Court File and Parties

Court File No.: D48573/09 Date: 2014-07-03 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: Rong Fan, Applicant (mother) And: Liwen Zeng, Respondent (father)

Before: Justice Robert J. Spence

Heard: 17 April and 18 June 2014

Reasons for Judgment released on: 3 July 2014

Counsel:

• Ms. Dorothea Dadson, for the applicant, mother
• Mr. Dennis Apostiledes, for the respondent, father

Nature of the Proceeding

[1] This is the father's change motion. He seeks to change a final order of this court dated May 2, 2011. That order was made on default and provided, inter alia:

1. Mother to have custody of the (now) 6 year-old child of the relationship;
2. Father to have reasonable access on reasonable notice; and
3. Based on an imputed income of minimum wage to father, namely, $21,300 per year, father to pay mother $182 for child support, for one child, commencing August 10, 2009, being the date of commencement of mother's initial application.

Order Sought by Father

[2] Father seeks the following relief:

1. Specified access as follows: a. Every Wednesday from 5:30 p.m. to 8:30 p.m.; b. Every Saturday from 9:00 a.m. to 6:00 p.m.; and c. Telephone access three times each week.

2. A rescission of all arrears of child support; and

3. No order for support on an ongoing basis until such time as the father is gainfully employed.

Order Sought by Mother

[3] The mother requests the court make the following order:

1. Access to remain on Saturdays only;
2. No mid-week access;
3. One telephone access call per week;
4. Dismissal of the father's motion to rescind arrears of support; and
5. Dismissal of the father's motion to terminate ongoing support.

Outcome

[4] For the reasons which follow, I am dismissing the father's motion for financial relief and allowing, in part, his motion for a change in the access.

Background

[5] The parties were married in October 2006 in China. They subsequently came to Canada, but separated in November 2008.

[6] There is one child of the marriage, namely, Qing, born January 3, 2008.

[7] On or about July 27, 2009, the mother commenced an application requesting, inter alia, custody and child support. The father responded with his own claim, seeking joint custody and child support as against the mother.

[8] What followed was a number of court attendances and orders for disclosure. Then on July 26, 2010 I made an order on consent granting specified access to the father, and further orders for disclosure by the father.

[9] The matter was subsequently adjourned twice. The father continually failed to make the court-ordered disclosure and, accordingly, on April 18, 2011 I struck his pleadings and noted him in default, granting leave to the mother to proceed by affidavit evidence.

[10] The default order dated May 2, 2011 is the order which is now sought to be changed.

[11] At a pre-trial conference held on January 27, 2014, I ordered each side to file their evidence-in-chief by affidavit, with the expectation that the trial could be concluded in one-half day.

[12] Trial commenced on April 17, 2014 and continued for one-half day. At the urging of counsel I agreed to adjourn to June 18, 2014, for final submissions.

Financial Issues

[13] In the mother's affidavit which she filed in support of the undefended request for support, leading to the default order of May 2, 2011, she stated:

The Respondent [father] has not disclosed his income in accordance with the Family Law Rules. I have no idea what the Respondent is earning and his last Settlement Conference Brief suggested that he had not yet filed his 2010 income tax return. I am asking this court at the very least to impute an income of minimum wage in the amount of $21,300 per annum.

[14] Among the documents that the father had failed to disclose, and which eventually led to striking his pleadings, was a job search list. He had claimed to be unemployed and searching for work. But he never provided any job search list, or other evidence that he was in fact actively seeking gainful employment. Nor did the father provide evidence that he was unemployable, for example, because of medical reasons.

[15] At trial, the father's evidence-in-chief was set out in his affidavit sworn April 1, 2014. That affidavit dealt almost exclusively with the access issue. However, insofar as the financial issues are concerned, the father deposed that he has been unemployed since 2008, although he did acknowledge receiving "some money in China" while working there in 2010.

[16] The father's evidence was rife with inconsistencies. For example, in his financial statement sworn April 14, 2014, he deposed, contrary to his evidence-in-chief, that he had employment income of $400 per month. Under cross-examination he stated that this income arose from part-time employment in a Thai restaurant where he prepared food and was paid $10 per hour. He claimed that he held this job for only about three months but he gave no reason for the loss of that employment.

[17] The father deposed – and his resume confirms – that he is a software developer and he has work experience dating back to 1999. His resume sets out the names of the places where he was employed from 1999 to 2013. In fact, his resume states that he worked as a "software developer" for Laser CNC Software from 2002 to 2013. Again, this is contrary to his evidence-in-chief wherein he deposed that he had been unemployed since 2008.

[18] At trial he stated that in 2012 he travelled to China to work for his friend to develop laser control software. He remained there for five months and his friend paid him $20,000 plus the cost of travel, which was about $1,500. He made three trips in total over a five-month period, and the cost of two of those trips was deducted from the $20,000 he received. Accordingly, in a five-month period, he would have been paid about $18,500, net of travel costs.

