Court File and Parties
Date: February 21, 2017
File No.: D80823/15
Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Between: Oriaku Chukwunomso, Applicant (father)
And: Lisa Ransome, Respondent (mother)
Before: Justice Robert J. Spence
Heard: 14 February 2017
Reasons Released: 21 February 2017
Counsel:
- Michael K. Housley, for the applicant, father
- Dumoluhue Siziba, for the respondent, mother
Introduction
[1] The parents have competing claims in respect of their daughter who is three years old.
[2] The father seeks:
- Joint custody;
- Generous access, including unsupervised access on weekends and vacations; and
- Child support to be paid by him on the basis of his self-declared income in the amount of $64,450.
[3] The mother seeks:
- Sole custody;
- Primary residence of the child with the mother;
- A non-removal order from Ontario as against the father;
- Certain incidents of custody, including travel permissions and government documents;
- Access to the father in the mother's discretion;
- Child support payable by the father on the basis of imputed income to him in the amount of $150,000;
- A "split" of extraordinary expenses; and
- Father to obtain a life insurance policy in the amount of $500,000 with mother as the irrevocable beneficiary, as security for the father's child support obligations.
Background
[4] The parents were involved in a relatively brief relationship, for about three years.
[5] They met in 2009, and their relationship commenced in 2010. The mother became pregnant in February 2013. The child was born prematurely, in July 2013.
[6] The father separated from the mother during her pregnancy. He accepted an offer of employment in Saskatchewan. He did not return to live in Ontario until about November 2014.
[7] Except for two or three brief visits with the child when he came to Toronto from Saskatchewan, the father missed the entire first 16 months of his daughter's life.
[8] The mother's pregnancy and the first months of the child's life were difficult for both mother and daughter. Following the premature birth, the child remained in hospital for three months while on a feeding tube and breathing support.
[9] The mother remained with the child every day that the child was in the hospital, learning from the hospital staff how to care for the child, who was classified as high risk.
[10] Following the child's release from hospital, the mother took extended leave from her employment to remain at home with the child and to care for her.
[11] The child is presently followed closely by her pediatrician and by the postnatal clinic at Mount Sinai Hospital.
[12] The father has not been involved in any of the child's care.
[13] Following the father's return to Ontario, the mother permitted him to have access at her home. The mother says that the father typically did not engage with the child during these visits, and he would often fall asleep while he was with the child.
[14] The father did not deny this.
[15] The mother also says that the father became verbally abusive during the visits; so she changed those visits to community supervision, in order to minimize or avoid confrontations.
[16] The father did not deny this.
[17] The father commenced the court application in May 2015.
[18] In October 2015, the parties consented to father having access to the child for three hours each week, supervised by the mother, at Koala Kids.
[19] As part of that consent order, the father agreed to complete a parenting course aimed at improving his parenting skills, such course to be about two months in duration with weekly classes. Course to be agreed upon in advance by the parties.
[20] In the same consent, the parties agreed that the father would pay child support to the mother in the amount of $596 per month, commencing November 1, 2015, based on his reported income of $65,200 (excluding rental income).
[21] The father also agreed to provide the mother with specified financial disclosure by December 31, 2015.
[22] The matter was subsequently adjourned to permit the parties to attend mediation.
[23] Mediation did not succeed. The parties returned to court on April 28, 2016.
[24] On that date the parties entered into a further consent. They agreed to vary the access, by adding an additional three-hour period every alternate Sunday afternoon, unsupervised.
[25] As the father had not completed the previously-ordered financial disclosure, the parties agreed that father would have a further extension, to June 9, 2016, to complete his financial disclosure.
[26] On September 7, 2016, the parties again attended court. Court was advised that the parties were more or less cooperating with the existing access regime.
[27] The next court attendance was on December 8, 2016. Mother and her counsel attended. Father's counsel attended, but father did not attend.
[28] No reason was given for father's failure to attend court.
[29] At that case conference, mother reported that father had ceased exercising access as at the end of October 2016.
[30] During the subsequent focused hearing in February, I inquired as to the reason father ceased exercising access. His counsel responded that the father was "frustrated" by the process.
[31] As at the date of that focused hearing the father had not seen his daughter for almost four months.
[32] At the December 8, 2016 case conference, the court set February 14, 2017 for a focused hearing on all issues, with the parties' evidence in chief to be filed by affidavit.
[33] The court also ordered costs against the father in the amount of $300, payable within 30 days, given the father's failure to make all financial disclosure and for failing to attend at the case conference on December 8, 2016.
