. Zaldin asked the respondent why she didn’t confront or cross-examine her mother Mrs. Krisman regarding her evidence if it was all untrue. The respondent said that she “didn’t want to talk” to her mother, “that is why I didn’t ask her any questions or cross-examine her.” She said, “I haven’t had a relationship with my mother for years. She doesn’t know Shazad.”
99The respondent acknowledged that she and the paternal grandmother had a good relationship prior to the separation. She further agreed that since the separation she has been disrespectful of the paternal grandmother, but she said that the paternal grandmother was disrespectful of her as well. The respondent said she was insulted by the paternal grandmother’s suggestion to live in a shelter when she left Mrs. Krisman’s house, instead of living with Mr. Ali. She said “that was pretty much the end of the relationship” with her.
100Throughout most of the cross-examination, the respondent was arguing or evading answering questions. Or sometimes she would answer a question with a question, or scoff and say, “that doesn’t make sense” or “Michael knows this” or “the Court knows this.”
101Mr. Zaldin asked the respondent “how can you have joint decision-making when you argue and are in conflict all the time?” She said, “yes, we have been like that our whole marriage, we always talk like that. I have suggested the police station for exchanges to ensure no conflict. I would like to have a relationship with Michael and the children together.” She said, “I want equal parenting time. It is beneficial for the children. They need two parents. We both love them. We are good people. I still love Michael. That is why I want the conflict between us to get better and show the kids we can love and care for them despite the divorce.”
Evidence of Respondent’s friend Ms. Lisa Garrett
102The court heard evidence from the respondent’s friend, Ms. Lisa Garrett, regarding the respondent’s parenting and character through a brief trial affidavit sworn April 11, 2025, and through oral evidence and cross-examination.42 Ms. Garrett adopted and relied upon her affidavit, with the exception of paragraphs 3, 7, and 9 which were struck as they were hearsay. Ms. Garrett testified positively about the respondent’s parenting abilities. Ms. Garrett also provided some evidence and her perspectives about the applicant’s parenting and regarding Mr. Ali.
103Ms. Garrett testified that she has known the respondent since they were young children. She said “I have known her my whole life. We both became parents and were heavily involved with each other our whole lives.” She said that “I have been there for the birth of all three children. I visited their house frequently.” She said that she has known the children all through their lives.
104With respect to the parties’ relationship, Ms. Garrett said that they knew each other in high school, and they reunited later when according to Ms. Garrett, the applicant’s “life was not going in the right direction.” She said that the respondent helped the applicant get out of substance use and “move his life in the right direction.”43 The parties got married and had Marco shortly afterwards. Ms. Garrett described the respondent as “a loving nurturing mother and wife.” She said that the respondent “had a great relationship with children,” then she added, “both of you are great parents.” This carried some weight with the court because she said this despite the applicant having made some negative claims about Ms. Garrett and her husband.
105Ms. Garrett advised the court that after the parties’ separation, the applicant opposed Ms. Garrett being a “third party” person to assist with the respondent’s parenting time and exchanges. Apparently, the applicant claimed that Ms. Garrett’s partner was an alcoholic. Ms. Garrett denied this allegation and said it was not true. She said, “my home is safe and healthy” and she and her husband are “both full-time working professionals whom own our own safe home and are parents ourselves.” She went on to say it was a difficult time to be a third party to help the parties navigate a solid parenting schedule in the beginning because “both parties spoke about personal things and couldn’t settle.”44 She said she was hearing a lot about the “back and forth” and the “he said, she said” and it wasn’t good.
106Ms. Garrett said that she and her husband have spent time with the children, and that they “are like family to us.” She said, “I believe that Shannon is a fit parent.” She described the respondent’s home as “cozy and comfortable.” She said they had visited the respondent’s home and that the applicant’s claims that have been made against the respondent are untrue and unfair. Ms. Garrett told the court that Carmella volunteered something to her regarding something that “Daddy said” about “my mommy is an old alcoholic.” Ms. Garrett said she deflected the conversation, and she told Carmella that it wasn’t true.45
107Ms. Garrett said that Shannon “paid lots of money to a lawyer so that she could try and have equal rights to her children, but the money ran out and now she will have to represent herself.” She offered her view and opinion that Shannon “as a mother” has missed out on so much, and that she believes that the Shannon “deserves equal parenting time 50/50 with her children as much as Michael Nesta does.”46
108Under cross-examination, it was pointed out that Ms. Garrett’s knowledge about Shannon’s financial circumstances was hearsay. Counsel asked Ms. Garrett if she knew that the respondent had received a large amount of money from the house, and that in her financial statement dated May 30, 2025, she said she has a TFSA and savings accounts with balances of approximately $56,000 and $100,000.47 Ms. Garrett said, “I was on the assumption that she ran out of money because lawyers are expensive.” In her view, she said that Shannon needed to protect the money she had, but she wasn’t aware of the exact amount she had. Ms. Garrett confirmed that Shannon told her that “she couldn’t afford a lawyer” and she chose to represent herself.
109Ms. Garrett confirmed that she has been to Shannon’s apartment, and there are two bedrooms. In one bedroom there are the girls’ toys. She said that she assumes that the girls share a bedroom and that if Marco was there, they could make it work. Mr. Zaldin bluntly asked Ms. Garrett whether the respondent and Mr. Ali were “a couple.” Ms. Garrett said “yes.” Ms. Garrett also said that she thinks the respondent “deserves” to be a parent to her children like the applicant. The respondent did not ask any questions for reply or redirection.
110The court asked Ms. Garrett if she knew when the respondent and Mr. Ali became a couple. She said, “they went from a close friendship” and he was a support person, but they became a couple, “I don’t have a specific timeline on this.” The court asked if she has witnessed Mr. Ali with the children. She said “yes.” She went on to describe him as “kind, intellectual, patient and caring” and “he tries to attend to the children’s needs.” She followed up by describing the parties as a couple and as parents. She repeated her evidence that Shannon was nurturing and protective and Michael was a great provider and an excellent parent. She said, “they both are excellent parents,” that is why she feels they both should have a chance to be equal parents.
Evidence of the OCL
111In my view, the most compelling and reliable evidence of the children’s views came from the OCL, Ms. Stefanutti. Ms. Stefanutti is a Social Worker with the OCL. She has a MSW and is a Registered Social Worker. She has worked in child protection and for the OCL for 12 years. She has also provided counselling in the field. Ms. Stefanutti adopted and relied upon the evidence in her VOC Reports and affidavits (Exhibits 1 and 2). She confirmed that she completed both VOC Reports, one on March 12, 2024, and an updating VOC report about a year later, on February 12, 2025.
112Ms. Stefanutti confirmed that the VOC Report is not an assessment. It is a gathering of information about the thoughts, views, and perspectives of the children. The VOC Report is the summary of the interviews. No collateral information or judgments are included in the VOC Report. Ms. Stefanutti confirmed that she interviewed all three children 2 times for each VOC Report. She indicated that she prefers to do one interview when the children are in the care of each parent. Three interviews were conducted at the Bradford Library, and one was at the father’s home. She confirmed that no one else was present, and the children were alone and in private rooms for the interviews.
