COURT FILE NO. D40710/20 ONTARIO COURT OF JUSTICE
B E T W E E N:
C.S. ACTING IN PERSON APPLICANT
- and -
K.M. ACTING IN PERSON RESPONDENT
HEARD: MARCH 1, 2023
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
1This trial was about the respondent’s (the father’s) parenting time with the parties’ 13-year-old twin daughters C. and K. (the children) and his child support obligations for them.
2The applicant (the mother) seeks an order that the father’s parenting time with the children be supervised at Access for Parents and Children in Ontario (APCO) on alternate Saturdays for two hours. [1]
3The mother asks for child support of between $200-$300 each month, retroactive to March 1, 2016, when the parties separated. [2]
4The father seeks alternate weekend and holiday parenting time with the children. He opposes the mother’s request for his parenting time to be supervised.
5The father says that he has no ability to pay child support and asks that the mother’s claim for child support be dismissed.
6The mother was represented by counsel until January 24, 2023 – just five weeks before the trial. The father was represented by counsel from August 2022 until October 27, 2022.
7On January 4, 2023, Justice Carolyn Jones structured this focused hearing. The parties were to serve and file their direct evidence by affidavit, with the right to provide supplementary oral evidence. Both parties identified a collateral witness they wanted to testify. Justice Jones required the direct evidence of those witnesses to be provided by affidavit. Justice Jones also ordered the father to serve and file documentary disclosure.
8Justice Jones set timelines for the filing of the evidence, draft orders, and the documentary disclosure required from the father. The mother complied with the timelines. The father did not.
9The father brought a Form 14B motion the week before the trial, without notice to the mother, seeking leave of the court for late filing. On February 21, 2023, Justice Jones dismissed the extension request for the filing of the father’s trial affidavit and documents. She found that it would be prejudicial to the mother, since she had no notice and little time to respond. Justice Jones permitted late filing of the father’s financial statement and draft order.
10The court was mindful of its obligation to provide reasonable assistance to a self-represented litigant. See: Pintea v. Johns, 2017 SCC 23. The father gave his direct evidence orally. The court also permitted him to have his mother (the paternal grandmother) give her direct evidence orally even though the father was supposed to provide her direct evidence by affidavit.
11The mother provided a trial affidavit from her mother (the maternal grandmother).
12On consent, a Voice of the Child Report (VOCR) dated July 15, 2022 was admitted in evidence without the need to cross-examine the clinician who prepared the report.
13The issues for this court to determine are:
a) What parenting orders are in the children’s best interests? In particular, should the father’s parenting time with the children be supervised?
b) When should child support start?
c) What is the father’s income for each year that he is required to pay child support? How much income, if any, should be imputed to him in each of these years?
d) What credits, if any, should the father receive for child support paid?
e) How should child support arrears created by this order, if any, be paid?
Part Two – Background facts
14The parties are 37 years old.
15The parties met in 2008 and started living together in April 2011.
16The father was in prison for almost three years between July 2011 and 2014. The parties resumed living together when the father was released from prison.
17The parties separated in March 2016. The children have lived with the mother and her parents since the separation.
18The mother has no other children.
19The father has two other children who live with their mothers. One child (N.) is 13 years old. The father said that there is a court order from 2016 requiring him to pay child support for N. of $336 each month. He believed that he was over $16,000 in arrears of this order. The second child (SA) is one year old. There is no support order for SA.
20The father has lived with the paternal grandmother since January 1, 2023.
21The mother issued this application on October 6, 2020. The father’s Answer/Claim is dated November 12, 2020.
22On March 31, 2021, Justice Jones made a temporary order that the children have their primary residence with the mother. She also made a temporary order that the father have weekly virtual parenting time with the children. He had not seen the children since July 2020. Justice Jones also noted in her endorsement that the father had failed to file a financial statement as required by the Family Law Rules and ordered him to serve and file it by April 14, 2021.
23On May 20, 2021, Justice Jones endorsed that the father had filed his financial statement without the required attachments, such as his income tax returns and notices of assessment for the past three years. She ordered him to serve and file these documents by June 30, 2021.
24On May 26, 2021, Justice Jones, on consent, ordered that the father have temporary parenting time on alternate Saturdays from 2 p.m. to 6 p.m., with exchanges at a mall. She also made communication orders, including an order that communication shall be limited to respectful communication pertaining to the children or the parenting time arrangements. Justice Jones granted another extension to the father to file his 2019 and 2020 income tax returns and notices of assessment.
