COURT FILE NO. D40374/20 DATE: November 2, 2021

ONTARIO COURT OF JUSTICE

B E T W E E N:

L.S.

DOROTHEA DADSON, for the APPLICANT

APPLICANT

- and -

M.A.F.

ACTING IN PERSON

RESPONDENT

HEARD: OCTOBER 25, 2021

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

1This trial was primarily about the respondent’s (the father’s) parenting time and child support obligations regarding the parties’ 4-year-old daughter (the child).

2A final order was made, on consent, on August 10, 2021. It provided the following: the child’s primary residence is with the applicant (the mother); the mother has decision-making responsibility for the child; and the father has the right to obtain information from third parties regarding the child.

3The mother seeks an order that the father have supervised day parenting time with the child. She is asking to dispense with his consent for her to obtain or renew government documentation for the child, or to travel with the child outside of Canada.

4The mother is also seeking child support, retroactive to January 1, 2019. She asks the court to apply the Child Support Guidelines (the guidelines) table amounts based on the father’s actual income in 2019 and 2020 to assess his child support obligation. She seeks to impute his annual income at $57,000 starting on January 1, 2021.

5The father seeks liberal and unsupervised parenting time with the child, to include two days each week, from 2:30 p.m. to 6:00 p.m., as his work schedule permits, and additional holiday and special event time. He asks to eventually have overnight parenting time with the child. He also seeks an order for virtual parenting time every other day. He opposes the mother’s requests to dispense with his consent regarding her ability to obtain the child’s government documentation and to travel with the child outside of Canada.

6The father opposes the mother’s claim for retroactive child support. In his draft order, he seeks an order that he pay child support of $292 each month, starting on December 1, 2020.

7The parties filed affidavits and financial statements as their direct evidence and provided supplementary oral evidence. They were both cross-examined. Four of the father’s family members testified at trial. The mother called no other witnesses.

8The primary issues for the court to decide are:

a) What parenting time orders are in the child’s best interests? In particular:

i) Should the father’s parenting time be supervised?

ii) How, if at all, should the father’s decision to be unvaccinated against the COVID-19 virus affect the parenting time order?

b) What parenting orders regarding the child’s travel and government documentation are in her best interests?

c) When should the support order start?

d) What is the father’s annual income for the purpose of the child support calculation? Should income be imputed to him for any year because he resigned from his employment?

e) What credits should the father receive for child support paid?

f) If the court finds that support arrears are owing to the mother by the father, how should they be paid?

Part Two – Background facts

9The father is 39 years old. The mother is 31 years old.

10The parties had a relationship that ended in August 2018.

11The child has exclusively lived with the mother since the parties separated.

12The mother has another child, age 5, from another relationship, who lives with her.

13The father has no other children. He lives with his father (the paternal grandfather) in Ajax, Ontario.

14The father has had sporadic parenting time with the child since the parties separated. He saw the child only twice in 2018 after the separation, nine times in 2019 and nine times in 2020 up until November. Most of these visits were of short duration. Almost all of the visits were initiated by the mother. Many months went by when the father did not see or ask to see the child. [1]

15The mother issued her application on March 11, 2020.

16The case was administratively adjourned due to the pandemic.

17The father filed his Answer/Claim on August 10, 2020.

18On November 20, 2020, Justice Carolyn Jones made a temporary without prejudice order, finding the father’s annual income to be $34,000, and ordering him to pay the mother the guidelines table amount for one child of $292 each month, starting on December 1, 2020 (the temporary order).

19Justice Jones also endorsed that there was an agreement in principle to expand the father’s parenting time with the child, although no order was made. The parties agreed that the father would have parenting time on Mondays and Wednesdays for a few hours at his mother’s (the paternal grandmother’s) home.

20The father exercised his parenting time more consistently from November 20, 2020 until February 2021. [2]

21In February 2021, the father told the mother that he would no longer be picking up the child. The father explained at trial that he wanted to protect the paternal grandmother from COVID-19, as she was 70 years old, had health issues (diabetes), and was unvaccinated at that time.

22Justice Jones’ endorsement dated May 6, 2021 indicates that the father advised the court that he was not seeking in-person parenting time with the child due to COVID-19 concerns.