113To get to know the children, Ms. Stefanutti explained her role and asked questions about their experiences in school, social activities, and with both parents. At the end of the report, she asks the children if they had conversations with parents about the meetings. Sometimes she will ask the children if the parents had any conversations with them about the meetings. In report number 1, Marco said that his mother asked about the questions and responses during the interview with the clinician. He indicated that he was not influenced by either parent. Carmella stated that her mother did tell her to say she likes having time with her mother. Milania said that her mother asked about the interview but that her father told her to be honest.
114Ms. Stefanutti advised that she goes over the contents of the report with the children to ensure its accuracy and consistency. If she was told that she shouldn’t share something, she would not include it. Sometimes in interviews, the children will clarify or change something they said in the prior interview. She said that she let them know they should not feel forced. She said that the children did not ask her to change anything in her report.
115All three children love their mother and father. Ms. Stefanutti submitted a concern to the SMCYFS due to one concerning disclosure that was raised by Marco. It was about the toy thrown at him by his mother prior to separation. The allegation was about the mother, not the father. There was no concern about the father. The children shared that they suspected that their mother lived with Mr. Ali (whom they referred to as “Shazad”). However, there appeared to be confusion, inconsistency or a lack of clarity about him and about his relationship with their mother. Both Marco and Carmella presented stronger views about Shazad. They reported some negative experiences with him and feelings of discomfort in his presence.
116Ms. Stefanutti’s evidence regarding the children was as follows:
Re. Marco (14 years old)
117Marco was 12 at the time of the first interview. He was polite, well-mannered, and eager to speak to her. He didn’t want to hold back, and he seemed honest and genuine in his comments. Marco discussed how he was involved in soccer. He said that he noticed the fights between his parents and brought that up in relation to questions posed about his relationship with both parents. He spoke about the violence and fighting instigated by the mother. He spoke about the mother “cheating on his father.” He said that his mom was speaking to another man, and she cheated on his father. Ms. Stefanutti was not sure of Marco’s source of this information. Marco denied being influenced by his father or anyone.
118Regarding what life was like after the separation – Marco elaborated on his mother not showing up for visits. Marco was very open, and shared experiences about how his mother calls his father and both grandmothers bad names. Marco said he doesn’t like his mother’s friend Shazad, but his mother tells him he should. Marco said that he believes that Shazad is his mother’s boyfriend, and the man that his mother “cheated with.” He used the words “brainwashing” for his sisters when he said he overheard his mother telling his sisters that “Shazad will buy them several toys if they choose to live with her.” He described how Shazad and his mother tried to “bribe” him stating that she would buy him a Nintendo if he talked to Shazad. Marco refused. He said that Shazad gives him “weird looks”.
119Ms. Stefanutti said that Marco told her that his preference in the first VOC Report was to be at his mother’s when his sisters visit so he could be there with and for his sisters. The siblings seemed to have a good relationship. Marco said he does want a relationship with his mother. He loves her. Marco was still seeing his mother, but just not as frequent as his sisters. He described his father as “normal”, and he gets along with him.
120By the time of the second set of interviews for the updating VOC Report, Marco had stopped attending regular visits with his mother. He said he wasn’t feeling comfortable to go to his mother’s apartment. He said that he felt it was more chaotic with his sisters. He wanted to go alone to see his mom at his convenience and flexibility.
121Marco said that he has minimal contact with his mother. He cares about his mother and wants to rebuild a relationship with her with “one on one time.” He said he found the group visits to be stressful. Marco also said that he finds the ongoing custody conflict to be stressful and wants to move forward. He couldn’t give a preference regarding a regular parenting schedule with his mother.
Re. Carmella (10 years old)
122Carmella was 8 years old at the time of the first interview and she was shyer and more reserved. Carmella was not as eager to speak to the clinician. She was sweet, kind, and well-mannered. Ms. Stefanutti described the first two interviews with Carmella as a “180.” The mother brought the children for first interview. At that time, Carmella spoke positively about her mother and Shazad. She said she liked Shazad. In the second interview when the father brought the children, Carmella was different. She described her mother as “boring”. She volunteered that she would prefer that her mother sleep with her instead of Shazad. She said that her mother speaks badly about her grandmother. By the time of the follow up VOC Report, Carmella offered that Shazad lives with her mother, and that he “is there all the time.” Carmella raised an issue about a visit that the girls, their mother and Shazad took to the Rec Room (a restaurant and play place). Carmella said that she had seen Shazad drinking at the bar, and then driving on the icy road. Carmella said she was in the car, and she felt scared and upset. Carmella didn’t want overnight visits at all in the first VOC Report. By the time of the second VOC Report, she expressed wanting more time with her mother and specified wanting alternate weekends with her mother instead of the current arrangement.
Re. Milania (9 years old)
123Milania was just 7 years old at the time of the first interviews. Ms. Stefanutti described Milania as being young, sweet, and more innocent. She wasn’t quite sure why she was being interviewed. She was outgoing and talkative. Milania talked about wanting to be with both parents and have equal time with them. She said that she feels sad when she does not see her mother. She feels comfortable with her father and gets along well with her siblings, her mother and Shazad. She said she feels comfortable with and likes Shazad because “he buys her toys.” By the time of the updating VOC Report, Milania called Shazad her mother’s “boyfriend”. Milania said “boyfriend”, but she said she was uncertain of whether he lives there. She noted that her parents do not communicate directly.
124During cross-examination of Ms. Stefanutti, the respondent raised a concern about the fairness of the interviews, especially the one that took place at the applicant’s residence. Ms. Stefanutti said that she felt it was fair and the children felt safe. She said that from the first interview to the second interview, the children’s behaviour was consistent.
125Generally, the children were understandably more comfortable speaking with Ms. Stefanutti the second time around as they had previously met her. All three children were described as being sweet and good children that were more trusting in the second set of interviews. All children were continuing to attend school. Carmella and Milania were enjoying activities and having time with both mother and father.
126Ms. Stefanutti confirmed that in the first VOC Report, Marco disliked visits with his mother and felt she neglected him. He opposed equal parenting time. By the second VOC Report, Marco had withdrawn from the visits and distanced himself from his mother, citing “his mother’s lack of effort and conflict with her boyfriend.” At the same time, he expressed wanting to rebuild a relationship with her on a more casual, flexible basis. In the first VOC Report, Carmella had fluctuated in her feelings toward her mother and Shazad. By the second VOC Report, she was a little more comfortable expressing her concerns and had settled into her consistent preference of alternate weekends with her mother. Milania’s perspective remained largely unchanged, as she continued to seek balance. All three children continued to “express a strong bond with their father” and Carmella and Milania expressed a “positive relationship with their mother”, although it was somewhat “dependant on their interactions and the presence of Shazad.”
127I found Ms. Stefanutti’s evidence and testimony to be very clear, confident, and fair. She did not review or interview any collaterals. Ms. Stefanutti did her job, which for a VOC Report was to present the children’s views. She did not embellish or overstate her position, and she agreed that this was just a picture of the children’s views and preferences, nothing more, and nothing less. She said that she felt that the children’s views were consistent and strong. She said she could not comment on their independence except with respect to what the children told her.
Conclusion regarding Parenting
128The applicant was able to provide the court with a lot of detail about the children and their day to day lives. He knew their friends’ names and details about their activities, programs, and school. I accepted the applicant’s evidence and the evidence from his witnesses about his parenting abilities and the children’s bond with him. I found that the applicant appeared to be an attentive, loving, caring, and hands-on father both before and after the separation. The applicant’s mother, the respondent’s mother, and the applicant’s friends all testified regarding the applicant’s ability to parent and corroborated the applicant’s evidence. Even the respondent’s friend corroborated the applicant’s abilities as a parent.
