Court File and Parties
Court File No.: D55753/12 Date: 2012-07-24
Ontario Court of Justice
Toronto North Family Court
Between:
CHARLES ASCENTO Acting in Person Applicant
- and -
SUMMER DAVIES Respondent
Counsel:
- Camille Williams, student-at-law, agent for Roger Rowe, counsel for the Respondent
Heard: July 20, 2012
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
1The applicant (the father) seeks joint custody of the parties' son (the child), who is eight years old. He asked the court to give him 50% parenting time with the child, and at the very least, 40% parenting time.
2The respondent (the mother) seeks sole custody of the child. She asks the court to specify day access for the father and to order him to pay child support, retroactively to January 1, 2011, based on an imputed annual income of $70,000. She also asks that the father designate and maintain the child as a beneficiary on any medical, dental or extended health plan available through his place of employment.
3The father asks that his ongoing child support be based on an income of $47,000 per annum, starting on May 1, 2012. His position is that no child support should be ordered prior to that date. He consented to the request to cover the child on his medical, dental and extended health plan as of September 1, 2012. He is currently on probation with his employer and this is when he becomes eligible for benefit coverage.
4The parties both testified at the trial of this matter. The respondent's mother (the maternal grandmother) testified on her behalf. The father called no other witnesses. This is my decision.
Part Two – Background
5The father is 30 years old. He is a supervisor at a food produce company. He also works part-time in security at nightclubs. He says that he presently lives alone. He is in a serious relationship with another woman. They had a child together in January of 2011. This child lives with the father's girlfriend and the father says that he sees this child every day (the mother believes that they are all actually living together).
6The mother is 31 years old. She is single and employed as a warehouse supervisor.
7The parties cohabited from 2000 until 2008. Their relationship continued on an on-again, off-again basis and they reconciled from November of 2010 until late January of 2011, when the mother learned that the father had fathered his child with his present girlfriend. They have lived separately since then.
8The parties had the one child together. The child has always lived with the mother. They are the only members of this household. The maternal grandmother provides the mother with child-care assistance.
9The parties did not have a formal parenting arrangement after their separation in 2008. By his own admission, the father saw the child sporadically in 2010. The parties attempted to structure access after their separation in 2011 (two day visits per week), but they both said that this arrangement fell apart. The mother claimed that the father was erratic in exercising access. She said that he would schedule access and not come, or that he would fail to return the child on time. She said that the father would often be verbally abusive to her. The father said that the mother would deny him access and always insisted on getting her own way. The parties both testified that they fought frequently.
10The father paid the mother $450-$500 per month for child support from 2008 until January of 2011.
11In February of 2011, the father quit his job at UPS Delivery (UPS). He immediately stopped paying child support.
12In November of 2011, the mother denied access to the father. This continued for two months. The father issued this application on January 4, 2012. The mother responded with her answer/claim dated February 16, 2012.
13On February 24, 2012, the parties entered into a consent that was incorporated into a temporary order. This order granted temporary access to the father on Tuesdays from 5:30 p.m. to 7:30 p.m. and the first three Sundays of each month from 10:00 a.m. to 6 p.m. A detailed financial disclosure order was made requiring the father to serve and file a sworn financial statement, his last three income tax returns, last three notices of assessment and updated pay stubs.
14The father subsequently sought an additional day visit each week on Wednesdays from 5:30 p.m. to 7:30 p.m. The mother agreed to this request and on April 20, 2012, it was incorporated into a court order. This consent order granted the mother temporary custody of the child and provided for consultation between the parties on major decisions. It set out conditions for access exchanges. The order also provided the father with access to the child's medical and school records and dealt with travel issues. Lastly, the order provided that the father serve and file a sworn financial statement, a comprehensive job-search list and his last three income tax returns and last three notices of assessment by June 4, 2012.
15The matter returned to court on July 4, 2012 and this trial date was set. The father had not yet provided any of the financial disclosure ordered by the court. He had also ignored written requests for financial disclosure made by the mother. Timelines were set for the filing of material. The father was given until July 16, 2012 to serve and file his sworn financial statement and specified financial disclosure. Once again, he did not comply, in any respect, with this order.
16The father provided partial financial disclosure at trial, including his new employment contract, one pay stub and income tax summaries (not the full income tax returns or notices of assessment) for the past three years. He did not provide a job-search list or a sworn financial statement.
Part Three – Joint Custody
3.1 Legal Considerations
17The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.) sets out the following principles in determining whether a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
18Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (Ont. C.A.).
19Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235 (CanLII), 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 that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (Ont. SCJ).
20In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: See: Andrade v. Kennelly, 2007 ONCA 898; Garrow v. Woycheshen, 2008 ONCJ 686, (Ont. C.J.); Hsiung v. Tsioutsioulas, 2011 ONCJ 517 (CanLII).
21Ultimately, the court must decide if a joint custody order is in the child's best interests. See: Subsection 24(1) of the Children's Law Reform Act.
3.2 Analysis
22The communication and level of trust between the parties is extremely poor. They frequently argue. The mother is now restricting her communication with the father to texting.
23The mother testified that there have been frequent arguments between her and the father and that they constantly "butt heads". The father testified that he and the mother argue over major decisions. He said, "I know my communication is not the greatest". He also said, "I know there are a lot of things I messed up on".
24An important indicator of whether joint custody should be ordered is the level of respect between the parties. The father demonstrated little respect for the mother at trial and the evidence indicated that he has consistently failed to respect her. This attitude undermines his request for a joint custody order.
25The father was extremely critical at trial of the mother's values, her commitment to the child's education and her judgment. He had nothing positive to say about her. While the mother is far from perfect (her decision to deny access for two months in 2011 was not acceptable), I find that she is in fact a very good and dedicated mother to the child and is highly attuned to his needs.
26The mother has had to assume the lion's share of the responsibility for the child because the father is often unavailable and has not met his financial obligations for the child. The mother has been the parent intimately involved with all aspects of the child's life. She is the parent who arranges doctor appointments, extra-curricular activities and meets with the teachers. The mother and the maternal grandmother were able to describe the child's routines in detail. The child was described as closely bonded to the mother. The child is generally happy, healthy and well-adjusted. The mother deserves considerable credit for this.
27The mother testified that the father frequently verbally abuses her, by swearing at her and demeaning her. The father acknowledged that he has often been combative with the mother and acknowledged that he will swear at her. He rationalized this behaviour by saying that he did not act this way to her in the presence of the child. He claimed that the mother will act in a similar manner, often in public. I found the mother's evidence more credible. She was specific with her evidence, while I found the father tended to become vague and evasive when discussing his behaviour.
28The father clearly loves his son very much. His son also adores him and wants his approval. The father has a lot to offer his son. Unfortunately, he has not always been a consistent or reliable presence for the child.
29The father admitted that he only saw the child sporadically in 2010. He also admitted that he often returns the child late. He said that the time goes by quickly and he gets "caught up in things". The evidence also established that the father often brings the child late to sports practices when the child is in his care. With the trial pending, the father showed poor judgment by returning the child at 11:30 p.m. on July 5, 2012, contrary to the wishes of the mother (and a specific court order). He showed little insight into how his failure to comply with schedules was unfair to the mother and created tension and instability for the child. The father continues to return the child when he chooses, despite specific court orders.
30The mother testified that the father is inconsistent in coming to the child's sports activities. He will often say that he will be attending, but then fail to attend or come very late. She said that this is very disappointing for the child, who looks forward to his father being there. I found this evidence to be credible.
31The mother also testified that the father resents taking the child to his extra-curricular activities and this is often a source for argument. The father agreed that they argued about this, but he felt that it was because the child's studies needed to come ahead of games. This has been a considerable source of friction between the parties.
32The mother said that in accordance with the temporary court order she has been vigilant about advising the father about appointments for the child, but he has rarely attended them. She described how the father has not attended appointments to deal with the child's learning disability and that the father missed a medical appointment where the child had an MRI on his knee. The father blamed his absences on work schedules or confusion about the appointments.
33The father has been inconsistent in his compliance with court orders. He observes them when it suits him. He has not consistently complied with the access schedule. He almost totally disregarded three financial disclosure orders. If he is not going to comply with court orders (when one would expect him to be on his best behaviour), how can the court reasonably expect him to work cooperatively with the mother?
34The father also showed little insight into the importance of paying appropriate child support. He has made one child support payment since January of 2011 (paid last month). It makes me question his judgment and reinforces my impression of him that he wants his relationship with the child to be only on his terms. This makes him a very poor candidate for a joint custody arrangement.
35Major decisions will continue to arise and it is not acceptable that the parents should have to keep coming back to court to resolve the inevitable deadlocks. Some of these major decisions might have to be made in a timely manner. It is not in the child's best interests to paralyze the making of these decisions because of his parents' inability to agree. Nor is it in the child's best interests potentially to expose him to the inevitable conflict that the parents will have in making these decisions.