23The father has only seen the child in-person three times since March 2021. He last saw her on August 19, 2021 for 20 minutes.

24On August 10, 2021, Justice Jones made a temporary order that the father have telephone/video chat contact with the child twice each week. [3]

25The father has only called the child three times since the start of September 2021.

26The father deposed that he resigned from his employment on August 24, 2021 and that he is unemployed.

Part Three – Parenting

3.1 Legal considerations

27Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in subsection s 24 (2) to (7) of the Children’s Law Reform Act (the Act).

28Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

29A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

30Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

31Subsection 24 (4) of the Act sets out a list of factors for the court to consider related to family violence. It reads as follows:

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

32Family violence has been given a comprehensive and useful definition in subsections 18 (1) and (2) of the Act. The definition of family violence in subsection 18 (1) of the Act reads as follows:

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

33Subsection 18 (2) of the Act reads as follows:

“Family violence”

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

34Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

33.1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

35The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

36In considering a child’s best interests, it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

37Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.

38Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204.

39The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

40The person seeking supervised parenting time bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.

41Supervised parenting time is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. See: Tuttle v. Tuttle, 2014 ONSC 5011.

42In A.G. v. M.A., 2021 ONCJ 531, a mother sought to suspend the father’s in-person parenting time with their child because the father had only had a single vaccination. Following B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, Justice Robert Spence took judicial notice that the harm to a child, flowing from contracting a vaccine preventable disease may include death. He found that the father not being fully vaccinated increased his risk of infection for COVID-19 and potentially exposed his child to an increased risk of infection.

43Justice Spence wrote that there were competing interests at stake. On the one hand, the father’s parenting time with his child increased the child’s risk of infection for COVID-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way – in-person contact being more meaningful than virtual contact. Justice Spence balanced these considerations by reducing the father’s parenting time and requiring that it take place outdoors. [4]

44The court has taken these factors into consideration, where relevant, in determining what parenting orders are in the child’s best interests.

3.2 Narratives and positions of the parties

45The parties provided very different narratives of events.

46The mother said that she was the victim of family violence by the father. She said that he has significant anger management issues. The mother said that the family violence often took place in the presence of the child. She does not believe that the father has control over his anger and fears for the child’s safety if the child is left alone with him.

47The mother described the father as an uninvolved parent during their relationship – he told her that it was the woman’s job to look after the child. She said that despite her efforts to facilitate his relationship with the child since their separation, the father has only shown intermittent interest in the child – at times he professes his desire to see the child, and then he turns around and chooses not to see or call the child for months. She described how hard it has been to parent the child without assistance from the father.

48The mother said that the father has rarely been left alone with the child and that he has no parenting skills.

49The mother said that she had a civil relationship with the father’s family prior to starting this court case – she would arrange separate parenting time with the paternal grandmother. However, she said that once she started this case, they have not communicated with her and have aligned with the father. They have not seen the child for a long time. The mother expressed regret about this and said that she would like for them to have a relationship with the child. She said that she trusts the paternal grandmother and the father’s sister (N.F.) to supervise the father’s parenting time.

50The mother initially proposed that the father have parenting time on alternate Sundays at the paternal grandmother’s home from 11:00 a.m. to 6 p.m.. She said that she was also agreeable to the father’s position (in his draft order) to have parenting time on Mondays and Fridays from after school until 6:00 p.m. The mother was opposed to any overnight parenting time.

51During the father’s cross-examination, it was revealed that he was not vaccinated against COVID-19 and had no intention to get vaccinated. The mother expressed concern about this but said that she wants the child to have a meaningful relationship with the father. She did not seek further restrictions on the father’s parenting time, provided that the father takes proper safety precautions, including wearing personal protection equipment.

52The mother does not believe that the father would reasonably agree to provide consents for the child to travel with her outside of Canada or for her to obtain or renew government documentation for her. She asks for orders dispensing with his consent. The father opposes this. He said that he would reasonably consent to requests made by the mother – he wants to remain informed.

53The father deposed that he was a very involved parent with the child and the mother’s other child prior to the parties’ separation. He feels that he has very good parenting skills and that there is no need for his parenting time to be supervised. He denied the mother’s allegations of family violence. He described her as vindictive. He said that she has obstructed his ability to have a relationship with the child.

