Mohamoud v. Farah, 2023 ONCJ 103

ONTARIO COURT OF JUSTICE CITATION: Mohamoud v. Farah , 2023 ONCJ 103 DATE: March 3, 2023 COURT FILE No.: DFO-21-16296 BETWEEN: Sirad Mohamoud Applicant — AND — Mohamed Farah Respondent Before Justice W. Kapurura Heard on January 23, 24, 25, 26, 27, 30, 2023 Reasons for Judgment released on March 3 rd , 2023 Stephanie Okola..................................................................................... counsel for the applicant Lenard Kotylo..................................................................................... counsel for the respondent JUSTICE W.

KAPURURA: Part One – Introduction [ 1 ] This trial was about parenting and child support arrangements for the parties’ six-year-old child, AF. [ 2 ] The trial also involved spousal support and relocation claims. [ 3 ] The child presently lives primarily with the applicant mother (‘the mother’), and has unsupervised parenting time with the respondent father (‘the father’) on alternating Saturdays from 12:00 p.m. until 7:00 p.m. [ 4 ] The parties attended a 6-day hybrid trial. They testified in person. [ 5 ] The mother’s handwriting expert witness attended in person. The expert filed a report ahead of the trial.

A blended voir dire was conducted regarding her qualifications and admission of her report. The court qualified her as an expert but did not admit her report into evidence. Oral reasons were provided. [ 6 ] Two witnesses called by the mother and one witness called by the father testified orally by video conference. [ 7 ] Each party seeks orders for sole decision-making responsibility and primary residence of the child, with additional terms for the other’s parent’s parenting time with the child. [ 8 ] Each party seeks orders for a holiday

schedule and child support. The mother seeks to have the father’s annual income imputed at $50,000.00 for purposes of support calculation. The father seeks to have an annual income of $4,800.00 attributed to him for support calculation. [ 9 ] The mother seeks an order allowing her to relocate with the child from the City of Toronto, Province of Ontario, to the City of Ottawa, Province of Ontario. The father opposes her relocation request.

[ 10 ] The father seeks an order for spousal support. [ 11 ] At a trial management conference held on December 16 th , 2023, Justice S. O’Connell provided the parties with trial directions. Each party was ordered to provide an affidavit for their examination-in-chief. [ 12 ] The court gave the parties additional time to provide oral evidence so that it would have the necessary evidence to decide on the issues. [ 13 ] The primary issues for the court to decide are: i. What parenting orders are in the child’s best interests? In particular: a.

What orders for primary residence, decision-making responsibility, and incidents of parenting are in the child’s best interests? b. Should an order be made permitting the mother to relocate the child to Ottawa? If so, what order for the apportionment of costs relating to the exercise of parenting time should the court make? c. What parenting time should the other parent have with the child? d. What transportation orders should be made for parenting exchanges? ii. Should the court make an order for police enforcement of parenting orders? iii. Which parent should pay child support to the other parent? iv.

What is the father’s annual income for support calculation? Should income be imputed to him? v. If the court finds that child support arrears are owed to either parent, how should the child support arrears be paid? vi. Is the father entitled to spousal support? If so: i. What is the date of separation for purposes of spousal support calculation? ii. What should be the duration and amount of the support order? iii. When should the support order start? Part Two – Brief background facts [ 14 ] The mother is 40 years old, and the father is 39 years old. [ 15 ] They are biological parents to the child, AF.

AF is now six years old. The parties have no other children of their own. [ 16 ] The mother works with the Ministry of the Solicitor General, Government of Ontario. She is currently working remotely. [ 17 ] The father is unemployed. He is in receipt of Ontario Works social benefits. [ 18 ] The father resides in an apartment, in the City of Toronto. His brother is paying his rent. [ 19 ] The mother purchased a home in Ottawa in 2020. She relocated with the child to Ottawa in September 2020. The move was without the consent of the father.

She did not obtain a court order to authorize the relocation. [ 20 ] Both parties are originally from Somalia. Before relocating to Ottawa, the mother resided in Toronto since August 2005. [ 21 ] The father has resided in Toronto since 1993. He arrived in Canada when he was 9 years old. [ 22 ] The parties were not married. They had an Islamic religious union on December 12, 2013. They started living together on December 13, 2013. [ 23 ] The date of separation is in dispute. The mother’s position is that the parties separated on January 1 st , 2018.

The father’s position is that they separated on or about April 1 st , 2021. [ 24 ] Around April 2021, the father was charged with assault and uttering threats against the mother regarding an incident that had occurred on March 31, 2021. No-contact conditions were put in place. The charges were dealt with in the integrated domestic violence court (IDVC) at the Ontario Court of Justice located at 311 Jarvis Street, in Toronto.

Justice O’Connell was the assigned IDVC judge on the matter. [1] [ 25 ] The criminal charges were resolved in August 2022 in favour of a family court no-contact order. [ 26 ] The application was issued on October 27 th , 2021. The father filed an answer dated November 19, 2021. [ 27 ] The parties first attended IDVC court on December 3, 2021. Discussions were held regarding supervised parenting time for the father. On January 28 th , 2022, an order was made on a temporary, without prejudice basis, granting the father supervised parenting time with the child, for two hours on alternating Saturdays.

The visits were to be supervised by his brother.

[ 28 ] On March 8 th , 2022, the court varied the order for parenting time, granting the father parenting time with the child, once per week , on Saturdays, from 12:00 p.m. until 2:00 p.m. [ 29 ] On August 12 th , 2022, Justice O’Connell dismissed the father’s motion for spousal support and the mother’s motion for child support. The court endorsed that the parties were to proceed to a focused hearing on those issues. The parties also agreed to a family no- contact order, subject to approval by the provincial Crown.

The no-contact order would resolve the criminal matter. [ 30 ] The father’s no-contact orders were lifted on September 22 nd , 2022. [ 31 ] On November 10 th , 2022, a temporary without prejudice order was made replacing the March 8 th , 2022, parenting order as follows: i. The father was granted unsupervised parenting time with the child on alternating Saturdays from 12:00 p.m. until 7:00 p.m. ii. The father was granted Zoom or video calls with the child every week on Tuesday and Thursday evenings from 7:00 p.m. to 7:30 p.m., or at other days and times as agreed upon by the parties.

The mother’s counsel was to provide a Zoom link or details to the father’s counsel. iii. The mother was ordered to provide a medical report or note from the child’s doctor confirming the child’s illness when canceling a visit. [ 32 ] A trial management conference was held on December 16 th , 2022. [ 33 ] The trial was heard in January 2023 for six days.