25On September 7, 2021, on consent, Justice Jones expanded the father’s temporary parenting time to alternate Saturdays from 10 a.m. until 7 p.m., with the same exchange arrangements. Justice Jones granted the father another extension to file his 2019 and 2020 income tax returns and notices of assessment. She ordered the father to serve and file an updated financial statement.
26On December 3, 2021, Justice Jones endorsed that the father did not file a case conference brief or financial statement. He had served his 2019 and 2020 notices of assessment. Justice Jones ordered the father to serve and file his updated financial statement and his 2021 income information.
27On March 3, 2022, Justice Jones ordered the VOCR. Justice Jones gave the father an extension until May 30, 2022 to serve and file his updated financial statement.
28On June 8, 2022, Justice Jones made a second order for the VOCR, as the father had not completed the required intake form. Justice Jones endorsed that the father had still not complied with her orders regarding financial disclosure. She made another order extending the time for the father to serve and file it.
29The father did not attend at court on August 30, 2022, although he was represented by counsel. No explanation was provided for his absence. The case was placed on the December 2022 trial sittings.
30On October 27, 2022, Justice Jones granted a motion made by the father’s counsel to remove him as his counsel. A settlement conference was conducted. On consent, and on a final basis, Justice Jones ordered that the children have their primary residence with the mother and that she have decision-making responsibility for them. The trial was adjourned to the February 2023 sittings.
31On December 3, 2022, an incident occurred during the father’s parenting time that frightened the children and resulted in the paternal grandmother returning the children to the mother early. This will be discussed in more detail below.
32The children have not seen the father since this incident.
Part Three – Legal considerations - parenting
3.1 Statutory considerations
33Subsection 24 (2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
34Subsection 24 (3) of the Act sets out a list of factors for the court to consider when determining a child’s best interests. This includes a consideration of the child’s views and preferences, giving due weight to the child’s age and maturity.
35Whether there has been family violence is an important best interests consideration. Family violence is defined in subsections 18 (1) and (2) of the Act. Factors related to family violence are outlined in subsection 24 (4) of the Act 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. .
36Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
37Section 28 of the Act sets out the types of parenting orders the court can make.
38Subsection 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.
3.2 Best interests
39The 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.
40The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.
41In 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; Seyyad v. Pathan, 2022 ONCJ 501.
3.3 Family violence
42The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 recently made the following observations about family violence:
- The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
- The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
- Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).
43Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:
The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.
44The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.
45Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.
3.4 Children’s views and wishes
46In Decaen v. Decaen, 2013 ONCA 21 the Ontario Court of Appeal set out the following factors in assessing the significance of a child’s wishes:
a) whether both parents are able to provide adequate care;
b) how clear and unambivalent the wishes are;
c) how informed the expression is;
d) the age of the child;
e) the child’s maturity level;
f) the strength of the wish;
g) the length of time the preference has been expressed for;
h) practicalities;
i) the influence of the parent(s) on the expressed wish or preference;
j) the overall context; and
k) the circumstances of the preferences from the child’s point of view:
47Where a parent has unduly influenced or poisoned the views and wishes of a child, the court is entitled to give them little or no weight. See: A.M. v. C.H., 2019 ONCA 764. In J.N. v. C.G., 2023 ONCA 77, the court wrote at par: 34:
Guidance on how to properly treat a child’s views and preferences can be found in K.K. v. M.M., 2021 ONSC 3975. In that case, the court held, at paras. 748-749, that, while the OCL indicated that the 11-year-old child had not been “coached”, they were simply repeating what a parent had told them, meaning their views were not independently formed. Accordingly, the child’s views were given no weight.
48Many courts have followed the wishes of mature children in the children’s age range. The Court of Appeal in DeMelo v DeMelo, 2015 ONCA 598, found that children aged 15 and 13 were of sufficient age and maturity to warrant judicial respect for their positions. They were not forced to see their father against their wishes.
49In V.L. v M.L., 2019 ONSC 7367, the court respected the wishes of a 13-year-old to not have any contact with a parent.
50In M.Q v. R.C., 2022 ONSC 1753, Justice Heather McGee ordered that that parenting time between a 13-year old child and his mother should be at the discretion of the child in accordance with his views and preferences – no parenting schedule was ordered.
51In F.S. v. M.B.T., 2023 ONCJ 102, this court ordered that the father’s parenting time be in the mother’s discretion when their 12-year-old child had justifiable reasons for not wanting parenting time with the father.