36The evidence established that the mother has made the major decisions for the child since at least 2008 and, for the most part, she has made these decisions responsibly. She has shown a willingness to consult with the father. Since the matter has come to court, she has shown flexibility by agreeing to add an extra day visit each week. She has also offered additional day visits to the father. I found believable her evidence that her flexibility is often met with rudeness and further demands by the father. This is not a case where a joint custody order is necessary to preserve the father's relationship with the child.
37It is in the child's best interests to award sole custody to the mother. The rights to consultation and information contained in the order of April 20, 2012, will ensure the father's participation in the child's life, and these terms will be made final.
Part Five – Access
38The test for determining access is what order is in the best interests of the child. In making this determination, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.
39The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
40The mother testified that except for the issue with the father's punctuality, the current access schedule has worked out well for the child. The father agreed that the schedule has worked out well, but feels the weekday visits go by too quickly. He also said that he now works on Sundays, so he would like to switch the visits to Saturdays.
41The father's statement that he wanted the child 50% of the time, or at least 40% of the time, seemed more related to reducing his child support obligation (as provided for in section 9 of the Ontario Child Support Guidelines) than any thought-out plan for the child.
42The father has only exercised a few overnight visits with the child since 2008 and none recently. I accept the mother's evidence that the father returned the child late to school on these occasions. This evidence seems consistent with the father's casual approach to schedules.
43The father's work schedule does not really give him much room for exercising overnight access. He works at the food produce company six days each week from 6 a.m. until 2 or 2:30 p.m. He works at the nightclubs each Friday night from 10:00 p.m. until 4 a.m., and on some Saturday nights at the same hours. Given the father's inability to meet schedules, it would not be in the child's best interests to grant the father a mid-week overnight access visit. I am not confident that the child would be brought to school on time.
44There is also uncertainty as to where the father is living. He claims to be living alone in a one-bedroom apartment. He presently does not have a bed for the child, although that can be arranged. He may be living with his girlfriend and his other child, in which case the court has little evidence about accommodations or the proposed parenting arrangements for overnight visits upon which to base a decision.
45There is the additional complication that the relationship between the mother and the father's girlfriend is toxic. The mother related an incident in the fall of 2011 where she asked the father to contribute half of the cost ($150) for a new knee brace required for the child. The father was not paying any child support at the time and told the mother that he couldn't afford this. The mother asked the father to ask his girlfriend for the money. The girlfriend subsequently texted the mother to stop asking for money and that if she needed money she should go and prostitute herself on the street. The mother testified that this was the tipping point in her frustration with the father and led to her decision to deny him access.
46It is in the child's best interests to try and insulate him from adult conflict. At this point, I am not prepared to order overnight access if the father's girlfriend is involved with these visits. Hopefully, down the road, this will change. The adults need to act maturely and move on with their lives.
47The father's claim for daily access is excessive and not in the child's best interests. While the child needs to spend significant time with his father, he also needs structure, stability and routine. The current schedule achieves this balance. Further, the tension between the parties and the father's inability to comply with returning the child on time dictate against creating more transitions and increasing the access schedule.
48I recognize that the weekday access goes by quickly for the father. It is not as important for the child to be returned as early in the summer, and I will extend the return time when the child is not in school.
49With some minor modifications, it is in the child's best interests to maintain the parenting schedule set out in the order of April 20, 2012. The mother agreed that the father should get some additional time with the child on holidays and during the summer and this will be ordered.
50I will also make modifications to travel terms. The mother expressed concern that if the father travelled outside of Ontario, he might not return the child, or over-hold the child. Since I am not granting overnight access at this time, and the father has not been reliable in complying with schedules, I find that it is premature and not in the child's best interests to permit him to travel with the child outside of Ontario at this time.
51The father has also given the court little confidence to believe that he would reasonably cooperate with the mother's travel plans. She should be able to take the child on a vacation without the tension of wondering if the father will execute the necessary consents. This order will provide that she may take the child for a vacation (but not while school is in session), for up to two weeks. She will be permitted to obtain or renew a passport for the child without the father's consent, and travel outside of Ontario with the child without the father's consent. The mother shall provide the father with an itinerary and contact information for the child during these trips.
52If the father can demonstrate that he can exercise access consistently, show respect for the mother, arrange his work schedule and his accommodation to facilitate overnight access and insulate the child from conflict over the next year, the issue of overnight access should be revisited. It is this court's hope that the child will be eventually able to enjoy extended access with the father.