[34] As at the date of the focused hearing on February 14, 2017, financial disclosure was still not complete.
Custody
[35] The mother has been the child's sole caregiver since her birth. She has met all of the child's needs, including caring for the child during the most crucial and challenging time of her life to date.
[36] The mother did all of this without any assistance from the father.
[37] The father chose to work in Saskatchewan, missing the most formative and difficult 16 months of his daughter's life.
[38] While the court does not criticize father for choosing to work in Saskatchewan, this was a choice which he made. Choices generally carry consequences. This choice was no exception.
[39] Although the father seeks joint custody, nowhere in his evidence in chief does he provide any evidence as to why such an order would be in his daughter's best interests.
[40] The father has been an infrequent parent, at best.
[41] He has instigated conflict with the mother, in the presence of the child.
[42] In considering the merits of a claim for custody or access, the court is required to make a determination based on what is in the best interests of the child. Section 24(1) of the Children's Law Reform Act.
[43] In determining best interests, the court must be guided by the considerations set out in subsection 24(2) of the Act.
[44] I do not find it necessary to reproduce the considerations set out in subsection 24(2) of the Act, as every applicable consideration weighs in favour of the mother's position.
[45] In short, there is no evidentiary basis which would support the father's claim for joint custody. His claim is without merit. There is no reason, in the best interests of this young child, to change the long-standing status quo in respect of custody.
Access
[46] The father seeks to be a part of his child's life. The mother has never opposed this. In fact, she prefers that the father becomes involved in their daughter's life. But she wants that involvement to be positive, meaningful and consistent.
[47] However, the undisputed evidence of the mother is that the father engaged in behavior which led to considerable turmoil and conflict during a number of his access visits.
[48] For example, he repeatedly shouted at the mother – in the presence of the child – demanding that the mother agree to a paternity test.
[49] The father also refused to accept instructions from the mother regarding the child's care. This was a child who was born prematurely and who had special needs, particularly when she was very young.
[50] The father does not dispute the mother's evidence about the father's inappropriate behavior during access visits.
[51] The father now wishes to immediately expand access to full days, once each week, for about four weeks. After that four-week period, he seeks the immediate further expansion of access to alternate weekends and vacation periods.
[52] The father's requested access is a demonstration of over-reaching on his part. His unrealistic request reveals to the court his poor judgment as to what is in his daughter's best interests.
[53] The father has never had overnight access to his daughter.
[54] Furthermore, the father made a choice to walk away from his court-ordered access visits when he became "frustrated" in October 2016.
[55] The father is now requesting expanded access following a period during which he simply refused to exercise any access whatsoever.
[56] This suggests to the court that father thinks it is time to run, before he has even begun to walk.
[57] The father must first demonstrate that he is a capable parent, willing and able to look after his young daughter, before expanded access can be considered by the court.
[58] The father must also clearly establish that he will not simply walk away from his daughter and stop seeing her the next time he becomes frustrated. Behaving in that way can be emotionally damaging to a child, particularly a young child who will not be able to understand the reason for such long absences by a parent.
[59] I will set out at the conclusion of these reasons the access which I have determined is in the child's best interests.
Child Support
[60] The father says support should be based on his stated income of $64,450.
[61] However, there are far too many unanswered questions to truly understand what the father's actual income is – or what the father is capable of earning.
[62] His financial statement sworn in 2015 deposes that his income in 2014 was $102,534.
[63] His mortgage application dated June 11, 2015, for the purchase of a property in Mississauga states that his annual income is $58,000.
[64] His mortgage application dated August 5, 2015 – less than two months following the preceding application - in respect of a different property in Toronto states that his annual income is $90,000.
[65] His financial statement for his numbered corporation for the year ended December 31, 2014 reveals gross income for 2014 in the amount of $181,404. After deducting expenses of $181,383, the father states that his net income is $22.
[66] His declared expenses on that financial statement include such things as:
- Salaries and wages of $64,426,
- Travel expense of $77,350,
- Consulting of $15,450, and
- Various other smaller expenses for the balance of the $181,383.
[67] The father is a one-man company. His area of expertise is computer systems analyst. He is essentially a contractor.
[68] His TD Canada Trust bank statements for the six-month period ended July 31, 2015 shows deposits totaling $211,686. Of that amount the father said $130,000 came from the re-financing of one of his properties.
[69] That leaves more than $81,000 in deposits for the six-month period, or $162,000 extrapolated over a 12-month period.