3.5 Parenting time
52A starting point to assess a child’s best interests when making a parenting time 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 time order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615; 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.
53The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.
54The 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. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ); Dayboll v. Biyag, 2022 ONSC 6510.
55Supervised access 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; B.C. v. M.T., 2019 ONCJ 33; L.S. v. M.A.F., 2021 ONCJ 554.
Part Four – The VOCR
56The children were interviewed by a clinician (the clinician) from the Office of the Children’s Lawyer on two occasions in July 2022 – once in each parent’s home.
57The clinician described K. as a soft-spoken child who had difficulty formulating her opinions. She did not express strong views.
58The clinician described C. as a thoughtful and quiet child who had some self-awareness and could speak her mind.
59The clinician reported that both children spoke openly and provided consistency in both interviews.
60K. said that she enjoyed a sleepover that had taken place at her father’s home. She said that she would not be happy going to her father’s home without C. When asked if she would like more contact with the father she said “it doesn’t matter” and that she feels she can call him when she chooses to do so. She said that she has no fear or worries around her parents.
61C. said that she did not want any changes to the parenting time schedule. She said there were no problems with the father and was open to having more time with him during the summer. She said that she sometimes misses her mother when with her father. She told the clinician that she is not fearful of either parent and enjoys the activities at both homes. She wanted her parents to agree on a parenting time schedule because she has a hard time deciding for herself.
Part Five – Analysis of the mother’s evidence
62The mother was a reliable and credible witness. She presented as a responsible, concerned and protective parent.
63The mother provided an organized and detailed history of her relationship with the father and the children’s relationship with him. Much of her evidence was corroborated by documentation, such as text messages.
64The mother presented her evidence in a balanced manner. She did not exaggerate. She commented on the father’s strengths. She said that he was smart, sometimes had a good way of thinking about things and had a good sense of humour.
65The mother responded to questions thoughtfully. She did not try to avoid them. She admitted when she had made mistakes in the past.
66The mother demonstrated considerable insight and knowledge about the children. She is the parent most attuned to their needs and the parent the children turn to for comfort and guidance.
67The mother has been flexible, even though she was the victim of family violence and she is very concerned about the father’s temper and how his poor judgment could negatively affect the children.
68The mother reasonably consented to increases in the father’s parenting time. On October 27, 2022, she agreed (it was not ordered) to the father having single overnight parenting time with the children in alternate weeks. However, she said that the father missed the first two scheduled visits. [3] The overnight visits never took place.
69The mother initially took the position at trial that the father should have no parenting time with the children. But, as she thought about it during the trial, she was able to change her position and said that limited and supervised parenting time would be better for the children than no parenting time.
70The mother was responsive to the court’s suggestion that the family should participate in counseling to improve the children’s relationship with the father.
71The mother deposed that she was subjected to considerable family violence from the father. She testified that she is afraid of him and afraid of triggering his anger. She said that this was a major reason why she took so long to bring this matter to court and why she did not aggressively seek child support from him.
72The mother said that the father did not hit her. However, she described one incident where the father put his hands around her neck and choked her. She said that one of the children pushed him off of her.
73The mother testified that the father’s violence was mostly emotional and psychological. She said that he would yell loudly at her when enraged and punch walls. She said that every few weeks there would be an incident when he became enraged.
74The mother did not overstate this evidence. She said that the father has not hit the children. However, she said that the children have been continually exposed to his uncontrolled outbursts over the years and are frightened by them.
75After the parties separated, the mother deposed that she tried to encourage the father’s parenting time with the children. She said that this was challenging and stressful. The father was inconsistent with visits, often canceling at the last minute or changing plans without notice. The mother filed texts confirming this.
76The mother deposed that the father continued to be abusive to her after the separation. He would send harassing, inappropriate and disrespectful messages to her. Sometimes, the mother had to block the father’s calls and messages until he deescalated. The mother provided long and rambling text messages from the father to her confirming this.
77The mother also attached texts during this period sent from the father to the children where he demeaned her to them.
78In November 2019, the father attended at the mother’s apartment, banging her door, shouting and causing a disturbance in the hallway. He threatened to punch in the face the first person who came out the door. The children heard him and were crying and scared. K. offered to go on the visit with him just to placate him. [4] The mother reported the incident to the police who referred the case to the Children’s Aid Society of Toronto (CAST).
79The maternal grandmother testified. She was present during this incident and confirmed the mother’s version of this event. The mother also filed the police report about this incident.
80The CAST closed its file in early 2020 as there were no other incidents.
