Court File and Parties

Court File No.: F 235/07 Date: 2013-01-03

Ontario Court of Justice

Re: Kimberly Poole - Applicant and James Donald Jack - Respondent

Before: Justice R. Zisman

Counsel:

• Ann Stoner, for the Applicant, Kimberly Poole (Respondent on the motion)
• James Donald Jack, self-represented Respondent (moving party on motion)

Heard: September 24 and 25 and November 7, 2012

Endorsement

1.0 Introduction

[1] This is a motion to change commenced by the respondent, James Jack ("father") on October 23, 2009 to change the order of November 5, 2007 to reduce his child support obligation retroactively based on his actual income. The father initially sought a paternity test and if he was the biological father he sought access to the child, Aderra Payton Poole ("Aderra") on alternate weekends and one evening a week. The father did not pursue the issue of paternity tests and conceded that he was the biological father.

[2] The applicant, Kimberly Poole ("mother") sought to terminate the relationship between the child and the father as she saw no benefit to that relationship and wished her husband to adopt Aderra.

Issues to be Determined

1. What access arrangements are in Aderra's best interests?
2. Has there been a change in the father's circumstances since the court order of November 5, 2007?
3. If the order is changed, should the father's support obligation be based on his actual income or should income be imputed to him?
4. If income is imputed, what should the amount be?
5. Based on the father's income, should he be required to pay his proportionate share of the child's special expenses?
6. Whether or not the outstanding arrears should be reduced or rescinded?

2.0 Background

[3] The parties are the biological parents of the child Aderra Payton Poole ("Aderra") born April 20, 2006.

[4] The parties had a brief relationship in 2005 that culminated in the mother becoming pregnant. The mother left the relationship and the father was not involved at the time of birth or for the first three years of Aderra's life.

[5] The order of November 5, 2007 was obtained on an uncontested basis. The order granted the applicant, Kimberly Poole ("mother") sole custody and no access order without prejudice to the father's ability to apply for access. Based on an imputed income of $45,000.00 the father was ordered to pay child support of $387.00 per month as of June 14, 2007.

[6] The father commenced this motion to change requesting access and financial relief after the Family Responsibility Office began enforcement proceedings.

[7] A temporary order was made, on consent, on February 1, 2010 granting the father supervised access on alternate Sundays for two hours in the mother's home.

[8] On May 5, 2010, on consent, access was moved to the Peel Supervised Access Centre. On a without prejudice basis, based on an income of $21,200 the father's support obligation was reduced to $188.00 per month. [1] There was also an order that he was not required to make any payments towards the arrears without further court order.

[9] On August 13, 2010 there was a final order, on consent, that the arrears be fixed at $6,640.00 to be paid at the rate of $100.00 per month.

[10] On January 18, 2011 the access was increased to two hours every Sunday at the Peel Supervised Access Centre. The father was also granted telephone access once a week.

[11] On July 19, 2011 an order was made appointing the Office of the Children's Lawyer. Ms Susan Peacey was appointed as the clinical investigator. The report, which was delayed due to police reports not being received, was completed on February 2, 2011.

[12] On May 22, 2012, the parties consented to an order fixing the arrears, pursuant to the order of August 13, 2010, at $7,841.65. On a without prejudice basis, the father agreed that the arrears be paid at the rate of $200.00 per month. The father's motion to suspend child support payments was dismissed.

[13] After several further court attendances, the matter was scheduled for trial. The father testified on his own behalf and was required by the court to call his doctor, Dr. Wong as a witness. The mother testified on her own behalf. Ms Peacey, a clinical investigator for the Office of the Children's Lawyer was also called as a witness.

3.0 Position of the Parties

[14] At the time of the trial, both parties indicated that they were in essential agreement with the recommendations of the Office of the Children's Lawyer that generally recommended that access continue to be supervised, then be expanded to day visits and be reviewed within a year.

[15] However, the father at various times in his testimony indicated that he wanted access visits to commence away from the supervised access centre as soon as possible but then testified that he was not sure that Aderra was ready for such visits and that he was agreeable to the timetable recommended by the Office of the Children's Lawyer. The father also sought an order that there be an enforcement clause as he submitted that the mother frequently cancelled access visits.

[16] The mother sought an order that the father and anyone else in the child's presence not smoke, that before the father could take the child out of the access centre he be required to produce a valid driver's license and car insurance and that she be included in addition to the staff at the supervised access centre to determine if the father violated the prohibition against him drinking, using drugs or smoking.

[17] Regarding child support, the father's position was that his child support obligations should be adjusted as of November 7, 2007 based on his actual income.

[18] The mother was content that the temporary order namely, that the father pay child support of $188.00 per month be made final and that the father contribute a fixed amount of $150.00 per month as his share of the child's special expenses retroactive to January 1, 2012.