129I found that the applicant’s expressed concerns about the respondent’s alcohol misuse and lack of parenting ability were in actuality, his masked anger and judgment about the respondent and her alleged infidelity. He alleged that the respondent began drinking wine to excess when Marco was an infant, and yet he still left for work every day leaving the small child and other children in her care (despite this alleged alcohol misuse going on for many years). In my view, I find it unbelievable that the applicant was truly concerned about the respondent’s drinking and parenting, otherwise, why would he leave his young vulnerable children in her care at all? Why would he be wanting her to take the children for overnights only so long as her “housemate” was not present (as is required in the Sutherland Order)? It would not make sense that he would support her having regular parenting time and shared holidays going forward if everything that he alleged about the respondent were true. I found the tone of all the comments and opinions that he and his witnesses expressed about the respondent and her so-called alcohol misuse and inadequacies as a parent to really be an attempt at insinuating negatives about her character and trying to shame her by painting her as being irresponsible and neglectful. The applicant’s and his witnesses’ comments in their evidence were less about the respondent’s actual parenting abilities, and more about his dislike of Mr. Ali, and shaming the respondent for her alleged infidelity and selfishness.
130In turn, I found the respondent’s expressed concerns and allegations about the applicant’s misuse of drugs and possible alienation of the children to be retaliatory. I find it equally unbelievable that the respondent is truly concerned about the applicant’s alleged drug use and inadequacies as a parent. There is a significant amount of evidence to the contrary that supports the applicant as an “excellent parent” even from her own witness Ms. Lisa Garrett. I found that the respondent’s comments and so-called concerns and opinions about the applicant as a bad parent were contradictory. She was seeking an order for equal parenting, and that would make no sense if everything that she alleged about the applicant were true. In my view, she was reacting to the negative things that the applicant and his witnesses said about her, by casting shade on the applicant’s character and parenting abilities.
131In this matter, the court is dealing with a determination of what parenting schedule is in the children’s best interests almost three years after the separation. It is undisputed that the children have been in the applicant’s primary care since separation. However, it is clear to the court (and an undisputed fact) that the applicant has “imposed” or “directed” the schedule because he believes that it is in the children’s best interests. It would be inappropriate for the father or the court to simply rely on the length of time that this imposed schedule has been in place, as a reasonable “status quo” and a reason that it should not be disrupted at the trial. This schedule and the Christie and Sutherland Orders were “without prejudice.” I find that the applicant was gatekeeping the respondent’s parenting time since the separation, and this created an artificial status quo that should not be relied heavily upon when making the final decisions about parenting.
132In this matter, the circumstances of the separation necessarily and temporarily limited contact between the parents to keep the peace. This meant that the mother had to reside outside the matrimonial home and therefore the children’s contact with their mother was limited by distance, housing instability, and limitations on the parents’ communication. Lastly, the mother should not be faulted for not bringing a motion earlier when the matter was proceeding to trial, and they were waiting for OCL VOC reports. Then, there are the delays in our family court that caused the trial not being reached in May 2025. The trial was set as a priority to proceed in November 2025. In my view, both the parties had a responsibility to be flexible and honour the best interests of the children, without being unreasonably restrictive or maintaining parenting arrangements that do not meet the children’s best interests.
133What is clear to the court is that these are two people who share one thing in common, that is their deep love for their children. Both parents have a strong relationship with the children, and although their parenting styles may differ, they can both meet the children’s needs. The father does not agree that the mother should have the opportunity to equally parent the children as he believes that it is not in their best interests. However, the evidence does show that the parties were both very involved parents during the relationship, and both participated in parenting the children prior to the separation. However, the parties have now been separated for almost three years, and their roles and responsibilities altered and changed both before and after separation. With the separation, these roles and responsibilities will forever be different.
134The children have lived in the primary care of the applicant since the date of separation. The children love their mother and want to spend more time with her. She has regular parenting time with the youngest children, and both parents ask for it to be increased (albeit in different ways). In her own evidence, the respondent advised she is having some lunches with the eldest child, Marco, as arranged between them. I have no doubt that the respondent loves her children and wants to spend more time with them. However, I find the mother’s desire for joint decision-making and primary or equal shared parenting for all the children is more about her interests, and her “rights,” rather than the children’s best interests. It may be difficult for the mother to accept, but I find that the children do not want to live primarily with their mother and her boyfriend Mr. Ali.
135Mr. Ali is a question mark for the court. The respondent is asking the court to place the children equally in hers and the applicant’s care, yet there are significant gaps and contradictions in the respondent’s evidence about who Mr. Ali is to her, and what role he would play in her children’s lives and in her parenting plan. Despite everyone, (including her children) calling Mr. Ali her boyfriend, the respondent would not admit they were in a relationship together until the trial. She minimized the significance of the past social media pictures and exchanges that she posted of her and Mr. Ali together.48 Instead, she blamed all of the children’s “alleged” discomfort or confusion on the applicant and people close to him speaking poorly about her and Mr. Ali. She submitted pictures of Mr. Ali spending time with her and the children during her parenting time.49 Even when she finally admitted to being in a romantic relationship with Mr. Ali, she was evasive and contradictory about when it began and what, if any, was his relevance and involvement in her parenting plan. The respondent actually said that Mr. Ali was “not relevant” to her parenting plan. However, she defended Mr. Ali’s character, and would not accept that the children had expressed discomfort about him. Exhibits 37-42 and 27-29 were confusing to the court. On the one hand, the respondent was repeatedly saying that Mr. Ali was “just a friend”, despite the evidence of their intimacy and closeness. Then on the other hand, she described him as a positive support for her and the children. Her plan for equal parenting time included the children living with her and Mr. Ali during her parenting time.
136It appeared to me that the respondent was caught in her contradictions, when her own witness and good friend, Ms. Lisa Garrett described the respondent and Mr. Ali as being “a couple.” The respondent presented evidence about what a positive presence Mr. Ali was for the children, however, she didn’t call him as a witness. The court must ask “Why?” One would think that Mr. Ali’s evidence as her long-time friend and someone with whom she has resided since 2023 and who has witnessed her parenting, would have been highly relevant and helpful regarding the parenting issues. Additionally, as her admitted boyfriend with whom she cohabits, it appears as though Mr. Ali is a part of the respondent’s parenting plan. In my view, he would be important part of the court’s determination of the best interests of the children. Mr. Ali essentially remains a mystery to the court which means that the court must rely upon the respondent’s judgment with respect to who provides support and/or is present with the children when they are in her care. I am not satisfied with the evidence of the applicant or his witnesses to limit the respondent’s parenting time based on who she chooses to spend time with or reside with. Even the applicant indicated to the court that he no longer required the term in the Sutherland Order that didn’t allow the respondent’s “housemate” to be present for the respondent’s overnight visits with the children.
137I so find the children’s confusion about their mother’s relationship status with Mr. Ali to be understandable. To be clear, it doesn’t matter to the court whether their relationship began before or after the separation. The fidelity or infidelity of one or both parties is irrelevant to the parenting issues. What is relevant to the parenting issues is the respondent’s evasiveness and lack of clarity or honesty about her relationship with Mr. Ali. At best, it could be a sign of a lack of insight into her own mind, heart, and intentions with this man and with the applicant. At worst, it raises a credibility issue because the respondent has sworn affidavits that may contradict her own evidence.50 Either way, it does not give the court confidence in the respondent’s evidence or the stability and strength of her parenting plan to have joint decision-making and equal parenting time for all three children. In my view, the respondent lacks insight into how she appears to the outside world or to her children (especially the eldest child Marco). She would likely benefit from some counselling or therapy about this matter.
