Court File and Parties

Court File No.: Halton 71/11

Date: July 25, 2012

Amended: August 21, 2012

Ontario Court of Justice

Between:

Ada Dinorah McCash Applicant

— And —

John McCash Respondent

Before: Justice R. Zisman

Heard on: June 20, 2012

Reasons for Judgment released on: July 25, 2012

Counsel:

• Sofia Dharamshi, for the Applicant
• John McCash on his own behalf

Zisman, J.:

INTRODUCTION

[1] This is a motion for summary judgment by the applicant (mother). It is the mother's position that there is no genuine issue for trial, that the orders she seeks will provide stability and security for the children, permit the respondent (father) to have access to the children and protect the children and the mother from the father. She submits that the father has mental health issues that require treatment which he refuses to obtain.

[2] The mother seeks the following relief:

1. Sole custody of the four children namely, Joseph McCash born on […], 2002, Patrick McCash born on […], 2003, Daniel Christopher McCash born on […], 2005 and Monica McCash born on […], 2007;

2. Supervised access to the father;

3. A restraining order except for the purposes of access exchange and for arranging access;

4. Imputation of income to the respondent in the amount of $22,000.00 and child support in accordance with the Child Support Guidelines;

5. Ancillary orders for travel, access to information and maintaining the children on the respondent's medical and dental benefits, if available; and

6. Costs

[3] The mother relies on the following materials:

1. Affidavit of the mother sworn June 7, 2012
2. Affidavit of Father Charles Nahm sworn May 31, 2012
3. Affidavit of Daniel McCash sworn June 7, 2012
4. Affidavits of Muriel McCash sworn June 7, 2012 and January 25, 2012
5. Report of the Office of the Children's Lawyer dated
6. Financial Statement of the father sworn May 16, 2012
7. Factum and Book of Authorities

[4] In response to the mother's motion for summary judgment, the father filed a Notice of Motion requesting the following orders:

1. Shared/joint custody;
2. The mother receive a mental health assessment;
3. The mother reinstate him on her work benefits;
4. Spousal support;
5. A prohibition against the mother and children leaving this jurisdiction as she is a flight risk;
6. Rescinding the restraining order and the restriction against him contacting the children;
7. Recession of restricted contact and visits with the children;
8. Shared profit from rental income of the matrimonial home; and
9. Costs.

[5] In support of the father's motion and in response to the motion for summary judgment, the father filed an affidavit sworn June 18, 2012 and on consent was permitted to play a tape recording of telephone messages he received from the children from June 11th to 19th 2012.

BACKGROUND

[6] The parties were married on April 21, 2001 in Guadalajara, Mexico. They have four children. Prior to the separation they lived in a home owned by the paternal grandparents. They separated in August 2010 but continued to live separate and apart in the same home until December 17, 2010 when the mother left the home with the children.

[7] The mother has lived with the father's parents in their home with the children since December 17, 2010.

[8] From October 2011 to the present time, the father has only seen the children three times.

HISTORY OF COURT PROCEEDINGS

[9] The mother commenced this court application on February 10, 2011. The parties have been before Justice O'Connell who was the case management judge eight times.

[10] On February 14, 2011, the mother was granted, on an ex parte urgent basis, a temporary without prejudice order for sole custody, the father was granted supervised access with an agreeable mutual third party and the father was not to remove the children from the Town of Oakville.

[11] On February 18, 2011, the order of February 14, 2011 was amended to provide that neither party remove the children from the province of Ontario. The father's access was changed to be exercised at a supervised access centre every weekend and pending the commencement of the supervised access his previous access was to continue. Neither party was to communicate directly or indirectly except for the purpose of arranging access.

[12] On August 24, 2011, on consent of the parties with assistance of their respective counsel, an order was made appointing the Office of the Children's Lawyer. Pending the completion of the investigation and report of the Office of the Children's Lawyer, on a without prejudice basis, the father was again ordered to exercise supervised access at supervised access centre. Further, on a without prejudice basis, income of $22,000.00 was imputed to the father and he was required to pay child support of $549.00 per month.

[13] On October 31, 2011 the parties were again before the court. The father no longer had counsel and sought an adjournment. The court was advised that the father refused to attend for an intake appointment at the supervised access centre and was insisting on unsupervised week-end access. The order of August 24, 2011 was clarified to provide that the father shall only have supervised access at a supervised access centre pending completion of the Office of the Children's Lawyer investigation. There was also an order that the parties not communicate directly with each other and any issues affecting the children be communicated through the father's parents.