81The mother continued to facilitate the children’s parenting time with the father until July 2020 when the children told her that they did not want to see him and were afraid of him.
82In August 2020, the mother contacted the police when the father was sending her harassing messages that the mother found threatening. She filed the police report at trial. The mother then obtained counsel and started this application.
83The mother agreed to increase the father’s parenting time as matters calmed down in 2021 and during the first half of 2022.
84The mother filed a series of texts that the father sent to the children between October and December 2022. They are concerning. They are written harshly. Some demean the mother and discuss the court proceedings.
85The father wrote directly to the children seeking an overnight visit for December 2, 2022. The children told him that they did not want an overnight visit. The mother deposed that the father responded with multiple aggressive and inappropriate messages accusing the mother of making them say these things. [5]
86On December 3, 2022, the children visited the father pursuant to the schedule in the court order. The visit ended early when the children witnessed an incident of family violence between the father, his girlfriend S. (the mother of SA) and the paternal grandmother.
87The mother attached a series of texts received that day from K. Excerpts from those texts are as follows:
a) Mommy, daddy is scaring me. He was talking to grandma and saying not to give the baby to S. because she stole his f-Ong wallet but she didn’t. And he was going to hit her or something. And we are watching S. go home now and she was crying. And my heart is racing. He was swearing so much. And yelling at grandma in her room.
b) He was saying she stole his wallet and S. was so scared. He said he was going to break S.’s face.
c) C. is crying.
d) And he broke grandma’s light. And I am so scared. And I don’t know how the living room looks like because he probably broke everything.
e) I’m like shaking.
88The father sent the mother angry and threatening messages over the next few days that she presented to the court. They included the father saying:
a) Don’t get my children involved in your women bullshit. I already told you if I was an abuser and punched you in the face you still would have to send my children to me ok so bring it up in court.
b) This is the last warning to you. There are other court rooms C.S.
c) And stop emailing me. You are a shitty person you can’t help but be a fucked yo individual so try your best and bother someone else at this point I am so over the mention of your name women you you make me sick to my stomach piz refrain from smsging me. Unless the children are in danger. Thank you.
d) Lastly. When its my weekend if you refuse to be an adult. I will call the police on you about the kids. CAS will get involved once again and I’m trying to tell you something. Follow what you said you would cause it’s on paper it’s law lol. Thank you for bringing me to court cause now your going to only fuck over yourself. So next two weeks or I’m calling the feds.
89The mother said that the children have refused to see the father since the December 3rd incident. They tell her they are scared of him and that this type of incident has happened several times before.
90The mother said that the children have been emotionally impacted by the father’s conduct. She said that C. is now more reserved, and that K. has been feeling “really down”. She said that both children have expressed how badly they feel for the people that the father mistreats. The maternal grandmother said that the children have been stressed, emotional and have been having difficulty sleeping since this incident.
91On December 7, 2022, the father wrote a text to the children apologizing for his behaviour on December 3rd.
92On December 17, 2022, the father sent a strange text to the children saying that he plans to live in Africa years from now and wants to establish some businesses. He writes:
All I would need from the four of you is like or the three since SA is still small when y’all would be adults would be like a $1000 a month. That is why I am creating a business or two. You guys will generate that.
93The mother said that she wants the children to have a positive relationship with the father but she also wants to respect the children’s feelings and experiences. She said that they are witnessing what she has experienced from the father.
94The mother agreed that family counseling would be beneficial for the children to assist them in repairing their relationship with the father.
95The mother said that the children have a positive relationship with the paternal grandmother and a paternal aunt. She hopes to support those relationships separate from the children’s relationship with the father.
Part Six– Analysis of the father’s evidence
96There is no issue that the father loves the children and wants a positive relationship with them.
97The father presented at trial as defensive, easily aggrieved and quick to lash out. His thinking is rigid and he often presented a distorted view of reality. It was apparent to the court why the mother and the children are reluctant to engage with him.
98The father has had a troubled history marked by criminality and conflict.
99The father gave inconsistent evidence about his criminal record.
100In his Form 35.1 affidavit sworn on November 12, 2020, the father deposed that he had been found guilty of the following criminal offences:
- 2014 – Possession of stolen property – sentence of time served.
- 2018 – Assault causing bodily harm – 28 months probation.
- 2020 – Refusal to provide a breath sample – Fine of $1000, licence suspension
101The father introduced another Form 35.1 affidavit at trial. This affidavit excluded the convictions for assault causing bodily harm and possession of stolen property but included a conviction for possession of illegal firearms offences in 2013 [6], indicating that he was sentenced to 31 months in jail.
