R.A.K. v. M.Z., 2023 ONCJ 476

CITATION: R.A.K. v. M.Z., 2023 ONCJ 476 DATE: October 26, 2023 COURT FILE NO. 42739/22 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) R.A.K. VIKTORIYA TERENTYEVA, for the APPLICANT ) ) APPLICANT ) ) – and – M.Z. ELENA MAZINANI and ASH MAZINANI, for the RESPONDENT RESPONDENT ) ) ) ) HEARD: OCTOBER 18-20 and 23, 2023 ) ) JUSTICE S.B.

SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] This trial was primarily about the parenting and child support arrangements for the parties’ six-year-old daughter (the child). [ 2 ] Both parties ask that the child primarily reside with them and that the other parent have parenting time on alternate weekends, one overnight mid-week, and on holidays. [ 3 ] The applicant (the mother) seeks sole decision-making responsibility for the child.

The respondent (the father) seeks joint decision-making responsibility for the child, with the right to make the final decision if there is a dispute between the parties. [ 4 ] Both parties seek other incidents of parenting involving government documentation, travel, communication and information about the child. The mother also seeks a police enforcement order. [ 5 ] The operative temporary order is that the child spends alternate weeks with the parties.

[ 6 ] The mother seeks child and spousal support from the father retroactive to November 13, 2018. The father opposes this claim. He is not seeking child support from the mother. [ 7 ] This matter was set for a focused trial by the case management judge, Justice Carole Curtis. The parties had agreed that they would present their direct evidence by affidavit with no additional oral evidence. Time limits were set for cross-examination. They agreed to page limits for exhibits. [ 8 ] The parties both served and filed voluminous document briefs well in excess of the page limits set at the trial management conference.

The court agreed with counsel that more time was required to fairly present the case. The court permitted each party to provide an additional hour of oral direct evidence and 30 minutes for reexamination. The time permitted for each party to cross-examine the other was doubled. [ 9 ] The additional document briefs filed by the parties were marked for identification purposes only and the parties were required to admit each document through their witnesses. Many of those documents were admitted at trial. Some were excluded as inadmissible evidence.

Some of the documents were only used to assist in cross-examination and some of the documents were never referred to and were not part of the evidentiary record. [ 10 ] The mother did not call additional witnesses. The father called two additional witnesses. [ 11 ] During the trial, the court identified a jurisdictional issue, as the father had obtained an order in Iran on July 4, 2023 after making an application for a divorce (the Iranian order). The order addressed issues of divorce, dowry and alimony.

The court asked the parties to provide evidence and make submissions on the court’s jurisdiction to make a spousal support order. [ 12 ] The issues for the court to determine are as follows:

a) What parenting orders are in the child’s best interests?

b) Should child support be payable by the father to the mother? If so:

i) When should the child support order start? ii) What annual income should be used for the father for each year that support is ordered? iii) How should child support be calculated for the years it is ordered?

c) Does the Iranian order, dated July 4, 2023, preclude this court from making an order for spousal support? In particular:

i) Is the Iranian order a final divorce order? ii) If so, should this court recognize that order?

d) If this court determines that it can make an order for spousal support:

i) Is the applicant entitled to spousal support? ii) If so, when should spousal support start? iii) What should be the amount and the duration of spousal support? Part Two – Background facts [ 13 ] The father is 47 years old. The mother is 41 years old. They were both born in Iran. [ 14 ] The parties met in 2006. The mother worked for the father’s business in Iran from 2007 until at least 2013.

It was agreed that the mother was the father’s most important employee and that she handled all administrative matters for his company. [1] [ 15 ] The mother claims that she and the father were in a romantic relationship that started in 2006. The father says that their relationship started early in 2015. Which version is true does not matter. The parties did not cohabit together during this time. [ 16 ] The father married his first wife in Iran in 2010. [ 17 ] The father dissolved his business in Iran in 2013 and bought three properties there. [ 18 ] In 2014, the father traveled to Canada.

He divorced his first wife in Iran on September 28, 2014. [ 19 ] The parties married in Iran in March 2015. [ 20 ] The mother claimed that she and the father unofficially operated a business in Iran to avoid paying taxes from 2013 to 2017. She said this business was similar to the business that had been dissolved. She said that she operated the business during the times that the father traveled to Canada.

The father denied this. [ 21 ] The father traveled to Canada on February 28, 2017 and returned to Iran on August 3, 2017 so that he could be present for the child’s birth. [ 22 ] On October 16, 2017, the father traveled to Canada again. The mother and the child remained in Iran. The father explained

that he was required to spend 19 out of 24 months in Canada to obtain permanent resident status. He planned to sponsor the mother and the child to come to Canada once he had that status. [ 23 ] On April 27, 2018, the father returned to Iran. His sponsorship application for the mother and the child had been approved. [ 24 ] On May 24, 2018, the family traveled together to live in Canada. [ 25 ] The parties agreed that they separated on November 13, 2018. On that day, the father was charged with 7 counts of assaulting the mother. The mother and the child moved into a shelter.

The father’s release conditions prevented him from having contact with the mother. [ 26 ] Starting in January 2019, the mother sought to have the charges against the father withdrawn. They were eventually withdrawn on December 14, 2019. [ 27 ] The mother and the child moved into a new apartment on February 1, 2019. The father claims that he moved in with them, despite the criminal release conditions prohibiting contact. The mother disputes that the father lived in the home but concedes that he spent some nights there to be with the child.

At that time, York Region Children’s Aid Society (York CAS) was involved with the family due to the child being exposed to adult conflict. [ 28 ] On March 28, 2019, the father traveled to Iran. He returned to Canada on June 18, 2019. At that point he had been gone for 9 of the first 22 months of the child’s life. The parties disagreed about whether the father lived with the mother and the child when he returned to Canada. The father said that he lived with the mother and the child.

The mother said that the father would come and go from the home. [ 29 ] On July 16, 2019, York CAS closed its file. [ 30 ] In January 2020, the mother and the child moved into Project Esperance in Toronto. This is non-profit, subsidized housing for victims of family violence. Again, the father claimed that he was asked by the mother to live with them. The mother testified that the father would only stay at her home on occasion to spend time with the child. [ 31 ] On July 9, 2020, the father traveled to Iran. [ 32 ] The father returned to Canada in February 2022.