[14] On January 16, 2012 the court was advised that the father had not exercised access at the access centre as he continued to refuse to see the children at a supervised access centre. The terms of the father's access were further clarified to provide that he could see the children outside of a supervised access centre to enable the Office of the Children's Lawyer to conduct observational visits. The court also confirmed that in accordance with the orders of August 24 and October 31, 2011 the father's access would otherwise continue to be supervised at a supervised access centre.

[15] On January 16, 2012, the court also granted the mother's motion for a restraining order. The court found that the father's history of communication with the mother since October 31, 2011 amounted to harassment. There was also a finding that the father had showed up at the children's school, babysitter and extra-curricular activities in direct contravention of the court order of October 31, 2011. The court ordered that the father not communicate directly or indirectly with the mother and not attend within 300 metres of the mother's home or place of employment or the children's school, babysitter or extra-curricular activities. The father agreed that he would only contact the mother's counsel in writing.

[16] On January 23, 2012 the father brought a motion to transfer the proceedings to the Superior Court of Justice to seek custody and child and spousal support. The motion was dismissed and the father was ordered to pay $500.00 in costs.

[17] On April 2, 2012 the court amended the restraining order made on January 16, 2012 to prohibit the father from taking any steps of any kind concerning the mother without 5 days notice and the father was required to show the restraining orders to any person to whom he made a report concerning the mother. This order was made as a result of the father on the same day, after his motion to transfer the proceedings to Superior Court of Justice was dismissed, attending at the Brampton Court before a Justice of the Peace and obtaining an order the mother be involuntarily committed under section 16 (1) of the Mental Health Act based on false evidence and without disclosing these proceedings. As a result the police removed the mother from her home in front of the children and took her for an assessment at the hospital from which she was later released.

[18] On May 16, 2012 a settlement conference was held. The parties were unable to reach a settlement. The mother was granted leave to bring a motion for summary judgement.

EVIDENCE REGARDING CUSTODY AND ACCESS

[19] Since the separation on December 17, 2010 the children have resided with the mother in the home of the paternal grandparents. The mother has been the primary parent responsible for meeting all of the needs of the children and has made all of the decisions with respect to the children's well-being.

[20] The mother is assisted by the paternal grandparents. The children have strong ties to their paternal grandparents. The mother intends to continue to reside with the paternal grandparents. The children will continue to attend the same school.

[21] The paternal grandparents, the father's former spiritual advisor and the clinical investigator from the Office of the Children's Lawyer all support the mother having sole custody of the children.

[22] The report of the Office of the Children's Lawyer concluded that the mother was "a capable and caring parent who has demonstrated patience in ensuring the children maintain a safe relationship with their father."

[23] The mother agrees, as submitted by the father, that the children love their father and wish to spend time with him. However, the children are confused and scared of their father when he becomes agitated and aggressive with those around him.

[24] During the two observational visits of the father and the children by the clinical investigator, the father was observed to have a positive visit with the children and he interacted appropriately with them. The only concern noted was his lack of supervision of the children on one occasion when they disappeared from his sight for about ten minutes.

[25] When access occurred at the home of the paternal grandparents, I accept the mother's evidence as confirmed by third parties and not denied by the father, that the father would not abide by the terms of the agreed upon access. He would arrive late, stay longer, insist on videotaping, ask to take the children out and create conflict which resulted in numerous calls and attendances of the police to the residence. The father's behaviour resulted in third parties being unable or unwilling to supervise access and access then being changed to a supervised access centre.

[26] The mother co-operated with the access centre so that the father's access could commence. However, the father refused to exercise access at a supervised access centre. Accordingly, from October 2011 the father has only seen the children three times, once for a Christmas visit arranged by the mother and two times during observational visits as part of the investigation by the Office of the Children's Lawyer.

[27] The father did not dispute that he had not seen the children but he deposed that this was because he did not agree that he needed to see them at a supervised access centre. In submissions the father then stated that he has now contacted the supervised access centre and was prepared to see the children there. However, the father did not provide any evidence to verify that he arranged or attended an intake interview.