Part Six – The Father's Income
53The father made it very difficult for the mother and the court to calculate his income. He failed to comply with three financial disclosure orders. He never provided a sworn financial statement, complete copies of his income tax returns and notices of assessment or a job-search list. His evidence about his income was a moving target and evasive. He did not advise the mother that he had obtained employment until the end of June of 2012, even though he obtained this job on May 1, 2012. He was not a credible witness.
54The father graduated from high school and completed a year and a half of university.
55The father worked for UPS for a little over 11 years. He said that he quit this job in February of 2011 because he was upset that they were promoting people ahead of them.
56The father, at trial, presented tax summaries as evidence of his income as follows:
- 2009 - $27,197
- 2010 – $27,331
- 2011 – $6,858
57On further questioning, the court learned that the father has historically earned cash income working as security at nightclubs. He said that he would work three shifts each week, and that he would receive $150-$200 per shift. The father initially testified that, prior to 2011, he would earn annual cash income of about $10,000 from this job, and that he only earned about $6,000 cash income in 2011. He testified that he left the security job in the summer of 2011 because he was unhappy with the directions he was getting from management. He admitted that this income was not included in any of his income tax returns.
58The father testified that the income in his 2011 tax summary was from UPS and two other short-term jobs.
59The father provided no documentary evidence of other efforts to obtain work from February of 2011 until April of 2012.
60The father obtained his current employment on May 1, 2012. This job pays him $47,000 per annum.
61The mother testified that the father has historically earned closer to $25,000 per annum, in cash, in the nightclubs. She said that she knows this because she also used to work in the nightclubs and the father was the head of security. She said that he has told her that he is continuing to work at the nightclubs and that he often uses this as an excuse to rearrange or cancel access. She testified that the father has always worked three shifts each week and that he earns $150-200 per shift.
62The father changed his evidence about his income when giving evidence in reply. He admitted that he has still been working in the nightclubs (apparently he hadn't quit in the summer of 2011). He acknowledged that he worked three shifts per week until near the end of 2011, when he cut back to two shifts per week. He said that since he has obtained his new job, he only works Friday nights and on Saturday nights when he is called in. He agreed that his time spent at this job is about half of what it used to be. He admitted that he still earns cash of $150-$200 per shift.
63If the court accepts the father's last estimate of his security income, it appears that he earned about another $27,300 per annum cash income from the security job in 2011 ($175 x 3 shifts per week x 52 weeks). [1] Further, based on his testimony, the father has been earning cash income at the rate of about $10,000 per annum from this job (being a conservative estimate), since May 1, 2012.
64I find that the father is actually earning income of $57,000 per annum as of May 1, 2012. This is comprised of the $47,000 per annum he is earning from the food produce company and the $10,000 per annum he is earning at the nightclubs.
65However, the analysis does not end there. It is appropriate in these circumstances to gross-up the additional cash income earned by father. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, 2000 CanLII 22639 (ON SC), [2000] O.J. No. 2855 (Ont. S.C.). A software analysis shows that this brings the respondent's income to $61,696 per annum. I find this to be the father's income for support purposes starting from May 1, 2012.
66The mother has asked the court to impute a similar income to the father for 2011. She claims that by quitting his job, that the father was unreasonably unemployed.
67Subsection 19(1) of the Ontario Child Support Guidelines (the guidelines) reads as follows:
Imputing income
- (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
68Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed or unemployed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See: Dryagla v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (Ont.CA).
69The court in Drygala sets out a three-part test to determine if income should be imputed. The first part of the test is to ask if the payor is intentionally under-employed or unemployed. The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.
70The onus is on the applicant to establish that the respondent is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322 (CanLII). Absence of a reasonable job search list 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, 2008 CanLII 3962 (ON SC), [2008] O.J. No. 417, (Ont. S.C.).
71Separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (CanLII); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).
72When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins, 2005 CanLII 43294 (ON SC), (Ont. S.C.) at paragraph 19. I find that the father's decision to quit his job at UPS met none of these criteria. It was an unreasonable decision in light of his support obligations.
73I find that the father was intentionally unemployed or underemployed from February of 2011 until April of 2012.
74The second part of the test in Drygala v. Pauli, supra, is: "If the payor is intentionally unemployed or under-employed, is this by virtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs"? The onus to establish the reasonableness of the excuse is on the payor. The father failed to meet this onus.
75The third part of the Drygala test is: "If there is no reasonable excuse for the payor's unemployment or under-employment, what income should properly be imputed in the circumstances"? 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 earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.