[19] It was also the mother's position that the father had agreed on a final basis, pursuant to the court order of May 22, 2012, that the outstanding arrears be fixed at $7,841.65 and the only issue for the court to determine was the rate at which those arrears should be repaid.

4.0 Summary of Relevant Evidence Regarding the Father's Access

[20] Ms Susan Peacey, a clinical investigator for the Office of the Children's Lawyer testified. Neither party significantly questioned the information in her report or the basis for her recommendations.

[21] Ms Peacey's observations and the collateral information she obtained confirmed that Aderra is a lively, outgoing, sociable and very bright young child. She is closely attached to her mother and step-father. They provide her with good parenting and meet all of her needs. Aderra is healthy but does suffer from mild asthma. Aderra reported that she had two dads. She called the father "dad" and her stepfather "daddy".

[22] Ms Peacey concluded that there was no evidence to suggest that either the mother or her husband has said anything to Aderra that would negatively impact her ability to enjoy her time with the father and that the mother properly prepares her for the visits.

[23] Based on the evidence before me, I have come to the same conclusion.

[24] I reject the father's evidence that since 2011 the mother has cancelled over 52 visits and for that reason he questioned the mother's commitment to ensuring that he continues to see Aderra. In cross-examination, the father conceded that he had exaggerated the number of visits the mother cancelled and it was only 20.

[25] On consent, a summary prepared by the supervised access centre outlining the cancelled access visits from November 21, 2010 to August 26, 2012 was filed as an exhibit. Most of the visits cancelled by the mother were as a result of the child being ill and only 13 visits were as a result of the mother having family plans for the entire weekend. The order of January 18, 2011 that provided the father with visits every Sunday also indicated that if the mother wished to go away for the entire week-end that she should provide the father with advance notice and that her request should be accommodated. I find that the mother did this and generally offered makeup visits.

[26] The father did not deny that he had a past history of drug abuse, namely cocaine, that he has a criminal record for drug related offences and that in the past he used marijuana and drank to excess.

[27] The father is currently residing with Jennifer Henderson, who was not called as a witness but who participated in the investigation by the Office of the Children's Lawyer. Ms Henderson has two children, Jordon who is 15 years old and Alyssa who is 11 years old. Jordon resides with her maternal grandmother and Alyssa resides with her biological father. As a result of previous investigations by the Office of the Children's Lawyer, there is a court order dated April 4, 2010 in place that prohibits the father from being left alone with Alyssa or parenting her. The court order also provides that the father is not to use any non-prescribed substances during or 24 hours prior to any access visits by Alyssa. The father agreed that these provisions were in place due to concerns about his interaction with Alyssa and concerns about his use of drugs. The father testified that Alyssa comes to visit on alternate weekends and that Jordon who previously refused to visit has also started to come to visits.

[28] The father has a 12 year old son, Aiden from a previous relationship, who spends time with him on alternate weekends and sometimes during the week.

[29] The father and Ms Henderson currently reside with the father's parents and grandparents in his grandparents' home in Mississauga. The father agreed that although the home was large there were many people currently living there and he was hoping to find accommodations for himself and Ms Henderson sometime in the future.

[30] The father generally agreed with the observations in the report of Ms Peacey. However, he did not agree with Ms Peacey's assessment of his relationship with Ms Henderson being volatile but he did not deny that the police and children's aid society had attended at their home. The father also denied his mother's concerns about his drinking with his friends or his lapses in taking his medications. The father also testified that Jordon lied to Ms Peacey about him hitting her or making inappropriate sexual comments to her.

[31] Ms Peacey's investigation concludes as follows:

The investigation has confirmed Ms. Poole's concerns that Mr. Jack has a number of factors going against him. He doesn't have a job or a suitable house to which to bring Aderra for any extended time. His relationship with Ms Henderson has had its ups and downs, involving a couple of separations and police involvement. Mr. Jack has a past history of drug abuse, he drinks too much from time to time when out with his friends and he has a criminal record. Ms Henderson also has a police record, she has lost custody of her children, at least in part because of the actions of Mr. Jack, and both she and Mr. Jack are on medication for depression. However, it is hard to undo what has already been done. Aderra does know Mr. Jack, looks forward to seeing him, demonstrates affection for him, calls him dad, and indicates that she would like to see him more. Granted, she is not in a position to know about or assess other factors in Mr. Jack's past or present life.

There is also a strong case to be made for Aderra having the right to know her biological father. Studies in the field of adoption would attest to the importance of children knowing their roots, hence the proliferation of open adoptions today. It seems, then, that the goal for Aderra is to find a way to safely increase her access to her father, while still addressing concerns regarding Aderra's safety and well-being.

[32] Ms Peacey then made detailed recommendations regarding how the father should introduce his son Aiden and Ms Henderson into the visits, recommended counseling and appropriate behaviour by the mother and father and recommended that the father's drug or alcohol use be monitored.