54The father asks that no restrictions be placed on his parenting time. He said that he would likely exercise his parenting time at either his home or the paternal grandmother’s home. He asked to start with the two weekly visits. He also seeks holiday and special event parenting time. He would like the parenting time schedule to be arranged around his work schedule.

55The father deposed that since the paternal grandmother is fully vaccinated, he is comfortable with taking the child to her home.

56The father said that he has chosen to be unvaccinated. He said that vaccination is contrary to his Rastafarian beliefs. When asked what safety precautions he would take when seeing the child, he said that they would wear masks.

57The father’s family members all testified that the father is a capable parent and there is no reason for his parenting time to be supervised. They believe that the mother has prevented him from having a relationship with the child. They feel that the mother has unreasonably stopped communicating with them.

58The father’s family members all testified that the father is misunderstood. They described him as a person who is direct, honest and says what he means – he will sometimes raise his voice to make his point. They said that this could be misinterpreted as his being angry and aggressive.

59The paternal grandmother and N.F. both testified that they were prepared to supervise the father’s parenting time at the home of the paternal grandmother if this was ordered by the court, even though the paternal grandmother deposed that she had been unaware that the father was unvaccinated.

60The paternal grandmother and N.F. also attested that they are fully vaccinated. The paternal grandfather testified that he has chosen to be unvaccinated.

3.3 Credibility and reliability

61The mother was a very credible and reliable witness. She presented her evidence in a forthright and balanced manner. Her evidence was detailed and presented without hyperbole. It was consistent – she did not contradict herself. The father described her as vindictive. The evidence indicated otherwise. For example:

a) She chose not to seek child support from the father for her other child. The father likely would have been found to be a parent of that child with a support obligation pursuant to the Family Law Act if the mother had chosen to pursue this.

b) During the cross-examination of the father, the mother learned that he was unvaccinated. Although she was concerned about the child’s safety, she still wanted the child to have meaningful parenting time with the father. Many parents in the mother’s position would have asked to eliminate or severely restrict the father’s in-person parenting time as was the case in A.G. v. M.A., 2021 ONCJ 531, supra.

c) Four members of the father’s family aligned with him and testified on his behalf. They were critical of the mother. Many parents in her situation would become defensive and positional. Instead, the mother expressed regret about the breakdown in communication with the father’s family, said that she respected the paternal grandmother and that she trusted the paternal grandmother and N.F. to supervise the father’s parenting time.

62The father was not a credible nor a reliable witness. Contrary to the description of his family members that he “says what he means”, the father was often evasive and dishonest. When faced with difficult questions, he would dissemble or state “I can’t recall”. This was very apparent when questioned about allegations of family violence and his financial affairs. The father volunteered material information in dribs and drabs. It took cross-examination and questioning from the court to elicit it. This was very apparent when the mother was trying to ascertain why the father was no longer working.

63At times, the father’s evidence was inherently contradictory. When asked why he has not had in-person contact with the child and missed many video calls, the father said that the mother had obstructed his parenting time. At other times, he claimed that he was avoiding contact with the mother to avoid conflict. He said that he did not want to exercise in-person parenting time at the paternal grandmother’s home because of her age, health vulnerabilities and her being unvaccinated, yet he had been exercising parenting time in her home for several months before stopping. He did not seek in-person parenting time for several months after the paternal grandmother was fully vaccinnated. Further, he continues to have close contact with the paternal grandmother, even though he is not vaccinated, she is medically vulnerable and according to her, he had not disclosed his vaccination status to her.

64The father had a poor memory of dates and events. This memory became worse when confronted with uncomfortable facts. This adversely affected the reliability of his evidence.

65The court treated the evidence of the father’s family members with caution. They were clearly aligned with him. Much of their evidence was what the father has told them about his relationship with the mother. The court understands that they wanted to be supportive of the father, but their credibility was undermined by glossing over or rationalizing his very clear deficits.

66The court received conflicting evidence about the father’s living arrangements. The father said that he has lived with the paternal grandfather for the past month. The paternal grandmother said that the father has lived with the paternal grandfather for several months. The paternal grandfather said that the father has been living with him for several years.

67When asked if she was aware that the father was unvaccinated, the paternal grandmother said no. The father has either withheld important information from her, putting her health at risk, or she is not being forthright.