Part Three – Parenting 3.1 – The mother’s position [ 34 ] Even though the date of separation is disputed, it is not disputed that the parties lived in the same home from December 13, 2013, until March 31, 2021, when the father left the parties’ two-bedroom apartment in Toronto. [ 35 ] The mother seeks sole decision-making responsibility and primary residence with the child for the reasons provided below. [ 36 ] She described the father as having been verbally and emotionally abusive during their relationship.

She testified that the main source of conflict was his belief in what she described as ‘traditional gendered roles in relationships, in which a woman was expected to do most chores in the home’. [ 37 ] She testified that on March 31, 2021, during a verbal argument, the father roughly grabbed her by the face and pushed her down to a wall. The assault allegedly occurred in front of the child. [ 38 ] The father was arrested on April 23, 2021. He was charged with assault and uttering threats.

He remained subject to a no- contact order until September 22 nd , 2022. [ 39 ] The mother stated that she took maternity leave for a year after the child was born in June 2016. During her maternity leave, the father was working. She stated that the child was breastfed, and she prepared meals for the child when he started taking solid food.

She testified that she was primarily responsible for the child’s day-to-day welfare. [ 40 ] Following the birth of the child, she received additional support from the maternal grandmother who stayed with them for six months. [ 41 ] The mother provided the following examples of her involvement with the child: i. In 2016, she selected the child’s family doctor, Dr. Danayan, of Danforth Pediatrics, in Toronto. ii. In June 2017, she selected the child’s daycare at Muppets Children Centre in Toronto, and she paid for the daycare. iii. In 2018, she attended the Ready Set Play interactive program with the child. iv.

In 2018, she enrolled the child in swimming classes at the Main Square Community Centre Pool, located in Toronto. v. In 2019, she picked the child’s daycare at LeRoux Frobele Bilingual School, in Toronto. [ 42 ] The mother testified that as she made major decisions for the child, the father did not oppose, and he offered his input. She stated that she has continued to make major decisions for the child since the date of separation. [ 43 ] She described the child as a well-adjusted, happy child, who has a very close relationship with members of the maternal family.

She gave an example that when she traveled to Prince Edward Island in 2017 on a four-day business trip, the child stayed with the maternal grandmother for the duration of the trip. She testified that even when the father has had an opportunity to care for the child, he decided not to. As an example, the mother stated that sometime in 2020, she was hospitalized and was in the intensive care unit for two weeks following a thyroid operation. Her sister, Naima Mohamoud, cared for the child during that period. The child was only in the

father’s care for two days. [ 44 ] The mother testified that the father has refused to provide financially for the child. [ 45 ] She summarizes her request for sole decision-making responsibility as follows: i. There is a history of aggression and controlling behaviour by the father. He physically assaulted her in the presence of the child on March 31 st , 2021. ii. He has never been the child’s primary decision-making parent, and always relied on her to make sound parenting decisions. iii.

She has been responsible for his decisions pertaining to education, health, and extracurricular activities. [ 46 ] The mother testified that she has a stable home for the child in Ottawa, in a safe neighbourhood, and the child is close to members of her family. She stated that given the father’s own evidence that his rent is being paid for by his brother, his accommodation arrangement is unstable as the brother has a family of his own, including young children. [ 47 ] During cross-examination, the mother admitted that the father did assist in raising their child.

She acknowledged that he assisted with day-to-day care, including bathing, and feeding. She also admitted that the father was also involved in dropping off the child at daycare. She testified that they shared most of their household duties, even though the father felt that he was not supposed to be doing any chores. [ 48 ] During cross-examination, the mother stated that around August or September 2019, they enrolled the child in daycare at LeRoux Froebel School. The parties had a rotating

schedule whereby she would do exclusive pick-ups, and he would do exclusive drop- offs depending on their work schedules. [ 49 ] She testified that the parties do not communicate. She stated that when she tries to email the father, he threatens to call the Children’s Aid Society and calls her a drug addict. She would agree to communicate through a communication application. [ 50 ] The mother’s friend, Mahreen Hasan, described the mother as a dedicated parent with a good relationship with her son. Ms. Hasan has not observed any interactions between the two parents.

She has also not observed any interactions between the father and the child. [ 51 ] The mother’s sister, Naima Mohamoud, described her relationship with the mother as that of best friends. Their homes in Ottawa are on the same street. They purchased their homes around the same time in 2020. She has three children aged 12, 9, and 1. The two older children attend the same school as the child AF, at Vimy Ridge School (French immersion) in Ottawa. [ 52 ] Ms. Naima Mohamoud has observed the father interacting with the child. She described the father as strict.

She has observed the father’s interactions with the mother, including at family events. She stated that the father has said ‘mean things’ to the mother that are embarrassing. She has witnessed the father calling the mother ‘stupid’, ‘slow’, and ‘dump’ in the presence of other people. She stated that initially she had no concerns about their relationship but around 2017, the relationship deteriorated. She testified that the father ‘became meaner and angrier’ around 2018. She stated that when the parents became roommates, the mother would receive hostilities if she tried to communicate with him.

She described an incident that she witnessed at the mother’s home on April 23 rd , 2021. She stated that the parents had agreed to meet at the park for the father to have parenting time. He then showed up at the mother’s home and tried to take the child with him. The mother insisted that he had to leave the child’s identification documents first (which he had taken with him when he left their home), before he could take the child. She observed the father getting angry, yelling at the mother, and threatening her. Ms.

Naima Mohamoud then called the police, and he was arrested and charged with assault. 3.2 – The father’s position [ 53 ] The father seeks sole decision-making responsibility and primary residence with the child. He testified that he lives alone in a two-bedroom apartment and the child will have his own bedroom. [ 54 ] His evidence is that he has “the best qualities” to be the sole decision-maker for the child. In support of his position, he testified as follows: i.

He was the child’s primary caregiver from the time the mother concluded her maternity leave in 2017 and returned to work, until on or about March 31 st , 2021, when he left the parties’ home. ii. Since both parents are Muslim, he plans to raise the child in the traditions of that religion. He has not been to the mosque in several years, but his aspiration is to raise their child as a Muslim. iii. He proposes that the child attend Grade One at a public school in Toronto. He will have the support of his sisters, his brother, and his mother. He added that the child is familiar with members of the paternal family.