138I find the children’s views and preferences to be perfectly reasonable considering that they are settled, stable, and comfortable with living primarily with their father in their family home since separation. The applicant lives with the children inside the children’s school catchment area. The younger children can walk to and from school. However, that status quo was created artificially after separation when the respondent was removed from their home.
139Both parties expressed some very negative views of each other as a parent and as a partner. In my view, it appeared as though both parties were still very angry with each other because of what they perceived as “false allegations” of infidelity, substance/alcohol use, and neglect as a partner and as a parent that were raised by the other party throughout the litigation. Despite their anger and hurt, neither parent provided any substantive evidence of a safety concern about the other parent. The fact that the applicant and his mother brought the children to some medical procedures does not mean that the respondent was a neglectful or selfish mother. In many families, each parent can offer individual strengths that may counter or support the other parents’ challenge. In this family, it appeared to me that the respondent had some anxiety around medical interventions or procedures, so the applicant and/or his mother would step in, while the respondent stayed home with the other children. In my view, these situations spoke more to knowing your limits and ensuring the children have the best supports in place to help them through a tough time. It was not being a neglectful or selfish parent.
140Both parties love their children very deeply. Both parents offer strengths in their parenting. Both the applicant and the respondent were highly involved parents prior to their separation. In my view, there is a deep and loving connection between the children and both of their parents. There was some evidence of both parents and extended family involving the children in the adult issues at times (especially around the separation). However, overall, both parties want to support the children’s relationship with the other parent. I have no doubt that both parties would do their utmost to protect and provide for their children to the best of their abilities.
141The respondent is seeking joint decision-making and equal parenting time because she thinks that both parents are “fit,” they should be treated equally. However, the Supreme Court of Canada and the Ontario Court of Appeal, have consistently held that “joint or parallel custody should only be ordered where the parents can co-operate and communicate effectively.”51 There is no presumption of joint custody (now referred to as decision-making responsibility) “(a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties.”52 Hoping that communication between the parties will improve is not a sufficient basis for making an order of joint custody. Just because both parents are acknowledged to be “fit” parents, it does not mean that it is in the best interests of the children for a joint decision-making and equal parenting time order to be made.53
142Although both parties made efforts to show the other in a negative light, the court has not found there is a “bad parent.” Michael is not a bad parent. Shannon is not a bad parent. However, the court cannot order joint or equal decision-making and equal parenting time for all three children just because it is what the respondent thinks is “fair” to the parties. I find that despite his anger earlier in the separation, the applicant better understands and supports the respondent’s relationship with the children. He said that he understands the children need their mother. However, where there is lack of trust and a significant rift and antipathy pervading the parents’ relationship, the court cannot support joint or shared decision-making responsibility without there being a final decision-maker.54
143I did not give a great deal of weight to the applicant’s evidence or his witnesses’ evidence regarding the respondent’s deficiencies as a parent and a mother. I found that most of their observations and comments were not based on their firsthand observations of her parenting. They were more likely based on information that had been provided to them by the applicant, (either prior to or after the final separation). Their criticism of her abilities was tainted with a tone of shaming and labelling her as a “bad” or “selfish” woman who “cheated” and left her kids and husband. The reality is that the respondent was a stay-at-home mother from the birth of their first child. There is no history of child protection allegations, or that she ever put the children at risk of harm. Was she perfect? Probably not. However, neither was the applicant. The video and evidence from the respondent showed that both the applicant and respondent participated in the conflict. They both exposed their children to conflict prior to the separation. There is evidence that they continued to expose the children to their conflict after the separation. For example, the applicant has shown the children pictures or posts from the respondent’s social media that put her in a negative light and support his narrative. Plus, despite the respondent’s requests, the applicant has not protected the children from the maternal grandmother’s negative and derogatory comments about the mother in front of their children.
144With respect to the decision-making and parenting time for Marco, he is 14 years old, and the court finds that in Marco’s case, as Benotto J. said in Fielding, “time has overtaken the custody issue.”55 Marco’s actions give voice to his wishes. Marco’s wishes demonstrate his capacity for self-determination and his love, affection, and connection with his father and his mother. Additionally, since the fall of 2023, the parents have permitted Marco to determine how and when he spends time with his mother and father. The court cannot and will not change that now, especially as Marco is closer to being a young adult than a child. For all these reasons, the court will make an order for sole decision-making in favour of the applicant, and permit Marco to continue to reside primarily with the applicant, and determine his own residence schedule in accordance with his wishes.
145Both parties indicated there were issues that made their communication problematic. For joint decision-making to work, communication and cooperation between the parents are needed. The respondent suggests that if the parties used a consultation protocol and used a communication app, their communication would improve. I agree. However, in the event of a disagreement regarding the children’s medical needs or other major decisions, it is in the children’s best interests that one parent have a final say, so as not to delay treatment, services or medication. For all these reasons, I will make an order for joint decision-making and further order a communication protocol for the younger children Carmella and Milania. I will order that after consultation, if there is a disagreement regarding a major decision for the younger children, the applicant will have final say. Lastly, I will make an order that the applicant shall hold on to the children’s documents since he has final decision-making authority.
146For these reasons, I find it in the best interests of the children for the applicant and respondent to have equal parenting time and residence of the two younger children Carmella and Milania. The parties shall share joint decision-making responsibility with respect to the younger children, Carmella and Milania. If after consultation, the parties disagree with respect to a decision for the children, the applicant shall have final say and make the decision in case of a disagreement. The applicant shall have sole decision-making with respect to Marco. The respondent and applicant will have equal rights to information and communication with any professionals or institutions regarding the children. The applicant and respondent shall have a shared holiday schedule with the younger children.
Income of the Parties, Child Support (Retroactive and Ongoing), s. 7 Expenses
147The applicant has made a claim for retroactive and ongoing child support and contribution to the children’s s. 7 expenses. The applicant asks for a minimum wage full-time income to be imputed to the respondent, and for her to pay him retroactive arrears and ongoing child support back to the date of separation. Although he thinks she is capable of earning more, the applicant asks for a minimum wage income to be imputed to the respondent to avoid further conflict.
148Imputing income is one method by which the court gives effect to the obligation of a party to support his/her dependants, and to support him/herself when they are claiming support from another. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.56 The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.57
149The applicant is a heavy equipment operator and owns his own business (sole proprietor) called M.C.M. Contracting. He is self-employed, but basically has one source of income for his business. In his Financial Statement dated April 3, 2025, his Statement of Business Activities for 2023 for M.C.M. Contracting shows that his gross income was $82,226.92. There is a deduction/adjustment for GST/HST of $9,459.73 bringing his gross professional income down to $72,767.19 and some further deductions for costs bringing his Net Income down to $63,885.01. The applicant’s income for 2023 is stated to be $72,767.19 in his Financial Statement. The applicant’s Notice of Assessment (“NOA”) states that his income in 2023 was $64,020. In 2025, the applicant says his monthly income is $8,100 and annual income is $97,200. He further states that he lives alone (with the children), and his annual expenses are $115,680. The applicant purchased the respondent’s interest in the matrimonial home, and he took on most of the debt.58 He has been supporting the children in his care since the separation with no contribution from the respondent.