At that point, the father had been absent from Canada for about 28 of the first 54 months of the child’s life. [ 33 ] The parties disagreed about the extent to which the father lived with the mother once he returned to Canada. The father deposed that the mother would often change her mind about whether he could live with her. He said that she would often ask him to leave the home and he would stay in hotels with the child.

The mother testified that the father would insist on staying in the home and she kept asking him to leave. [ 34 ] In June 2022, the father found a short-term residence in Richmond Hill. [ 35 ] On June 6, 2022, the mother issued this application. [ 36 ] On June 17, 2022, the mother consented to the child traveling with the father to Iran. [ 37 ] The mother claims that the father overheld the child in Iran. [ 38 ] On October 5, 2022, Justice Curtis made a temporary order requiring the father to immediately return the child to Ontario, and no later than October 19, 2022.

She made further temporary orders that the parents were to rotate parenting time with the child every 7 days upon the child’s return to Ontario, that the child shall not be removed from Toronto without the mother’s written consent and court order, and that the child’s passport be deposited with the court. The residency order was made on a without prejudice basis.

This remains the operative court order. [ 39 ] The father did not return the child to Ontario when ordered. [ 40 ] The father returned with the child to Ontario on April 6, 2023. [ 41 ] The parties submitted a Form 14B motion to the court requesting it to approve a final consent dated January 20, 2023.

The consent provided that: the father would return the child to Ontario by April 10, 2023, the parents would have joint decision-making responsibility for the child and they would equally share parenting time with the child. [ 42 ] Justice Curtis dismissed the Form 14B motion on April 18, 2023, without prejudice to renew it. She endorsed that in all the circumstances the court would not make an order for joint decision-making responsibility.

She also questioned whether certain clauses in the minutes of settlement were suited to a court order. [2] [ 43 ] The parties completed new Minutes of Settlement dated May 1, 2023 and submitted them to Justice Curtis for approval. Like the first agreement, the agreement provided for joint decision-making responsibility and equal parenting time. Justice Curtis rejected the Minutes of Settlement on May 3, 2023. [ 44 ] The parties could not negotiate an acceptable agreement and the case was sent to trial. [ 45 ] The parties disagreed on the child’s living arrangements from April 6, 2023 until June 25, 2023.

The mother stated that the child spent alternate weeks with both parents. The father said that he lived with the mother and the child in alternate weeks and that the child stayed with him in hotels in alternate weeks.

[ 46 ] The child stayed with the mother for the first three weeks of July 2023 and stayed with the father for the following three weeks. This time frame will be discussed in more detail below. [ 47 ] Matters between the parties deteriorated over the summer 2023, and the police were called several times to intervene. [ 48 ] An incident happened between the parties on August 25, 2023. The parties had a dispute at a parenting exchange and the police were called by the mother.

The father alleged to the police that the mother was abusing the child and that the child was refusing to go with her. [ 49 ] The father kept the child in his care. [ 50 ] The police and the Children’s Aid Society of Toronto (the society) investigated the father’s allegations. It advised the parties that “there is no indication of any worries/concerns about the mother’s mental health that is impacting her ability to care for the child”. The society also wrote that it had determined that the child appeared to be at risk of emotional harm due to adult conflict. [ 51 ] The temporary parenting

schedule was restored on October 6, 2023. Part Three – Brief overview of the parties’ narratives on the parenting issues 3.1 The mother’s narrative [ 52 ] The mother deposed the following:

a) She has been the child’s primary caregiver, except for when the father overheld the child in Iran.

b) She has always responsibly attended to the child’s needs.

c) The father often abandoned her and the child for long periods of time.

d) She was the victim of family violence at the hands of the father. She said that this violence was physical, emotional, psychological and financial. She alleges that the father has been controlling and coercive towards her.

e) She sought the dismissal of the criminal charges against the father due to extreme pressure from him and her own family.

f) The father often insisted on staying at her home after their separation. She wanted to encourage his relationship with the child and she often agreed to let him stay.

g) The father provided her with little financial support.

h) In June 2022, she agreed that the father could take the child to Iran for 30 days. Instead, he overheld the child and threatened not to return her. She begged him to return. He minimized her contact with the child. She had to agree to his terms because she feared that otherwise he would not return the child to Canada.

i) The father refused to exchange the child with her on August 25, 2023. He overheld the child until October 6, 2023.

j) The father is undermining her relationship with the child and making exchanges with the child difficult and dramatic. The child’s behaviour with her has deteriorated since the child returned from Iran on April 6, 2023.

k) She has the better plan for the child. She has stable accommodation. The father has not had stable accommodation. She wants the child to attend public school near her home to be socialized and educated in Canadian culture. 3.2 The father’s narrative [ 53 ] The father deposed the following:

a) He has primarily cared for the child, and in particular, since February 2022.

b) He has been the adult responsible for the family.

c) He has always financially supported the family. He made most of the rent payments for the home when they lived together in 2019. He said that he sent $19,000 to $20,000 to the mother when he was in Iran from July 2020 until February 2022. [3]

d) He resided with the mother, while being separate and apart in the home, from February 1, 2019 until March 28, 2019, from June 18, 2019 until July 2020 and from February 2022 until July 2022. He also deposed that he spent alternate weeks in the mother’s home with the child from April 6, 2023, until June 25, 2023. [4]

e) The mother neglected the child’s academic, nutritional, medical and social needs while he was in Iran from July 2020 until February 2022.

f) The mother suffers from severe mental health problems. He deposed that the mother suffers from depression, anxiety, attention deficit disorder and panic disorder. He said that she has attempted or threatened suicide five times, most recently on January 1, 2023.

g) The mother does not take her medications and will not seek treatment for her mental health issues. He wants her to do this so that they can effectively co-parent together.

h) The mother physically abuses the child.

i) The mother yells and screams at the child.

j) The child is afraid of the mother and must be coaxed to see her.

k) The mother has been physically and emotionally abusive to him.

l) He has never abused the mother in any manner. She is lying about this.

m) The mother agreed that he could take the child to Iran indefinitely in July 2022. They had agreed to this because the child had behavioural issues that could better be addressed in Iran where she would have the support of their families. He said that the mother was overwhelmed and struggling with parenting the child. The mother, as she often did, changed her mind once he arrived in Iran.

n) He kept the child after August 25, 2023, on the advice of the police. He did not feel that the police nor the society made the correct determinations about his concerns about the mother.

o) He has always acted to protect the child.

p) He has been the parent who has attended to the child’s medical and academic needs. He ensured that she attended school in Iran and saw a psychiatrist in Iran. He enrolled the child in a school in a Farsi community in Toronto for September 2023 and obtained a residence near to that school.

q) The child is closely attached to him and gets upset when he leaves.

r) He has a better plan for the child. He feels that he is better able to address all the child’s needs. He wants the child to attend school in a Farsi community with Farsi speaking teachers to ease her anxiety and to promote her culture.