76In Thompson, supra, the court found that it was appropriate to impute to the payor the income that he would have earned if he hadn't quit his job. The court writes at paragraphs 37-39:
[37] The Court of Appeal in Drygala v. Pauli, supra noted at para. 44:
Section 19 of the Guidelines is not an invitation to the Court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.
[38] The Court went on to anticipate the potential lack of evidence in some cases and noted at para. 46:
If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent's previous earning history and impute an appropriate percentage thereof.
[39] That last quotation addresses the practical realities of a trial such as this. The onus is on the payor parent to justify the decision to reduce his income. Given that Mr. Thompson's position was that support should simply be calculated based on the income he actually receives, he led no evidence of comparative employment beyond his efforts to seek employment in Atlantic Canada. The result is that the Court has little more than his past earning history to consider. I find, as Judges in other cases have, that his previous income is a rational basis on which to impute income, as it is the amount that Mr. Thompson would have continued to earn but for his decision to leave his job: Olah v. Olah, 2000 CanLII 22590 (ON SC), (2000), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien, supra; Vitagliano v. Di Stavolo, 2001 CanLII 28202 (ON SC), (2001), 17 R.F.L. (5th) 194 (Ont.S.C.); Zagar v. Zagar, 2006 ONCJ 296 (CanLII), 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047 (CanLII), 2011 ONSC 4047.
77I will impute to the father the income that he would have continued to earn at UPS (approximately $27,200 per annum) for the period from January 1, 2011 until April 30, 2012, when he obtained his new job. Combined with the income that the father was earning at the nightclubs, this comes to income at the rate of $54,500 per annum.
78I maintained the level of imputed income to the father for the period of January-April of 2012, even though he testified that he reduced his security shifts to twice each week during this time frame (if in fact he did reduce these hours). I find that this was not a reasonable self-reduction of income given his child support obligations.
79I considered exercising my discretion to gross-up the father's cash income (as I did with his ongoing support obligation) for the period from January 1, 2011 – April 30, 2012. A software analysis shows that this would have increased his annual income by over $10,000 per annum. I have decided not to do this, recognizing the reality that the father did not actually earn this income for this period, and his support obligations for his second child.
80The father's income is imputed at $54,500 per annum for the period from January 1, 2011 until April 30, 2012 for the purpose of calculating child support.
81On consent, the father shall designate and maintain the child as a beneficiary on any medical, dental or extended health coverage that he has available to him through his place of employment, starting on September 1, 2012. I find that this order is required for necessaries of life as set out in subsection 34(2) of the Family Law Act.
Part Seven – Retroactive Child Support
82The mother seeks an order that the father pay retroactive child support to January 1, 2011. This is when the father stopped paying her any child support.
7.1 The Law
83The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in determining retroactive support applications. Briefly, there are four points that the court raised:
Reasonable excuse for why support not considered earlier.
Conduct of the payor parent.
Circumstances of the child.
Hardship occasioned by the retroactive order.
84Where ordered, a retroactive award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5). However, where one party engages in blameworthy conduct, it may be appropriate for the court to make a retroactive order prior to that date.
85Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
7.2 Delay
86The mother testified that she knew that the father had left his job and that she wanted to give him some time to get back on his feet before she began asking him for child support. When absolutely no support was forthcoming, she broached the subject with the father in the summer of 2011. The father confirmed that this is when he was first asked for support by the mother. The mother said that the father would promise to pay support, but failed to follow through. She said that she first went to a lawyer in November of 2011 and planned to bring an application for custody and child support. The father started this case first, on January 5, 2012.
7.3 Blameworthy Conduct
87The father's conduct was clearly blameworthy. He stopped paying child support to the mother, even though he was still earning income in his security position. He has only made one child support payment to the mother. He has preferred his own interests to those of the child.
7.4 Circumstances of the Children
88The mother was unable to provide any evidence that the circumstances of the child have been adversely affected by the father's failure to pay child support. However, common sense dictates that she has had to compromise her savings or obtain support elsewhere to compensate for the father's failure to pay support.
7.5 Hardship to the Father
89A retroactive support award will create economic difficulty for the father. I have considered that he now has another child to support (although the father testified that he is not paying formal support for this child). However, the father is primarily the author of his own misfortune. He has failed to meet a fundamental parenting obligation to his child – to financially support him.