[19] As a software developer, his skills are capable of producing an income of at least $44,400, based on what he earned while in China.

[20] He said he owns two properties in China which he values at somewhere between $30,000 and $40,000. They are currently vacant but he said he is able to rent them for $200 per month.

[21] For the first time, at trial, he produced a document which he called a "Job Hunting Record". Prior to trial he had failed to produce any such document, notwithstanding that he had been ordered by the court to do so.

[22] That document listed a number of names of companies and dates (no years) of contacts that the father made.

[23] Of particular note is the following entry:

Applied Mississauga supermarket job, (9:00 a.m.–9:00 p.m. 6 days a week, only $400 a week) by phone. I did not accept because wage is too low.

[24] Why was father applying for a job at a supermarket when his resume stated that he was continuously employed from 1999 to 2013? And if he was in fact looking for work and refused a job which would have paid him $400 because the wage was "too low", implicit in that refusal is the fact that the father himself believed he was capable of earning more than $400 weekly. Even if he was not capable of earning more than that amount, then he was clearly able to secure employment at $400 weekly which is almost the same amount that was imputed to him in the final default order of May 2, 2011.

[25] Again, returning to the father's financial statement sworn April 14, 2014, father claims to be unable to pay any support and yet he is paying $213 monthly for automobile-related expenses. His apparent preference is to pay $213 monthly for his automobile instead of paying the court-ordered child support of $182 monthly.

[26] Section 14 of the Child Support Guidelines sets out the circumstances that must be proven in order to warrant a variation in a child support order:

14. Circumstances for variation. — For the purposes of subsection 37(2.2) of the Act and subsection 17(4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

1. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

2. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

3. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

4. In the case of an order made under the Act, the coming into force of subsection 33(11) of the Act.

[27] The burden of proof rests with the moving party – in this case, the father - on a balance of probabilities, to establish a change in circumstances that would result in a different order. Jardine-Hynds v. Grant, 2009 ONCJ 133.

[28] The question, therefore, is whether the father has satisfied the burden of proof, on a balance of probabilities, that there are changed circumstances which warrant a reduction in child support from $182 to $Nil.

[29] As I noted earlier, the father's evidence regarding his financial circumstances is replete with inconsistencies and internal contradictions. In general, I find that he was not a credible witness on the financial aspects of this trial. He contradicted his own testimony and his own documents produced at trial.

[30] I find that he is either gainfully employed, or capable of being employed at not less than the minimum wage amount which was imputed to him in the original order which he sought to change at this trial.

[31] Accordingly, the father has not met the burden of proof and I have no choice but to dismiss his motion to reduce his ongoing child support to $Nil.

[32] Similarly, the mere accumulation of arrears without evidence of a past inability to pay is not a change in circumstance, or special circumstance, entitling a party to relief. Haisman v. Haisman, 1994 ABCA 249, 157 A.R. 47. And because I have found that father is either continuing to earn – or is capable of earning – at least minimum wage, I must also find as a fact that there is no past inability to pay the ordered support. Accordingly, his claim for rescission of arrears must also be dismissed.

Access Issues

a. Background

[33] In her affidavit sworn April 25, 2011, the mother deposed, in part:

I am also content that the access order state "reasonable access on reasonable notice". I don't believe that the [father] can be relied upon in any other way to come and visit on a consistent basis. I just found out that the [father] is going back to China again on Saturday, April 30, 2011. I believe he is going to be away for 2 months. . . . If the [father] steps up and feels that he can commit to spending time with the child, then I would be very happy. I want the [father] to have a relationship with his son. However, if he continues to go to China and disappears for long periods of time, then I cannot imagine that the [father] will have time to see his son.

[34] It was on the basis of the foregoing that the final default order provided for "reasonable access on reasonable notice".

[35] It is clear from the foregoing evidence in respect of the financial issues that the father did spend considerable periods of time in China. This was something that the mother feared would happen and, unquestionably, it disrupted what might otherwise have become a more consistent pattern of access between the father and the child.

[36] Following the issuance of the change motion, the parties appeared before me on June 27, 2013 at which time they consented to a temporary order for Wednesday access at the local library from 7:00 p.m. to 8:00 p.m.

[37] On July 23, 2013, the father reported that three visits had taken place and they had been successful. Mother said she stopped the Wednesday visits because of a couple of concerns she heard about from third parties. I made a temporary order expanding access to Sundays, from 9:00 a.m. to 2:00 p.m.