Part Four – Legal considerations for parenting issues 4.1 Statutory considerations [ 54 ] Subsection 24 (2) of the Children’s Law Reform Act (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. [ 55 ] 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,

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. [ 56 ] Subsection 24 (4) of the Act sets out factors relating to family violence. Subsections 18 (1) and (2) of the Act define family violence. [ 57 ] Subsection 24 (6) of the Act sets out that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[58]

Section 28 of the Act sets out the types of parenting orders the court can make. [59] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children 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. 4.2 Best interests [60] 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 holisticlook at the child, his or her needs and the persons around the child. See: Phillips v.

Phillips, 2021 ONSC 2480. [61] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordonv. Goertz, (SCC). Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant tothe determination of the best interests of the child. See: Young v. Young (SCC); E.M.B. v. M.F.B., 2021 ONSC 4264;Dayboll v. Binag, 2022 ONSC 6510. [62] A party’s failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v.

Binag, supra. [63] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order.See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201. 4.3 Family violence [64] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 recently made the following observations aboutfamily violence: The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interestsanalysis (par. 146).

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’sparenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional andbehavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in theContext of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, forexample, by observing the incident, experiencing its aftermath, or hearing about it: S.

Artz et al., “A Comprehensive Review of theLiterature 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. (par.145). Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lackcorroborating evidence.

Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance thesignificance of other factors, such as the need for limited contact or support (par. 145). [65] Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 ofMcBennett v. Danis, 2021 ONSC 3610, as follows: The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the bestinterests of children recognize the profound effects that all forms of family violence can have on children.

These consequences can beboth direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotionalneeds. [66] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parentingarrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoingfear of the perpetrator.

In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v.Reinhardt, 2021 ONSC 3353. [67] Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors whichare usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind,are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive.

Victims of familyviolence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believedbecause of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC7382. [68] Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021ONSC 7302; N.M. v. S.M., 2022 ONCJ 482. [69] The court is very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There maybe many reasons for this.

There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of familyviolence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are nowitnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, supra.

4.4 Joint decision-making responsibility [70] 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 a joint custody order) is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It can’t 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 they must beable to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. [71] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v.S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022; Shokoufimogiman v.

Bozorgi, 2022 ONSC 5057; Jacobs and Coulombe v.Blair and Amyotte, 2022 ONSC 3159. [72] Families that require constant intervention by Children’s Aid Societies and the police due to high conflict are poor candidatesfor joint decision-making responsibility or parallel parenting orders. See: S.A. v. Y.M., 2020 ONCJ 147; A.R. v. M.C., 2021 ONCJ 525. [73] Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the children’s best interests.

The court also has the option, if it is in the children’s bestinterests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277. 4.5 Parenting time [74] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a childshould have as much time with each parent as is consistent with the best interests of the child. [75] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will 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. [76] In Baredregt v.

Grebliunis, supra, the Supreme Court of Canada wrote the following about the maximum time principle atparagraphs 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”. [77] An equal parenting time plan requires a high level of communication and coordination between the parties, particularly whenthe child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child.This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, wouldbe an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v.

P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019ONCJ 962. Part Five – Credibility and reliability [78] The court faced challenges in making findings of fact because neither party was a credible or a reliable witness. [79] Both parties were evasive witnesses. They avoided answering difficult questions, instead making long statements on mattersunrelated to the question they were asked. They often had to be redirected. [80] It was the court’s impression that the parties were willing to do or say anything to advance their case with little regard to thetruth.

It was apparent that they intensely distrusted each other and felt the need to protect themselves from the other’s lies. [81] The mother became very emotional when her evidence was challenged. She had to be redirected for twice standing andshouting at the father’s counsel during her cross-examination.

[ 82 ] The father was more emotionally contained than the mother, although his anger at the mother would surface at times. The court noticed that his non-responsiveness increased with the difficulty of the questions he was asked. He also tried to control his cross- examination, frequently giving answers that advanced his agenda, rather than answering the question asked. [ 83 ] The evidence showed that both parties were dishonest. Some of the examples of this are as follows: [5]

a) The mother testified that the parties operated their business in Iran unofficially to avoid paying taxes.

b) The father alleged that the mother was obtaining social assistance and subsidized housing by alleging family violence against him. If his evidence is to be believed, he was complicit in this by living with her and reaping these financial benefits.

c) The mother did not disclose in her financial statement a car, Iranian bank accounts and land that she owned in Iran. She has obtained considerable public benefits and the court is skeptical that she has reported owning these assets to the social service agencies. [6] Again, the father was aware of this and reaped the financial benefits of living with her.

d) The mother directed the father to pay rent through a foreign exchange service so that it would not appear in her bank account in case the social service agencies checked. The father went along with this scheme.

e) The father failed to disclose in his July 2022 financial statement that he owned a home in Iran. When questioned by the court at trial, he valued it at $250,000 to $300,000 Canadian. [7] The father also failed to disclose in his July 2022 financial statement a number of bank accounts and credit card statements that he included in his September 2023 financial statement. [8]

f) The father’s allegations about the mother’s purported mental health issues escalated as he testified. If they were as profound as he stated it casts doubt on his judgment for leaving the child with her for long stretches when he traveled.

g) The mother clearly altered one text message she had relied upon at trial, leaving out comments that reflected negatively on her. When challenged by the father, she continued to insist that the version she had presented to the court was on her phone. When asked to pass up her phone, she eventually conceded that the full text provided by the father was accurate.

h) The father claimed in his Answer/Claim that he had primarily cared for the child since birth. [9] However, when challenged that the child’s family doctor had expressed concerns about the child’s diet in September 2018, the father claimed that the mother had been the primary caregiver and responsible for preparing food because he was working long hours as a Lyft driver. He rationalized, when confronted with this contradiction, that what he had meant was that he had been the adult responsible for the family. [10]

i) The mother claimed that the father had only sent her $1,000 when he was in Iran from July 2020 to February 2022. She also alleged that the father had no contact with her and the child during this time. The father provided evidence of sending her much more money. The mother also conceded that the father had frequent contact with the child while he was in Iran. She rationalized her earlier statement by saying that she had meant no in-person contact with the child.