102When he testified, the father did not disclose the conviction for assault causing bodily harm until he was questioned about why he had taken an anger management program in 2018 and 2019. The father said that this incident was related to a friend of N.’s mother.
103It is apparent from the incident in December 3, 2022, that the father is involved in domestic conflict with S. He was also involved in acrimonious litigation with N.’s mother.
104The father acknowledged that he has a temper but said it is only directed at the mother and her parents and not the children. This is not true. The children have been exposed to his explosions. He has written them harsh and angry texts.
105It was apparent that the father has no filter and demeans the mother to the children. He testified, “I only tell my kids that she lied about me and stole from me”.
106The paternal grandmother testified. She described the mother as “a nice person, pleasant to get along with”.
107It was apparent to the court that the paternal grandmother wanted to support the father. She was reluctant to say anything negative about him. She described him as a loving father who would not hurt the children.
108The paternal grandmother described her own love of the children. The mother agreed that the children love her.
109The paternal grandmother would hesitate and carefully measure her words when asked about the father’s anger. She said that he had strong views and expressed them. When asked how he expressed them, she acknowledged that he could be loud and punched walls and tables. She said that he makes threats but that she does not believe he means them.
110The paternal grandmother gave a muddled version of what happened on December 3, 2022. She acknowledged that the father was very angry and the children were frightened by the incident. She brought the children home early.
111The father often presented a distorted view of events. He was convinced that the text messages provided by the mother proved that she was engaging in parental alienation. They did not and she has not. He was convinced that he has supported all his children. That is not true. Paying for expenses while exercising parenting time is not child support. He has not paid child support to the mother and is at least $16,000 in support arrears to N.’s mother. He feels aggrieved that the mother is claiming child support from him.
112The father does not follow court orders. The court set out in paragraphs 22-28 above the father’s multiple breaches of disclosure orders. His financial disclosure was incomplete and delayed. He did not comply with the trial directions set out by Justice Jones. His litigation behaviour confirmed the mother’s evidence that he is difficult to deal with and irresponsible.
113The father does not hesitate to threaten the mother. He stated more than once at trial that if the mother does not support his relationship with the children that perhaps the children should be removed from her care.
114The father demonstrated little sensitivity to his children’s fear of him and how his behaviour affects them. Instead, he externalized blame and attributed their refusal to see him to parental alienation.
115The father has failed in his responsibility to protect the children from conflict. Given his lack of insight into his actions, it is unlikely that he will be able to do this in the future.
Part Seven – Findings of fact
116The court makes the following findings of fact:
a) The children love the father and the father loves the children.
b) The children also have a close relationship with N. and SA. – particularly N.
c) The children have a close relationship with the paternal grandmother.
d) The children have a good relationship with other members of the paternal family.
e) The children have a positive relationship with their extended maternal family.
f) The children enjoy their time with the father when he is calm and child-focused.
g) The father wants to have a positive relationship with the children.
h) The mother would like the children to have a positive relationship with the father.
i) There has been no parental alienation. The mother has appropriately facilitated the children’s relationship with the father. The father has made this very difficult for her. The mother has to balance facilitating this relationship with the children’s need to feel safe and secure and to have their feelings supported. The court finds that the mother has been doing a responsible job in striking that balance.
j) The father has perpetrated significant family violence against the mother.
k) The children have been exposed to this family violence and the father’s explosive temper related to other persons, including S. The children have been emotionally and psychologically harmed by this.
l) The children’s present reluctance to see the father at this time is understandable and justified. They do not feel safe with him and are afraid of how he will react to their refusal to see him.
m) The father has a history of criminality and poor impulse control. He appears unable to control his anger despite the anger management course he took. He is unable to control his anger in front of the children. [7]
n) The father exercises poor parenting judgment. He exposes the children to his inappropriate conduct. He demeans the mother to the children and discusses the court case with them. He sends them long, confusing and inappropriate texts. This undermines the children’s sense of security and stability.
o) The father has proven over a long period of time that he cannot be trusted to act responsibly. He has been irresponsible in meeting his support obligations. He does not follow court orders. When he exercised his parenting time he often did not keep to the schedule.
p) The paternal grandmother is not effective at managing the father’s anger and is protective of him. The court is not confident that she could safely supervise the father’s parenting time with the children. [8]
Part Eight – Parenting orders
117The court finds that it is in the children’s best interests that the father’s parenting time with them be supervised by a professional supervised parenting time agency.