[33] In addition to the recommendations of Ms Peacey, the father agreed to the smoking prohibition requested by the mother.

[34] With respect to the request that the father produce a valid driver's license and insurance the mother testified that she was concerned as the father had previously lost his license as a result of the enforcement procedures by the Family Responsibility Office. The father agreed he could show the mother his driver's license and proof of insurance but that it would be impractical for him to provide any other proof. Further, the mother could check with the Family Responsibility Office to determine if his license had been suspended.

[35] The mother testified that she also wished to be able to monitor the father's use of drugs, alcohol or smoking as there were different supervisors present at the supervised access visits and if Aderra told her the father smoked or drank during a visit she wanted to able to determine if access should continue. The mother agreed that this is only an issue when visits are totally unsupervised.

[36] The father agreed that he was prepared to continue to have drug and alcohol testing by his doctor or by the access centre. He also agreed that he was prepared to have a hair follicle test but did not know how to arrange it.

[37] Dr. Wong testified that about every three months when the father attends his office, he conducts fully supervised urine and blood tests for drugs and alcohol. The father has been attending at the supervised access centre for almost two years and there have been no reports of any concerns about the use of drugs or alcohol.

5.0 Summary of Relevant Evidence Regarding the Father's Income and Ability to Work and Financial Issues

5.1 Education and Skills

[38] The father is 36 years old. He has a Grade 9 education. He attended college for two years and obtained training as a tool and die maker. He failed the licensing exam and never returned to write the exam again. He has also worked as a labourer, a painter and a roofer and has some mechanical skills.

[39] In the resume that father filed as an exhibit he states that he has the following skills:

• Tool and die maker
• Excellent blueprint reading skills, with basic Cad-key knowledge
• Able to operate all types of milling and grinding machines
• Able to work within tight time constraints with little or no supervision
• Experience with overhead cranes
• Excellent mechanical aptitude
• Current WHMIS training
• Current fall arrest training
• Current propane safety training

5.2 Employment History

[40] The father's evidence was somewhat vague and scattered as to the exact dates that he worked at various jobs.

[41] He testified that he worked as a tool and die maker for about 10 years although his resume only indicates he worked in this field from 2003 to 2005. He testified that he was burnt out because of the long hours and overtime. He testified that he worked from 70 to 80 hours a week.

[42] The father worked as a roofer between 2006 and 2010. He admitted that he lost his job in 2008 because of his abuse of drugs. He then testified that he stopped working as a roofer in 2010 as he suffered heat stroke and had an asthma attack. He testified that working as a roofer was not a healthy environment for him. But he also admitted that he had not had an asthma attack since the fall of 2010 and that he continues to smoke.

[43] In February 2011, he tried to work as a tool and die maker again and was earning $20.00 per hour but only worked until March. His T-4 indicates he earned $5,168.00. He quit this job as it was in Barrie and he was commuting one and half to two hours each way which he found too difficult. He did not move closer to his job as Ms Henderson and his children lived in Guelph and Acton.

[44] When cross-examined about when he worked, the father admitted that in his Notice of Motion dated January 18, 2011 he requested costs of $1,000.00 for "loss of work" but continued to maintain that he was not working in January 2011 and this request just referred to costs in general.

[45] The father also worked for two weeks in August to September 2011 as a tool and die maker. His evidence was unclear as to what happened to this job as first he testified that "it went nowhere" and that it was only a temporary job and another time he testified that he couldn't manage the job. His T-4 indicates he earned $1,276.00.

[46] The father admitted that in his Notice of Motion and affidavit dated June 14, 2011, he requested that he be compensated for 5 days of loss of employment income of $200.00 per day. The father testified that he earned $200.00 per day when he was working as a tool and die maker in February and March 2011 and was not working at that job in June 2011. But then he could not explain why he was claiming he lost $200.00 a day of income.

[47] In the April of 2012, the father obtained a job at a marina in Orillia as a labourer. He testified that he earned $11.50 per hour and that he worked 40 to 45 hours a week. His job was to maintain the boats and do some mechanical work. He resided with relatives in the Orillia area. He quit this job in October. Initially the father testified that he quit because he missed his family but later added that he quit because he found his employer trying to hang himself.

5.3 Attempts to Find Employment

[48] The father testified that he was looking for employment in the Guelph area where Ms Henderson worked and has made several applications for a job as a mechanical apprentice. He could earn about $15.00 or $16.00 per hour doing this type of work.

[49] He had applied for re-training through the government but was denied as he was classified as already having a skill as a tool and die maker. He had plans to see if he could qualify for a student loan and return to school but was not clear about what type of re-training he would take.

[50] The father admitted he was qualified to work in construction and a friend had offered him some work but he did not want to be self-employed and wanted a job with benefits.