68The father’s family members all spoke of having had a close relationship with the child and having been denied contact by the mother. In cross-examination, it became evident that they have had very little contact with the child since August 2018 and have not actively sought that contact from the mother.

69Where the mother’s evidence conflicted with the evidence of the father and his family members, the court preferred the mother’s evidence.

3.4 Family violence

70The court finds that the father perpetrated family violence against the mother and the child. The family violence to the child was emotional and psychological.

71The mother described how the father would frequently become angry, swear at her and act aggressively to her in front of the child. She said that he constantly argues and uses bullying and intimidation tactics to get his own way.

72The mother described one incident where the father was yelling in her face and her other young child was trying to hit the father to protect her.

73The mother deposed that the father gets out of control and into a rage when things don’t work out for him. She said he would get road rage, speed in his car and act erratically when upset. She had to remind him more than once to slow down because there were children in the car.

74The mother said that the father was charged once with assaulting her. She said that she did not come to the trial and the case was dismissed.

75The mother described an incident in January 2019 where, when she pulled into her condominium parking lot, the father followed behind her in his car. He then blocked her vehicle, got out of his car and demanded that she get out of her vehicle. She refused to get out, so he proceeded to kick her vehicle. Both of her children were in the back seat of the mother’s vehicle and crying. Security for her building arrived and the father drove away. However, he came back and as she went to the building’s elevator, he accosted her, yelling, swearing and threatening her in front of her childern. The mother said that she and her children were frightened by this incident.

76The mother described another incident in August 2020 where she took the child to see the father at a public park. After twenty minutes, the father started swearing at her in front of other parents at the park. She took the child and left.

77The mother described an incident on May 25, 2021 where the father began yelling at her using derogatory language. He told her that “she was trash” because she had a “limited amount of family”.

78When confronted with these incidents, the father claimed that he could not recall them. This was unlikely. He also said that he might say derogatory things to the mother – but she does this too.

79The father presented as a very angry person during the hearing. He reacted to routine questioning from the mother’s counsel with hostility, defiance and at times, sarcasm. His anger quickly escalated and was out of proportion. [5] He tried to control the narrative during questioning and became frustrated when he could not do this. He didn’t listen. He misunderstood questions and was very suspicious. He was confrontational and argumentative. He was particularly infuriated about the mother’s child support claim.

80The father’s presentation at trial corroborated the mother’s evidence.

81Unless the mother accedes to what the father wants, it is unrealistic to expect that the father will communicate with her in a reasonable manner. He will continue to be aggressive, abusive and controlling. This puts the emotional and psychological safety of her and the child at risk.

3.5 The father’s involvement with the child

82The court finds that the father had limited involvement with the child prior to the parties’ separation. He had little to do with the day-to-day care of the child, leaving that to the mother. At times, he did participate in activities with the child and went to medical appointments.

83The father has had an ambivalent commitment to the child since the parties separated. At times, he expresses a desire to be part of her life. He did this when he exercised more parenting time between November 2020 and February 2021. He is expressing that desire at this trial. However, for the most part, he has chosen not to be a part of the child’s life.

84The court accepts the mother’s very specific evidence about the infrequency of the father’s parenting time with the child. Most of these visits were short. Almost all of them were initiated by the mother. Many months went by when the father did not see or ask to see the child.

85It is very telling that the mother was able to describe each of the father’s visits for over three years in just a few pages in her trial affidavit.

86The father chose to stop in-person parenting time with the child in February 2021 and has not seen her in-person since then. He did not ask the mother for in-person parenting time, nor did he seek it from the court until this trial.

87The court accepts the mother’s evidence that the father has also missed many of the scheduled virtual calls with the child.

88The court finds that the mother has tried to facilitate the father’s relationship with the child. She has not obstructed it. She continues to try to facilitate this, despite the father being a very difficult person to deal with.

89The court finds, that due to his choices, the father does not have a close relationship with the child. He has limited knowledge of her needs or how to take care of her on his own. He has spent minimal time alone with her.

3.6 Benefits to the child of having a meaningful relationship with the father

90The court agrees with the mother that it is in the best interests of the child to have a meaningful relationship with the father provided that he can exercise his parenting time in a consistent and constructive manner.