[28] The Office of the Children's Lawyer report at page 20 makes the following observations and conclusions about the father:

…Mr. McCash genuinely and deeply cares about the children. However, his need to be right impairs his ability to meet the emotional needs of his children. Despite the fact that his children have told him that they miss and want to see him, Mr. McCash refuses to use an access centre to see his children. Attempting to reason or negotiate with Mr. McCash regarding this or any other issue with which he disagrees is extremely difficult. This has made the assessment process difficult as communicating with Mr. McCash can be exhausting given his need to be right and inability to consider alternative points of view.

Though Mr. McCash has not caused purposeful harm to the children, they are at risk in Mr. McCash's unsupervised care. Mr. McCash's view on parenting does not consider their physical and emotional safety. Past behaviours such as driving without car seats and seat belts, leaving the children unattended, taking them for long outings or allowing them to behave as they wish in public are examples of Mr. McCash's inability to follow rules with which he disagrees. Attempts to reason or negotiate with Mr. McCash on these issues are difficult as he is not able to see outside of his view on the matter.

As Mr. McCash lacks insight that he has personality difficulties that require attention, the focus should be placed on his strengths. This includes his genuine love for his children, his energy and his sense of humour. Mr. McCash can enjoy a relationship with his children provided that the time is structured and supervised. Both observational visits were successful as they were structured activities, time limited and supervised. Mr. McCash was positive throughout the visits, the children enjoyed their time with their father and the activities were structured and planned.

This type of access will need to continue until Mr. McCash can engage in ongoing treatment where his personality difficulties can be addressed. The psychological assessment completed by Dr. Travis indicates that this includes his social immaturity, superficiality, low tolerance for frustration, moodiness and grandiosity. All of these are consistent with the observations of those who know Mr. McCash and they are consistent with the observations of this writer.

[29] A report from Dr. Rzadki, a psychiatrist, was filed in evidence. The report indicated that the father was referred by his family doctor to Dr. Rzadki, in 2006 for "anger management" as a result of a criminal charge of harassing a co-worker and to rule out bipolar disorder. Dr. Rzadki diagnosed the father with bi-polar disorder and began treatment with mood stabilizer medications. The father improved with treatment and continued to see Dr. Rzadki up to 2008 but did not return for a follow up appointment and stopped taking the medications.

[30] Dr. Rzadki again saw the father in March of 2011 accompanied by his father. Dr. Rzadki was informed that the reason for the visit was that the father's mother had recently attempted to obtain help for the father by having him committed, pursuant to a Form 2 under the Mental Health Act, as his wife claimed that she had reason to fear him. The father was released from the hospital. The paternal grandfather advised Dr. Rzadki that his son was a manipulative person who was a bully, liar, thief and gambler.

[31] The father confirmed that he had been a compulsive gambler and did not dispute that he had incurred gambling debts in 2008 of $250,000. But he told Dr. Rzadki that the debts had been paid off, that he no longer gambled and was optimistic about his future work prospects. He also admitted that in the past he had a compulsive internet pornography addiction but no longer.

[32] As part of his assessment of the father Dr. Rzadki obtained a psychological assessment from Dr. Travis. In Dr. Rzadki's report dated July 28, 2011 he concluded that the father had:

• Serious personality issues of a long-standing nature
• Mild elevations on the psychopathic deviate and mania scales
• Long standing characterological features, including features of egocentricity, social immaturity, superficiality, low tolerance for frustration, moodiness and grandiosity

[33] The report recommended that the father engage in individual counselling which the father has not done. Although the father did not show signs of emotional disturbance at the time of the assessment, he had responded well in the past to medications and Dr. Rzadki recommended medication as an option to be considered.

[34] The mother also included evidence of the father's emails that demonstrated paranoid behaviour towards her, the children's aid society and the government. There was also a note from a student who was suppose to live with the parties for a few months but left because she was terrified of the father's paranoid behaviour.

[35] A letter from the children's doctor was also filed that outlined incidents in 2008 and 2010 of the father being hostile, disruptive and aggressive with the doctor and her staff.

[36] In the father's affidavit and his oral submissions does not address any of these issues except to accuse his wife, parents and Father Nahm of being revengeful, hateful and making up lies against him. In his affidavit he states as follows:

"Their REVENGE Unbelievable for supposed Christians"- Jesus Christ forgives – even on the cross-… Hypocricy…I have not been a consistent Provider for my wife and kids (Yes) However, their open HATRED and REVENGE …Decided in 2009-2010 to dishonour her promise to God, to her husband and family and ultimately herself. FINAL HEAVENLY COURT WE'LL ALL ANSWR TO GOD"

… I am not a danger, I do not need supervision and baby-sitters and my parents and wife controlling my life and parenting my children…..