[51] The job search he submitted as an exhibit showed he had applied for very few jobs in the last few years and had not applied for any jobs at all in 2012. The father explained that he had been busy in 2012 with preparing for this court case and making an application for disability through the Ontario Disability Support Program ("ODSP"). However, as a result of a very thorough cross-examination, it became quite clear that the father had in fact not pursued obtaining disability or submitted an application and had only attended a preliminary meeting sometime in December 2011.

[52] Although the father stated in cross-examination that he recognized that he had an obligation to support his children, he also stated several times that whenever he worked, the Family Responsibility Office took 50% of his income.

[53] When questioned about how he could meet the expenses set out in his financial statement, the father testified that they were paid for by Ms Henderson.

5.4 Medical History

[54] The father testified that although he could obtain employment, he was unable to maintain employment due to his disability. The father testified that he suffers from depression, anxiety and sleep disturbance which makes it difficult for him to maintain fulltime employment.

[55] The father agreed in cross-examination that he had suffered from depression for many years and had been on various medications.

[56] Dr. Wong testified on behalf of the father. He has been the father's family doctor since 1993. He sees the father every 2 to 3 months and provides him with his medications and gives him free samples when he is unable to afford the medications. Although he does not normally do drug testing he does test the father for drugs and alcohol.

[57] Dr. Wong had previously submitted a short letter dated April 23, 2010 on behalf of the father confirming the medications he was prescribed, that he has tested negative for any non-prescribed drugs and that he was stable.

[58] Dr. Wong testified that he had treated the father for depression and anxiety since about 2002 and that the father has been prescribed low doses of anti-depressant medications. Since 2009 his condition changed dues to various stresses in his life. It was Dr. Wong's understanding that the father had many stresses such as the loss of his job, family issues, a motorcycle accident and some health issues. Over the years the medical understanding of depression and treatment changed and as a result Dr. Wong varied the dosages and types of medications the father was prescribed.

[59] Dr. Wong believed that the father's condition would entitle him to apply for disability but he was aware that the criteria had changed and it would be up to ODSP if the father qualified. Although Dr. Wong had written a letter to the court on behalf of the father that he had applied for disability, he did not have any notation or report in his file that the father had requested a medical report from him to support a claim for disability.

[60] It was Dr. Wong's opinion that the father's condition made it difficult for him to maintain employment. However, Dr. Wong agreed that many people who suffer from depression and anxiety and who have similar stresses and are on the same medications as the father are able to work. Dr. Wong also agreed that it was good to work but then he testified that it was hard for people to find jobs in this economy. Dr. Wong believed that the father was able to look after a child while on his medications.

[61] Dr. Wong testified that the father had faced many challenges including many years of alcohol addiction and use of marihuana but he had no notes or recollection of the father having a drug addiction to cocaine.

[62] Dr. Wong confirmed that the father was not in crisis. He had referred the father to a psychiatrist in January 2012 but due to the long waiting lists, the father had only recently begun to see a psychiatrist. Dr. Wong had been unable to get in touch with the psychiatrist before his court attendance and so although it was his opinion that the father was unable to work he did not know the psychiatrist's opinion. He was also unfamiliar with the new medications that the psychiatrist had prescribed for the father. The father confirmed that he would be seeing the psychiatrist once a month to monitor his medications.

[63] Dr. Wong confirmed that he had treated the father for problems with breathing conditions since 1999. Dr. Wong noted that father last had a bad asthma attack in July 2010 and there was no recent note of the use of any inhalers. He further testified that his condition was connected to and aggravated by the fact that the father was a heavy smoker.

5.5 Calculation of Support Arrears and the Father's Actual Income

[64] A Statement of Arrears prepared by Family Responsibility Office was submitted as an exhibit and agreed to be accurate by the parties. As of April 23, 2012 the father owed $7,653.65. But this was based on a reduction of the outstanding arrears, in accordance with the final order of August 13, 2010, to $6,640.00. As of April 20, 2010, the arrears had been $10,400.00 before the reduction. These arrears are also based on the father's support obligation being reduced from $387.00 to $188.00 per month.

[65] The father submitted a chart, exhibit 27, with his actual income since 2007, the support he should have paid based on the child support guidelines, the support he paid and the subsequent arrears. Based on his calculation, the arrears owing would only be $1,051.99 and he would not be required to pay any support for 2011 or 2012 due to his minimal income.

[66] The father's actual income is as follows:

• 2007 - $14,216
• 2008 - $16,267
• 2009 - $21,959
• 2010 - $16,534
• 2011 – $6,644
• 2012 - $5,000

5.6 Evidence Regarding Special Expenses

[67] Ms Poole testified that she did not request that the father contribute to Aderra's special expenses initially as he was not involved in her life until 2009 and she is now only seeking a contribution as of January 1, 2012.