91The parents are from different backgrounds. If the father would become more involved with the child, she would have the benefit of having exposure to his culture, religion and traditions.

92The father also has a large family who are supportive of him. The child’s sense of identity could be enhanced by having increased contact with the paternal family.

3.7 Supervision

93The court finds that the father’s in-person parenting time with the child should be supervised by either the paternal grandmother or his sister, N.F., for the following reasons:

a) The father has chosen to have limited parenting time with the child, has little knowledge of her needs and has very little parenting experience. The paternal grandmother and N.F. are experienced parents who can ensure that the child’s needs are met. The mother says that she trusts both of them to do this. They both indicated that they would supervise the father’s parenting time if ordered by the court.

b) The father has little control over his temper, which quickly escalates. He becomes verbally abusive and threatening when angered. A third party needs to be present to ensure that the child is removed from any situation where the father loses control of his temper.

c) The father is impulsive and has demonstrated poor judgment. The presence of the paternal grandmother or N.F. will protect the child from this.

3.8 The father’s parenting time

94The mother agreed during the trial that the father should have parenting time on Mondays and Fridays from after school until 6:00 p.m. This is very reasonable on her part, particularly since the father has exercised so little of the parenting time permitted to date.

95It is premature for the court to order overnight parenting time. The father needs to first show the court that he can exercise his day parenting time consistently and responsibly.

96The father also sought parenting time on holidays and on special events. Due to his poor track record in exercising his parenting time, the court will not make a specified order for holiday and special event parenting time. There is a real possibility that pre-scheduled time would not be exercised by the father and the child would be disappointed. The court trusts the mother to provide the father with reasonable holiday and special event parenting time when the father is available.

3.9 Virtual parenting time

97The twice weekly virtual visits have not been regularly exercised by the father. This is disruptive for the mother and the child.

98The father will be permitted one virtual call with the child each week on a day and at a time to be chosen by the mother. She shall let the father know when this will take place at least 7 days in advance. Ideally, this should take place at a consistent time each week.

3.10 Safety

99It is in the best interests of the child to protect her from parental conflict. It is also in the child’s best interests to protect the mother from the father’s anger.

100The court will make parenting exchange orders as requested by the mother to reduce her contact with the father.

101The mother only learned that the father was unvaccinated during his cross-examination. She did not have much time to process what safety precautions should be requested to protect the child during his parenting time.

102The following orders will be made, in the child’s best interests, to reduce her risk of contracting COVID-19 during the father’s parenting time:

a) The father’s parenting time shall be exercised either outdoors or in the paternal grandmother’s home.

b) The child shall not attend the father’s home. This is because both the father and the paternal grandfather, who reside together, are unvaccinated.

c) The child and the father shall wear masks at all times during the father’s parenting time.

d) Other than the father, the child shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time. This means that the paternal grandfather, if he is not fully vaccinated, cannot have in-person parenting time with the child at this time.

e) If the father, or any person that the child will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.

f) The father shall provide a copy of these conditions to the paternal grandmother and N.F.

g) If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.

103If the father becomes fully vaccinated against COVID-19, clauses a and c in paragraph 102 will no longer apply. If both the paternal grandfather and the father become fully vaccinated, then clause b will also no longer apply.

104The father is cautioned that the court will treat a breach of these safety conditions seriously. The court could suspend in-person parenting time or add conditions, such as requiring him to obtain and provide the mother with proof of a negative COVID-19 test before exercising each visit, at his expense.

3.11 Travel and documentation

105It is in the child’s best interests that the mother may obtain her documentation and travel with her outside of Canada without obstruction. Due to his anger towards the mother, poor judgment and unreliability, the court has no confidence that the father would provide the necessary consents for the mother to do this. His consent will be dispensed with.

Part Four – Child Support

4.1 Retroactive support

4.1.1 Positions of the parties

106The mother is seeking child support, retroactive to January 1, 2019. She asks the court to apply the Child Support Guidelines (the guidelines) table amounts of child support based on the father’s actual income in 2019 and 2020.

107The father asks that no retroactive support be ordered.

4.1.2 Legal considerations

108The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

…….(f) requiring that support be paid in respect of any period before the date of the order;

109Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon.