118The primary best interests factor is that the children feel psychologically and emotionally safe and secure when exercising parenting time with the father. At this point, the evidence shows that the children would not be emotionally or psychologically safe and secure with the father without professional supervision.
119A supervised parenting agency will provide neutral feedback to the mother and the court about how the father’s parenting time with the children is progressing to assess if and when parenting time should become unsupervised. The court is not confident that it would receive reliable information from the paternal family.
120The court must consider the views and preferences of the children. The court finds the mother’s evidence of their present views and preferences credible. They are afraid of the father and do not want to see or engage with him at this time.
121The court also considered the VOCR, which provided a snapshot of the views and preferences of the children last summer. This helped inform the court that if parenting time is properly structured and monitored, the children can still receive the positive benefits of a relationship with the father.
122The court recognizes that parenting time at APCO is far from ideal for children this age. Most of the children at APCO are much younger. Ordering parenting time at APCO twice each month is not in the children’s best interests. Unfortunately, the parties have limited financial means and this may be the only option for the family.
123The court will order that the father shall have parenting time at APCO once each month and will designate the time. The father may also, at his own expense, arrange a supervised visit once each month for up to 2 hours with a private professional supervised parenting time agency, such as Brayden Supervision Services or Renew Supervision Services. This will give the father and the children the opportunity to have their parenting time in more natural settings.
124The court will also order that the mother, in her sole discretion, may permit the father further and other parenting time. The court trusts her to be reasonable and flexible. However, the court wishes to emphasize that it has no expectation that she will provide the father with additional parenting time for the next while. The father will need to show positive changes first.
125The father shall also not contact the children by any means, including by social media, without the prior written and revocable consent of the mother.
126The father will also be required to restrict his communication with the mother to arranging parenting time with the children. He shall communicate with the mother in a respectful manner.
127The parties agreed that family counseling to improve the relationship between the father and the children is in the children’s best interests. The court will make that order pursuant to clause 28 (1) (b) and subclause 28 (1) (c) (vii) of the Act. [9] .The mother shall select the counselor. The parties shall each pay 50% of the counseling costs.
Part Nine – What can the father do to change the parenting time order in the future?
128The father needs to earn back the trust of the court, the mother and the children before he can expect this parenting time order to be changed.
129The father should attend each visit on time. He should be child-focused and support the children during his visits. He should not speak to them about the mother or the court case. He should follow the rules of the professional supervised parenting time agency.
130The father should continue to see his psychiatrist. He should also provide a copy of this decision to his psychiatrist. If the father wishes to bring a motion to change, he should serve and file a current psychiatric report.
131The father should also take a parenting course that focuses on positively interacting with teenage children and protecting them from conflict. Families in Transition may offer such courses.
132The court expects to see the father participate in the family counseling that is being ordered.
133The father needs to show that he is actually controlling his behaviour. This means not being involved in incidents of family violence or criminal behaviour. He also needs to show that he will treat the mother in a respectful manner.
134The father will need to show sustained changes in his conduct for at least one year to establish a material change in circumstances that supports changing this parenting time order. It is unlikely that the parenting time order will be changed unless he has complied with this order and met the expectations set out above.
Part Ten – The start date for support
10.1 Legal considerations
135The 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;
136Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 13 R.F.L. (6th) 331 (Ont. C.A.).
137In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows:
a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [10] continue to guide this exercise of discretion, as described in Michel v. Graydon, 2020 SCC 25. 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.
138This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506.
139In 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 will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.
140Effective 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. See: D.B.S., 2006 SCC 37, par. 12.
141Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, 2020 SCC 25, par. 25.
142Retroactive child support is a debt. There is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel, 2020 SCC 25, par. 132.
143Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., 2006 SCC 37, par. 97.
144In Michel, 2020 SCC 25, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.
145In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, 2020 SCC 25, par. 121.
146A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, 2020 SCC 25, par. 113.
147Rather, 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. See: Michel, 2020 SCC 25, par. 86.
148Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., 2006 SCC 37, par. 106.
149Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., 2006 SCC 37, par. 106.
150Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, 2020 SCC 25, par. 119.
151If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, 2020 SCC 25, par. 124.
10.2 What is the presumptive start date for support?
152The first step is to determine the presumptive start date for support.