Disagreement – Angry (not seeing my kids in over a year…On principle that unnatural and demeaning environment for my kids (now on waiting list at Access Centre), Disappointment, thrown under the bus for issues past life with parents and wife, who have shown no consideration or charity to a "sick" person. How deplorable. Fabricated…lies, Focused on revenge…Against family and my children…Many triable issues. Dinorah is not taking my kids out of Ontario to Mexico. She is a major flight risk as her parents are visiting Canada I July2012."

[37] When asked what evidence he would produce at trial in response to the report of the Office of the Children's Lawyer or the allegations in the affidavits by his parents, Father Nahm or Dr. Rzadki, his only response was that, it is all lies from the "Easter Bunny", it is a joke, the court should not rely on the reports and there is a much higher court that everyone must answer to.

EVIDENCE REGARDING CHILD SUPPORT

[38] The father has a Bachelor of Arts degree from the University of Toronto. He has extensive sales experience and has worked in the past for All Group Financial, CIBC, London Life and for George Gentile as a sales representative. The father speaks Spanish and French.

[39] The father's income in 2009 was $41,508.00 and in 2010 his income was $15,052.92. The father did not provide proof of his actual income for 2011. However, he worked for part of the year as a telemarketer at a salary of $21,800.00 and received employment insurance for part of that year. The father is currently in receipt of Ontario Works and filed a sworn financial statement that his annual income is now $599.00 per month or $7,188.00 per year.

[40] The father did not tender any evidence to indicate that he is unable to work at least for a nominal amount or why he lost his last employment. Although it is clear from his work history that he has had difficulty maintaining stable long term employment.

[41] The mother has been employed as a customer service representative for a bank since 2001. She has only been able to work part-time as the father was never responsible enough to provide at-home care for the children. In 2011, she earned $13,836.80.

EVIDENCE REGARDING THE NEED FOR A RESTRAINING ORDER

[42] The father refused to abide by non-communication clauses in the temporary court orders of February 28, August 24 and October 31, 2011.

[43] In January 16, 2012 a temporary restraining order was issued preventing the father from contacting the mother, attending within 300 metres of her home or employment or attending at the children's school, babysitter or extra-curricular activities.

[44] The father has sent numerous mass emails making defamatory statements about the mother to a mass email list of over 100 people consisting of mutual friends, family members, lawyers who have not been retained by the father and the paternal grandfather's business clients. He falsely alleged that the mother was sexually molested as a child, that she is suicidal, that she has personality disorders and that she is an unfit mother.

[45] The father deliberately misled a Justice of the Peace at another courthouse in Brampton on January 23, 2012, the same day that Justice O'Connell ordered that his motion transfer proceedings to the Superior Court of Justice was dismissed. As a result of the father's allegations the mother was picked up by the police and forced to attend an examination under section 16 of the Mental Health Act. The father had threatened to do this in the past as evidenced by text messages the mother appended to her affidavit. The father's only response to this was that the allegations he made against the mother to the Justice of the Peace were true but he did not explain why he did not mention the ongoing family court proceedings or the outstanding court orders.

[46] The father breached the current restraining order by sending letters to the mother's home in Spanish asking for reconciliation and forgiveness and by leaving gifts with third parties. The father admitted that he is now facing criminal charges for breaching the terms of the restraining order but could not understand why he was charged as he had not done anything to harm the mother or the children.

[47] There have been at least ten police reports involving the father. Most of the reports are as a result of the father refusing to behave during access visits or refusing to abide by the terms of the access orders.

[48] The affidavits filed the mother and the paternal grandparents outline incidents of the father becoming aggressive, confrontational and out of control with them, with the principle, teachers and even a crossing guard. It is alleged that he becomes angry with anyone who does not agree with him. The father is alleged to have made threats against the mother and has threatened to kidnap the children. The mother alleged that the father is verbally abusive and has threatened to hit her and has pushed and shoved her. The mother fears for her safety and the safety of the children. The paternal grandparents have also deposed that they have concerns about the safety of the mother and the children based on the father's behaviour. They depose that initially they agreed to supervise access but the father became increasingly verbally aggressive and threatening and although it hurt them to have to file affidavit against him they had to put the safety of the children first.

