Court File and Parties

Court File No.: D71250-14 Date: July 20, 2015

Ontario Court of Justice

Re: Xue Min Zhao also known as Xuemin Zhao – Applicant

And: Zhong Ling Yang – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Glenda Perry - for the Applicant
• Heng (Pandora) Du - for the Respondent

Heard On: July 14, 2015

Reasons for Decision

1. Introduction

[1] This is a focused trial with respect to the issue of child support and a restraining order.

[2] The Applicant ("mother") seeks an order that Respondent ("father") pay child support based on an imputed income of $32,928, retroactive to February 1, 2014, in the amount of $480.00 per month and she seeks a restraining order that the father not have contact or come within 500 metres of her and the children except for the purposes of exercising access.

[3] The father is prepared to agree that income be imputed to him in the amount of $31,000, which is the income imputed to him in the current temporary order. He is therefore agreeable to pay child support of $452.00 per month as of July 1, 2014. He opposes the restraining order as there is no need for such an order.

[4] The motion by the mother initially requested that the father's pleadings be struck if he did not comply with the outstanding disclosure order. Ms. Perry counsel for the mother advised that she was content to proceed despite not all of the disclosure being provided in a timely manner and on the basis that the court draw a negative inference with respect to any missing disclosure.

2. Background

[5] The parties were married in January or February 1994. There are two children of the marriage Xinge Yang born February 3, 2000, and Shang Hua Yang born August 20, 2002. The parties and the children all moved to Canada on July 31, 2013.

[6] The parties separated on January 19, 2014. On July 15, 2014, the mother commenced an application seeking custody, ancillary orders relating to custody, child support and a restraining order.

[7] On September 15, 2014, a motion was brought by the mother to lift the automatic stay of the proceedings in this court as a result of the commencement of a Divorce Application by the father. For reasons released on September 16, 2014, I lifted the stay and the proceedings continued on this court.

[8] A case conference was then scheduled for October 31, 2014. The parties were able to consent to a final custody order to the mother, orders incidental to custody and temporary specified access to the father. The parties also consented to an order that the father pay child support of $452.00 per month based on the father's stated income of $31,000 and the order was without prejudice as to amount or the commencement date. An order for disclosure was also made.

[9] A further conference was held and the parties agreed to final orders regarding travel and consents for obtaining documentation and the father's access was expanded. The parties then finalized all of the temporary orders and agreed that the only outstanding issues were child support and a restraining order. Counsel agreed to a focused hearing with respect to those issues based on the affidavits and disclosure filed. Counsel were permitted to file any further affidavits they intended to rely upon.

[10] The trial was heard on July 14, 2015. This is my decision.

3. Should Income Be Imputed to the Father and If So, In What Amount?

3.1 Evidence Regarding Father's Background and Ability to Earn Income

[11] The father has a master's degree in law and was working in China teaching law. Upon immigrating to Canada he has been unable to obtain a professional job due to his language issues and lack of Canadian experience and education. He has only been able to find general labour positions.

[12] The father was employed at Team Global in 2014 and also received some employment insurance. Although his hourly wage was only $11.25 per hour he worked quite a few hours of overtime at the rate of $16.88 per hour. His 2014 tax return and Notice of Assessment indicates an income of $25,482.42. However, based on working for the entire year his income would be $32,928.

[13] The father deposes that he was laid off on October 22, 2014, because there was no suitable work for him. He also deposes that he suffers from shoulder and back pain as a result of long hours of heavy labour. However he provided no medical report to support this statement and has only produced the front page of his Record of Employment so the reason for his loss of job cannot be verified.

[14] The father deposes that he obtained a new job as a general labourer in May 2015. He has provided two pay stubs for the months of May and June in the gross amounts of $2,033.20 and $2,496.00. There is no indication of the rate of pay or the number of hours worked.

[15] The father did not work between October 23, 2014 and April 30, 2015 and deposes he collected employment insurance except for the period of February 20 to March 30, 2015, when he travelled to China. The father did not provide a copy of his job search as ordered.

[16] As pointed out by counsel for the mother, the father booked his airline ticket for China in December 2014, and therefore he could not have been planning to work until his return.

3.2 Applicable Law With Respect to Imputing Income

[17] Section 19(1)(a) of the Federal Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.[^1]

3.3 Analysis

[18] The father has not provided any evidence to assess his efforts to obtain more lucrative employment. He has not provided any proof that he was laid off due to his inability to work or due to his medical issues.