153The mother says that she broached the subject of support with the father by the end of 2016. She had no documentation supporting this but the court believed her evidence. This would be the date of effective notice. [11]
154However, Colucci sets out that the presumptive start date for support cannot be more than three years before the date of formal notice. The mother issued her application (the date of formal notice) on October 6, 2020.
155Accordingly, the presumptive start date of support is October 6, 2017.
10.3 Should the court deviate from the presumptive start date of support?
156The mother asks the court to deviate from the presumptive start date of support and order support retroactive to March 1, 2016, when the parties separated.
157The father opposes this. He does not want any support order made.
158The mother provided an understandable reason for her delay in seeking child support. She has walked on eggshells around the father for years due to the family violence. She was aware that claiming child support would trigger her anger. She also knew that it would be very difficult to collect any child support from him. She only came to court due to the parenting time difficulties she was encountering with the father in 2020.
159The father said that he often offered the mother support and she refused. He said that he stopped offering her support in 2019. The father provided one text where this happened but no other documentation. The mother denied that he has offered her other support.
160The father has engaged in significant blameworthy conduct. He has paid a paltry amount of support since the separation. The mother deposed that when she sought child support from the father, he was hostile and unreceptive. He told her that she could handle finances herself because she received child tax money every month. The father has preferred his own interests to the children’s interests.
161The circumstances of the children have been disadvantaged. The mother said that she has provided for all their needs, but at times it has been difficult for her to do so. She testified that she has lived “from paycheque to paycheque”.
162Making a retroactive order as sought by the mother would cause the father some hardship. Even with the income that will be imputed to him, he has a limited ability to pay support. He has no assets. Although he provided no credible evidence that he is paying support for his other two children, he does have an obligation to support them.
163There is one other factor to consider. In her application, the mother sought a retroactive order to start three years prior to the date of the application – October 6, 2017, the presumptive start date for support. She did not ask the court to go further back to March 1, 2016. She never amended that claim. She did not make this claim in her draft order or in her material served for the trial. She did not make this claim until the trial started. The father had no prior notice of this claim.
164Balancing all these considerations the court will order support to start on November 1, 2017. This is the first day of the first month after the presumptive start date for support.
Part Eleven – The father’s income
11.1 Legal considerations for imputing income
165Section 19 of the Child Support Guidelines permits the court to impute income to a party as it considers appropriate.
166The jurisprudence for imputation of income sets out the following:
a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support 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. C.A.).
b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
i) Is the party intentionally under-employed or unemployed?
ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
iii) If not, what income is appropriately imputed
c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed 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.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
d) Once 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.
e) 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.).
f) Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.); T.L. v. D.S., 2019 ONCJ 809.
g) The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell, 2017 ONSC 6499 (SCJ). The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165.
h) 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.
i) The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.).
j) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.
11.2 Positions of the parties
167The mother claims that the father is deliberately unemployed or underemployed. She asks the court to order him to pay child support of between $200 and $300 each month. This is the guidelines table amount for two children based on an annual income of between $15,900 (at $200 each month) and $19,300 (at $300 each month).
168The father said that he is unable to pay any child support to the mother. He feels that he is already supporting the children while they are in his care.
169The father provided a current Ontario Works statement. He also filed notices of assessment showing the following annual income:
2019 - $8,775 2020 - $22,796 2021 - $6,767
170The father said that he did some cash work for friends up until the pandemic. He said that he earned no more than $2,500 cash in any year. He said that he has not earned any cash income since the pandemic.
171The father said that he received Canada Emergency Recovery Benefits during 2020. He said that this accounts for his higher income that year.
172The father has been in receipt of Ontario Works since 2021.
173The father said that he has been unable to work due to the stress of this litigation.
174The father said that he went back to school in 2020 at Centennial College to upgrade his education but did not complete the course.
175The father said that his criminal record makes it harder for him to find work.
176The father did not produce a job search list. When asked what jobs he has sought, he mentioned one application for a courier company. He could not name any other job applications. He said, “that’s about it”.
11.3 Analysis
177The court finds that the father is deliberately unemployed or underemployed. He shows no interest in meeting his child support obligations.
178The father has made little effort to look for work.
179The father did not seriously pursue an upgrade of his education. It was not a realistic step for him to take.
180The father provided no medical evidence that would prevent him from working.
181An adverse inference is drawn against the father for his late and incomplete financial disclosure.
