DATE: March 26, 2024 COURT FILE NO. D44312/23
ONTARIO COURT OF JUSTICE
B E T W E E N:
J.W.
ACTING IN PERSON
APPLICANT
- and -
C.W.
LISA A. JOHNSON, for the RESPONDENT
RESPONDENT
HEARD: MARCH 25, 2024
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
1The respondent (the mother) has brought an amended notice of motion seeking temporary parenting, communication and contact, and child support orders regarding the parties’ 5-year-old son (the child). She also seeks an order for further financial disclosure from the applicant (the father).
2The father opposes the relief sought by the mother. He did not bring his own notice of motion.
3The court relied on the affidavits filed by the parties and their submissions on this motion. At the hearing, the court permitted the father to file documentation regarding his immigration status.
4The issues on this motion are:
a) What temporary parenting orders are in the child’s best interests? In particular:
i) Should the mother have sole decision-making responsibility for the child?
ii) Should the father’s parenting time with the child be supervised?
b) Should the court grant the temporary communication and contact orders sought by the mother?
c) What temporary child support order should be made? In particular:
i) What income, if any, should be imputed to the father?
ii) When should the temporary order start?
d) Should the court order the father to provide the mother with further financial disclosure?
Part Two – Background facts
5The father is 38 years old. The mother is 39 years old.
6The parties were married in the United States in February 2017.
7The parties have the one child together.
8The parties moved to Toronto shortly after their marriage.
9The parties separated in March 2020.
10The child has lived exclusively with the mother since March 2020.
11The father’s Visitors Visa expired in July 2022. He has remained in Canada illegally since that time.
12From March 2020 until June 2023, the father had sporadic parenting time with the child. The mother was always present at the visits. Initially, the father saw the child every Sunday for two hours. The father reduced his visits with the child to alternate Sundays, then to once a month and then to every couple of months. The father has only seen the child twice since June 2023.
13The father issued an application for parenting orders on September 5, 2023.
14The mother issued her Answer/Claim on September 27, 2023.
15The mother’s motion was initially returnable on November 17, 2023. The father’s responding affidavit was sparse and did not meaningfully address the mother’s allegations. The court granted the father an adjournment, on terms, so that he could bring a cross-motion, file a more detailed response to the mother’s motion and file a financial statement. He was ordered to provide financial disclosure. The mother was given leave to amend her notice of motion to seek additional relief. The terms of adjournment included the following temporary without prejudice terms:
a) The child shall primarily reside with the mother.
b) The father shall have parenting time, supervised at Access for Parents and Children in Ontario (APCO).
c) The father shall not attend at the child’s school.
d) The father shall not attend at the mother’s home or place of employment or approach her in any public space.
e) The father shall not remove the child from the Province of Ontario without the mother’s written consent, or further order of the court.
f) The Toronto police or any other police force having jurisdiction shall locate, apprehend and deliver the child to the mother in accordance with the order.
16The matter returned to court on January 8, 2024. The father had filed none of the documents ordered on November 17, 2023. The court granted him another adjournment at his request. As a term of the adjournment, the court made a temporary without prejudice order that the mother have temporary decision-making responsibility for the child. The court set filing timelines for the father to file his responding material, financial statement and the financial disclosure that had been previously ordered.
17The father filed no further material. He provided no explanation for his failure to comply with the two financial disclosure orders.
18The father did not pay his fees to APCO until March 8, 2024. He had his first visit with the child on March 9, 2024. The father cancelled his next visit with the child that was scheduled for March 23, 2024. APCO has put the father’s visits on hold for three months. It is unclear why it has done that.
19The father has not paid any child support since the parties separated in March 2020.
20The father filed evidence at the hearing that he is subject to an exclusion order from Canada. He said that he has filed a Humanitarian and Compassionate application to remain in Canada. He submitted that if he receives a favourable outcome on this motion, it will assist him to remain in Canada.
Part Three – Parenting, contact and communication
3.1 Legal considerations
21Any 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 subsections 24 (2) to (7) of the Children’s Law Reform Act (the Act).
22A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253; Sain v. Shahbazi, 2023 ONSC 5187.
23Subsection 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.
24A 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: Armstrong v. Coupland, 2023 ONSC 5451; 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.
25Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child.
26The 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.
27In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order that is meant to ensure their safety and protection. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201; Seyad v. Pathan, 2022 ONCJ 501; Mulik v. McFarlane, 2023 ONCJ 148.
28Family violence is defined in subsections 18 (1) and (2) of the Act. Subsection 24 (4) of the Act sets out a list of factors for the court to consider related to family violence.
29The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 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).
30Subsection 33.1 (2) of the Act addresses the importance of parties protecting children from conflict. It reads as follows:
- 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.
31A party's failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, 2022 ONSC 6510; I.A. v. I.G., 2023 ONCJ 523.