90Any hardship to the father can be addressed by establishing an affordable repayment plan. However, the father is cautioned that this arrangement will be conditional on his good faith. He will be required to maintain all ongoing and arrears payments in good standing, failing which the entire amount of arrears shall become due and payable.
7.6 The Start Date and Credits
91Balancing the factors above, I find that it is appropriate to order retroactive child support. Further, I find that it is appropriate to start support as of July 1, 2011. This is approximately when the mother first broached the topic of child support with the father. The father will be credited with the one child support payment made, of $442 last month.
Part Eight – Conclusion
92A final order shall go on the following terms:
a) Paragraphs 1-5, inclusive, of the temporary order of April 20, 2012, are now final, with the exception that the Sunday visit shall be changed to Saturday, on the same terms and conditions.
b) In addition, the father shall have the following access to the child:
i) Every other statutory holiday that falls on a Monday from 10:30 a.m. until 6 p.m., starting with the statutory holiday on August 6, 2012.
ii) Every Christmas Day from 2:00 p.m. until 8:30 p.m. The father's regularly scheduled visits shall be suspended each December 24th and 25th.
iii) Two additional days during the child's winter school break, from 10:30 a.m. until 8:30 p.m., the days to be agreed upon by the parties.
iv) Three hours on the child's birthday, if this is not a regular access day.
v) Three hours on the father's birthday, if this is not a regular access day.
vi) Father's Day from 10:30 a.m. to 6 p.m., and the mother shall have the child on Mother's Day.
vii) During the summer, the father may drop off the child at 8:30 p.m., at the end of each visit.
viii) The mother shall provide the father with a schedule of the child's extra-curricular activities and the father shall be entitled to attend them.
c) The following additional parenting terms are ordered:
i) Unless there is an emergency, the father shall not return the child more than 15 minutes beyond the scheduled return time.
ii) The father is to provide the mother with a minimum of 24 hrs. notice if he will not be exercising an access visit.
iii) The father shall ensure that the child attends all scheduled extra-curricular activities during the times that the child is with him.
iv) The parties are to refrain from speaking negatively about the other parent in the presence of the child.
v) The father shall not remove the child from the Province of Ontario without the written consent of the mother or prior court order.
vi) The mother may travel with the child for vacation purposes, for up to two weeks (not to take place while school is in session). The regular access schedule shall be suspended during this time.
vii) The mother may travel with the child outside of Ontario, without the father's written consent.
viii) The mother shall give the father 30 days written notice of intention to travel with the child for vacation purposes, including an itinerary and contact information. The mother shall facilitate reasonable telephone access between the father and the child during vacations.
ix) The mother may obtain or renew passports or other government documentation for the child without the father's consent.
d) Based on an imputed income of $54,500 per annum, the father shall pay the mother the guideline table amount of child support for one child, in the sum of $505 per month, starting on July 1, 2011 and for the balance of 2011.
e) The support amount shall change to the guideline table amount of child support for one child, in the sum of $493 per month, starting on January 1, 2012.
f) Based on an income of $61,696 per annum, the father shall pay the mother the guideline table amount of child support for one child, in the sum of $562 per month, starting on May 1, 2012. This sum shall be paid on the first day of each and every month on an ongoing basis.
g) The father shall be credited with $442 of child support paid.
h) The child support arrears created by this order are $6,246, calculated as follows:
i) 2011 – 6 months @ $505 per month = $3,030
ii) 2012 - 4 months @ $493 per month = $1,972
iii) 2012 - 3 months @ $562 per month = $1,686
Total = $6,688 Less Credit = $442 Balance of arrears = $6,246
The father may pay these arrears in the sum of $200 per month, starting on September 1, 2012. However, if the father is more than 20 days late in making any ongoing or arrears support payments, the entire amount of the arrears shall immediately become due and payable.
i) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source (such as income tax refunds or HST credits) or from any lottery or prize winnings.
j) Starting on September 1, 2012, the father shall designate and maintain the child as a beneficiary on any plan of medical, dental or extended health coverage that he has available to him through his place of employment. He shall provide the mother with proof of such designation no later than September 30, 2012.
k) The father shall provide the mother with complete copies of his income tax returns and notices of assessment no later than June 30th of each year.
l) A support deduction order shall issue.
93If the mother wishes to seek costs, she shall serve and file written submissions no later than August 7, 2012. The father shall then have until August 21, 2012 to serve and file any written response. The submissions are not to exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator's office on the second floor.
Justice S.B. Sherr
Released: July 24, 2012
1I have used the mid-range figure of his income estimated by the father for each shift, being $175 per week.