[19] The father was unemployed for almost six months and again did not provide any evidence of his efforts to obtain employment. He took a month holiday when he should have been looking for employment and he booked his holiday over a month before, so it is clear he had no intention of working until he returned from his trip to China.

[20] He is now employed but has not provided sufficient evidence to properly calculate his anticipated income for 2015.

[21] It is submitted by father's counsel that the father is prepared to continue to pay child support based on the imputed income of $31,000, which is still greater than the income he is presently earning.

[22] I find that the analysis of mother's counsel based on the father's income for 2014, if he had worked a full year, is the best indicator of the amount of income that the father is capable of earning. This is a principled approach as opposed to the approach by father's counsel which simply relies on an amount the father is prepared to pay.

[23] The father's income will be imputed to be $32,980 and he shall pay child support in accordance with the child support guidelines in the amount of $480.00 per month.

4. Should There Be a Retroactive Order for Child Support?

4.1 Evidence Regarding Retroactive Child Support

[24] The mother seeks an order for child support retroactive to the date of separation. The father is opposed to that order and is prepared to pay the child support as of the date of the commencement of this court proceeding.

[25] The father does not dispute that he did not pay child support until the court attendance on September 15, 2014.

[26] The father deposes that although he and his counsel received a letter requesting child support in August, as he did not know how to write a cheque, he agreed with his lawyer that he would bring blank cheques to court on September 15 so his lawyer could help him with writing the cheques. The father did provide the mother with four post-dated cheques of $452.00 at court.

[27] Shortly after the separation, the father withdrew $9,000 from the parties' joint bank account that had a balance of $11,482.64 and transferred the funds to a bank account in the name of his sister. The mother subsequently also withdrew funds.

[28] It is also submitted that the father was not aware that he had to pay child support as of the date of separation and he denies that the mother requested child support before commencing a court proceeding. The father submits that there was an agreement that he only pay child support as of the day they were in court which is denied by the mother. Neither party has any proof of any discussions prior to the commencement of the court proceeding.

4.2 Applicable Law Regarding Retroactive Child Support

[29] The criteria for a claim for retroactive child support is set out in the seminal case of D.B.S. v. S.R.G. et al. The court held that generally a claim for an increase in support should be calculated as of the date of "effective notice" that is, when the recipient indicated that an increase in child support was requested and that unless the payor demonstrated bad faith or blameworthy conduct, the award should not be more than three years before formal notice. In this case, there was formal notice when the application was issued. However the mother also deposes that she informally requested support from the father which is denied by the father.

[30] The court further held that the decision to order retroactive support should be based on a consideration of factors and that none of the factors is decisive. The court should strive for a holistic approach and strive to balance the payor's need for certainty with the need for fairness and flexibility. The factors to be considered are:

a) The reasonable excuse for the delay in seeking an increase in support;

b) The conduct of the payor;

c) The circumstances of the child, both past and present;

d) Any undue hardship.

4.3 Analysis

[31] The mother seeks an order of child support retroactive to the first month after the date of separation namely, February 1, 2014. The father is prepared to pay child support only as of the date of the commencement of the Application.

[32] Even based on the affidavits and without the benefit of cross-examination, the father's position that he did not know how to write a cheque is not credible. The father had the wherewithal and ability to remove $9,000.00 from the joint bank account and transfer the funds into his sister's name. Even if I accepted that he did not know how to write a cheque he could have asked someone at the bank or his sister when he transferred funds to her.

[33] I also do not accept his evidence that the mother was not requesting support from him and agreed he only had to begin to pay support as of the date he attended court in September. His position does not make any common sense. The mother was not working and had no source of income. She was required to move to a shelter after the father assaulted her. Her need for support should have been obvious to the father.

[34] I find that the mother did not unduly delay commencing this application. I have considered that she does not speak English and had no funds to privately retain counsel. There would have been delays in obtaining information about how to proceed to court and in obtaining counsel. I find the mother's evidence that she asked the father for support more credible that the father's version of events.

[35] I find that the father engaged in blameworthy conduct by not meeting his obligation to provide for his children when the parties separated.

[36] I find that there was hardship to the children as a result of the father's lack of support. Although the only evidence on this point was the fact that the mother was not working, moved to a shelter and supported the children on government funds she received, I find that this evidence is sufficient to draw the inference that the children suffered financial hardship.