[68] As of September 2011, Aderra began kindergarten and she attends before and after care. The cost of the daycare in 2010 was $1,308.00, in 2011 was $2,097.56 and in 2012 $2,570.00 (exhibit 24). But the mother's financial statement indicates a daycare cost of $4,866.00. This discrepancy was not explained.

[69] Aderra is involved in swimming, dance and soccer at a cost of about $2,400.00 per year. Aderra also attends summer camp at a cost of about $2,500.00. Aderra has had some dental problems in the past but currently she only has the usual cost for annual check-ups.

[70] The mother earned $37,171.00 in 2011 and expected to earn about $36,000.00 in 2012. She seeks an order that the father pay a lump sum of $150.00 per month as his share of any special expenses.

[71] The father testified that although he is prepared to pay his proportionate share of special expenses, he would have to be told the expenses in advance to determine if he agreed to the expenditure or was able to contribute.

6.0 Statutory Framework and Relevant Legal Principles

6.1 Access

[72] All decisions relating to custody and access of children are determined solely by what is in the best interests of children.

[73] Section 24 (2) of the Children's Law Reform Act enumerates a number of the factors to be considered, along with the needs and circumstances of the children, in determining what parenting arrangements are in a child's best interests.

6.2 Variation of Child Support Order

[74] The prerequisite to any variation of an existing support order is a finding that there has been a change in circumstances since the making of that order that would result in a different child support order. Therefore in this case, the onus is on the father, as the applicant, to prove on a balance of probabilities that since the order of November 5, 2007 his financial circumstance have changed.

[75] The relevant legislation provision is subsection 37(2.1) of the Family Law Act R.S.O. 1990, c. F-3, as amended, provides that:

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6

[76] Therefore, it is clear that the court has the discretion to grant the relief sought by the father however, the granting of any variation of ongoing or retroactive child support and the reduction or recession of child support arrears is discretionary.

[77] A court also has the discretion to impute income to a parent in an amount it considers appropriate. Subsection 19 (1) (a) of the Child Support Guidelines, O. Reg. 391/97, as amended, provides that:

19. (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;

7.0 Application of the Law to the Facts

7.1 What Access Arrangements are in Aderra's Best Interests?

[78] As both parties agree to the recommendations of the Office of the Children's Lawyer, it is not necessary to deal in any detail with this issue. However, I wish to note that based on the concerns outlined in the Office of the Children's Lawyer report about the father's background it is my view that a continuation of supervised access is appropriate. Although the father has exercised access consistently in a supervised setting for almost two years, there are still sufficient historic concerns that require that his access continue to be monitored. Further, Aderra will require time to understand and be introduced to her father's family and it is in her best interests that there be a gradual expansion of access.

[79] The father's current living arrangements are also not conducive to any extended access. I also have concerns about the fact that Ms Henderson was not called as a witness in view of Ms Henderson's background, the fact that her children do not reside with her and that the father has had difficulties in his relationship with her children. In the future if the father is to pursue any overnight access, it will be imperative that there is more information available about Ms Henderson, if he is still residing with her.

[80] There will therefore be an order as recommended by Ms Peacey to include the details as to who may attend visits and to include the various stipulations regarding the access arrangements. I also agree that the order should be reviewed in one year to determine if the father has continued to exercise access consistently, if some supervision is still necessary and if access can be further expanded.

[81] I am not prepared to order police enforcement of the access. Based on the evidence I have accepted I find that the mother has not sabotaged or interfered with the father's access and that the visits that were cancelled were for legitimate reasons. I will require that the mother make-up any missed visits as recommended by Ms Peacey.

[82] Based on the evidence I accept, I find there is no need for the mother to also be able to monitor the father's alcohol or drug use as this will continue to be done by the supervised access centre and Dr. Wong. Such an order would inevitably result in the mother questioning Aderra unnecessarily in my view about what the father did during an access visit and given her young age could be misunderstood and misinterpreted. Although it was clear from the testimony of Dr. Wong that he is a strong advocate for the father, I accept his evidence that the father's tests for alcohol and drugs are fully supervised and that they have been negative.

[83] The father testified that he was agreeable to a hair follicle test but was not aware of how to arrange this. Ms Peacey has also recommended that the father and Ms Henderson, if she is involved in the access, participate in such testing as an alternative to the monthly testing by the access centre. Although I do not intend to make a formal order requiring a hair follicle test, it may benefit the father to voluntarily agree to a hair follicle test so that he can provide further proof that he is not abusing alcohol or using non-prescription drugs. I would recommend that the mother or her counsel provide the father with information about how to arrange such testing.

7.2 Has There Been a Change in the Father's Circumstances Justifying a Change to the Order of November 5, 2007?

[84] The mother agrees that the order of November 5, 2007 should be changed.