During his current parenting time, his siblings have assisted with pick-ups and drop-offs and have made their homes available for his parenting visits. He stated that he has a large family in Toronto, and they all live within a 10-kilometre radius of his apartment. iv. When the parties lived together, he was involved in every aspect of the child’s day-to-day care. He was also involved in household chores such as grocery shopping, laundry, and preparing meals. v. Both parents made doctors’ appointments, and he attended most of the appointments.

vi. About twice per week, the mother went out and left the child in the father’s sole care. vii. Around June 2017, the mother stated that her maternity leave was ending, and requested he remains at home as a stay-at-home parent. He decided not to extend his employment contract with the Region of Peel and decided to become a stay- at-home parent, assuming full-time care of the child. viii. He taught the child how to swim, and they went swimming twice during weekdays and once on weekends. ix.

On weekends, he took the child to visit members of the paternal family, and they also participated in outdoor activities such as going to the playground and going to the beach. The mother would also take the child to visit members of the maternal family. x. For the summer of 2018, the child was not in daycare. He provided full-time care to the child. xi. In June 2019, he located and both parents chose a bilingual daycare for the child, LeRoux Frobet. The child attended from September 2018 until March 2020. xii. He was involved in the child’s learning.

He provided a printout from Toronto Public Library showing that between May 2019 and November 2020, he borrowed several age-appropriate children’s books for the child. [ 55 ] The father testified that he was physically abused by the mother as follows: i. After he was laid off from his job at Kubota in 2019, the mother physically abused him. ii. On March 31 st , 2021, the mother threw a soiled toilet paper at him. iii. He stated that on or about April 23, 2021, the mother pushed him from behind. He had the child in his arms, and he stumbled. The mother and her sister then forcibly took the child from him.

Both parties called police. The father was arrested and charged with assault and uttering threats. He described the charges as fabricated and false. His charges were subsequently withdrawn in IDVC court by the Crown, in favour of a family court no-contact order. [ 56 ] The father described the charges and his subsequent removal from the home (due to no contact terms), as a campaign by the mother to separate him from the child. [ 57 ] He testified that the mother has not fully complied with current parenting orders.

Hence, she is not “the best party” to make decisions for the child. [ 58 ] The father’s sister, Suad Farah, testified that: i. After the father left the parties’ home, she tried to reach out to the mother for several months, to arrange for the father’s parenting time. She stated that she was unsuccessful. The mother demanded that he could only see the child if the mother was present. ii. The mother was asking for child support from him. iii. When his visits commenced, she was involved in facilitating the exchanges. Some of the visits occurred in her home. iv.

She described the father as a loving, caring, and attentive father. She stated that he buys learning tools for the child. [ 59 ] The father did not agree with Ms. Naima Mohamoud’s portrayal of him as angry and violent. He stated that, on several occasions, Ms. Naima Mohamoud entrusted him with the care of her own children.

Part Four – Decision-making responsibility and primary residence 4.1 – Legal considerations [ 60 ] Subsection 18 (1) of the Children’s Law Reform Act (the Act) defines decision-making responsibility as follows: “decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to, (

a) health, (

b) education, (

c) culture, language, religion and spirituality, and (

d) significant extra-curricular activities. [ 61 ] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and

psychological safety, security and well-being in determining best interests. [ 62 ] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows: Factors

(3) Factors related to the circumstances of a child include, (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

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

d) the history of care of the child; (

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

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

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (

k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (

l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 63 ] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun , 2021 ONSC 41 ; Pereira v. Ramos , 2021 ONSC 1736 . It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480 . [ 64 ] In Barendregt.v.Grebliunas , 2022 SCC 22 , the court stated that d etermining the best interests of the child is a heavy

responsibility, with profound impacts on children, families and society (para 8). [65] Subsection 33.1 (2) of the Act addresses the importance of protecting a child from conflict. It reads as follows: 33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from theproceeding. [66] The Ontario Court of Appeal in Kaplanis v. Kaplanis (ON CA), [2005] O.J. No. 275 sets out the followingprinciples in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It cannot be ordered in the hope that it will improve their communication. 3.

Just because both parents are fit does not mean that joint custody should be ordered. 4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, theymust be able to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. [67] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard ofperfection is not required and is obviously not achievable.

See: Griffiths v. Griffiths 2005 ONCJ 235 , 2005 CarswellOnt 3209(OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so thatthe best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, (ON S.C.). [68] A starting point to assess a child’s best interests when making a decision-making or parenting order is to ensure that the childwill be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver bephysically and emotionally safe. See: I.A. v.

M.Z., 2016 ONCJ 615 . Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S.,2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266. 4.2 – Analysis [69] The child, AF, is 6 years old. He has been in the primary care of his mother since April 1st, 2021.

For almost two years, he hasremained in the care of his mother. [70] The fact that neither parent is seeking joint decision-making responsibility nor some allocation of decision-makingresponsibility between them is proof that the parents do not trust each other and cannot co-parent. [71] The court finds that both parents tried to overstate their involvement with the child and attempted to understate the otherparent’s involvement with the child for the period they cohabited. [72] The court finds that both parents were actively involved in raising the child.

Their involvement was structured around theirwork schedules. [73] The court also finds that the parties shared most of their household responsibilities during cohabitation. [74] The parties do not have direct communication. From April 2021 until September 2022, the father was on no-contact courtconditions.

Current communication between the parents is done through members of the paternal family. [75] The mother testified that when she tries to contact the father by email, she faces accusations and threats from the father. [76] The court accepts the mother’s evidence that communication between the parents is not positive. The court also accepts theevidence of Ms. Naima Mohamoud that the father has used demeaning language towards the mother. [77] As stated in Kaplanis v.

Kaplanis (supra) evidence of historical communication and appropriate communication between theparents is key in assessing decision-making responsibility. [78] In an email sent to the mother by the father on October 2nd, 2017, the father described the mother in the following terms: “…your such a malicious dirty fucking liar…..You are a sociopath and I think you may have mental health issues……You areunbalanced and I think you need help…” [79] In an email dated October 3rd, 2017, the father refers to the mother as a ‘fucking pathological liar…demented psychopath…”

[ 80 ] There is evidence of family violence between the parties. [ 81 ] The court finds that the mother was credible in her claims of family violence. The court also finds that even though the father’s claims of family violence may have been credible, the evidence was not reliable. [ 82 ] The father was charged with assault and uttering threats in 2021. The mother was the complainant. The charges were resolved in IDVC court by way of a family court no-contact order. He claimed that on April 23 rd , 2021, the mother and her sister physically assaulted him.