[49] The father has also made false allegations against his own father with the children's aid society alleging that he was a sexual predator. The children's aid society found the allegations to be unfounded and closed their file.

APPLICABLE LEGAL PRINCIPLES

[50] Subrule 16 (1), (4) (4.1) and (6) of the Family Law Rules provides that summary judgement can be granted under the following circumstances:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1) .

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6) .

[51] The mother's counsel submits that Rule 20.1(1) and 20.04 (2), (2.1) and (2.2) of the Rules of Civil Procedure, as recently amended, provide more tools to use in order to determine cases that do not need to proceed to a trial and permits the court to weigh evidence, evaluate the credibility of deponents and draw reasonable inferences. It is submitted that the court should apply these expanded powers to summary judgement motions in the family law proceedings. Counsel relies on the case of Steine v. Steine wherein the court held that the expanded Rule 20 of the Rules of Civil Procedure now apply to Rule 16 of the Family Law Rules. Other than a review of the jurisprudence that is emerging in civil cases interpreting the expanded powers of the court pursuant to Rule 20 there is no analysis in that case as to the basis for this interpretation.

[52] It is my view that these expanded powers should not be incorporated into Rule 16 of the Family Law Rules. Rule 1 provides that if the Family Law Rules do not adequately cover a matter, the court may give directions and the practice will be decided by analogy to the Rules of Civil Procedure and the Act governing the case. Rule 16 governing summary judgement adequately covers the issue of summary judgement and therefore it is not necessary to resort to Rule 20 of the Rules of Civil Procedure. I agree and adopt the reasoning of Justice Perkins in Starr v. Gordon wherein he stated:

The availability of summary judgement in family law has a very different history from its inception in civil cases. It would not be justified to assume that the Family Law Rules Committee has simply forgotten to catch up with the recent amendments to the civil law. I do not consider it appropriate to go beyond rule 16.

[53] Summary judgement will only issue where:

(i) The moving party can establish its case based upon admissions by the respondent;

(ii) There are no disputed material facts and the applicable law is well settled; or

(iii) The responding party has offered no evidence to support its claim or defence.

[54] Summary judgment is no longer considered an extraordinary remedy. As Rule 16 explicitly sets out the legal requirements for a motion for summary judgement its use has been broadened. However the court must be mindful of ensuring the fairness of the process and addressing the requirements of the legislation and the best interests of the children.

[55] Not all factual conflicts or all matters of credibility necessitate a trial. It is only those conflicts requiring resolution that will necessitate a trial.

[56] It is well established that summary judgement is available in custody and access matters. Summary judgment has also been used in cases involving support and restraining orders.

APPLICATION OF LEGAL PRINCIPLES TO FACTS OF THIS CASE

(i) CUSTODY AND ACCESS

[57] It is undisputed that the mother has been the primary caregiver of the children since at least December 2010. The mother has shown that she is able meet all of their needs. The mother has provided the children with structure and routines. The mother is willing and able to provide the children with guidance, education and the necessities of life.

[58] The mother's proposed plan of care is to continue to reside with the paternal grandparents who will continue to assist her and the children.

[59] The father has admitted that the children have resided with the mother and his parents since December 2010. He has admitted that he has only seen the children three times in all of that time. The father has not offered any plan to care for the children.

[60] The father seeks joint custody as he is concerned that the mother may remove the children from this jurisdiction and return to Mexico. The father did not offer any evidence to support this claim. Nor has the father disputed any material facts that the mother is the parent best able to parent these children and make decisions on their behalf.

[61] The Ontario Court of Appeal, in Kaplanis v. Kaplanis reviewed the principles in determining whether or not a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It cannot be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[62] There is not an iota of evidence that such an order is realistic in this case. The father in his materials attacks the mother. The father vacillates between animosity towards the mother or seeking to reconcile with her. Not only is there a temporary restraining order in place that prohibits the father from communicating with the mother, but the father has breached that order on numerous occasions. Further in view of the father's untreated mental health issues, it is clear that the mother is the only parent that is capable of making decisions that would be in the best interests of the children.