150It is undisputed that:
(a) The respondent had a diploma in dental assistance and worked in a dental office when the parties were married.
(b) Shortly after the marriage, the respondent became pregnant with Marco.
(c) The respondent stopped working after she became pregnant with Marco.
(d) The respondent did not return to work full-time after Marco’s birth or the birth of the other children.
(e) The applicant was the primary income earner for the family.
(f) The respondent stayed home to care for the children and the home.
(g) The respondent started working as a part-time supervisor in the children’s school when the children were all in school.
(h) The respondent does not work full-time.
(i) The respondent is able-bodied and healthy. There are no limitations on her ability to work, except for her lack of qualifications and work experience.
(j) The respondent has paid the applicant nothing for child support or contribution to the children’s s. 7 expenses.
(k) The respondent’s Answer contained a claim for spousal support.
(l) The Trial Scheduling Endorsement dated December 20, 2024, listed “spousal support (retroactive and ongoing)” as one of the respondent’s issues for trial.
(m) The respondent “abandoned” her claim for spousal support at a conference held before Douglas J. on May 13, 2025, prior to the May 2025 trial sittings.
(n) The applicant never brought a motion for child support.
(o) The respondent never brought a motion for spousal support.
151During the trial, the respondent expressed that she is not willing to pay any retroactive or ongoing child support. She told the court that she has not been working full-time during the relationship or after the separation. She said, “I gave up my career to have the children” and that she has had three jobs since the separation. She said, “I am employed right now, but I should not have to pay child support for the time that I was kicked out of the house because I had no income, or family help or credit, or government income.” The respondent acknowledges that she hasn’t paid any child support to the applicant during the children’s primary residence with the applicant. She said, “I pay for their expenses when they are in my care.”
152According to her Financial Statement dated June 29, 2023, the respondent’s income for 2021 was zero $0 (as shown in her NOA). In 2022, it was $375.00. She was unemployed from the date of separation April 12, 2023, onwards, and her only source of income was the child tax benefits that she continued to receive in 2023.59
153In or around 2024, the respondent commenced working doing some cleaning jobs. She also worked for a nursing home for a few months. The respondent also got a job doing the school supervision again as well. According to her Financial Statement dated May 30, 2025, the respondent earned approximately $6,488.65 in 2024. She says her expenses are approximately $35,371.08 per year.60 She advised the court that she made up the difference using her “inheritance” and from Mr. Ali’s help and contributions to the household.
154In the respondent’s Answer, she made a claim for spousal support. However, she abandoned this claim in May 2025. There are no reasons given for this change. The respondent abandoned her claim for spousal support in May 2025, after she had been residing with Mr. Ali for approximately two years, and after she received the payout for the sale of the matrimonial home. The respondent also testified that she is working more now, regularly doing cleaning.
155The respondent had not worked full-time since she became pregnant with Marco. Given the respondent’s lack of work history for the past 14-15 years, I find she was dependant upon the applicant during the marriage. The applicant was the primary income earner for the family. At the time of separation, I find that the respondent experienced serious housing and income uncertainty and instability. At the time of separation, the respondent very likely had a valid claim for spousal support. Despite this, she never brought a motion for spousal support.
156At the same time, even though the children were all residing primarily with the applicant, he did not bring a motion for child support. In my view, this is likely because he knew that even though the respondent had a financial obligation to the children, any child support order made would be offset by a spousal support order.
157During cross-examination, Mr. Zaldin asked the respondent why she had not been working full-time to contribute to the support of the children. The respondent acknowledged that she had a dental diploma, but it was old, and she didn’t want to go back into the dental field after the separation. She said that when the children were young, she wanted to stay home and care for and support them, but now, she acknowledged that she needs to work and has an obligation to support the children. She said that it had been almost 20 years since she had worked outside the home, and “it is hard to get started.” I agree.
158The respondent was not specific about this, but she said that “some time after the separation” she began to focus on cleaning jobs. She says that she wants to start her own cleaning business in time, however, she has no experience running her own business. She said that she “really likes to clean” and she “enjoys the work” and that she has “been doing it for the last 1.5 years” earning approximately $540 per month. When Mr. Zaldin expressed that was not enough income to support the children, the respondent agreed and said that because she has her “inheritance” she was able work part-time and “get my feet wet.” The respondent called the money she received from the house sale her “inheritance.” When Mr. Zaldin asked the respondent for her “business plan” for starting a cleaning business, the respondent said, “I don’t have a business plan. I would like to stay in the cleaning business. For now, I will work full-time with the cleaning company and get out of the school supervision.” She said that “I only worked with the school because then I can see the children.”
159The respondent said that prior to separation, she had begun working with the school supervising. However, this job ended at the time of separation because she had to move in with her mother in Thornhill. Unfortunately, that lasted less than a month. Then, the respondent said that she was not looking for a job because she had to find a lawyer. She said she found a legal aid lawyer. Also, she was living with Mr. Ali’s parents, and she was trying to plan her next move “to get out of there.”
160The respondent acknowledged that she continued to receive the child tax benefit after the separation, and she kept every payment. She said it stopped in November/December 2024 “because Michael told them the kids were with him.” She said she owes almost $10,000 to the CRA for that period of time because she received child tax benefits when she wasn’t entitled to it. She said she hasn’t been able to pay this debt back. She acknowledged that she wasn’t giving the respondent any money from the child tax benefits because she needed it, and she “wasn’t able to talk to Michael, and there was never any arrangement for support.”
161Regarding retroactive child support, the court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair in the circumstances of a particular case.61 The D.B.S. factors help determine, in a holistic manner, the appropriate balance between the child’s interest in a fair standard of support, the payor’s interest in flexibility, and the interest of the child and recipient in certainty. I have given consideration to the four D.B.S. factors, namely, whether there was a reasonable excuse for the delay in the recipient seeking support, the payor’s conduct, the circumstances for the children, and the hardship to the payor.62 For the reasons which follow, I find this is an appropriate case to depart from the presumptive date of retroactivity.
162In my view, the respondent was in a very unstable and financially precarious situation after the separation. She didn’t know what to do. Given her lack of work history and experience, it is reasonable that she needed to take some extra time to figure out her next steps and plans regarding work and supporting herself. I find that the applicant did not make sufficient income in 2023 or 2024 to pay the applicant any child support. For these reasons I will not make an order that the respondent pay the applicant retroactive child support for 2023 or 2024.
163The issue of spousal support is not before me; however, the respondent had a live claim for it until May 2025. The court does not have a great deal of evidence about the respondent’s income or financial situation; however, we do know that she received approximately $240,000 from the proceeds of the sale of the matrimonial home in or around July 2024. It would appear to the court that the receipt of these monies may have addressed the respondent’s financial uncertainty enough that she felt she could start working part-time, and abandon the claim for spousal support in May 2025. Given this change in her circumstances, in my view, it is reasonable to impute a part-time minimum wage income to the respondent commencing in January 2025. I find that the respondent should have been working part-time in 2025 and contributing to the support of the children. Therefore, I will impute her with a part-time minimum wage income of $20,000 and order that she pay the applicant retroactive child support from January 1, 2025.