However, when he called the police, he is the one who was arrested and charged. The court accepts Ms. Naima Mohamoud’s evidence that the alleged incident occurred in an area that had video cameras. No video footage was provided by the father in support of his claims. [ 83 ] In the recent Supreme Court of Canada decision of Barendregt.v.Grebliunas , 2022 SCC 22 , the court wrote about the impact of family violence, stating: [143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable.

Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S.

Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. [ 84 ] The recent amendments to the Act define family violence in the following terms: 18(1) In this part; “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct [ 85 ] This court must decide what parenting orders are in the child’s best interests.

Each parent is seeking primary residence with the child and sole decision-making responsibility. [ 86 ] The parties do not communicate. [ 87 ] The court finds that it is in the child’s best interests to award sole decision-making responsibility and primary residence to the mother for the following reasons: i. The child has remained in her primary care since April 1, 2021. ii. There is no communication between the parents. iii. Given the lack of communication between the parents, the mother is the parent who has been making major decisions for the child since April 1 st , 2021.

Such decisions include medical and educational decisions. iv. Even though the parties disagree on the reasons behind some of the father’s missed visits, the mother continues to travel from Ottawa to Toronto to bring the child for the father’s visits on alternating Saturdays. v. The mother has been the only parent providing financially for the child since April 1, 2021. vi. Both parents are of the Islamic faith. The child will continue to learn about his religion while in the mother’s care. vii. The mother provides stability to the child. viii.

The mother continues to have a better understanding of the child’s physical and emotional needs. ix. The father testified that he is more than happy to support his son and is more than capable of doing so. However, he has failed to provide financially for the child. He testified that he will only provide child support if a court orders him to do so. Financially supporting one’s children in a responsible manner is an important part of being a parent.

The failure to do so is a factor militating against an order for joint decision-making responsibility as it demonstrates poor judgment and an inability to prioritize the child’s interests. See Jama v. Mohamed , [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022 ; McBennett v Danis , 2021 ONSC 3610 ; J.T. v. E.J., 2022 ONSC 4956 ; Shokoufimogiman v. Bozorgi , 2022 ONSC 5057 . x. The plan being proposed by the father for the care of the child has potential challenges. The father’s rent is currently being paid by his brother. The brother has a family of his own.

If this arrangement breaks down, the child will be left with no accommodation, and he may have to change schools on short notice. xi. The father perpetrated family violence on the mother in the presence of the child. The Act requires the court to consider family violence in assessing decision-making responsibility. [ 88 ] The court will make an order granting the mother sole decision-making responsibility and primary residence. [ 89 ] Given the lack of communication between the parties, the court is concerned that relevant documents pertaining to the child may not be signed on a timely basis.

The court will permit the mother to apply for or renew the child’s documents without the father’s

signature. The court will also allow the mother to travel outside Canada for vacation purposes without the father’s consent. Part Five – Relocation 5.1 Narratives and the parties’ positions [ 90 ] The mother seeks an order allowing her to relocate to Ottawa, from Toronto, with the child. The mother has already relocated with the child to Ottawa. She states that the relocation issue was the most pressing issue when she commenced her application in the fall of 2021. [ 91 ] The mother testified that the father was aware for several months of her plan to relocate with the child to Ottawa.

She stated that before she purchased her pre-construction home in Ottawa, the father attended with her on August 22 nd , 2020, to view a model home in Ottawa. She provided photographs in support of this allegation. She testified that the father was also interested in viewing the school that the child would attend in Ottawa. Her position is that the father was agreeable to the proposed relocation, but only became opposed after she commenced this proceeding.

She acknowledges that she relocated without the father’s consent nor a court order. [ 92 ] The mother provides the following additional reasons in support of her move: i. She could not afford to purchase a property in the Greater Toronto Area. ii. After the home was completed around September 2022, she was unable to maintain the cost of two residences. iii. Most of her supports, including her sister Naima Mohamoud and extended family, reside in Ottawa. iv. The child is closer to his cousins, and they attend the same school at Vimy Ridge Public School. v.

She has brought the child to Toronto for the father’s court-ordered parenting time. vi. She supports the father’s parenting time, including overnights. vii. Even though her employer’s head office is in Toronto, she has been working virtually. [ 93 ] The father opposes the child’s relocation to Ottawa. He testified that he received the mother’s notice of intention to relocate to Ottawa on or about September 15, 2022. He objected to the relocation. According to the father, the mother’s other family members live in Toronto, and she is not relocating to Ottawa for reasons related to employment.

He views the relocation as unnecessary. [ 94 ] The father testified that on or about September 19 th , 2022, he was surprised to receive a phone call from a school in Ottawa, advising him that his son was enrolled at the school and was in attendance on that day. [ 95 ] According to the father, the mother violated the relocation provisions of the Act. Further, he states that the mother has not complied with the current parenting order as he has missed several visits with the child. [ 96 ] The father provides the following additional information in his opposition to the move: i.

There is no guarantee that the mother will comply with parenting orders. ii. In case of any breach of court orders, he will have to enforce the order in an Ottawa court, which will cost him financially as his home is in Toronto. iii. He may have to travel to Ottawa for some of his visits. He does not have the financial resources and does not have family members in Ottawa. [ 97 ] If the relocation is granted, the father states that he will require sufficient parenting time so that he can have ‘equal time’ with the child.

He would also seek to have the mother pay all his expenses associated with the exercise of his parenting time in Ottawa. 5.2 – Legal considerations [ 98 ] The provisions of the Act regarding relocation provide as follows: Relocation 39.3

(1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25 , Sched. 1, s. 15. Notice requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out, (

a) the expected date of the proposed relocation; (

b) the address of the new residence and contact information of the person or child, as the case may be; (

c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and

(

d) any other information that may be prescribed by the regulations. 2020, c. 25 , Sched. 1, s. 15. … Objection

(5) A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by, (

a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or (

b) making an application under

section 21. 2020, c. 25 , Sched. 1, s. 15. Notice requirements

(6) A notice under clause (5) (

a) shall be in writing and shall set out, (

a) a statement that the person objects to the relocation; (

b) the reasons for the objection; (

c) the person’s views on the proposal referred to in clause (2) (c); and (

d) any other information that may be prescribed by the regulations. 2020, c. 25 , Sched. 1, s. 15. Authorization of relocation 39.4

(2) A person who has given notice of a proposed relocation in accordance with

section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if, (

a) the relocation is authorized by a court; or (

b) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation. 2020, c. 25 , Sched. 1, s. 15. Best interests of the child

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with

section 24, as well as, (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child has complied with any applicable notice requirement under

section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement; (

e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and (

g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25 , Sched. 1, s. 15. Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25 , Sched. 1, s. 15. Burden of proof

(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25 , Sched. 1, s. 15.