j) The father frequently travels and, according to his financial statement, is spending over $67,000 annually for his expenses. Yet, he claims that he has no income. He claims that he is being supported by his mother. However, despite providing voluminous paperwork, he provided no evidence about his mother supporting him.

k) The mother deposed that this was the first marriage for the parties. However, she knew the father had been married before.

l) The mother claimed that she learned about the Iranian order for the first time at trial. However, this information was set out in the father’s trial affidavit. It was also part of both agreements completed by the parties in 2023 that they would cooperate in obtaining the Islamic divorce in Iran. [ 84 ] The court found the father to be manipulative and controlling. He has shown little regard for court orders. Some of the examples of this are as follows:

a) The father breached his criminal release conditions in 2019 by staying, if not living, at the mother’s residence. The mother condoned this.

b) The father breached the October 5, 2022 order of Justice Curtis by failing to return the child to Canada when directed. The father’s explanations for failing to return the child were highly problematic and revealing about him. He started by saying that he couldn’t return due to the political turmoil in Iran, the lack of internet service and his poor financial circumstances. [11] However, he then went on to say that he did not want to interrupt the child’s school year and counseling.

He also felt that it was unfair that the mother had lied to Justice Curtis. [12] He was also, he said, negotiating terms of return with the mother’s counsel. He said that “once the conditions were right, then I informed her counsel and then I returned”. It was apparent that the father was only prepared to return the child to Canada on his terms – not the court’s terms. The mother was in a position where she might never have seen the child again if she did not agree to the father’s terms. Of course, she agreed to them. This was significant controlling and coercive conduct by the father. [13]

c) The father breached the same court order by withholding the child from the mother from August 25 to October 6, 2023.

d) The father registered the child in school in Iran in September 2022 without informing the mother.

e) The father deposed that he had proposed to the mother that the child spend two weeks with each parent, starting in July 2023 and that the mother had agreed. He asked the mother to extend this by one week, he said, because he was ill. He said that he had offered the extended visit to give the child a better opportunity to adjust to the mother after returning from Iran. This was disingenuous and dishonest.

The father failed to disclose in his affidavit that he had asked for the child to stay with the mother so that he could travel again to Iran. He had told the mother he was going to Ottawa. The actual reason for his asking the mother to care for the child was only revealed when the mother’s counsel put credit card entries to him from Frankfurt and Turkey (where the father had layovers). The father did not tell the mother that he was going to Iran. He obtained the Iranian order on July 4, 2023. When asked why he did not reveal this information, the father quickly blamed it on page limits.

However, he also had one hour of direct examination and never revealed the real reason he asked the mother to care for the child for three weeks. He wanted the court to believe it was due to his desire to promote the mother-child relationship.

f) After the mother called the police during the August 25, 2023 incident, the father tried to recruit the society and the police to support his narrative that the mother has severe mental health issues and was abusing the child. They did not find this to be the case.

g) The father had the child pose for photographs on two occasions. He felt that these photographs proved that the mother was abusing the child (they didn’t). Two times he went into the mother’s belongings and took pictures of her medications. [14] One time, he took these photographs to a friend who is a pharmacist to try and prove that the mother had severe mental health issues. [15] He claimed that he did this because he only wanted the mother to get the help she needed so that they can co-parent together. His actions spoke more negatively about him than they did the mother.

h) The father registered the child in a different school in Toronto in September 2023 without the mother’s consent.

i) The father’s language when discussing the mother was informative. He presented as domineering in discussing his interactions with her. He frequently said, “I told her to do this” or “I told her to do that”. [ 85 ] The court placed little weight on the evidence of the two witnesses called by the father. One was his good friend who has had little interaction with the mother. He testified about the parties’ living arrangements but had never been in the mother’s home.

He had picked the father up from outside the mother’s home on several occasions and relied on what the father had told him about his living arrangements. The other witness was a tenant in the mother’s building. She has had conflict with the mother in the past. She was an angry and rambling witness. The court did not find her evidence to be reliable. Part Six– Findings of fact and analysis regarding primary residence and decision-making responsibility 6.1 Primary caregiver and residence [ 86 ] The court finds that the mother has been the child’s primary caregiver.

The exceptions have been when the father overheld the child in Iran and when he overheld the child recently in Toronto. The court also finds that the parties equally shared parenting time with the child from April 6, 2023, until August 25, 2023. [ 87 ] The father has frequently traveled internationally – usually for extended times.

He was gone for more than half the time until the child was 4 and one-half years old (the child turned 6 years old in late August 2023). [ 88 ] The court finds that from February 1, 2019 to July 2022, the father stayed with the mother much more than she stated but far less than the father stated. Their relationship was volatile and unstable. The father was coming and going from her home. He was coming and going from Iran. 6.2 Stability, continuity and accommodation [ 89 ] The mother has provided more stability and continuity for the child than the father. She has lived in her current residence since January 2020.

It has been observed to be clean. She has toys and supplies for the child. [ 90 ] The father has not had a stable address. He frequently comes and goes from Iran. Until recently, he did not have a stable residence in Toronto. He stayed at times in hotels, and at other times at the mother’s home. [ 91 ] The father was evasive when cross-examined about his current living arrangements. It was eventually determined that he rents two rooms in a house. His landlord also lives there. His daughter and the landlord sleep in separate rooms on one floor. There is another room in the basement.

The father said that he has had no time to furnish the room. Instead, he is sleeping on the floor in the same room as the child because of her anxiety about his leaving her. The court has concerns about the father doing this at the child’s age and stage of development. It is reinforcing to the child that she is not safe unless he is on the floor beside her.

This is not healthy. 6.3 Child’s instrumental needs and school [ 92 ] The court has some concern that the mother did not take the child to school during the September 2021 school year. [16] However, the court finds that the father was aware that the child was not attending school, despite his denials. It is also telling that after the father returned to Canada in February 2022, the parents jointly tried to take the child to school. When the child became upset, they jointly agreed to wait until September 2022 to try again.