110In Colucci v. Colucci, 2021 SCC 24, the court set out the present framework that should be applied for retroactive applications to increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

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

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

111This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. This court finds that it should also be applied, with necessary modifications, for an original request for retroactive support.

112In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [6] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

113Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations (Michel v. Graydon, 2020 SCC 24 - par. 25).

114Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (Michel v. Graydon, 2020 SCC 24 – par. 132).

115Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. v. S.R.G., 2006 SCC 37 - par. 97).

116Effective 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. v. S.R.G., 2006 SCC 37 - par. 121).

117The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel v. Graydon, 2020 SCC 24 - par. 36).

4.1.3 Analysis

118The mother issued her application on March 11, 2020, so a retroactive support analysis is required.

119The parties separated in August 2018. The parties agreed that the mother raised the issue of support with the father shortly after the separation. The father acknowledged that he has had a support responsibility since the date of separation – he felt that he had met it.

120The court finds that the effective date of notice of the support claim was September 1, 2018, at the latest. This is the presumptive date of retroactivity as set out in Colucci.

121The mother is only asking for support to start on January 1, 2019.

122The father led no evidence that would support the court exercising its discretion to depart from the presumptive date of retroactivy – or in this case, the later start date requested by the mother.

123The mother had an understandable reason to delay bringing her application. She was reluctant to engage with the father due to the family violence. [7] The father engaged in blameworthy conduct by not coming close to paying an appropriate amount of child support. The child’s circumstances were disadvantaged by the lack of support. A retroactive order may cause the father some hardship, but it would cause the mother and the child hardship if it was not ordered. The father could have reduced his hardship by paying the appropriate amount of support when it was due.

4.2 The father’s income

4.2.1 2019 and 2020

124The father worked for a security company that provides security services for the LCBO. The father worked at an LCBO location until the end of August 2021.

125The father produced his notices of assessment for the tax years 2018 to 2020.

126The father’s total income for 2019 was $39,695. The guidelines table amount for the child at this income was $355 each month.

127The father’s total income for 2020 was $57,018. This was comprised of employment income and Canada Emergency Response and Canada Recovery Benefits (CRB) payments. The guidelines table amount for the child at this income was $527 each month.

4.2.2 Evidence about the father’s 2021 income

128The father testified that he was in receipt of the CRB from January until the end of September 2021. This is paid out at the rate of $26,000 annually.

129The father also returned to work in his security position at the LCBO location. He was paid $23 per hour, plus $34 per hour for overtime. He produced his last pay stub showing year-to-date income of $9,626 in 2021.

130The father said that he has not earned any other income in 2021. The total income he has received in 2021 comes to approximately $29,125.

131The father’s evidence about the circumstances resulting in his unemployment was inconsistent.

132In his trial affidavit, all he wrote at paragraph 57 was:

I am currently not employed due to the COVID work policy.

133When he was cross-examined about what he meant by this, the father said that he had lost his job because he was not vaccinated. He was asked if he had sought a religious exemption. The father said no, because society does not believe that Rastafarian is a belief. He followed that with “I tried to”, but offered no details.

134This evidence changed when the father was further questioned. The father told a story of a theft taking place at the LCBO and management at the LCBO being unhappy with how he had handled it. They no longer wanted him at their store. The father said that in late August 2021 his employer demoted him and offered him a lower paying job elsewhere at $16 per hour. He said that he was not willing to be demoted and having his pay reduced. He resigned. He added that due to upcoming vaccine mandates for employment he likely would have lost his job soon anyway.

135The father provided no documentation to support any of this evidence. He did not provide the court with his Record of Employment, or a letter from the security company related to the job offer for less pay. He provided no documentation concerning his issues with the LCBO. He provided no evidence that vaccination is against Rastafarian beliefs, as opposed to individual Rastafarians being opposed to taking vaccines.

136The father claimed that he has been looking for work on the Indeed website, but provided no proof of this. He deposed that it is difficult to obtain employment when he is not vaccinated. He provided no evidence about searching for any work, including in fields that may not require vaccination against COVID-19.