(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child

spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 2020, c. 25 , Sched. 1, s. 15.

(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. 2020, c. 25 , Sched. 1, s. 15. Burden of proof, exception

(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply. 2020, c. 25 , Sched. 1, s. 15. [ 99 ] In Reeves v. Brand , 2018 ONCA 263 , the court stated that relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer.

Typically, the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child (para 17). [ 100 ] In Barendregt v. Grebliunis , 2022 SCC 22 , the court set out the following principles: The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved.

A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98) In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123). Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing.

These considerations all have direct or indirect bearing on the best-interests-of-the-child assessment (par. 171). The additional support of family and community at the new location can enhance the parent’s ability to care for the children (par. 172). It is often difficult to disentangle the interests of a parent from the interests of a child. Indeed, “the reality that the nurture of children is inextricably intertwined with the well-being of the nurturing parent” is far from novel.

A child’s welfare is often advanced in tandem with improvements in the parent’s financial, social, and emotional circumstances. (par. 173) 5.3 – Analysis [ 101 ] Even though the current arrangement is that the child spends the vast majority of his time in the care of his mother, there is no evidence that the parties have substantially complied with the current parenting order. On November 10, 2022, Justice O’Connell granted the father video parenting time with the child. The virtual visits have not occurred. The mother blames the father for not signing into Zoom. The following in-person visits did not occur: i.

April 2 nd , 2022: The mother states that the father canceled the visit. ii. May 14 th , 2022: The father states that he missed the visit. However, the father was not truthful by failing to state that his brother, who was supervising the visit, was not available to supervise the visit. iii. June 18 th , 2022: The father stated that he did not exercise parenting time. However, during cross-examination, it came out that the child may have been picked up by the father’s family members (who were facilitating exchanges), and the child was with the paternal family members during that visit. iv.

June 25, 2022: The father states that he did not have parenting time. During cross examination, when the father was asked about his brother sending a message to the mother requesting to pick-up the child the next day, the father stated that he did not recall. v. July 2 nd , 2022: The mother canceled the visit. vi. July 9 th , 2022: The mother canceled the visit due to a death in her family. The father was offered make-up parenting time. vii. July 19 th , 2022: The father’s family members were not available for pick-up. viii. July 25, 2022: The father’s family members were not available for pick-up. ix.

August 13, 2022: The father’s members did not confirm pick-up. x. September 16, 2022: The mother stated that the child was not feeling well. xi. September 23, 2022: The mother stated that the child was not feeling well. xii. October 22, 2022: The mother canceled, stating that she was not feeling well. xiii. November 5, 2022: The mother stated that the child was sick for the entire week. [On November 10 th , 2022, the mother was

ordered by the court to provide a medical report or note from the child’s doctor confirming the child’s illness when canceling a visit] xiv. December 17, 2022: The mother stated that the child was sick for the entire week. [102] In November 2022, the mother provided an undated medical report from Danforth Pediatrics stating that the child had beencoughing for two weeks and that medication had been prescribed for him. The father argued that the medical note was generic, with nodate.

The mother acknowledged the absence of a date but indicated that the letter had been requested through an online medical platform called ‘medeo’, which the father had access to.

The letter was then provided to the parents, through medeo, on November 15th, 2022. [103] Given the above challenges regarding substantial compliance with the parenting orders, the court finds that both parents bear theonus of proving whether the relocation is in the best interests of the child. [104] The court will address some of the factors listed under subsection 39.4(3) of the Act as follows: The reasons for relocation [105] The mother’s evidence was that the main reason for her move was that she purchased a home in Ottawa. She testified that shecould not afford to buy a home in the Greater Toronto Area.

She chose Ottawa specifically because her sister, who has young children ofher own, was also buying a home in the same area. She testified that she considered the presence of family support in Ottawa as part ofher reasons to move. [106] In Barendregt v. Grebliunas, 2022 SCC 22, the court stated that isolating the custodial parent’s reasons for the move from thebroad, individualized inquiry of the child’s best interests has frequently proven impractical.

There will often be a connection between theexpected benefits of the move for the child and the relocating parent’s reasons for proposing the move in the first place. Relocation forfinancial reasons, for instance, will clearly carry implications for a child’s material welfare. Considering the parent’s reasons for movingcan be relevant, and even necessary, to assess the merits of a relocation application [para 128]. [107] According to the mother, the proposed move means that the child now has a home, in a stable community where his primarycaregiver has the support she requires.

The impact of the relocation on the child [108] There is no doubt that the child has a strong and loving relationship with both parents. The city of Ottawa is a 5-hour drive fromthe city of Toronto. The proposed relocation means that the child will now be geographically far from the father’s home. [109] There is no doubt that the relocation, if approved, will impact the father’s parenting time as it will become practicallyimpossible for him to exercise parenting time during school days.

The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect tothe child, and the level of involvement in the child’s life of each of those persons [110] When the parties resided in the same home until around March/April, 2021, they were both actively involved in the child’s life,including issues such as decision-making and the child’s day-to-day welfare. [111] After the father was criminally charged, he was placed on no-contact conditions by the criminal court.

The child remained inthe primary care of the mother. [112] The father’s current parenting time with the child is on alternate Saturdays, from 12:00 p.m. until 7:00 p.m. That provides himwith parenting time on only two days a month. [113] On August 12th, 2022, the father brought a motion for spousal support, and the mother brought a motion for child support.However, the father did not bring a motion to increase his parenting time with the child.

As a result, his parenting time has remainedlimited to alternate Saturdays for 7 hours. [114] The father did not provide reasons for his failure to request more parenting time. The result is that his physical involvement withthe child remains very limited, although the child has a positive relationship with him. [115] The father has also had little involvement in the child’s life given the restrictions from the criminal court that were in place fromApril 2021 until August 2022.

After the restrictions were lifted in September 2022, he has still maintained little involvement given thatthe parties have no direct communication. Whether the person who intends to relocate the child has complied with any applicable notice requirement under

section 39.3 and anyapplicable Act, regulation, order, family arbitration award and agreement [116] The mother admits that her relocation with the child to Ottawa in September 2022 was in breach of the relocation provisions ofthe Act. [117] This issue is not disputed between the parties. [118] A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about theirown parenting skills and judgment. See: Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ); Rifai v. Green, 2014ONSC 1377 .