32Subsection 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.
33The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.
34In Stec v. Blair, 2021 ONSC 6212, paras. 22-24, the court reviewed the law related to supervised access as follows:
22 Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.
23 The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)
24 The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.
35Section 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.
36The court has taken these factors into consideration, where relevant, in determining what parenting and contact and communication orders are in the child’s best interests.
3.2 Positions of the parties
37The mother asks the court to maintain the temporary orders made on November 17, 2023 and January 8, 2024 with prejudice. She submits that these orders are in the child’s best interests.
38The father agreed that the child’s temporary residence should remain with the mother. He did not bring a cross-motion, although given ample opportunities to do so. At the hearing, he orally asked the court for joint decision-making responsibility for the child and unsupervised parenting time once each week for one hour. He opposed any restrictions on contacting or communicating with the mother. He asked for an order restricting the mother from removing the child from Ontario.
3.3 Analysis
39The court finds that it is in the child’s best interests to make the temporary orders sought by the mother for the following reasons:
a) She has been the primary caregiver for the child since March 2020.
b) She has responsibly made all decisions for the child.
c) The father has had very limited time with the child since March 2020 and has only seen the child twice since June 2023. He has never had unsupervised parenting time with the child.
d) There is strong evidence that the father has perpetrated significant family violence against the mother in front of the child. This violence has been physical, emotional and coercive. The mother provided detailed evidence of this abuse in her affidavit. The father only offered a general denial. The starting point in making parenting orders is that the child and the mother are safe.
e) The father did not deny the mother’s allegations that he has faced criminal charges for assault, driving under the influence and more recently a charge in relation to prostitution. He did not reveal any of these charges in his Form 35.1 parenting affidavit.
f) The father has made a number of threats to harm himself, raising concerns about his mental health and emotional stability. The mother attached numerous texts to her affidavit establishing this. The father provided no explanation for them.
g) The mother raised concerns about the father’s abuse of alcohol and marijuana, including in front of the child.
h) The mother deposed that the father has frequently threatened to take the child to the United States. The father does not have legal immigration status in Canada and is subject to an exclusion order. He does not own property in Canada. His family all live in the United States. The court agrees with the mother that there is some risk that the father would take the child to the United States.
i) The court’s concerns about the father are amplified by his conduct in September and October 2023. The father attended at the child’s school demanding to be added to the list of contacts. He told the mother and the school that he would be picking up and dropping the child off from school each day. On September 20, 2023, the father had a female friend attend at the school who advised the school principal that she needed to speak to the mother. She attempted to interact with the child. On October 2, 2023, the father and his father attended at the child’s school, claimed to have a court order and demanded to see the child. The mother called the police. The father and his father left the school before the police arrived.
j) The father did not pay his APCO fees until March 8, 2024. The APCO order was made on November 17, 2023. He had one visit on March 9, 2024 and then cancelled his next visit without a viable explanation. He has not demonstrated any reliability or commitment to exercising parenting time.
k) The father has not complied with court orders to provide financial disclosure.
l) The father has paid no child support to the mother since March 2020. Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; J.T. v. E.J., 2022 ONSC 4956; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.
m) The father revealed a lack of insight in claiming joint decision-making responsibility for a child he has had little contact with, due to his own choices, since June 2023.
40Given these concerns, it is in the child’s best interests to proceed cautiously with the father’s parenting time. The APCO staff will keep detailed notes of the visits. This will inform the court if the father is exercising his parenting time consistently and responsibly, and if his parenting time with the child is positive and child-focused. This would give the court a basis to move the father’s parenting time forward.
41Based on the preliminary evidence presented at this motion, the court has concerns about the father’s mental health, functioning and judgment. The existing communication and contact orders shall remain in place to ensure the safety of the mother and the child.
42It will be very helpful if the father consults with a mental health professional and provides the court with a mental health assessment for the next court appearance.
43The court will also want to see that the father complies with the parenting and communication structure that will be ordered before it considers loosening the restrictions on his parenting time and involvement with the child.
44The court finds that it is in the child’s best interests to continue the existing parenting and communication and contact orders. They will now be with prejudice orders.
45The mother seeks police enforcement of this order. While this court is usually reluctant to make such orders, this will be ordered to ensure the safety of the mother and the child.
46The court will not grant any of the temporary orders orally sought by the father at the hearing. He provided no evidence to support making the orders sought. Further, the court makes orders based on the best interests of the child. It does not make orders to bolster a party’s immigration status.
Part Four – Child support
47The mother is seeking temporary child support from the father. She seeks to impute annual income to him of $34,400 (minimum wage) for support purposes. She proposes that support start on October 1, 2023.
48The father submits that he cannot afford to pay any child support because he is in Canada illegally and cannot work.