[85] The mother testified that when she obtained the uncontested order of November 5, 2007 she believed that based on her knowledge of the father's skills, work history and life style that he could or did earn about $45,000.00. However, the mother candidly admitted that she did not have a great deal of information and agreed that the father's imputed income should be lowered.

[86] Based on the evidence I have accepted, I agree that the father has met the onus on him to justify a change to his obligation to pay child support pursuant to the outstanding order.

7.3 Should the Father's Child Support Obligation be Based on His Actual Income or Should Income be Imputed to Him?

[87] The ability of a court to impute income is the way the court gives effect to the legal requirement that a parent must earn what the parent is capable of earning if the parent worked to his or her full capacity. [2]

[88] The following principles apply when determining capacity to earn income:

(i) There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work;

(ii) When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations;

(iii) A person's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills or employment in which the necessary skills can be learned on the job.

(iv) Persistence in unremunerative employment may entitle the court to impute income;

(v) A parent cannot be excused from his or her child support obligation in furtherance of unrealistic or unproductive career aspirations.

(vi) As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [3]

[89] In imputing income, the court does not need to find a specific intent to evade child support obligations or bad faith. A parent required to pay child support is intentionally under-employed if that parent closes to earn less that he or she is capable of earning. [4]

[90] Applying these principles to the facts of this case, I find that the father has not used his best efforts to earn what he is capable of earning based the following facts:

a) The father has considerable skills and experience as a tool and die maker and a roofer;

b) The father has an aptitude for mechanical work and also has experience in construction work;

c) The father has voluntarily quit several jobs;

d) The father has not diligently pursued opportunities for employment;

e) The father has not used his best efforts to find or maintain employment as the Family Responsibility Office garnishes half of his income;

f) The father was evasive, non-responsive or unable to provide a credible explanation when confronted with contradictions between his testimony and the affidavits he previously filed in this proceeding regarding when he worked and his claims for loss of income;

g) The father has suffered from depression and anxiety for many years and when he wished was still able to maintain fulltime employment;

h) The father did not file an application for disability assistance although he maintained he was unable to work because of his disabilities;

i) As the father's stress and anxiety are exacerbated because of the court process, his condition should diminish with the end of this trial; and

j) The father has recently begun seeing a psychiatrist who will be able to assist him in better managing his depression, anxiety and sleep disorder.

[91] I have considered that Dr. Wong's testimony generally supported the father's position that he was unable to maintain full-time employment due to his mental health issues. However, it was very obvious that Dr. Wong was a very strong advocate for the father and whenever possible attempted to tailor his evidence to assist the father. For example, Dr. Wong wrote a letter to the court indicating the father had applied for ODSP but there was no such notation or any report in his file and it became clear during the trial that the father had in fact not applied. Dr. Wong also had no notes in his file about the father's addiction to cocaine which the father himself admitted. Further Dr. Wong's information about the father's attempts to obtain employment or why he left various jobs was based on information from the father.

7.4 What Income Should be Imputed to the Father?

[92] Based on the father's evidence he has had employment that paid between $11.50 per hour as a labourer at the marina to $20.00 per hour as a tool and die maker. Based on a 40 hour week and these hourly rates, he could earn from $23,736.00 to $41,280.00 a year if he worked full-time.

[93] I find that imputing income to the father in the amount of $23,500. is fair and reasonable reflection of what he could earn. Based on the Child Support Guidelines of December 31, 2011 this would result in the father continuing to pay child support of $188.00 per month. I would expect that if the father directed his skills and energy to finding and maintaining employment he will have no difficulty in earning considerably more.

[94] The mother also seeks an order that the father contribute to Aderra's special expenses at a fixed rate of $150.00 per month as of January 1, 2012.

[95] There is no issue that the expenses claimed such as before and after school daycare, summer camp, dental expenses and the cost of the several extracurricular activities that Aderra is involved in would qualify as special expenses pursuant to section 7 of the Child Support Guidelines.

[96] In reviewing the pleadings after the close of this case, I noted that the mother, who was initially self–represented, did not request the father contribute to any special expenses. However, the father was aware the mother would be requesting this relief as it was outlined in her trial management brief. I assume that as the main focus of this case, prior to trial, was about the father's access to Aderra, this issue was overlooked and the mother's pleadings were never amended.

[97] Despite this irregularity, I do not find that the father will be unfairly prejudiced if this issue is dealt with in this proceeding and based on the evidence presented.

[98] Although there is some discrepancy in the amount of the special expenses, there is no doubt that the mother has had to bear the financial burden of these special expenses in addition to the financial hardship caused because the father was not even paying child support.

[99] Section 7 of the Child Support Guidelines provides that a parent pay for all or a portion of such expenses taking into consideration the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents.