[63] With respect to access, the mother seeks an order of supervised access but only on condition that the father continues with psychotherapy and complies with all treatment recommendations. The mother is prepared to agree to a review of the supervised access order within a year if the father obtains treatment and if he exercises access regularly and the visits go well. The mother is prepared to allow structured telephone access and permit the father to have access to information about the children from third parties. She also seeks an order that will permit her to travel with the children without the father's consent.

[64] The father does not see the need for supervised access. He did not offer any evidence to dispute the findings of the Office of the Children's Lawyer, his parents, his former spiritual advisor or his own doctor that supervised access was necessary to ensure the physical and emotional safety and well-being of the children.

[65] A mere denial by the father that there is no need for his access to be supervised does not raise a material fact that requires a trial.

[66] The father has not seen the children as a result of his refusal to exercise access at an access centre or co-operate with third party access arrangements mutually agreed upon. The father refuses to acknowledge that he has mental health problems that require treatment.

[67] The father relied on the telephone messages he recorded and played in court to show that the children love him, wish to see him and that the mother is interfering with his access. There is no denial by the mother that the children love their father and wish to see him but that is not a basis for an order for unsupervised access. There is no evidence that the mother is interfering with the father's access.

[68] It was abundantly clear from the father's presentation in court during the summary judgment motion that the father has serious mental health issues. He was unable to focus his submissions on the relevant issues, he made rude and inappropriate comments and at times his comments made no sense at all.

[69] The only possible access order is for closely supervised and structured access. However, I am not prepared to order that the father must undertake psychotherapy and comply with treatment recommendations as a condition of exercising supervised access. Apart from the practical difficulties of monitoring this condition, the observations of the father's interaction with the children as part of the investigation by the Office of the Children's Lawyer indicated that he was able to have an appropriate visit, if it was supervised. If the father is not able to conduct himself appropriately at a supervised access centre then the mother can return this issue to court and request that all access be terminated. On the other hand, if the father wishes in the future to exercise unsupervised access, he will have to demonstrate that he has obtained and is complying with treatment for his mental health issues.

[70] It is also abundantly clear that the mother should not have to seek the father's consent for her to travel with the children. In view of the father's unfounded concerns that the mother will permanently remove the children from this jurisdiction, she would never be able to obtain his consent and she would be required to seek a court order whenever she wished to travel with the children.

[71] I therefore find that there is no genuine issue for trial regarding custody or access or the ancillary orders sought by the mother.

(ii) RESTRAINING ORDER

[72] Section 35 of the Children's Law Reform Act provides that:

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

[73] The father has acted in a vexatious manner both inside and outside of the courtroom towards the mother. I make the following findings:

1. The police have been involved on numerous occasions as a result of the father's behaviour involving the mother, her counsel and the father's parents.

2. The father swore false testimony before a Justice of the Peace in order to have the mother ordered to attend for a mental health examination.

3. The father sent numerous emails slandering the mother, his own family and her counsel.

4. The father refuses to accept the separation and continues to try to contact the mother despite the outstanding temporary restraining order.

5. The father refuses medical treatment or counselling for his mental health issues.

6. The father has attempted to circumvent court orders by approaching the children at their school, babysitters and at their activities.

7. The father has verbally threatened the mother, has been verbally abusive to her and on occasion pushed and shoved her.

8. The father has threatened to remove the children from the care of the mother and run away with them.

[74] The father did not deny that he breached the temporary restraining order. As he did not see the need for such an order, he did not feel he had to abide by it. There was no evidence that the father's anger or resentment against the mother has abated.

[75] Although there is no direct evidence of any serious harm that the father has caused to the mother, the mother's fear for her safety and the safety of the children is reasonable based on the father's relentless allegations against the mother, his actions in causing her to be committed for a mental examination, his untreated mental health issues, his unpredictable behaviour and his refusal to abide by the terms of court orders.

[76] The continuation of a restraining order is the only mechanism whereby the mother and children can have any protection against the father. The father has not shown that there would be any evidence he could produce at a trial to dispute the continuing concerns the mother has for her safety and the safety of the children. The mother has met the onus of showing that there is no genuine issue for trial regarding such a prohibition and a restraining order will be granted.

(iii) CHILD SUPPORT

[77] The ability of a court to impute income is the way the court gives effect to the legal requirement that a parent must earn what the parent is capable of earning if the parent worked to his or her full capacity.

[78] The following principles apply when determining capacity to earn income:

1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work;

2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations;

3. A person's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills or employment in which the necessary skills can be learned on the job.