49Section 19 of the Child Support Guidelines (the guidelines) permits the court to impute income to a party as it considers appropriate.
50The 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 or her 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.).
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) 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.
g) The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Sobiegraj v. Sobiegraj, 2014 ONSC 2030 (S.C.J.); Lu v. Zhao, 2012 ONSC 5354 (S.C.J.), at para. 26, aff’d 2014 ONCA 12 (C.A.), at para. 5).
h) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.).
i) 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 .
51The father did not file a financial statement despite being ordered to do so twice by the court. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.
52The court draws an adverse inference against the father.
53The father submits that he is unable to work because he is in Canada illegally. However, he has intentionally decided to live in a country where he cannot legally work.
54In Legere v. Leger, [2001] N.S.J. No. 173 (NSSC), the court wrote that the child shouldn’t bear the consequences if a parent chooses to stay illegally in Canada and cannot work. Income was imputed to the payor in the amount they could have earned in his country of origin. Legere was applied by this court in Reece v. Thomas, 2017 ONCJ 311, when the father overstayed a work visa and could not work in Canada. His choice to remain in Canada illegally was a factor in the court’s decision regarding his motion to reduce support arrears.
55The mother says that while they resided in the United States, the father was the sole financial provider for the family. He worked for a cable company and earned approximately $75,600 each year (about $102,000 in Canadian dollars). She said that when they came to Canada, the father worked for cash for a mechanic. She said he came home each day with “wads of cash”.
56The father provided no evidence disputing this evidence. He did not file a financial statement or any financial disclosure. He provided no evidence about how he supports himself. He merely submitted that he cannot work due to his immigration status. When asked how he is supporting himself the father said that he is being supported by family and friends.
57For the purpose of this motion, the court accepts the mother’s evidence that the father is likely earning cash income in Canada or is capable of earning annual income of $34,400. If he is not earning this amount, it is because he is deliberately unemployed without a valid excuse. The father also has the choice of returning to the United States and earning much more income. The court will impute income to the mother in the amount sought by the mother.
58Child support from the date it is claimed in a court action is prospective support and is presumptively payable. See: MacKinnon v. MacKinnon, 75 O.R. (3d) 175 (C.A.), at para. 22. The father did not rebut this presumption. The mother made her claim for support on September 27, 2023. The temporary child support order will start on October 1, 2023. The guidelines table amount for one child at an annual income of $34,400 is $297 each month. This amount is subject to adjustment with respect to both the amount and the start date.
Part Five – Financial disclosure
59The father has filed no financial disclosure. The disclosure sought by the mother in her notice of motion is required for her to properly assess her support claim.
60The court finds that most of the financial disclosure sought by the mother is reasonable and proportionate. The father will be required to produce the financial disclosure set out in this order within 45 days.
Part Six – Conclusion
61A temporary order shall go on the following terms and conditions:
a) The parenting and communication and contact orders made on November 17, 2023 and on January 8, 2024 are now with prejudice.
b) In the event that APCO chooses not to facilitate supervised parenting time, the father may have his parenting time supervised by either Renew Supervision Services or Brayden Supervision Services, on the same terms and conditions set out in the November 17, 2023 order. The father will be required to pay all costs of these supervision services.
c) The father shall pay temporary child support to the mother in the amount of $297 each month, starting on October 1, 2023. This is based on the father’s imputed annual income of $34,400 and is the guidelines table amount for one child. This is subject to adjustment with respect to both the amount and the start date.
d) A support deduction order shall issue.
e) The father’s oral claims for relief made at the hearing are dismissed.
f) The father shall provide the mother with the following financial disclosure within 45 days:
i) A sworn financial statement together with all attachments required by the Family Law Rules.
ii) His 2019 income tax return and notice of assessment.
iii) Copies of all records of employment from employers since January 1, 2019.
iv) Statements of any income received from public assistance since January 1, 2023.
v) Documentary proof of all income earned from all sources in 2023 and 2024, including any pay stubs.
vi) All monthly bank and credit card statements, in his name, or held jointly, since January 1, 2023.
vii) Copies of all passport entries since January 1, 2021.
viii) Copies of all documents establishing his present immigration status.
ix) Copy of his lease.
x) Copy of his driver’s license.
g) The father shall serve and file an affidavit within 45 days setting out why he is unable to produce any of the financial documentation set out above.
62The mother is the successful party on this motion. If she seeks her costs, she shall serve and file written submissions by April 10, 2024. The father will then have until April 24, 2024 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.
63The next court date will be on July 11, 2024 at 10:00 a.m., in person, for a settlement conference. The parties are required to serve and file settlement conference briefs and offers to settle. The father should also serve and file a sworn financial statement and copies of the observation notes from APCO or from any other professional parenting time supervisor that is used.
Released: March 26, 2024
_____________________ Justice S.B. Sherr