[37] I find that the father will not suffer any undue hardship if a retroactive order is made. He is currently employed. There is no evidence as to what he used the $9.000.00 he withdrew from the joint account for. He had the discretionary funds to travel to China. According to his financial statement, he has $5,978.00 in a tax free savings account.

[38] Accordingly, there will be an order that the father pay child support as of February 1, 2014.

5. Should the Court Grant a Restraining Order?

5.1 Evidence With Respect to the Issue of a Restraining Order

[39] The mother deposes that there is a lengthy history of physical, verbal and emotional abuse by the father both in China and in Canada towards herself and the children.

[40] The mother details 11 incidents of assault occurring between 1993 to 2011, where the father lost his temper and broke or kicked items, broke two of the mother's fingers, grabbed her hair, pushed her, kicked her in her stomach and bumped her against a wall, seized her throat and squeezed her neck, threatened to choke her to death and beat her with a wooden stick causing bruising over her entire body. In September 2011, the father took her dog out and would not tell her where the dog was and then the mother found the dog dead. The children witnessed several of these incidents.

[41] The mother also deposed that the father would routinely hit the children if they were noisy, if they made a mess, if they did not listen to him or if they did badly in school.

[42] The mother deposed that in August 2013, shortly after they arrived in Canada, the father tried to beat her but the children intervened. In December 2013, the father kicked her in the lower back and she fell to the ground from a chair. Both children witnessed this incident.

[43] The mother deposes that she did not report these two incidents to the police as she was not aware the police would assist her.

[44] The mother did report the incident of January 19, 2014 to the police. The mother deposes that on that day the father hit her on the side of the face with a bowl full of hot food. The children were present and witnessed the assault. With the assistance of a neighbor the mother called the police. The mother attended at the hospital and received one stitch under her right eye and her shoulder was burned and in pain. The police assisted the mother and children to relocate to a shelter.

[45] The father was arrested and charged with assault with a weapon. A term of his release was that he was not to communicate with the mother directly or indirectly. He was subsequently charged with a breach of this term as the mother reported that he kept calling her.

[46] On July 18, 2014, the father pleaded guilty to the charges of assault and fail to comply with his recognizance. He received a conditional discharge and was placed on probation for two years. The relevant terms require the father to complete counselling for anger management and domestic violence. The father is not to have any contact with the mother, directly or indirectly, except pursuant to a family court order, separation agreement, in the presence of counsel or a police officer or for the purposes of access through a mutually agreed third party. The father is also not to be any place where the mother may be.

[47] The mother deposes that she is fearful of the father after such long term abuse and the children also suffer from fears regarding the father as they not only witnessed his abuse of her but he also was abusive towards them. She deposes that at times the children return from access visits crying and tell her that the father's behavior and attitude towards them was mean. The children have some control over the access visits as they can be shortened at their discretion.

[48] Even after the father was charged with assaulting the mother, he continued his abusive and controlling behavior. He called and threatened to send the mother and the children back to China. He initially refused to return their immigration and permanent resident cards and only did so after the police intervened.

[49] The mother deposes that the terms of probation have resulted in some calmness for her and the children and that the addition of a restraining order would provide further calmness and confidence that the father will not attempt to harm either her or the children.

[50] The father denies that he abused the mother or the children. The father accuses the mother of being physically, verbally and emotionally abusive to him and his family and alleges that she is short-tempered and argumentative over minor issues. He provides no details except for the incident of January 19, 2014. With respect to that incident, he alleges that it was the mother who was the aggressor as she insulted his mother and he tried to stop her. If she was hit and her face scratched then it was an accident. He also accuses the mother of falsely accusing him of contacting her in breach of his bail conditions.

5.2 Applicable Legal Principles Regarding the Granting of a Restraining Order

[51] In the case of McCall v. Res, Justice Spence reviewed the legal principles with respect to restraining orders. His reasoning was adopted by Justice Sherr in the case Van Roon v. Van Roon. I also follow and adopt the analysis as set out in paragraphs 27-31 of the decision in McCall v. Res as follows:

2. The Statutory Scheme

[27] The statutory authority for the making of a restraining order emanates from section 35 of the Children's Law Reform Act ("CLRA") and section 46 of the Family Law Act ("FLA"). Section 35 of the CLRA provides:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

Section 46 of the FLA provides:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[28] Although the legislation permits the court to make a restraining order prohibiting or restricting the father's contact with the mother or the child, it does not permit the court to make a restraining order which extends to "family", "friends" and "acquaintances" of the mother, which the mother has requested in this case. Accordingly, that particular request for relief by mother cannot be granted.