137The mother seeks to impute the father’s 2021 annual income at his 2020 level - $57,000. The father’s position in his draft order was that he should pay the same amount of support ($292 each month) set out in the temporary order. This would be the guidelines table amount based on an annual income of $34,000. The temporary order started the father’s support payments on December 1, 2020. He asks that no support be ordered before that date.

4.2.3 Legal considerations for imputing income

138Imputing 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. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA).

139The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?

3. If not, what income is appropriately imputed?

140The onus is on the party seeking to impute income to the other party to establish that the other party 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. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).

141Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

142Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.); T.L. v. D.S., 2019 ONCJ 809.

143The court stated in Drygala 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 what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

144Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins, (Ont. S.C.) at paragraph 19. As a general rule, separated 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; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.).

145The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: See: Olah v. Olah, Laing v. Mahmoud, 2011 ONSC 4047, 2011 ONSC 4047.

146The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s 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 enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

4.2.4 Analysis

147The court finds that the father is deliberately underemployed. According to his evidence, he was offered employment at $16 per hour by his employer and instead resigned. The father provided no evidence that this offered employment would subsequently end due to vaccine mandates.

148The father did not provide a justifiable reason for his unemployment. It was not due to his reasonable health or educational needs or those of the child. The father has a child to support. He should not have quit his job.

149It does not escape the court’s attention, that the father, who is very resistant to the mother’s support claims, quit his job just after the case was set for trial.

150The father provided no proof of making any serious effort to find work since he became unemployed. He provided no evidence of applying for jobs where vaccination against COVID-19 is not mandated.

151The father also has the choice of getting vaccinated. The father is entitled to his beliefs regarding vaccination, but not at the expense of properly supporting his child. As the Supreme Court of Canada pointed out at paragraph 121 in Michel v. Graydon, 2020 SCC 24, the neglect or refusal to pay child support is strongly linked to child poverty and female poverty.

152This leads to what income should be imputed to the father.

153There is a possibility that the father lost his better paying job due to misconduct at the LCBO. The court doesn’t know, because the father failed to provide disclosure and his story kept changing. The jurisprudence has imputed income to payors when the reason for their employment is due to their own misconduct. [8]

154The father is fortunate that the court has decided not to draw the inference that his employment was terminated due to his own misconduct.

155The mother’s request to impute the father’s income at $57,000 is far too high. The father only earned this income in 2020 because he was working and receiving CERB and CRB payments. Based on the 2020 pay stubs he produced, when working, the father was earning annual income at a projected rate in the range of $43,000.

156The father testified that he has a number of job skills. He has worked in security, in shipping and receiving and as a driver. He should be able to find alternative employment.

157The court will impute income to the father starting on September 1, 2021 in an annual amount of $34,000. This is close to the income he would have earned if he had not unreasonably quit his job. He would have earned $16 per hour and he might have received additional overtime at a higher hourly rate. [9]

158An imputation of income at this level adds $11,333 to the father’s 2020 income ($34,000 pro-rated for 4 months). This comes to a total income for 2020 of $40,458.

159The guidelines table amount for the child based on this income is $364 each month. This is the support amount that will be ordered for 2020.

160The court will order the father to pay the guidelines table amount for the child, based on his imputed annual income of $34,000, in the amount of $292 each month, starting on January 1, 2022.

4.2.5 Support paid and payment of arrears

161The father claimed that he was paying the mother support of $250 each month after they separated. He claimed that he wanted to give her money orders, but she refused, demanding cash instead. The mother denied this.

162The father had little evidence of support paid to the mother.

163The court preferred the mother’s evidence of support paid by the father. Her evidence was much more reliable and credible.

164The mother said that the father either paid her or bought items for the child in 2019 in the amount of $1,200. In 2020, she said that it was closer to $2,000. She was agreeable to crediting the father with these payments. Otherwise, after January 1, 2021, the father is to only be credited with support payments made as reflected in the records of the Family Responsibility Office.

165The court is aware that this order will create support arrears for the father. To reduce any hardship to him, he will be permitted to pay the arrears at the rate of $200 each month. The court will start these payments on February 1, 2022 to give him time to get settled in a new job. However, if the father is more than 30 days late in making an ongoing support payment or support arrears payment, the entire amount of the arrears then owing shall immediately become due and payable.