It was unfair for the father to claim that the mother unilaterally neglected the child’s academic needs. [17] [ 93 ] The child is now regularly attending school. [ 94 ] The mother did not take the child to the doctor from 2020 to 2022. The mother explained that this was due to the pandemic. The child is now seeing the doctor regularly and is healthy. [ 95 ] The court finds that the mother properly attends to the child’s instrumental needs.

The child is clean, healthy, properly clothed and fed. [ 96 ] A review of the father’s credit card statements at trial showed that he was inordinately relying on fast foods for the child

when the child was in his care in June 2023. The father rationalized that he went to McDonald’s to discuss business deals and the child would play in the play area while he had these meeting. [ 97 ] The court finds that the mother’s plan for the child’s schooling is better than the father’s plan. The child is presently attending the school that the mother has chosen. The mother deposed that the child’s English regressed while she was in Iran as she only spoke Farsi there. She wants the child to focus on improving her English skills at this school. The school is in the mother’s catchment area.

It is the school that the child previously attended. Given the many disruptions in the child’s life, it is not in her best interests to change her school at this time, as requested by the father. [ 98 ] The father wants the child to go to a school in a Persian community with Farsi speaking staff members. This school is far away from the mother. The father unilaterally registered the child in the school.

Going to that school is not in the child’s best interests. 6.4 Culture and language [ 99 ] The court finds that both parents are capable of promoting the child’s culture, religion and language. [ 100 ] The father will be free to provide supplementary programs for the child that educate her about the Farsi language and her culture. 6.5 Mother’s mental health [ 101 ] The court finds that at times, the mother felt overwhelmed caring for the child alone when the father was out of the country.

She sent him several text messages that reflected this. [ 102 ] The court also finds that the mother has issues with emotional regulation. It is likely that she loses her temper with the child on occasion when she is overwhelmed or frustrated. [ 103 ] The father did not prove to the court’s satisfaction that the mother has mental health issues that preclude her from primarily caring for the child.

The father has unfairly chosen to label and diagnose the mother to fit his narrative. [ 104 ] Despite the father claiming that the mother has had severe untreated mental health issues for many years and acts in a violent and abusive manner, he was content to leave the child alone in her care while he traveled for many months at a time. Either he has bad judgment, or he is overstating his evidence to support his narrative. The court finds that the latter explanation is more likely. [ 105 ] The society and the police have expressed no concerns about the mother’s mental health.

A recent short letter from her doctor indicates that the mother is stable and not suicidal. [ 106 ] The court recognizes that the mother has been under significant stress and from its observations she is anxious and emotionally vulnerable. [18] This is understandable. She has had a dysfunctional relationship with the father. He left her and the child alone for long stretches of time. She was new in Canada and spoke little English. He then overheld the child in Iran in 2022, rendering her powerless. She was very aware that the child may never return to Canada.

Then, the father recently overheld the child again in Toronto. [ 107 ] Further, the mother is litigating with a manipulative person. The father is very aware of her emotional triggers and how to bait her. An example was an incident on August 16, 2023, when he turned up unannounced during the mother’s parenting time at the child’s swimming lesson and took the child to the changeroom over her objections. He knew that the mother would react poorly and she called the police. [ 108 ] The father relied on despairing texts from the mother while he was in Iran with the child to try and prove she had mental health issues.

In this context, the court finds that these were texts of desperation due to an unbearable situation created by the father. [ 109 ] The father is a huge reason for the stress the mother is under, why she is anxious and hypervigilant, and why she calls the police. She fears, for good reason, that he may manipulate the court to take the child from her, undermine her relationship with the child, or in the worst case scenario, find some way to take the child away to Iran again. [ 110 ] In any event, mental health issues do not preclude a parent from effectively parenting a child.

In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866 this court wrote as follows: [19] [113] It does not automatically follow that a child will be in need of protection just because a parent has mental health challenges. Many parents with mental health issues parent their children well – others can’t.

There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently. [114] The court needs to assess several factors to determine if a parent’s mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent’s care. These factors include:

a) The type of mental illness the parent has.

b) The severity of the mental illness.

c) The frequency of the parent’s mental illness symptoms – whether they are situational or chronic.

d) The impact of the mental illness on the parent’s functioning.

e) The impact of the mental illness on the parent’s parenting.

f) Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic

violence and other stressors such as unstable housing and financial problems.

g) The impact of the mental illness on the children.

h) The insight of the parent into their mental illness.

i) The ability of the parent to meaningfully engage with supports to address the mental health issues.

j) Whether the parent is compliant with treatment recommendations.

k) The strength of the parent’s support system, the insight of those support persons into the parent’s mental health issues and the ability of those persons to prioritize a child’s needs to those of the parent’s and to protect the child.

l) Whether the children have any needs that make them more vulnerable to compromised parenting. 6.6 Physical abuse [ 111 ] The court will not make a finding that either party committed physical violence against the other. However, it is not finding that they did not do this. [20] Simply put, the court did not believe either of them. [ 112 ] If the mother had been a credible witness, the court would not have placed much emphasis on her recantation of the criminal charges. This is a common dynamic in family violence cases.

However, the mother’s propensity to be dishonest about so many other matters at trial meant that the court could not make findings of physical violence in the absence of corroborating evidence. [ 113 ] The mother claimed that she had a picture of her injuries. However, despite the hundreds of pages of documents she produced she did not provide this picture. [ 114 ] The father’s photos of physical violence were self-serving and did not establish that the mother had assaulted him. [ 115 ] The court is not satisfied on a balance of probabilities that the mother has inappropriately physically disciplined the child.

The police investigated and reported that the child’s statements appeared scripted. 6.7 Father’s manipulation and breach of court orders [ 116 ] The court finds that the father is controlling, coercive and manipulative. The evidence establishes a pattern of this behaviour. Examples were set out in paragraph 84 above. Coercive conduct is family violence as defined in the Act. [ 117 ] The court finds that the father will disregard court orders he does not agree with.

The court does not trust him to follow court orders or act in the child’s best interests, if they conflict with his own. [ 118 ] The mother consented to the child traveling with the father to Iran in July 2022. The court does not accept the mother’s evidence that she placed a 30-day time limit on the trip. However, the court also does not accept the father’s evidence that the trip was intended to be indefinite. The court finds it most likely that the child was supposed to return to Canada for school in September 2022.