[ 119 ] In N.P. v. D.H. 2022 ONCJ 535 (para 71 ), Justice S.B. Sherr stated that a party should not be allowed to use self-help to establish this status. [ 120 ] The court finds that it was unreasonable for the mother to relocate the child to Ottawa after the father objected to her notice of relocation in September 2022. The result is that her move has created a status quo for the child. The mother has always had a lawyer in this proceeding. She did not provide a reason for not seeking a temporary relocation order after the father objected to her proposed relocation. [ 121 ] However, compliance with the notice requirements under

section 39.3 of the Act is only but one of the several factors that the court is required to assess in addressing the relocation issue. The overriding factor is the best interests of the child. The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside . [ 122 ] There is no current order restricting the geographic area the child is to reside.

The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses [ 123 ] The mother proposes that the father’s current parenting time be increased from alternate Saturdays (for 7 hours), to alternate weekends, overnights, from Friday after school until Sunday at 3:00 p.m.

She proposes to have the visits alternated between Toronto and Ottawa. [ 124 ] She further proposes to provide the father with a $120.00 monthly credit to cover his transportation costs to Ottawa. She proposes to alternate spring/March break between the parents. She further proposes that the father have the child for two weeks in July and another two weeks in August of each year.

This proposal would constitute about half of the summer break. [ 125 ] The court will address the issue of parenting time in more detail below. [ 126 ] However, the court finds that the mother’s proposal for the father’s parenting time is reasonable. The proposal would significantly increase the father’s regular parenting time and would provide the father with a reasonable holiday

schedule with the child. There is currently no holiday

schedule for the father. [ 127 ] Subsection 39.4(3) of the Act clearly states that in determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with

section 24 of the Act. [ 128 ] The court adopts its best interest analysis under the ‘decision-making responsibility’

section above. [ 129 ] According to section 24(2), the court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being in determining best interests. [ 130 ] The court has made a finding that the father perpetrated family violence on the mother when the family was still in Toronto.

In Barendregt (supra) , the court stated that given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases (para. 147). [ 131 ] The court acknowledges that balancing the several legislated factors in a case like this is a very challenging task. The mother’s decision to unilaterally relocate to Ottawa with the child in the absence of a consent nor a court order does not reflect well on her.

However, the ultimate question is the best interests of the child. [ 132 ] The court finds that the mother has discharged her onus in establishing that the child’s relocation to Ottawa is in the child’s best interests. Despite some missed visits, the mother continues to bring the child for the father’s parenting time in Toronto. The mother has made a reasonable proposal to increase the father’s parenting time. The father is currently exercising very limited daytime parenting time, with no overnights, and no holiday schedule.

However, it is concerning that after the mother unilaterally moved to Ottawa with the child in September 2022, she canceled about 5 visits, stating that the child was ill. The court will require the mother to provide a medical note for all missed visits. [ 133 ] The child is in a stable community where his mother continues to have support around her. The child also has cousins close to him and they attend the same school.

The court is of the view that the new home appears to provide stability to the child. [ 134 ] The court finds that the father has failed to discharge his onus on whether the proposed move is not in the child’s interests. The father has very little involvement with the child and has failed to take the necessary steps to increase his parenting time with the child. He has failed to enforce his video parenting time with the child. He does not have a reasonable parenting plan for the child.

For the past two years, he has refused to provide any form of financial support to the child in the absence of a court order. [ 135 ] The court believes the mother when she stated that she did not hide from the father her plan to eventually relocate to Ottawa with the child. She stated that in April 2019, she told him that his credit card balance was approaching $5,000.00 and she wanted him to pay it off as she was planning to apply for a mortgage. The father was a secondary credit card holder on the mother’s CIBC account.

In August 2020, the father traveled with the mother to view a model home in Ottawa as the mother was planning to buy a home in Ottawa. He also wanted to view the schools in the area that the child would attend. [ 136 ] The mother’s proposed parenting arrangements will allow the father to take the child to paternal extended family members.

The mother is also proposing to contribute to the father’s potential costs associated with the exercise of his parenting time in Ottawa. [ 137 ] It is not in the child’s best interests to further destabilize him by removing him from his current school and compelling him to be returned to Toronto.

[138] Accordingly, the court will approve the mother’s request to relocate with the child to Ottawa. Part Six – Parenting time 6.1 – Legal considerations [139] The test for determining parenting time is what order is in the best interests of the child. [140] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child shouldhave as much time with each parent as is consistent with the best interests of the child. [141] In Baredregt v.

Grebliunis, 2022 SCC 22, the Supreme Court of Canada wrote the following about the maximum time principleat paragraphs 134 and 135: [134] Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are thesole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can andshould restrict contact”: Gordon, at para. 24; see also para. 49.

But in the years since Gordon, some courts have interpreted what isknown as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equalparenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14 ; Slade v. Slade, 2002 YKSC 40, atpara. 10 ; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the CanadianCourts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98.

Indeed, the term “maximum contact principle” seems to imply that asmuch contact with both parents as possible will necessarily be in the best interests of the child. [135] These

interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant tothe extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended DivorceAct recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in languageis more neutral and affirms the child-centric nature of the inquiry.

Indeed, going forward, the “maximum contact principle” is betterreferred to as the “parenting time factor”. 6.2 – Analysis [142] The father is currently having parenting time pursuant to the order of Justice O’Connell dated November 10th, 2022. As per theorder, the father is entitled to unsupervised parenting time in Toronto on alternating Saturdays from 12:00 p.m. until 7:00 p.m. [143] Both parties were credible in terms of their description of the positive interactions between the father and the child. There are noconcerns with respect to his visits with the child.

Both parents testified that the child loves his father, and he loves his son. [144] The following are some of the father’s parenting strengths: i. He provides the child with learning tools. ii. He has a support structure. His sisters and his brother continue to provide parenting support to him. iii. He has taken the child to visit members of the paternal family. iv. The child continues to enjoy his time with his father. The father’s sister, Ms. Suad Farah, confirmed thatsometimes the father does arrange playdates for the child and her other brother’s children. v.

When the child visits from Ottawa, the father has an additional bedroom for the child at his apartment. [145] The court finds that it is in the child’s best interests to increase the father’s parenting time from the current alternating Saturdays(daytime) to alternating weekends, overnights.

The visits will alternate between Toronto and Ottawa. [146] Given the positive relationship between the child and the father, and the absence of in-person mid-week visits for the father, thecourt will make an order for shared holidays. [147] It is concerning that the video parenting time that was ordered by Justice O’Connell on November 10, 2022, has not occurred.Even though the father complained that the mother did not comply with the order, he did not provide details of the missed video calls.The mother provided details of each scheduled call for the months of November and December 2022.