Part Five – Conclusion

166A final order shall go as follows:

a) The father shall have parenting time with the child at the following times:

i) Every Monday and Friday from after school until 6 p.m.

ii) Additional time on holidays and special events, at such times to be reasonably agreed upon by the mother.

iii) Such further and other parenting time as agreed to by the mother.

b) The parenting exchanges shall take place at the Keg parking lot located at Markham and Progress Road.

c) The father’s parenting time shall be supervised by the paternal grandmother or the father’s sister, N.F.

d) The following orders are made to protect the child from contracting the COVID-19 virus during the father’s parenting time:

i) The father’s parenting time shall be exercised either outdoors or in the paternal grandmother’s home. This condition will terminate if the father becomes fully vaccinated.

ii) The child shall not attend the father’s home. This condition will terminate if both the father and the paternal grandfather become fully vaccinated.

iii) The child and the father shall wear masks at all times during the father’s parenting time. This condition will terminate if the father becomes fully vaccinated.

iv) Other than the father, the child shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time.

v) If the father, or any person that the child will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.

e) If the father breaches any of the conditions set out in clause d above, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.

f) The father will have virtual parenting time with the child once each week on a day and at a time to be chosen by the mother. She shall let the father know when this will take place at least 7 days in advance.

g) The father shall provide a copy of these reasons for decision to the paternal grandmother and N.F.

h) The mother may obtain or renew government documentation for the child without the father’s consent.

i) The mother may travel with the child outside of Canada for vacation purposes without the father’s consent. She shall provide the father with full written details of the vacation, including dates of departure and return, air carrier name and numbers and telephone numbers and addresses at least 7 days before travel.

j) The father shall pay the mother child support in the amount of $355 each month starting on January 1, 2019. This is the guidelines table amount based on an annual income of $39,695. The father is to be credited for support paid in 2019 of $1,200.

k) The father shall pay the mother child support in the amount of $527 each month starting on January 1, 2020. This is the guidelines table amount based on an annual income of $57,018. The father is to be credited for support paid in 2020 of $2,000.

l) The father shall pay the mother child support in the amount of $364 each month, starting on January 1, 2021. This is the guidelines table amount based on an imputed annual income of $40,458.

m) The father shall pay the mother child support in the amount of $292 each month, starting on January 1, 2022. This is the guidelines table amount based on an imputed annual income of $34,000.

n) The father shall be credited for any child support paid after January 1, 2021, but only as reflected in the records of the Family Responsibility Office.

o) The father may pay the support arrears created by this order at the rate of $200 each month, starting on Februay 1, 2022. However, if the father is more than 30 days late in making any ongoing support payment or support arrears payment, the entire amount of the arrears then owing shall immediately become due and payable.

p) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST refunds) or lottery or prize winnings.

q) A support deduction order shall issue.

r) The Family Responsibility Office is asked to adjust its records in accordance with this order.

s) The father shall immediately notify the mother when he obtains employment, including the name and address of the employer, his job position, work hours and rate of pay.

t) The father shall provide the mother by June 30th of each year with complete copies of his income tax returns and notices of assessment.

u) All other claims set out in the parties’ draft orders are dismissed.

167If the mother seeks costs, she shall serve and file written submissions by November 16, 2021. The father will then have until November 30, 2021 to serve and file his written response. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

168The mother’s counsel shall take out this order. The court thanks her for her professional presentation of this case.

Released: November 2, 2021 _____________________ Justice S.B. Sherr

1The mother diarized every one of the father’s visits in her trial affidavit. The father did not dispute any of this evidence at trial.

2The father missed three of these visits during this period.

3She also made the final orders that day as set out in paragraph 2.

4The child in A.G. had underlying medical conditions that factored into this decision. Justice Spence reduced the father’s supervised parenting time from two hours weekly to one hour weekly.

5The father was civil with the court – his anger was directed at the mother and her counsel.

6The Supreme Court 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 dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship that the retroactive award may entail.

7See: Michel v. Graydon, 2020 SCC 24, par. 86, for a list of reasons why it would be understandable for a support claimant to delay in making a support application. The court set out that a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made.

8This court reviewed that case law at paragraphs 35-50 in Gordon v. Wilkins, 2021 ONCJ 115.

9This is also the annual income that generates the guidelines table amount of $292 each month contained in the temporary order.