However, even if the court accepted the father’s version of events, Justice Curtis ordered him to return the child to Canada by October 19, 2022. He did not do this. Instead, he decided that he would determine when and if the child would return to Canada and the conditions for that return – not the Canadian court. [ 119 ] The court finds that the father is a flight risk. He has already breached one order to return the child to Canada. He only returned the child when he was satisfied with the terms agreed to. He has few roots in Canada. He is not working.

He testified that he took the child to Iran because there were more supports and family for her there. 6.8 Joint decision-making responsibility [ 120 ] There is no trust or effective communication between the parties. They are secretive and dishonest with one another. [21] They both allege that the other has abused them. They disagree on medical and school issues. The father acts unilaterally. This is not a case where a joint decision-making order is in the child’s best interests.

One of the parents needs to be in charge of making the major decisions for the child. 6.9 Facilitation of the child’s relationship with the other parent, protecting the child from conflict and compliance with court orders [ 121 ] The mother has tried to promote the child’s relationship with the father. She encouraged the child to have contact with the father when the father was in Iran. She agreed to the father staying at her home at times to spend time with the child, even though she didn’t want him there.

She agreed when the father sought to spend extended time with the child. [ 122 ] The same cannot be said about the father. He has overheld the child twice. The court finds that he is making the exchanges with the mother stressful for the child. He conceded that he has told the child she has to go with the mother or the mother might send him to jail. He is communicating to the child that going with the mother is fraught with danger. This is damaging the child. [ 123 ] The mother spoke positively about the child’s relationship with the father.

The father had nothing positive to say about the child’s relationship with the mother. [ 124 ] The court finds that the mother is the parent more likely to promote the child’s relationship with the other parent. [ 125 ] Neither party is meeting their parental obligation to protect the child from conflict. The child is paying the price for this.

[ 126 ] The court finds that the mother is more likely than the father to comply with court orders. 6.10 Lack of insight [ 127 ] The parties both demonstrated little insight into their contribution in emotionally damaging the child. The society has found that the child appears to be at risk of emotional harm. 6.11 Child’s views and wishes [ 128 ] It appears that the child feels closer to the father than the mother at this time, and if asked, she would likely say that she wants to primarily live with him. The court places little weight on this. She has just turned 6 years old.

Some aspects of her closeness with the father have been unhealthy for her. The father has separated the child from the mother and has been undermining this relationship. He is communicating to the child that he is the safe parent. He makes exchanges overly dramatic for her. He sleeps beside her bed to reinforce to her that he is the protective parent. [ 129 ] It is no surprise that the child is having emotional difficulties. The father has disappeared from her life for long periods of time. She fears that he may leave again. He tells her that he is in danger of being jailed by the mother.

She was kept from her mother for several months in Iran by the father, and again, recently. She is in the middle of significant conflict between her parents where the police and the society are being called. She has led a life marked by disruption and adult conflict. Part Seven – The decision regarding decision-making responsibility, primary residence and incidents of decision-making responsibility [ 130 ] The court finds that it is in the child’s best interests to have her primary residence with the mother, despite her flaws. She has been the child’s primary caregiver for most of the child’s life.

She is the parent who has better facilitated the child’s relationship with the other parent. She is more likely to comply with court orders than the father. She has provided more stability and continuity for the child. She has provided better accommodation for the child. The court prefers her plan for the child’s school. On the other hand, placing the child with the father will risk undermining the child’s relationship with the mother.

He does not comply with court orders and the court does not trust him to act in the child’s best interests when those interests conflict with his own. [ 131 ] The court finds that it is in the child’s best interests that both parties make decisions regarding the child’s religion, education, language and culture while the child is in their care. They are not to

schedule programming during the other’s parenting time. [ 132 ] It is in the child’s best interests that the mother have sole decision-making responsibility about all other major issues concerning the child. She is to consult with the father before making any major decision.

This mechanism will be set out in the order. [ 133 ] The mother has the right to choose the child’s school. [ 134 ] It is in the child’s best interests that the father have direct access to information from the child’s teachers, doctors and service providers. [ 135 ] It is in the child’s best interests that the mother be able to obtain and renew government documentation for her, including passports, without the father’s consent.

The court has no confidence that the father would reasonably consent to the mother obtaining these necessary documents. [ 136 ] The mother seeks orders permitting her to travel outside of Canada and preventing the father from doing this without her consent. The father proposes that the non-removal orders be reciprocal and that the child not be removed from the Province of Ontario. There is a complete lack of trust between the parties. The father is a flight risk.

At this point, it is in the child’s best interests to order that the other party must consent in writing, or a court order must be obtained, before the child can be removed from Canada. It is too restrictive to prevent the parties from traveling with the child outside of Ontario within Canada. [ 137 ] The mother sought some orders governing communication between the parties. The court finds that most of those terms are in the child’s best interests and will include them in the final order. Part Eight – Parenting time analysis [ 138 ] The child has a close relationship with the father.

It is in her best interests to have generous parenting time with him. [ 139 ] However, it is no longer in the child’s best interests to have an equal-time parenting arrangement. This has not been working.

The child has been exposed to too much conflict between the parties and is caught in the middle of a power struggle between them. [ 140 ] The court is concerned, based on the evidence, that the father would use an equal parenting time arrangement to undermine the child’s relationship with the mother and control the child’s relationship with her. [ 141 ] It is important to send the message to the father that the court is now in charge of the parenting arrangements and not him.

Otherwise, the chaotic parenting times with the child, mostly dictated by the father, will continue to the child’s detriment. [ 142 ] The parties each proposed the same regular parenting time

schedule for the other. It provides for alternate weekend parenting time that extends until Monday morning and a weekday overnight with the child. The court finds that this

schedule is in the child’s best interests. It provides the child with meaningful parenting time with the father. It also minimizes the interactions between the parents as the exchanges will take place at school. This will protect the child from conflict. [ 143 ] The parties both proposed a holiday parenting time schedule. The father’s proposal was too vague – that the parties will equally share holiday parenting time. It is in the child’s best interests that a specified holiday

schedule be ordered. The mother proposed an equal sharing of the summer holiday and the school winter break. This will permit the child to spend extended time with the father. The court

will order this. [ 144 ] The mother seeks a police enforcement order. This is understandable given that the father has twice overheld the child. However, courts try to avoid making these orders. [ 145 ] Police enforcement orders ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very serious cases where there is solid evidence that such interference by the police is necessary. See: Bouchard v. Sgovio , 2021 ONCA 709 . They can frighten children and polarize a difficult situation . See: Klinkhammer v. Dolan and Tulk 2009 ONCJ 630 .