164There shall be retroactive child support paid by the respondent to the applicant in the amount of $3,570.00 representing 14 months of full child support for the three children from January 2025 to February 2026 at a rate of $255.00 per month. This is based on the CSG’s and an income of $20,000 being imputed to the respondent. This amount shall be paid on or by 60 days from the date of this decision being released.
165I further find that the respondent should be working full time by now, so I will step up the respondent’s imputed income to full time minimum wage to $35,776 in 2026. With one child residing primarily with the applicant and two children residing equally with both parties, the court shall set an amount for ongoing offset child support to be paid. Based on the difference in the parties’ incomes, according to the CSG’s and the DivorceMate calculation attached as “Appendix A”, there is a set off child support amount owing from the applicant to the respondent in the amount of $365.00 per month. Therefore, commencing March 1, 2026, and on the 1st of each month thereafter, the applicant shall pay the respondent ongoing set off child support for the children in the amount of $365.00. This amount is based upon the one child in the primary care of the applicant, and two children in the equal care of the parties; the CSG’s, the applicant’s income of $72,767, and the respondent’s imputed minimum wage income of $35,776.00.
166Further, based on the DivorceMate calculation attached as “Appendix A” and the CSG’s, there should be a sharing of the children’s s. 7 expenses. Commencing March 1, 2026, the parties shall share the children’s extraordinary s. 7 medical, dental, and educational expenses on a pro-rated basis with the applicant paying 56% and the respondent paying 44%. The parties shall share the cost of the children’s reasonable extra-curricular activities only if prior written consent has been provided before incurring the expense. Such consent shall not be unreasonably withheld.
Equalization
167The equalization calculation for this matter was not complex. The Net Family Property (“NFP”) Statement dated June 7, 2024, was completed by the applicant and is attached to this decision as Appendix “B”.63 The respondent confirmed that she has reviewed the applicant’s NFP statement, however, she said, “I don’t know what this is. I can’t really prove anything about his income and assets and liabilities.” She said that she reviewed the NFP statement, and she accepted it, and she can’t prove anything differently. She provided nothing to contradict the values set out in the NFP statement. The respondent simply won’t accept the fact that based on the NFP statement, she owes the applicant an equalization payment.
168Unfortunately, the respondent’s confusion regarding the equalization calculation is likely primarily due to her lack of legal representation and a misunderstanding regarding deductions and exclusions. As stated earlier in the decision, the respondent referred to the monies she received from the sale of the matrimonial home as her “inheritance.” In her trial affidavit and oral evidence, the respondent mentioned that during the marriage, she received an inheritance from the estate of her grandmother and that some of it was used to help purchase a family home in Woodbridge.64 The respondent had legal representation earlier in the proceeding, and that lawyer may have explained and advised that she cannot claim an exclusion for this inheritance because it was used to purchase a matrimonial home. The respondent did not claim an exclusion in her Answer. She provided no evidence or details regarding the amount she received and no tracing of the funds she inherited. All the court can assume is that the respondent used some of the funds she inherited to help the parties purchase one of their matrimonial homes during their marriage. Pursuant to s. 4 (2) and s. 18 of the FLA, the respondent would not and cannot receive an exclusion for the funds she inherited during the marriage and used to contribute to the purchase of a jointly owned matrimonial home. When she poured those funds into the matrimonial home, they were lost as an exclusion.65
169The respondent may not understand that pursuant to s. 4 (1) of the FLA, even though the Poplar house was a matrimonial home for a short period of time, the applicant does receive a Date of Marriage (“DOM”) deduction for the Poplar house. This is because he inherited it prior to their marriage, and it was later sold during their marriage, so it was no longer the matrimonial home on the valuation date (date of separation).
170On July 3, 2024, the applicant purchased the respondent’s interest in the matrimonial home. He bought the house for $1,040,000 and paid her $240,052.42 which represented 50% of the value of the matrimonial home after deductions.66 Despite the applicant having two pensions, and the value of the matrimonial home having already been divided 50/50, the respondent still owes the applicant an equalization payment according to the NFP statement. The difference in the parties NFP is created primarily due to the applicant’s DOM deductions for a LIRA and a home he owned on the date of marriage (the Poplar home).
171The applicant had a labours pension that was in existence on the DOM. When the applicant left that union, the pension was later converted into a LIRA that was worth $20,306.38 on the DOM.67 The applicant joined another union, and a subsequent pension (Operating Engineers Local 793) was also accumulated. This all has been included in the applicant’s NFP.
172The Poplar house was the parties’ first matrimonial home. As set out briefly above, the applicant’s father passed away on October 3, 2009, and the applicant and his sister inherited their father’s home (“the Poplar home”). The applicant later purchased his sister’s interest, and the Poplar home was transferred into the applicant’s name solely prior to marriage. The parties married on October 9, 2010. When the parties moved into the Poplar home, it briefly became a matrimonial home. However, on October 28, 2011, the Poplar home was sold, and the parties and Marco moved to another home in Bradford. The Poplar home was sold for $300,000 and it had a mortgage of approximately $201,856.68
173The net value of those two DOM deductions is $118,450.38. Pursuant to s. 4 (3) of the FLA, the onus to prove these deductions was on the applicant as he was the person claiming them. In my view, there was no need for the applicant to get an appraisal of the Poplar home or the LIRA. I find that by providing documentation regarding the sale of the Poplar home and statements regarding the LIRA, I am satisfied that the applicant is entitled to the DOM deductions he has claimed.69 I am satisfied that the applicant brought the best evidence forward regarding the values of the Poplar house and the LIRA.70
174After the parties’ separation and during their litigation, the matrimonial home (689 Miller Park) was sold to the applicant. The house was listed on the open market and the applicant paid the respondent $240,052.42. Unfortunately, this amount was more than she was entitled to receive in the property division. According to the NFP statement, the value of property owned on the Date of Separation (“DOS”) for the applicant is $614,718.59 and the respondent is $522,132.00. The value of all debts and other liabilities for the applicant is $282,855.64 and for the respondent is $245,225.05. There is no excluded property for either party. After subtracting the debts and liabilities and DOM deductions, the applicant’s NFP is $213,412.57 and the respondent’s NFP is $276,906.95. Therefore, the equalization payment owing by the respondent to the applicant is $31,747.19.
Conclusion and Final Order
175In my view, this was a tragic trial. Both the parties and the children have lost a great deal and have gone through a lot. My hope for all of them is that even if they do not agree with the court’s decision, at least they will find some peace and less dysfunction and reduced conflict going forward.
176At the end of the trial, the parties handed up a consent on some of the parenting issues. On consent, Final Order to go:
The Respondent Mother shall have parenting time with Marco as arranged between the Respondent and Marco.
If it is the other parent’s weekend on Mother’s Day or Father’s Day, Carmella and Milania will spend the day with the celebrated parent from 8:30 AM to 8:30 PM.
Carmella and Milania shall stay with both parents equally during the Winter and March Breaks.
For Christmas during even numbered years, Carmella and Milania will stay with the Applicant Father on Christmas Eve/Morning until Christmas Day at noon, and with the Respondent Mother from noon on Christmas Day until 8:30 PM on Boxing Day. In odd-numbered years, Carmella and Milania will be with the Respondent Mother on Christmas Eve/Morning until Christmas Day at noon, and with the Applicant Father from noon on Christmas Day until 8:30 PM on Boxing Day.