[70] In addition to that, one of the father's real properties is used for rental income. He receives $1,800 per month, or $21,600 per year from that property. He claims his net rental profit on that property is $5,941 annually.
[71] The father's bank statements reveal substantial amounts – some as high as $60,000 and $65,000 - deposited into his TD account and being withdrawn from that account, to and from his account at Tangerine Bank.
[72] However, the father failed to provide any of the Tangerine Bank statements.
[73] Father does not explain this failure to provide full financial disclosure; nor does he offer an explanation for the outstanding disclosure which he was otherwise ordered to provide more than one year ago.
[74] When imputing income to a support payor, the court is not permitted to simply pick random or arbitrary amounts. There must be a rational basis which underlies the court's selection of any amount chosen by the court. Drygala v. Pauli
[75] By failing to provide evidence supporting the expenses on the father's financial statement, the father has failed in his obligation to clearly demonstrate the basis for arriving at the net income shown on that statement. Whelan v. O'Connor
[76] The same principle applies when the income derives from a corporation which the support payor fully controls, as in the present case. MacKenzie v. Flynn, 2010 ONCJ 184
[77] What the evidence tells this court is that the father's income is basically whatever the father decides it should be, having regard to his own particular objectives at any given time.
[78] The court has discretion to draw an adverse inference from the father's failure to make full and complete financial disclosure. Lanfrey v. Lanfrey and Henry v. Smith, 2016 ONCJ 645
[79] I find it particularly appropriate to draw such an adverse inference in this case given the father's repeated and consistent failure to make full financial disclosure.
[80] In deciding to draw such an adverse inference, I also take into account that he is clearly a sophisticated person and a litigant who, for about the past one year, has been represented in this court proceeding by experienced counsel.
[81] The correct income number, including rental income, would appear to be somewhere between about $100,000 and $180,000 per year.
[82] Given the father's intentional and persistent incomplete financial disclosure, I would have been inclined to impute income at, or near, the higher of these two numbers. However, I have concluded that in all the circumstances, a number midway between those amounts, namely, $140,000 would be a fair and just figure to impute to the father.
Conclusion
[83] On the basis of all of the foregoing, the court makes the following final order:
1. Custody
The mother shall have sole custody of the child, together with all the incidents of custody as requested in paragraphs 2, 3, 4, and 5 of her prayer for relief, including:
a. Primary residence to the mother;
b. Permission for the mother to renew and obtain all passports and government related documents for the child, without the father's consent;
c. Permission for the mother to travel out of Canada with the child without the father's consent. However, she shall notify the father in writing if she will be travelling with the child out of Canada for more than one week, and provide the father with a copy of her travel itinerary; and
d. An order prohibiting the father from removing the child from Ontario without the mother's written permission.
2. Access
Father's access shall be in the discretion of the mother, including discretion as to duration, frequency and level of supervision, if any.
3. Exercise of Discretion
Mother shall exercise her discretion in good faith having regard to the child's need for the father to be involved in her life, to the extent appropriate, taking into consideration the child's age and stage of development, and the child's best interests, as determined by the mother.
4. Child Support
The father shall pay table support to the mother, pursuant to the Child Support Guidelines, in the amount of $1,189 per month, based on the father's income of $140,000 per year. Such support shall commence July 1, 2015, with credit to the father for amounts paid by him since that date, and as verified by the Family Responsibility Office.
5. Section 7 Expenses
In the event the mother incurs any section 7 expenses for the child, she shall provide evidence of same to the father, who shall then pay his proportionate share of the reasonable section 7 expenses.
6. Annual Financial Disclosure
Beginning in 2018, and for so long as he is obligated to pay child support, the father shall provide full annual financial disclosure to the mother, no later than July 1st of each year.
7. Mother's Financial Disclosure
For any year in which the mother seeks section 7 expense contributions from the father, she will provide the father with her own financial disclosure necessary to determine the father's proportionate share of such expenses.
[84] The mother also requested an order that the father obtain a life insurance policy in the amount of $500,000, with the mother as beneficiary. However, the court received no evidence of the father's insurability or his ability to otherwise obtain such a policy. Accordingly, the court declines to make such an order.
[85] Should the mother seek her costs of this proceeding she may file written submissions by Form 14B, such submissions not to exceed three pages in length, double-spaced, exclusive of any Bill of Costs or other attachments. Mother shall file her submissions within 21 days from the date of this order.
[86] Father may file his response to mother's costs submissions within 21 days thereafter, with the same restrictions which apply to mother's filings.
Justice Robert J. Spence
February 21, 2017