[100] In this case, I must consider that I have only imputed the father's income at $23,500.00 and in view of the decision I have reached regarding his obligation to pay the outstanding arrears, I find that the father does not presently have the financial means to pay any portion of the special expenses. However, if the father's actual income increases and the support arrears are paid, he should be required to pay his proportionate share of the special expenses.

7.5 Should the Outstanding Arrears be Reduced or Rescinded?

[101] The parties agreed on a final basis, pursuant to the order of August 13, 2010, that the arrears outstanding at that time be reduced to $6,640.00 and repaid at the rate of $100.00 per month. On May 22, 2012 the parties agreed that the arrears were fixed at $7,841.65 pursuant to the order of August 13, 2010. On a without prejudice basis, the father agreed to pay the arrears at the rate of $200.00 per month.

[102] I have considered and applied the following principles in considering the father's request to further reduce or rescind arrears:

1. There is a heavy duty on the person seeking a reduction or a cancellation of arrears to demonstrate that there has been a significant and long-lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so;

2. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away;

3. Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future; and

4. A reduction or cancellation requires detailed and full financial disclosure that, at the time the payments were to be made, the change was significant and long-lasting, the change was real and not one of choice and that every effort was made to earn more money during the time in question, although those efforts were not successful. [5]

[103] The father testified that he changed his lifestyle and that Ms Henderson is a great help to him. He also testified that he has spent a lot of his time dealing with and preparing for this court case. As the case is now resolved and with assistance he testified he received from Ms Henderson, he can devote more time and effort to dealing with is financial circumstances and devote his energy to obtaining employment. I therefore find that in the future he will have the ability to pay the arrears in the future.

[104] There is no basis on the findings I have made for a further reduction of the father's arrears. The father had the benefit of a reduction of arrears on August 13, 2010, his ongoing support obligation was then also reduced to $188.00 per month and he again agreed to the amount of arrears owing on May 22, 2012 being fixed and agreed to a repayment schedule. The current arrears are a result of the father not meeting these support obligations.

[105] There has been no change in his financial circumstances that warrant any further reductions.

[106] Based on the father's ability to earn at least the imputed income of $23,500.00 I find that he has the ability to pay the outstanding arrears at a rate of $200.00 per month.

Order as Follows

1. The Respondent shall have access to Aderra Payton Poole born on April 20, 2006 as follows:

a) For three months from the date of this order, every Sunday from 10:00 am to 12:00 pm at the Peel Supervised Access Centre; during this time the respondent should talk to Aderra about meeting her half brother Aiden in appropriate conversation and bring a picture of him;

b) In the following three months, visits will continue to be every Sunday from 10:00 am to 12:00 pm at the Peel Supervised Access Centre; during this time, the respondent can bring Aiden on the visits on alternate weeks and he can bring Ms Henderson for a few visits; however, the respondent should ensure that he has at least one visit alone with Aderra to talk about the people she met and consolidate her sense of this second family; the responder should also prepare Aderra for visits outside of the centre;

c) In the following three months, the respondent will make arrangements with the Peel Supervised Access Centre for visits to occur for one week, (Saturday or Sunday) from 10:00 am to 2:00 pm at a community centre with pick up and drop off at the supervised access centre and in the alternate week for the regular Sunday visits at the supervised access centre from 10:00 am to 12:00 pm;

d) In the following three months, access will take place 3 out of 4 Saturdays from 10:00 am to 2:00 pm pick up and drop off at the supervised access centre and access to take place at a community centre; the Sunday access visits will stop; and

e) Thereafter, pending a review of this order, the access will continue as above, except that the hours will increase to 10:00 am to 5:00 pm if the supervised access centre is agreeable or such other times as to meet the access centre's schedule; the respondent can take Aderra out to lunch in addition to exercising access at a community centre.

2. The following conditions will also apply to all access visits:

a) The applicant to encourage and be supportive of Aderra as she moves forward in her relationship with the respondent.

b) The applicant to use the off weekend to schedule family activities or vacations. The applicant may work out the schedule to accommodate planned vacations. If the applicant misses a visit for anything other than a significant illness of Aderra make-up time to be offered to the respondent.

c) If the respondent is available during the day, such make-up time could be offered to him on a day that Aderra isn't in school, such as professional development day, March Break, or days in the summer.

d) The respondent should only cancel an access visit for significant illness on his part.

e) Both parties are to give the other as much notice as possible of any cancellation.

f) For occasions when the Access Centre is not open, the applicant to facilitate another place for a visit, or later, for pickups and drop-offs.

g) The applicant is entitled to one two-week break in the schedule for a holiday away, or two one-week breaks.

h) For Christmas the applicant to arrange a visit for the respondent so that he may give Aderra her Christmas presents. This could take place at a restaurant, library, community centre etc, and be loosely supervised by herself or another family member.