The parties will each have an uninterrupted week with Carmella and Milania in July and a second uninterrupted week in August. The parties will have their summertime plans with Carmella and Milania arranged by May 31, of each year.
The parties shall encourage the children to have a good relationship with each other and with each parent, and make every effort to promote love, affection, and respect between the children and the other party. The parties shall refrain from making disparaging or negative remarks to the children about the other parent, and discourage others from doing so in the presence of the children. The children will refrain from doing anything that would estrange or alienate the children from the other parent, or undermine the children’s love, affection, opinion of, and respect for the other parent.
Both parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children.
Both parents may attend all of the children’s school functions or extra-curricular activities regardless of the parent’s time schedule.
177For the reasons set out above, not on consent, Final Order to go:
The Applicant Father, Michael Nesta, shall have sole decision-making responsibility for the child Marco Nesta.
The Applicant Father, Michael Nesta, and the Respondent Mother, Shannon Nesta, shall have joint decision-making responsibility for the children Carmella Nesta, and Milania Nesta. In the event of a disagreement between the parties, the Applicant Father shall have the final say and shall make the decision.
The Applicant and Respondent shall be equally entitled to receive information and documents regarding the children from any doctors, teachers, or institutions involved in the lives of all of the children.
The Applicant shall hold on to the children’s documents and identification including birth certificates, health cards, passports and SIN cards (if any).
The Applicant and Respondent shall communicate regarding the children through WhatsApp.
The child Marco shall reside primarily with the Applicant.
The child Marco shall have reasonable parenting time with the Respondent in accordance with Marco’s views and preferences and as arranged between Marco and the Respondent and with reasonable notice to the Applicant.
Commencing on February 27, 2026, the children Carmella and Milania shall reside equally with the Applicant and Respondent on a “week about” schedule with exchanges taking place on Fridays after school.
The parent commencing their week with the children shall arrange to pick up the children at the children’s school. If the children are not in school or the Friday is a school holiday, the parent (or their designate) commencing their week with the children shall pick up the children at the other parent’s residence on the Friday at 4:30 p.m. The parent or their designate, shall remain in their vehicle in the driveway or parking lot of the residence and wait for the children to come out to meet them.
There shall be retroactive child support paid by the Respondent Mother to the Applicant Father in the amount of $3,570.00 representing 14 months of full child support for three children from January, 2025 to February 1, 2026 at a rate of $255.00 per month. This is based on the Child Support Guidelines and a part-time income of $20,000 being imputed to the Respondent Mother for 2025. This amount shall be paid on or by 60 days from the date of this decision being released.
Commencing March 1, 2026, and on the 1st of each month thereafter, the Applicant Father shall pay the Respondent Mother ongoing set off child support for the children in the amount of $365.00. This amount is based upon the one child in the primary care of the Applicant, and two children in the equal care of the parties; the Child Support Guidelines, the Applicant’s income of $72,767 and the Respondent’s imputed full-time minimum wage income of $35,776.00 for 2026.
Commencing July 1, 2027, and on each July 1st of every following year, the parties shall exchange income information for the prior year, specifically by providing each other with a copy of their Income Tax Return and Notices of Assessment. They shall use this information to adjust the child support payable, including both the Table Amount and the proportionate sharing of the section 7 expenses. Notwithstanding any decrease in the Respondent’s actual income, the Respondent’s income for the purposes of calculating child support shall not fall below the imputed amount of $35,776.00 unless there has been a material change in the circumstances of the parties or the children. If the Respondent’s actual income exceeds $35,776.00, child support shall be adjusted upward accordingly.
Commencing March 1, 2026, the parties shall share the children’s extraordinary s. 7 medical, dental, and educational expenses on a pro-rated basis with the applicant paying 56% and the respondent paying 44%. The parties shall share the cost of the children’s reasonable extra-curricular activities only if prior written consent has been provided before incurring the expense. Such consent shall not be unreasonably withheld.
Both the Applicant and the Respondent shall obtain and maintain individual life insurance coverage in the amount of $100,000 and name the children as the sole irrevocable beneficiaries of same.
The Respondent owes the Applicant an equalization payment in the amount of $31,747.19. The Respondent shall pay the Applicant the amount of $31,747.19 on or by 60 days from the date of this decision being released.
SDO to issue.
178Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, there has been mixed success and neither party is presumed to be entitled to costs. If the parties cannot agree on costs, I will receive written submissions commencing with the Applicant serving and filing his submissions on or by March 13, 2026, followed by the Respondent serving and filing her submissions on or by March 20, 2026, then the Applicant’s reply submissions, if any, served and filed on or by March 27, 2026. Cost submissions shall be no more than 5 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submission shall be delivered via email at BarrieSCJJudAssistants@ontario.ca. If no submissions are received by March 27, 2026, the issue of costs will be deemed to have been settled between the parties.
Justice R.S. Jain
Released: February 20, 2026
February 20, 2026 – Correction:
- Para. 177(15) second sentence now reads: The Respondent shall pay the Applicant the amount of $31,747.19 on or by 60 days from the date of this decision being released.
Footnotes
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended; Family Law Act, R.S.O. 1990, c. F.3 as amended; Children’s Law Reform Act, R.S.O. 1990, c. C.12.
- O. Reg. 391/97.
- Exhibit 3 – Affidavit of the Applicant Micheal Nesta sworn April 3, 2025; and Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025.
- Exhibit 1 – OCL Affidavit and Report of S. Stefanutti dated March 12, 2024.
- Exhibit 2 – OCL Affidavit and Report of S. Stefanutti dated February 12, 2025.
- Exhibit 11 –Christie J. made the temporary order on November 16, 2023 based upon Minutes of Settlement signed July 18, 2023 and July 20, 2023. It sets out a schedule on Tuesday, Wednesday, and Friday evenings plus phone calls.
- Exhibit 12 – Order of Justice Sutherland dated January 9, 2024. Sutherland J. made the temporary parenting schedule every Wednesday and Friday evenings, plus every other Friday to Saturday. Para 1 (c) of the order says that Respondent’s “housemate” is not supposed to be there for overnight visits.
- Exhibits 37-42.
- Exhibit 13 – A series of pictures of the children smiling, some group photos with the applicant, some with the nanny.
- Exhibit 17 – Misc. texts between the parties prior to separation; Exhibit 18 – Misc. texts between the parties after separation.
- Exhibit 19 – Affidavit of Brenda Krisman sworn April 3, 2025. This affidavit was adopted and relied upon with the changes made in court. Paragraphs 4, 6, 7, 8, 10, 11, 12, 14, 15, 26, 27, 28, 34, 45, 47 were struck.
- Exhibit 19 – Affidavit of Brenda Krisman sworn April 3, 2025, at paras. 18-25.
- Exhibit 19 – Affidavit of Brenda Krisman sworn April 3, 2025, at paras. 35-40.
- Exhibit 20 – Text messages and social media posts between respondent and the maternal grandmother.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025. This affidavit was adopted and relied upon at trial. No changes were necessary.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 7.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 12.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 24.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at paras. 13-14.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 11.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 19.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 32.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 27.
- Exhibit 21 – Affidavit of Anuziata Nesta sworn April 3, 2025, at para. 4.
- Exhibit 22 – Photos of paternal grandmother allegedly videotaping the respondent on July 4, 2025.