[38] At the January 27, 2014 court appearance, the Sunday access was reported to be going reasonably well. However, father was seeking to expand the Sunday access from 2:00 p.m. to 6:00 p.m., and to add Wednesdays, commencing from after school pick-up until 8:00 p.m. Mother stated she was agreeable to some expansion of access. On consent, I made a temporary order changing the Sunday access to Saturdays, and increasing the hours, from 9:00 a.m. to 6:00 p.m. No Wednesday access could be agreed upon.

[39] As I noted at the outset of these reasons, the parties are agreeable to maintaining the Saturday access; but the dispute centres on whether or not there should also be mid-week access on Wednesdays, as well as the number of telephone calls.

[40] The Wednesday access became a serious issue for the mother because the father was appearing at the daycare and (she says) interfering with the daycare staff. On one occasion the staff telephoned police because of the disturbance caused by the father when he attended at the daycare, uninvited. Mother also says that she has been kicked out of at least two or three daycares because of the problems that the father was creating when he showed up to see his son.

[41] For his part, the father attributes these problems to a communication issue between himself and the staff, connected with his desire to obtain certain information about how his son was doing.

b. The Law

[42] Section 29 of the Children's Law Reform Act ("CLRA") provides:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[43] This is a two-step process:

a) The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

b) Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.

See: Gordon v. Goertz, [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases. See: Allen v. Allen, 38 R.F.L (4th) 96.

c. Material Change in Circumstances

[44] I am satisfied that the threshold requirement of a change in circumstances has been met, in that it is apparent that an order for "reasonable access on reasonable notice" is no longer working, as it has led to disputes and conflict. The access order must be changed so that it provides for greater specificity, in an attempt to alleviate those conflicts.

[45] The question, therefore, is what kind of order best meets the needs and interests of this 6 year-old child. Mother believes that limiting access to one day each week is sufficient, whereas father seeks some additional time mid-week.

[46] From all of the evidence I infer that mother would have been content to include the mid-week access but for the daycare issues which arose which clearly created problems for the mother and the child.

[47] There is no reliable evidence that when the father and the child are together, the access is other than beneficial for the child. Accordingly, all else being equal, the child would benefit from that additional period of access on Wednesday, if the conflicts can be avoided and the issue of father's inconsistencies in his access visits can be addressed.

[48] Having regard to the importance of maximizing contact between father and child, as well as minimizing the conflict, I have concluded that it is in the child's best interests to expand the access to include Wednesdays, but with certain conditions attached.

[49] As well, because I am adding the Wednesday access periods, I see no reason to include three telephone calls per week to the mother's residence.

[50] I make the following order with respect to access:

1. Father to have access each Saturday from 9:00 a.m. to 6:00 p.m., with pickups and drop-offs at mother's home.

2. Father to have access each Wednesday from 6:00 p.m. to 8:00 p.m., with pickups and drop-offs at mother's home.

3. Father shall have one telephone access call each week. The telephone call shall originate from the mother's home and shall occur within a time-frame to be agreed upon by the parties. Under no circumstances shall the father telephone the mother's home, except in the case of an emergency.

4. In the event father is unable to exercise any of the Saturday or Wednesday access times, he shall ensure that he notifies mother at least 72 hours in advance, in writing (or text or email), stating the reason for his inability to exercise access. He shall also provide the mother with written notice when he is able to resume his access.

5. In the event the father intends to travel outside Canada, he shall provide written notice to the mother of his departure date as well as his expected date of return. He shall also provide the mother with an emergency contact telephone number or email address where he can be reached by the mother.

6. While the father is out of Canada, the telephone access may continue provided that any such access shall be at the sole expense of the father. Alternatively, the father may have one-weekly Skype (or similar) access, to occur within a time-frame to be agreed upon by the parties, provided that any such access shall be at the sole expense of the father, including any costs involved in obtaining or upgrading mother's internet connection.

7. Under no circumstances shall the father attend at the child's school or daycare, except in the case of an emergency, or unless otherwise permitted by the mother, in writing.

[51] While I have attempted to craft an access order that is specific, and one that will hopefully avoid conflicts between the parties, any access order requires a certain amount of good faith and cooperation between the parties if it is to succeed for the benefit of the child. In this case, the access order imposes obligations on both parties and, more particularly on father's part, to communicate effectively with the mother. Any material breakdown in this communication could ultimately lead to another change in the access order, including a decrease in access.

[52] It is apparent that both parents love their son and both wish for their son to have a beneficial relationship with the father. This can be achieved only if the parents are prepared to fully cooperate in the implementation of this order.

[53] Both parents have been partially successful and for that reason I am disinclined to order costs. However, should either party wish to seek costs, he or she shall provide written submissions, not to exceed two pages in length, exclusive of any Bill of Costs or Offer to Settle, within 30 days; the party responding shall do so in writing within 30 days thereafter, with the same limitations.

Justice Robert J. Spence

July 3, 2014