i) The respondent (and Ms Henderson, if she is visiting) not have an alcoholic beverage for 24 hours before each visit, as well as at the time, or indulge in any recreational drug use.

j) The respondent shall attend counselling at ADAPT or similar program in Mississauga.

k) The respondent shall attend for individual counselling at a geared-to-income Family Service Agency, where he can work on controlling his emotions and on learning specific parenting tips regarding the interests and safety needs of a 5 year old girl.

l) The respondent, or anyone else attending an access visit or anyone present in a vehicle that is transporting Aderra shall not smoke in her presence or anywhere near her.

m) The respondent shall obtain and use the appropriate car seat for Aderra's weight and height.

n) If the respondent moves to the north Halton area then arrangements shall be made to use the services of the Supervised Access site in Milton run by the Burlington Counselling and Family Services.

o) The respondent (and Ms. Henderson, if she participates in visits with Aderra) shall have monthly on-site blood tests for drugs and alcohol, unless they have a hair follicle test done, showing negative drug use for a year, or as many months as the tests can show, with a minimum of 6 months. The respondent not to cut his hair to aid in this process. These results should be sent to the relevant doctors. If the hair follicle tests are completed, the drug tests could be spread out, as deemed appropriate by ADAPT.

p) The respondent shall maintain consistent medication usage, as prescribed by his doctor, making sure not to run out between prescriptions. The respondent shall attend at his family doctor regularly.

q) Ms. Henderson shall maintain consistent medication usage, following through with her psychiatrist on a regular basis, if she becomes involved in this process.

r) Aderra shall not to be exposed to inappropriate or violent x-box games, television or movies.

s) Neither party shall speak in a negative fashion about the other parent within the child's hearing, or allow anyone else to do so.

t) The parties shall communicate by writing in a journal, which will go with Aderra, such journal only to be used for short, child-focused messages. The staff at the access centre can be used for limited communication. If further communication is required between the parents, then with both parents' consent, they shall communicate directly, or through an agreed upon suitable third party, such as a professional with training in the areas of separation and divorce, who can act in the role of parenting coordinator.

u) If the respondent is found by the staff at the access centre to have violated the drinking or drugs prohibition, or if any drug test is positive, or if the access centre staff find Aderra unduly upset after two or more visits, then the visits should return to being supervised, while the parties attend with a parenting coordinator/mediator/social worker to try to determine what is going wrong.

v) Prior to the respondent being permitted any off-site access visits, he shall produce a valid driver's license and proof of car insurance if he is transporting Aderra. The respondent shall advise the applicant in advance of any access visit if his license is suspended.

w) The parties shall agree, prior to any visits outside the access centre to suitable community centres to which the respondent can take Aderra.

x) A review by the Office of the Children's Lawyer to take place in one year to be initiated by either party.

3. The respondent's motion to vary the order of Justice Wolder dated November 5, 2007 is granted. Based on an imputed income of $23,500.00 and in accordance with the Child Support Guidelines, the respondent will pay child support of $188.00 per month as of January 1, 2013;

4. As of May 22, 2012 the support arrears are confirmed to be fixed at $7,841.65 and the respondent shall pay all outstanding arrears as of the date of this order, at the rate of no less than $200. per month commencing January 1, 2013;

5. The respondent shall advise the applicant and the Family Responsibility Office, in writing, within 30 days of obtaining any employment, full or part-time, and provide a copy of a pay stub with the employer's address and telephone number;

6. The respondent shall provide to the applicant a copy of his tax return with all attachments and his Notice of Assessment or Notice of Re-Assessment, commencing June 30, 2013 and each year thereafter;

7. This order is without prejudice to the applicant's right to seek the respondent's contribution to the child's section 7 expenses after the date of this order;

8. Support Deduction Order to issue.

[107] If the applicant is seeking costs, brief written submissions as to costs with a Bill of Costs and any offers to settle are to be submitted within 30 days and the respondent shall have two weeks to serve and file a response.

Zisman J.

Date: 3 January 2013

Footnotes

[1] At the time the Child Support Guidelines of May 1, 2006 were in place and this amount of child support is based on an in income of $22,000. not $21,200.

[2] M. (J.A.) v. M. (D.L.), 2008 NBCA 2 (N.B.C.A.) at para. 31

[3] Hanson v. Hanson, 1999 CarswellBC 2545 (B.C.S.C.) at para. 14

[4] Drygala v. Pauli, 2002 CarswellOnt 3229, 29 R.F.L.(5th)293 (Ont. C.A.) at paras. 27-29

Brook v. Brook, 2006 CarswellOnt 2514, [2006] W.D.F.L. 2789 (Ont.S.C.) at paras. 51-54

[5] Earle v. Earle, 86 A.C.W.S. (3d) 764, [1999] B.C.J. No. 383, [1999] Civ. L.D. 213, 1999 CarswellBC 437 (BCSC)