During those months, the motherwould log into the call, but the father would not join.

The mother would then end the call. [148] There is no evidence of the father seeking to enforce the missed video calls, nor evidence of any communication from thefather’s counsel to the mother’s counsel addressing the issue of missed video calls. [149] The court accepts the mother’s evidence on the Zoom calls over that of the father. [150] The court will make an order for the video calls, with a requirement that the father provide the Zoom link or details for the callbefore each call. [151] Subsection 34.4(9) of the Act provides that if a court authorizes the relocation of a child, it may provide for the apportionmentof costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating

the child. This provision is part of the recent amendments to the Act providing a comprehensive framework governing relocation cases. [ 152 ] The court considered the following factors in assessing the apportionment of costs: a. Distance between the two cities. b. Mode of transport. c. The parents’ incomes. d. The cost of travel. e. Location of the visit. f. Location of the exchanges. g. How the visits are structured. h. Support arrangements for the child. [ 153 ] The child is six years old. He is too young to travel alone between Ottawa and Toronto. Ottawa is about 400 kilometres from Toronto.

The father’s visits will alternate between Toronto and Ottawa. Given that the mother will be bringing the child to Toronto for some of the father’s visits, she is already fully responsible for her trip to and from Toronto with the child when the visits are exercised in Toronto. [ 154 ] Both parties do not drive. On average, the father will travel to Ottawa for his visits about once a month. Both parties will primarily rely on rail transport between the two cities.

The court finds that it is reasonable in the circumstances for the mother to contribute towards the father’s trip to Ottawa for the exercise of his parenting time. [ 155 ] The court will order that the mother contribute a one-way train ticket (economy) for the father when he exercises his regular parenting time in Ottawa. Part Seven – Police enforcement [ 156 ] The father seeks an order for police enforcement. He argues that the mother has not complied with the current temporary orders for his parenting time. The mother did not specifically address the issue of police enforcement.

It was not pled by the father but he entered it in his affidavit for his examination-in-chief. 7.1 – Legal considerations [ 157 ]

Section 36 of the Act provides as follows: Order where child unlawfully withheld 36

(1) Where a court is satisfied upon application by a person in whose favour a parenting order or contact order has been made with respect to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to decision-making responsibility, parenting time or contact, as the case may be. R.S.O. 1990, c. C.12, s. 36 (1) ; 2020, c. 25 , Sched. 1, s. 12 (1). Order to locate and take child

(2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing, (

a) that any person is unlawfully withholding a child from a person entitled to decision-making responsibility, parenting time or contact with respect to the child; (

b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or (

c) that a person who is entitled to parenting time or contact with respect to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return, the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. R.S.O. 1990, c. C.12, s. 36 (2) ; 2020, c. 25 , Sched. 1, s. 12 (2). Application without notice

(3) An order may be made under subsection (2) upon an application without notice where the court is satisfied that it is necessary that action be taken without delay. R.S.O. 1990, c. C.12, s. 36 (3) . Duty to act

(4) The police force directed to act by an order under subsection (2) shall do all things reasonably able to be done to locate, apprehendand deliver the child in accordance with the order. R.S.O. 1990, c. C.12, s. 36 (4). [158] Police enforcement ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very seriouscases where there is solid evidence that such interference by the police is necessary. See: Bouchard v. Sgovio, 2021 ONCA 709. [159] It is an order of last resort to be made sparingly and in exceptional circumstances.

It can frighten children and polarize adifficult situation. See Allen v. Grenier [1997] O.J. No. 1198 (General Div.).; Klinkhammer v. Dolan and Tulk 2009 ONCJ 630; F.(M.) v. M. (C.) (2009), 2009 NSFC 15 , 72 R.F.L. (6th) 226 (N.S. Fam. Ct.). 7.2 – Analysis [160] The court will not make an order for police enforcement for the following reasons: a. The father was not truthful about his missed visits. During cross-examination, it came out that on some of the days he alleged hehad missed his visits, the child was with his family members who were facilitating the exchanges. b.

The father has not had video parenting time with the child. The mother alleged that the father was not signing into Zoom for hiscalls. If the mother was to blame, the father took no steps to enforce the terms of the order. c. Around April 2021, the father was arrested and charged with assault. It is not in the child’s best interests to further expose the childto police involvement. d. Should there be non-compliance with the parenting orders, there are remedies available through the Rules. [161] The court will dismiss the request for police enforcement.

Part Eight – Child support 8.1 - The mother’s position [162] The mother testified that the father has paid no child support since leaving the parties’ residence on March 31st, 2021. Her application was issued on October 27th, 2021. She seeks the child support order to commence on April 1st, 2021. [163] The mother requests that the father’s annual income for support purposes be imputed at $50,000.00.

She states that at the veryleast, the father should pay child support at an imputed annual income of $32,240.00, which is the general minimum wage amount in theProvince of Ontario. [164] In support of her position, the mother states that the father is well-educated. He has an economics degree from the University ofToronto. She states that his educational qualifications would allow him to find employment in the financial services industry, includingbanking and insurance. 8.2 – The father’s position [165] The father provides an annual income of $4,800.00 for purposes of support calculation.

He provides the following income andemployment history: i. 2009 – 2010: he worked at Rogers Communications collection department. ii. 2010 – 2012: he worked as a bus driver in Fort McMurray, Alberta. iii. 2012 – 2015: he did private tutoring. iv. 2015: he worked as an administrative assistant, Region of Peel, on a contract basis (for four months). v. 2016 (May to September): administrative assistant, Region of Peel, on a contract basis. vi. 2016 (November) to 2017 (January) – seasonal temporary employee at Best Buy. vii. 2017 (February to June): administrative assistant, Region of Peel, on a contract basis. viii. 2019 (May to September): seasonal work at Kubota as a general warehouse labourer.

He suffered nerve damage toboth hands due to the repetitive work he was doing, that is, boxing parts and heavy lifting of transmissions and farm equipment. He waslaid off in September 2019 after he took time off following the nerve damage. [166] The father testified that he is currently receiving Ontario Works social assistance benefits in the amount of $343.00 per month. [167] During cross-examination, the father testified that he has been unsuccessful in his attempts to find a job in the finance industry.He stated that he wanted to be an actuary but there were a series of examinations he had to pass.