- Exhibit 23 – Affidavit of Daniel Shevakh sworn April 3, 2025; and Exhibit 24 – Affidavit of Victoria McFadden sworn April 3, 2025.
- Exhibit 23 – Affidavit of Daniel Shevakh sworn April 3, 2025, at paras. 3-5.
- Exhibit 23 – Affidavit of Daniel Shevakh sworn April 3, 2025, at para. 16.
- Exhibit 24 – Affidavit of Victoria McFadden sworn April 3, 2025.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025.
- Exhibit 26 – Affidavit of Shannon Nesta dated April 10, 2025, at para. 1.
- Exhibit 26 – Affidavit of Shannon Nesta dated April 10, 2025, at para. 9.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at para. 17.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at para. 95; and Exhibit 27 – Picture dated October 3, 2025, taken by respondent which shows Mr. Ali and Carmella doing homework together. The Respondent said he is supportive of her and the child is comfortable. The Respondent said that Carmella told her that when the applicant saw the picture and he asked her why he was spending time with him; and Exhibit 28 – Picture dated November 9, 2023, taken by respondent of Carmella and Mr. Ali. Shows her comfort with him; and Exhibit 29 – Pictures taken in summer of 2024 of Mr. Ali with Carmella and Milania – they show that the kids enjoy spending time with him. The respondent said they have to pretend they don’t like him, so the applicant doesn’t get mad.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at paras. 61, 63, 64, 68, 69, 70, 87, 88, 90, and 96.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at paras. 73, 74, 79, and 83–94.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at para. 65.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at paras 97, 99.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at para. 98.
- Exhibit 34 – Video taken by Respondent’s prior to separation on April 3, 2023 – 49 seconds.
- Exhibit 37 – Photo of Mr. Ali with his arm around Respondent from Respondent’s social media – in or around October 2023. Respondent said this was taken when she moved to Bradford into the apartment in October 2023. She acknowledges she is holding his hand. She admits that she is flirty with him and his brother. She said she thinks it is normal to have his arm around her. She said they were not in a relationship. Exhibit 38 – Profile picture of Respondent and Mr. Ali. The respondent said this was just a good picture of him having lunch with her. Exhibit 39 – Picture in Fall of 2023 of the Respondent and Mr. Shazad Ali with hearts and standing close together. She says they are not in a relationship. The Respondent said that she stopped posting pictures of Mr. Ali because her mother and the Applicant were “stealing” pictures of them. She became argumentative and simply denied they were in a relationship. Exhibit 40 – Picture from 2024 Banquet for dinner for New Years – She is in a dress and Mr. Ali’s arm around her. She argues there is no relationship between them. Still saying there is nothing wrong with it. Exhibit 41 – Picture of messages and Mr. Ali calling Shannon “love”. She says this is “just how he talks to her all the time. He also calls her sexy and love. She says she loves them too.” She went on to say she still loves Michael and “always will.” Exhibit 42 – Picture dated Oct. 24, 2023, of respondent and her cat and hearts - and message from Mr. Ali calling her “my sexy love” in the message. She confirmed the picture and the message. She says “lots of men call her ‘sexy’ all the time.”
- Exhibit 25 – Affidavit of Lisa Garrett sworn April 11, 2025.
- Exhibit 25 – Affidavit of Lisa Garrett sworn April 11, 2025.
- Exhibit 25 – Affidavit of Lisa Garrett sworn April 11, 2025, at paras. 8 and 10.
- Exhibit 25 – Affidavit of Lisa Garrett sworn April 11, 2025, at para. 11.
- Exhibit 25 – Affidavit of Lisa Garrett sworn April 11, 2025, at paras. 12 and 13.
- Exhibit 36 – Respondent’s Financial Statement sworn May 30, 2025.
- Exhibits 37-42 – are photos of the respondent and Mr. Ali together in 2023 and 2024 with their arms around each other; out at restaurants; leaning into each other with heart graphics; and exchanges that display a level of intimacy between them because Mr. Ali is calling the respondent “love” and “sexy.”
- Exhibit 27 was a picture of Mr. Ali helping CSN with homework; and Exhibit 28 and 29 were pictures of Mr. Ali playing with CSN and MVN at the beach and holding them on his shoulders.
- The respondent’s Form 35.1 Affidavits (decision-making responsibility, parenting time, contact) dated June 29, 2023, October 21, 2023 do not list Mr. Shazad Ali as living with her, even though her evidence is that they have been living together since shortly after the separation. The respondent’s Form 35.1 dated November 15, 2023, listed Mr. Shazad Ali as a “friend” that she lives with.
- Roy v. Roy (2006), 2006 15619 (ON CA), 27 R.F.L. (6th) 44 (Ont. C.A.), at para. 4; and Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at para. 44; and Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 4.
- Kaplanis, at para. 2.
- Kaplanis, at paras. 10 and 11.
- Roy, at paras. 9 and 11.
- Fielding v. Fielding, 2015 ONCA 901, 70 R.F.L. (7th) 253, at para. 17. See also L. (N.) v. M. (R.R.), 2016 ONSC 809, 76 R.F.L. (7th) 428, where Perkins J. speaks to the autonomy of a 15-year-old child.
- Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA)
- Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.)
- Exhibit 35 – Applicant’s Trial Record, Tab 15 Financial Statement of the Applicant sworn April 3, 2025.
- Exhibit 35 – Applicant’s Trial Record,Tab 7 Financial Statement of the Respondent, sworn June 29, 2023; and Exhibit 36 – Respondent’s Financial Statement sworn May 30, 2025.
- Exhibit 36 – Respondent’s Financial Statement sworn May 30, 2025.
- Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3, at para. 96.
- D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 99; Colucci, at para. 38.
- Exhibit 35 – Applicant’s Trial Record, Tab 4 – Applicant’s NFP Statement.
- Exhibit 26 – Affidavit of Shannon Nesta sworn April 10, 2025, at paras 10-11.
- LeFevre v. LeFevre (1992), 1992 13998 (ON CTGD), 40 R.F.L. (3d) 372 (Ont. Gen. Div.). See also Bailey v. Bailey, [1992] O.J. No. 967 (Ont. Gen. Div.), aff’d [1995] O.J. No. 3103 (Ont. C.A.) and Spikula v. Spikula (2008), 2008 51783 (ON SC), 58 R.F.L. (6th) 55 (Ont. S.C.)
- Exhibit 10 – Closing funds summary dated July 3, 2024, for 689 Miller Park Ave., Bradford.
- Exhibit 35 – Applicant’s Trial Record, Tab 4 – Applicant’s NFP Statement; and Exhibit 5 – Notice of Voluntary Election to Terminate Membership dated November 28, 2016 to Applicant re Labourer’s Pension; and Exhibit 6 – Member History Report of Applicant’s Labourers’ Pension dated November 29, 2018; and Exhibit 7 – Transfer to Account Letter dated November 1, 2019 – Pension to LIRA account ending in 0645; and Exhibit 8 – LIRA Investment Statement June 30, 2023.
- Exhibit 35 – Applicant’s Trial Record, Tab 4 – Applicant’s NFP Statement.
- Exhibit 4 – Reporting letter for sale of 11 Poplar Cres. Aurora, dated December 13, 2011.
- Wagg vs. Simms, 2018 ONSC 1143, at paras. 111, and 113-115. Mat Home on DOM gets sold and the owner gets the deduction. See page 23 para. 111, 113, 114, 115.