182The court finds that the annual income of $19,300 that the mother seeks to impute to the father is very reasonable for the following reasons:
a) The father has a number of job skills. He has worked in HVAC, as an administrative assistant for Freedom 55 and has done construction work. He worked for Skip the Dishes doing delivery work between 2018 and 2020.
b) The father is intelligent and articulate. He is employable.
c) A review of the father’s filed financial statements show that he is able to maintain annual expenses of over $23,000 without generating more debt. He is either earning cash income to maintain those expenses or receiving a steady stream of gifts in this amount that should be attributed to him as income for support purposes. [12]
d) This level of imputed income only represents part-time income at minimum wage. [13]
Part Twelve – Credits for support paid and arrears
183The mother testified that the father has never directly paid her child support. However, she said that he paid for some clothing and school supplies for the children starting in 2018. She said that he would spend about $300 each year. The father did not contradict this or provide documentary evidence of any other payments. The father will be credited with $1,500 towards his support obligations.
184The father will owe the mother child support in the amount of $18,000 as a result of this decision. This amount is calculated as follows:
Table amount of $300 each month for 65 months = $19,500
Less credit for support paid = $1,500
Balance owing = $18,000
185Given his payment history and attitude towards his support obligations, the court will not order a payment schedule for the father’s support arrears. The father will have to negotiate that through the Family Responsibility Office.
Part Thirteen – Conclusion
186A final order shall go on the following terms:
a) The father shall have parenting time with the children on the following terms and conditions:
i) Supervised parenting time at APCO on the last Saturday of every month from noon to 2 p.m., or for such other two-hour block that can be arranged with APCO. These visits will start as soon as APCO can accommodate them.
ii) The parties are to immediately contact APCO to complete the intake process.
iii) The parties shall each pay their share of APCO’s costs.
iv) The father, on 14 days notice to the mother, may also have supervised parenting time on one additional Saturday each month, supervised by a professional supervised parenting agency, such as Brayden Supervision Services or Renew Supervision Services. The father will pay the full cost charged by the professional parenting agency for these visits.
v) Such further and other parenting time as the mother may agree to, in her sole discretion.
vi) The father shall not discuss the court case or anything about the mother during his parenting time with the children.
vii) The father can bring the paternal grandmother, the paternal aunt, N. and SA to any of these visits.
viii) The parties shall comply with the rules and policies of the professional supervised parenting time agencies.
b) The father shall not contact the children, by any means, including by social media, without the prior and revocable written consent of the mother.
c) The father is to communicate in a respectful manner with the mother and limit his communication with her to arranging parenting time and counseling.
d) The parties and the children shall participate in family counseling. The mother shall select the counselor. The parties shall each pay 50% of the counseling costs.
e) The father shall pay the mother child support of $300 each month, starting on November 1, 2017. This is the guidelines table amount for two children based on the father’s imputed annual income of $19,300.
f) The father shall be credited for child support paid of $1,500. Child support arrears are fixed at $18,000.
g) A support deduction order shall issue.
h) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.
187A separate order for APCO will be issued and sent to the parties.
188The mother is entitled to her costs of this case. If she wishes to seek costs, she shall make written submissions by March 22, 2023. The father will then have until April 5, 2023 to make his responding costs submissions. The submissions are not to exceed two pages double-spaced, not including any bill of costs (with bills from their lawyers attached) or any offer to settle. The costs submissions are to be delivered to the trial coordinator on the second floor of the courthouse.
Released: March 8, 2023
Justice Stanley B. Sherr
[1] At the outset of the trial the mother sought a “no parenting time” order. She changed her position on this issue during the trial.
2The mother made a claim for a restraining order in her application but did not pursue this claim at trial.
3The father said that he did not agree about when these overnights should occur and missed the first visit due to miscommunication.
4The visit did not take place.
5These texts were not provided.
6It is possible that the firearms were the stolen property referred to in the father’s first Form 35.1.
7Seeing a psychiatrist is a positive step that has been taken by the father.
8The father did not propose the paternal grandmother as a parenting time supervisor but the court considered this option.
9See: Testani v. Haughton, 2016 ONSC 5827, that discusses the court’s authority to make counseling orders under these provisions of the Act.
10The 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 four factors that a court should take into account in dealing with retroactive applications. Briefly, they are:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
11The mother filed a text proving she sought support from the father in August 2018.
12Where a party receives regular gifts from his or her parent, the court may impute the amount of those gifts as income for support purposes. See: Bak v. Dobell, 2007 ONCA 304; Korman v. Korman, 2015 ONCA 578; Marello v. Marello, 2016 ONSC 835.
13Full-time annual income at minimum wage is now $32,600.