They may give rise to a wide range of negative emotions and consequences in the child involved. See: Patterson v. Powell 2014 ONSC 1419 . [ 146 ] The court is also concerned that the mother may be too quick to recruit the police when there is a dispute. [ 147 ] For instance, on July 24, 2023, the father was staying with the child in a hotel. The father sent her a photo of the child at 8:49 p.m. The mother replied with a cheerful message at 9:09 p.m. However, at 9:02 p.m. she called the police to report a concern that the child had been taken because the child was not at the hotel the father had said they were at.

That was her first course of action instead of asking for an explanation from the father who she was communicating with in a friendly manner at the same time. [ 148 ] The court will limit its police enforcement order to the provision that the child cannot be removed from Canada. Part Nine – Child support 9.1 Positions [ 149 ] The mother seeks to impute the father’s annual income at $67,416.

She seeks child support retroactive to December 1, 2018, except for the time that the child was in the father’s care in Iran. [ 150 ] The father proposed to have his annual income assessed at $34,400 , [22] if the court ordered that the child have her primary residence with the mother. He asks that support be ordered starting on November 1, 2023.

If retroactive support is ordered, the father asks that the mother’s annual income be imputed at $16,000 for the purpose of a shared parenting calculation. 9.2 The start date for support 9.2.1 Legal considerations [ 151 ] The mother issued her application on June 6, 2022. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon , 2005 13 R.F.L. (6th) 331 (Ont. C.A.) . The support claimed by the mother before that date requires a retroactive support analysis. [ 152 ] In Colucci v.

Colucci , 2021 SCC 24 , the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows: a. The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers. b.

Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor. c. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice. d.

The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income. e. Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified.

The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines. [ 153 ] This framework in Colucci addressed a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. [ 154 ] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci .

The first step will be to determine the presumptive date of retroactivity as described in Colucci . The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [ 23] will guide the exercise of that discretion, as described in Michel v. Graydon , 2020 SCC 25 . The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines. See: L.S. v. M.A.F., 2021 ONCJ 554 ; M.A. v. M.E ., 2021 ONCJ 555 ; A.E. v.

A.E., 2021 ONSC 8189 ; M.K. v. K.M. , 2022 ONCJ 424 ; T.B. v. O.T., 2023 ONCJ 35 ; V.S.B. v. B.L.O., 2022 ONCJ 506 ; Mohamoud v. Farah , 2023 ONCJ 103 . [ 155 ] The first step in the retroactive support analysis is to determine the presumptive start date of support. This will be the date when the mother gave effective notice to the father, provided that this date is not more than three years before the date of formal notice – in

this case, as in most cases, the date of the application. [156] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that thecurrent amount needs to be renegotiated. All that is required is for the subject to be broached.

Once that has been done, the payor can nolonger assume that the status quo is fair. (D.B.S. - par. 121). [157] In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their supportobligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty. [158] In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonableexcuse for the delay.

The latter consideration works to implicitly attribute blame onto parents who delay applications for child support.See: Michel, par. 121. [159] Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to anappropriate amount of support.

See: D.B.S., par. 106. [160] While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship whichwould be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid (Michel - par. 125). 9.2.2 Analysis [161] The mother conceded in submissions that she provided no evidence that she gave effective notice to the father prior to issuingher application on June 6, 2022 – the date of formal notice. [162] The presumptive start date for support is June 6, 2022. [163] The court next needs to determine if it should deviate from the presumptive start date for support. [164] The mother did not provide an understandable reason for her delay in seeking child support.

The evidence indicates that shedelayed in requesting support because the parties remained intertwined in their living and financial arrangements up until the date of theapplication. [165] The court finds no blameworthy conduct regarding child support prior to the presumptive start date. The father paid most of thefamily’s rent expenses in 2019 and often stayed in the same home with the mother and the child. When he was in Iran from July 2020 toFebruary 2022, he sent the mother money. The mother did not express any dissatisfaction to the father of the amounts he was sendingher.

The mother then agreed to the child traveling with the father to Iran in July 2022. [166] The father acted in a blameworthy manner by not paying any child support after April 6, 2023. [167] No evidence was led that the circumstances of the child have been disadvantaged. [168] There was no evidence led regarding hardship for either party if retroactive support was or was not ordered. [169] The child was only in the mother’s care for one month after the presumptive start date for support of June 6, 2022.

The childwas then in the father’s care in Iran for the next nine months. [170] Ordinarily, support would flow from the mother to the father during this time. However, due to the father having overheld thechild in Iran and having breached Justice Curtis’s order to return the child the court will not order support paid. [171] The court will not deviate retroactively from the presumptive start date of support. [172] In the unique circumstances of this case, the presumption that support should be ordered from the presumptive start date hasbeen rebutted.

The child was with the father for nine months after the presumptive start date and the mother was collecting Canada ChildBenefits during that time. The court will order support to start on May 1, 2023. This is the first day of the first month after the father andthe child returned to Canada from Iran. 9.3 Incomes 9.3.1 Legal considerations for imputing income [173]

Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate. [174] The jurisprudence for imputation of income sets out the following:

a) 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. See: Drygala v. Pauli (ON CA), [2002] O.J. No. 3731(Ont. C.A.).

b) 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:

i) Is the party intentionally under-employed or unemployed? ii) If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needsof the child or reasonable health needs?

iii) If not, what income is appropriately imputed?

c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed orunder-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can bemade. See: Homsi v. Zaya, 2009 ONCA 322 , [2009] O.J. No. 1552. (Ont. C.A.).

d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to theindividual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

e) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by aself-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, (ON SC),[2000] O.J. No. 453, (Ont. Fam. Ct.).

f) Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, (ON SC), [2008] O.J. No. 417, (Ont. S.C.); T.L. v. D.S., 2019ONCJ 809.

g) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education,skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks atthe amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, (ONCA).

h) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas[2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373 . 9.3.2 Imputing gifts as income [175] Where a party receives regular gifts from his or her parent, the court may impute the amount of those gifts as income for supportpurposes. See: Bak v. Dobell 2007 ONCA 304; Korman v. Korman, 2015 ONCA 578; Marello v. Marello, 2016 ONSC 835. [176] In Bak v.