He was unable to complete the requiredaccreditation. 8.3 – Legal considerations [168]

Section 19 of the Child Support Guidelines O. Reg 391/97 provides that the court may impute to a spouse “such amount ofincome … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as

follows: 19.

(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances,which circumstances include, (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of any child or by the reasonable educational or health needs of the spouse; … (

f) the spouse has failed to provide income information when under a legal obligation to do so; [169] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support theirchildren. 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 foundto be intentionally under-employed. Clause 19(1)(

a) of the guidelines is perceived as being a test of reasonableness. See Drygala v.Pauli (ON CA), [2002] O.J. No. 3731(Ont. CA). [170] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court inconsidering a request to impute income: 1. Is the party intentionally under-employed or unemployed? 2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs? 3.

If not, what income is appropriately imputed? [171] A court must also consider whether the under-employment is required by the needs of a child or by the health needs of thespouse. See: Lavie v. Lavie, 2018 ONCA 10, at para. 28. [172] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionallyunemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which thisfinding can be made. See: Homsi v. Zaya, 2009 ONCA 322 , [2009] O.J. No. 1552. (Ont.

C.A.). [173] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts tothe individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC4719. [174] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When anemployment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, (Ont. C.A.), at paragraph 23.

It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins (ON SC), (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support theirchildren and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.). [175] The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they areearning.

The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would havecontinued to earn but for their decision to leave their job: Olah v. Olah (ON SC), (2000), 7 R.F.L. (5th) 173 (Ont.S.C.); Weir v. Therrien, (ON SC), [2001] O.J. No. 2612, supra; Vitagliano v. Di Stavolo (ONSC), (2001), 17 R.F.L. (5th) 194 (Ont.S.C.); Zagar v. Zagar, 2006 ONCJ 296 , 2006 ONCJ 296; Laing v. Mahmoud, 2011ONSC 4047 . [176] The third question in Drygala v.

Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, whatincome should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light ofsuch factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyedduring the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See:Lawson v.

Lawson, (ON C.A.). 8.4 – Analysis Is the father intentionally unemployed or under-employed? [177] The court finds that the father was not credible regarding his financial information. [178] Assessing the father’s income is very challenging due to his failure to provide the court with basic financial disclosure. [179] Section 21(1) of the Child Support Guidelines provides as follows: 21.

(1) A parent or spouse who is applying for an order for the support of a child and whose income information is necessary todetermine the amount of the order must include with the application, (

a) a copy of every personal income tax return filed by the parent or spouse including any materials that were filed with the return foreach of the three most recent taxation years; (

b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;[emphasis added]

[180] The mother provided the father with a Form 20 Request for information dated March 4, 2022, requesting the followingfinancial disclosure: i. Proof of income from all sources from January 1, 2014, to the present, including (but not limited to), wageemployment, salaried employment, cash jobs, and employment insurance. ii. Copies of income tax returns with all schedules and attachments for the period 2014 to 2020. iii.

Bank statements for all bank accounts including (but not limited to), personal, business, and corporate, from January2014 to the present. [181] During cross-examination, the father admitted that he had failed to provide the following financial disclosure to the court as partof his case: i. 2016 notice of assessment and 2016 income tax returns. ii. 2017 income tax returns. iii. 2017 bank statements. iv. 2018 – proof of receipt of employment insurance. v. 2018 income tax returns. vi. 2019 income tax returns. vii. 2019: He applied for Workers’ Safety and Insurance Board (WSIB) benefits.

He did not provide proof of theWSIB application. viii. 2019: He appealed a negative WSIB decision. He did not provide proof of the WSIB appeal. ix. 2020 income tax returns. x. 2021 income tax returns and notice of assessment. He stated that he has not filed his taxes for the year 2021.When he was questioned during cross-examination about his failure to file his 2021 taxes, his response was that he had other moreimportant matters to attend to. xi. 2021: he received $8,000.00 from Canada Emergency Relief Benefits (CERB). He did not provide proof ofthe receipts. xii. 2022 proof of income.

He filed a Form 13 financial statement dated December 12, 2022, in which he statedthat his income from all sources was $3,000.00. When he was questioned during cross-examination as to how he arrived at this amount,his response was that “I think it was in error”. xiii. He stated that his brother is paying his rent.

During cross-examination, he admitted that he had not providedproof of the rent payments by his brother. [182] The father provided a chart showing that he received the following loans from family members between 2018 and 2022: Abdirizak (brother) Suad (sister) Nimco (sister) Total2018 $10,000.00 $10,000.002019 $2,000.00 $2,000.002020 $5,000.00 $2,000.00 $1,000.00 $8,000.002021 $13,000.00 $2,000.00 $15,000.002022 $13,000.00 $5,000.00 $2,000.00 $20,000.00 [183] The father did not provide proof of the family debts. His evidence was that the amounts were received through email transfersand cash deposits.

No copies of the email transfers nor proof of the cash deposits were provided by the father. For amounts provided tothe father in cash, no proof of withdrawals by the family members was provided. [184] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligationsas provided for in

section 21 of the guidelines and impute income. See Smith v. Pellegrini, (ON SC), [2008] O.J.No. 3616, (Ont. S.C.); Maimone v. Maimone, (ON SC), [2009] O.J. No. 2140, (Ont. S.C.). The parent must make fulland complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v.Carriere, 2016 ONSC 4719. [185] Given the father’s failure to provide full financial disclosure and his failure to assist the court with materials that would help toassess his earnings, this court is hereby drawing an adverse inference against him. [186] In Graham v.

Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate theobligation of the recipient to provide an evidentiary basis to impute income.

[187] In Roberts v. Roberts 2015 ONCA 450, the Ontario Court of Appeal stated that: [11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate andongoing. [12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to thedisadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the finaladjudication is stalled.[13] Financial disclosure is automatic.

It should not require court orders – let alone three – to obtainproduction. [188] The father testified that he is in receipt of Ontario Works social benefits. A letter from Durham Region social benefits office confirming his benefits is dated October 6th, 2021. No updated letter nor pay stubs were provided by the father for this trial. [189] The father has failed to provide financial disclosure. He has failed to provide proof of his debts. [190] The father’s evidence shows that between 2009 and 2019, he worked in different capacities. He is young (39 years old).

He hasan economics degree from the University of Toronto. He failed to provide the relevant information to support his continued reliance onsocial welfare benefits. It is also not clear if he is still in receipt of social benefits as the supporting documentation provided is from theyear 2021. [191] Accordingly, this court finds that the father is intenti

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