4. Persistence in unremunerative employment may entitle the court to impute income;

5. A parent cannot be excused from his or her child support obligation in furtherance of unrealistic or unproductive career aspirations.

6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.

In imputing income, the court does not need to find a specific intent to evade child support obligations or bad faith. A parent required to pay child support is intentionally under-employed if that parent closes to earn less that he or she is capable of earning.

[79] Applying these principles to the facts of this case, I find that the father has not used his best efforts to earn what he is capable of earning based on the following facts:

1. The father is highly educated and speaks several languages.

2. The father has an extensive sales experience.

3. Although the father has mental health issues these are long standing and have been present since 2006. The father in the past has been able to obtain employment despite his mental health issues.

4. The father has chosen not to continue with counseling and medications that would assist him in dealing with his mental health issues.

5. There is no evidence that the father is not capable of working at least at a minimum wage position. On the contrary, there is evidence that the father in the past has been able to earn income.

6. There is no evidence of any attempts by the father to obtain employment since he lost his job in 2011.

7. The father continues to purchase gifts for the children but has made no attempt to pay any child support to meet their basic needs.

[80] I therefore find there is no genuine issue for trial on the issue of child support and that the temporary order should continue, namely that the father pay child support of $549.00 per month based on an imputed income of $22,000.00.

MOTION BY THE FATHER

[81] Most of the relief requested by the father has been addressed in the findings made in the mother's motion for summary judgment. However, the father raised several issues that have not been addressed namely, spousal support, coverage on the mother's extended health plan and obtained shared profit from rental income of the matrimonial home.

These items of relief are not properly before the court as they were not pleaded in his Answer. Further, there is no evidentiary basis for any of this relief. The father's affidavit filed in support of his motion does not provide any facts that would even remotely support the relief that he requests.

ORDER

[82] Order as follows:

1. The Applicant, Ada Dinorah McCash shall have sole custody of the children of the marriage namely, Joseph McCash born on […], 2002, Patrick McCash born on […], 2003, Daniel Christopher McCash born on […], 2005 and Monica McCash born on […], 2007;

2. The Respondent, John McCash, shall have supervised access to the above named children at a supervised access centre, at a location convenient to the Applicant, once a week on either a Saturday or Sunday for two hours. The Respondent shall forthwith arrange for an intake appointment and the Applicant shall thereafter comply with any further intake appointments that may be required. The Respondent shall be responsible for any costs.

3. If the Respondent has exercised access consistently for one year at the supervised access centre, he may apply to the court, on proper notice to the Applicant, for a review of the continued requirement for supervised access.

4. The Respondent may have telephone access to the children once a week as arranged by the Applicant. The Applicant shall advise the Respondent, in writing, of the time, day and length of the telephone calls. The Respondent shall advise the Applicant, in writing, of any change in his telephone number or contact information.

5. The Respondent shall be entitled to obtain information directly from third parties regarding the children. The Applicant shall execute any necessary consent to enable the Respondent to obtain this information.

6. The Applicant shall be permitted to obtain any travel documents for the above named children including but not limited to, passports, passport renewals, visas, without the written authorization or consent of the Respondent.

7. The Applicant shall be permitted to travel with the above named children outside of Canada without the written authorization or consent of the Respondent.

8. Based on an imputed income of $22,000.00 and in accordance with the Child Support Guidelines for four children, the Respondent shall pay child support to the Applicant for the above named children in the amount of $549.00 per month as of August 1, 2012. The Respondent shall also be required to pay any outstanding arrears pursuant to the temporary order for child support dated August 24, 2011.

9. The Respondent shall provide to the Applicant a copy of his tax return with all attachments and his Notice of Assessment and any Notice of Re-Assessment annually commencing June 30, 2013. The Applicant can apply for any re-adjustment of the Respondent's child support obligations for the proceeding year in the event that the Respondent's income is greater than $22,000.00.

10. A separate restraining order shall issue in the terms attached.

11. The Respondent's approval as to form and content of this order is dispensed with.

12. As the Applicant is the successful party she is presumed to be entitled to costs. If costs are sought, brief written submissions with a Bill of Costs, are to be submitted to the judicial secretary within three weeks and the Respondent's written response to be submitted within the following two weeks and any reply within one week.

Released: July 25, 2012

Signed: "Justice Roselyn Zisman"