Dobell, the court set out the following principles in determining whether gifts should be included in a person’s incomefor support purposes: 1. Line 150 is the presumptive income. 2. Subsection 19 (1) of the guidelines is not exhaustive. 3. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of theparents in an objective manner that reduces conflict, ensures consistency and encourages resolution. 4. Lifestyle is clearly not a type of income, receipt or benefit included in total income.

Canadians are not taxed on lifestyle, butlifestyle can be evidence to ask the court to draw a reasonable inference that the payor has greater income than that disclosed. Given theabsence of an explanation, the court can impute income. 5. Gifts are not income where they are for non-recurring expenses or where there is no control over how the gifts are used. 6.

Courts should consider the regularity, duration of their receipt and whether the gifts were part of the family’s income duringcohabitation that entrenched a certain lifestyle in determining whether to impute them as income. [177] Courts should be careful not to impute income from gifts, when so doing would have the effect of transferring a supportobligation. See: Whelan v. O’Connor, (Ont. SCJ) and in Malkov v. Stovichek-Malkov, 2017 ONSC 6822, where thecourt found gifts to be income, writing at par. 69: In reviewing the tests in Bak v. Dobell I am struck by the analogy to section 19(1) (

i) of the Guidelines. In my view, when gifts take onthe appearance of a long term subsidy for the pre and post separation family, as if the spouse was a beneficiary of income or benefitsfrom an unwritten trust, the advances bend towards income. [178] In Horowitz v. Nightingale, 2015 CarswellOnt 204 (SCJ), the court imputed $50,000 per year for gifts that had been receivedregularly for 8 years and had been used for family purposes. There was evidence that the gifts were likely to continue. [179] The jurisprudence on this issue was reviewed by the court in F.B.M. v.

B.F., 2019 ONSC 708, where the court found that thetrue purpose of the grandfather’s generous gifts to his son, the father, appeared to be to provide the father with an income to support acomfortable lifestyle for himself and his children. The gifts were imputed as income. The court wrote at paragraph 49: Recently, this court has imputed income to the payor in circumstances where there was evidence establishing a settled pattern ofmonetary gifts from the payor’s parents that established a lifestyle in excess of a basic standard of living and the gifts continued post-separation in material amounts.

The court found that imputing income on the basis of these gifts reflected a determination about thepayor’s past revenues and likely financial futures. See Korman v. Korman, 2015 ONCA 578 , at paras. 62-67. In Malkov v.Stovichek-Malkov, 2017 ONSC 6822 , at paras. 69-73, Justice McGee found that when gifts to the husband (e.g., payments forhousing, utility costs, realty taxes) take on the appearance of a long-term subsidy as if the spouse was a beneficiary of income or benefitsfrom an unwritten trust, the advances bend towards income. In Kkabbazy v.

Esfahani, 2012 ONSC 4591 , at paras. 77-87, thecourt imputed income to the husband based on evidence that he typically received and expected to receive funds “as needed” to supporthis lifestyle from his family. In Teitler v. Dale, 2017 ONSC 248 , at paras. 41-67, the court imputed income to the husbanddespite his assertion that the funds advanced from his parents were loans and not gifts. He had adduced no evidence that he had repaidany part of the alleged loans and his expenses were far in excess of his asserted income.

9.3.3 The father [ 180 ] The father claims that he worked as a Lyft driver when the family arrived in Canada in 2018. However, once he was criminally charged in November 2018, he was no longer licensed to do this work. He did not work as a Lyft driver again after his criminal charges were withdrawn in December 2019. He testified that this is because the police have still not removed the charges from his record. No evidence was provided to support this statement or to show that he has made any efforts to remove it. [ 181 ] The father filed his notices of assessment.

They show annual income as follows: 2019 - $5,562 2020 - $12,001 [24] 2021 - $0 [ 182 ] The father did not file a 2022 notice of assessment but deposed that he earned no income. The father deposed that he has been unable to find work in 2023. He says that it is difficult because job applications ask if he has ever been charged with a criminal offence. [ 183 ] The father did not provide a job search list or any evidence of looking for work. [ 184 ] It did not escape the court’s notice that the father has chosen not to look for work while the support issue is before the court.

The court finds that this is by design. [ 185 ] The court finds that the father is intentionally unemployed or underemployed with no reasonable excuse. [ 186 ] The father is highly skilled and educated. He testified that he has a Bachelors degree from a university in Iran in polymer engineering. He said that this is equivalent to a Masters degree in Canada. He ran a successful business in this field in Iran for many years. He lived a comfortable lifestyle in Iran. He owned (and still owns) a valuable home there. When he sold his business in Iran, he was able to buy three properties there.

He said that he came to Canada with $200,000. [ 187 ] The father frequently referenced having to go to business meetings during the trial and taking care of business on his trips to Iran. [ 188 ] When asked what his plans are to support the child in the future, the father said that he was in the process of establishing a new business with a friend. The business, he said, is to replace polymer with metal for police vehicles. The father said it would be an import business.

He said that they planned to start the business in 2024. [ 189 ] It is apparent that the father continues to live a comfortable lifestyle – much better than the mother’s lifestyle. In his September 12, 2023 financial statement he attests that he is incurring annual expenses of $67,416. This includes over $1,000 each month for his vehicle and $2,000 each month for meals, groceries and household supplies.

He is meeting these expenses with no apparent income. [ 190 ] The father testified that he has paid these expenses through savings, borrowing money from his mother and using credit cards and lines of credit. [ 191 ] In his most recent financial statement, the father listed multiple bank accounts, loans and lines of credit that were not included in his first financial statement sworn the year before. A comparison of the two financial statements offered little assistance in determining how the father supported himself. The father is not a credible witness. He has been secretive and manipulative.

The court does not accept his evidence about his financial circumstances based on only his word. It was his responsibility to provide a comprehensive explanation, supported by documentation, about how he has been supporting his lifestyle. He did not do this. [ 192 ] According to the father, he has borrowed $130,000 from his mother in the past 5 years, including $30,000 from July 2022 until September 2023. [ 193 ] These funds provided to the father have been regular and have been substantial. As in Malkov v. Stovichek-Malkov , supra , a significant portion of these funds have been applied to housing costs.

There is no evidence that these funds from his mother will stop. The father led no evidence that these are loans or that there is any expectation of repayment. [ 194 ] In submissions, the father agreed it was appropriate to include the monies advanced by his mother t

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