3. Case Law

[29] Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]". In Fuda v. Fuda, 2011 ONSC 154, Justice McDermot had this to say, at paragraph 31:

It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.

[30] In Azimi v. Mirzaei, 2010 CarswellOnt 4464, Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9:

More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.

[31] What I take from these cases is:

• The fear must be reasonable
• The fear may be entirely subjective so long as it is legitimate
• The fear may be equally for psychological safety, as well as for physical safety

5.3 Analysis

[52] I find there is overwhelming and credible evidence that the father was abusive to the mother and the children.

[53] It is submitted by father's counsel that the court should take judicial notice of the fact that many people plead guilty for a variety of reasons and that no weight should be put on the fact the father pleaded guilty or at least that the court should not consider the guilty plea to be determinative of the issue. Counsel provided no case law to support this submission.

[54] I find that the fact the father pleaded guilty to assaulting the mother and breaching the terms of his bail conditions, with the benefit of counsel, is prima facie proof that he committed those offences. There is no basis on the evidence before this court to draw any other conclusion. I also note that if the incident happened the way the father deposed in this court, then his mother was a witness. He could have had a trial, but instead he chose to admit his guilt and plead guilty. Furthermore, he could have filed an affidavit from her in these proceedings.

[55] One would have hoped that after pleading guilty and engaging in anger management counselling he would have now accepted responsibility for his offence and apologized to the mother and children. The fact that he has not done so further causes the mother to fear that he will continue to make accusations against her and that she requires a restraining order to ensure he has no contact with her.

[56] I do not agree with the submission of father's counsel that the court should put little weight on the mother's allegations of abuse as the incidents were not reported to the police. Most of the incidents occurred before the mother and children arrived in Canada. There were two incidents prior to the incident that the mother did report. I would not have expected that the mother who had just arrived in Canada and did not speak the language would have been comfortable reporting these incidents to the police. There are well known reasons for women not to report incidents of domestic violence such as shame, lack of self-esteem and emotional paralysis. That does not mean the abuse did not happen. In this case, the mother was courageous enough to report the January 19 incident.

[57] I find that applying the legal principles outlined above and based on the evidence, on a balance of probabilities, that:

a) The mother's fear of the father is reasonable;

b) That even if the extent of the mother's fear is subjective, it is legitimate; and

c) That the mother fears for her psychological and well as her physical safety.

[58] The mother also seeks a restraining order against the father with respect to the children. On the same reasoning I have applied to granting a restraining order with respect to the mother, I find that a restraining order should be granted regarding the father's contact with the children except for the purposes of access.

[59] Father's counsel did not address the issue that the court could make an order pursuant to section 28 of the Children's Law Reform Act instead of a restraining order. However, I would not have found that such an order had a sufficient deterrent effect to adequately protect the mother in view of the father's long standing abuse of the mother and the fact that he was not able to abide the terms of his bail condition.

[60] A restraining order will issue that prohibits the father from contacting or communicating directly or indirectly with the mother and from coming within 500 metres of the mother, her home, her workplace, her school or any place that he has reason to believe that the mother may be. A restraining order will also issue that the father not come within 500 metres of the children except for the purpose of exercising access pursuant to the order of May 11, 2015.

6. Order

[61] There will be a final order as follows:

1. The Respondent shall pay child support, based on an imputed income of $32,980.00 and in accordance with the child support guidelines of $480.00 per month, as of February 1, 2014. The Respondent shall receive credit for payments made to date.

2. Support Deduction Order to issue.

3. A separate restraining order shall issue in the terms outlined in paragraph 60 of this decision.

4. As the Applicant was successful on this hearing, she is presumed to be entitled to costs. Within 30 days, brief written submissions with a bill of costs and any offers to settle will be served and filed with respect to this hearing and the previous attendances where costs were reserved. Respondent's counsel will serve and file a brief reply to the cost submissions within 30 days of receiving the Applicant's cost submissions.

Justice Roselyn Zisman

Date: July 20, 2015

Footnotes

[^1]: Drygala v. Pauli