Court File and Parties

Court File No.: D61082/13 Date: 2014-09-02

Ontario Court of Justice

Between:

H.F. (Applicant)

- and -

M.H. (Respondent)

Counsel:

• Natalia Denchik, for the Applicant
• Acting in Person, for the Respondent

Heard: August 27, 2014

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] There are two motions before the court, primarily dealing with the parties' three children who are ages 9, 7, and 6.

[2] The applicant (the mother) has brought a motion for temporary child and spousal support, further financial disclosure by the respondent (the father), an order that the father deliver to her the children's passports and birth certificates and an order that the father surrender his passport to the court as security for his support obligations.

[3] The father, who lives in Bermuda, attorned to this jurisdiction to determine the support issues. He is prepared to pay the table amount of child support pursuant to the Child Support Guidelines (the guidelines), but opposes any claim for a contribution to special expenses pursuant to section 7 of the guidelines. He opposes any claim for spousal support and believes that he has made adequate financial disclosure. He opposes the claim to surrender his passport and claims that he only holds Bermudian passports for the children. He opposes delivering them to the mother.

[4] The father has brought his own motion for unsupervised access to the children, including the right to have extended access with them in Bermuda. The mother opposes this motion and asks that any access be supervised at Access for Parents and Children in Ontario (APCO) in Toronto. She also seeks an order that the father not be permitted to remove the children from Ontario.

[5] There were several issues for the court to determine on these motions, including:

a) What temporary access order is in the best interests of the children?

b) Should the court make a temporary order prohibiting the father from removing the children from the Province of Ontario?

c) Do the children have any eligible section 7 guideline expenses?

d) If so, what temporary contribution should the father make to these expenses?

e) Is the mother entitled to temporary spousal support?

f) If so, what amount of temporary spousal support should the father pay?

g) Does the court have jurisdiction to order the father to surrender his Bermudian passport?

h) If so, should the court order the passport to be surrendered?

i) What further financial disclosure, if any, should the father provide to the mother?

j) What order, if any, should the court make about the children's passports and birth certificates?

Part Two – Background Facts

[6] The mother is 36 years old. The father is 39 years old.

[7] The mother has two children from a previous relationship. These children are 15 and 16 years old and have always lived with her. The mother does not know the whereabouts of their father. He does not pay child support.

[8] The parties met in 2004 and were married in Bermuda in 2006. The mother returned to Canada after the wedding and sponsored the father to come to Canada.

[9] The children have always resided with the mother in Canada.

[10] The father resided in Bermuda until he came to live with the mother and the children in 2008. From 2006 until 2008, he would come to Toronto on occasion to visit his family.

[11] The parties had a difficult relationship. There were several interventions by the police and the Children's Aid Society of Toronto (the society).

[12] The parties disagree on the date of separation. The father deposes that the separation took place in November of 2011. The mother says that while the father moved out of their home at that time, he came and went from the family home as he pleased, and the final separation took place in 2012. The separation date does not matter for the purpose of these motions.

[13] In July of 2012, the mother took the children and moved into a shelter for victims of domestic violence. They lived there until February of 2014 when the mother found new accommodation.

[14] The father moved to Bermuda in the fall of 2012. He continues to live there and plans to reside there permanently.

[15] The father has not seen the children for two years.

[16] The mother issued her application on May 16, 2013. In this application, she sought child support for all 5 of her children. She has claimed that the father demonstrated a "settled intention" to act as a parent for her two oldest children. She has not claimed child support for her two oldest children on a temporary basis. She has decided to defer this issue to trial.

[17] The father struggled with the legal process. He was granted extensions to file his Answer/Plan of Care on July 26, 2013 (in first appearance court), November 15, 2013, February 21, 2014 and April 29, 2014. He finally filed his Answer/Claim on May 15, 2014.

[18] The mother was granted final custody of the children on November 15, 2013.

[19] As terms of adjournment, temporary support orders were made. On November 15, 2013, based on the father's admission that he was earning $55,000 per annum, he was ordered to pay the guideline table amount of child support for three children of $1,079 per month, starting on November 1, 2013. On April 29, 2014, based on his admission that he was earning $65,000 per annum, he was ordered to pay the guideline table amount of child support of $1,264 per month, starting on May 1, 2014.

[20] The father has not paid any child support as ordered by the court.

[21] The mother acted in person until the court appearance on July 11, 2014. She was granted leave at that time to amend her application to include claims for spousal support and for the father to contribute to the children's section 7 guideline expenses.

Part Three – Access

3.1 Legal Considerations

[22] Section 24 of the Children's Law Reform Act (the Act) sets out that the court must make custody and access orders in the best interests of the children. This applies to both temporary and final orders. The court considered the relevant best interests criteria set out in subsection 24(2) of the Act which reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[23] The court also considered subsection 24(4) of the Act which reads as follows:

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[24] Children should have maximum contact with both parents if it is consistent with the children's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[25] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ), per Justice Robert Spence.

3.2 Analysis

[26] The parties provided very different versions of the father's involvement with the children.

[27] The mother deposed that the father had sporadic involvement with the children. She claimed that he emotionally and physically abused her and threatened several times to abduct the children to Bermuda.

[28] The father claimed that when they resided together he was often the children's primary caregiver. He says that: the mother has thwarted his relationship with the children; she is dishonest and manipulative and she has made many false allegations about him to the police and the society.

[29] Neither party provided the court with significant evidence about the children. This is a glaring omission. The court has little knowledge about the nature of their relationship with either parent, how they are functioning or how they feel about having access with the father. Instead, the parties focused on their concerns about the other's behaviour.

[30] This court needs much more information about the children to make a sensible temporary access order. It needs information about their emotional, developmental and physical needs and their views and preferences. It needs to receive the relevant records of the society to assist it in determining the risk level, if any, of permitting unsupervised access to the father. It needs to have some independent evidence about the nature of the father's relationship with the children.

[31] The access motion will be adjourned. An order will go referring this case to the Office of the Children's Lawyer. There will also be an order that the society file its records about the family with the court (the terms of this order will be set out in detail below).

[32] As a term of the adjournment, the father will be granted supervised access at APCO. Due to the long distance the father will have to travel to exercise access, it will take place on one weekend per month and APCO will be asked to permit the father to have access on both the Saturday and Sunday of that weekend.

[33] The court finds that this order is in the best interests of the children at this time because:

a) The children have not seen the father for over two years. That is a very long time for young children. They will need some time to re-familiarize themselves with the father in a safe and neutral setting.

b) The mother has a heightened sense of fear that the father will abduct the children (it remains to be determined if this fear is justified). It is very possible that the children are attuned to this fear and have some trepidation about having contact with the father because of this. It is important that they feel secure when they start to see their father again.

c) The court requires independent observations about the nature of the children's relationship with the father. The access observations notes from APCO should be very helpful.

d) The court needs to evaluate the father's commitment to the children. He did not see them very much between 2006 and 2008. He has not seen them for over two years. He did not bring a court application for access until long after the mother claimed support from him. He has not paid the court-ordered child support. An important part of showing commitment to children is showing a financial commitment. The father is presently failing his children in this regard and will need to demonstrate that he can do much better.

e) If the father demonstrates commitment to the children, the court needs to assess if the mother is supporting this relationship or whether she is frustrating it, as alleged by the father. APCO will provide records about her compliance with this order.

f) The mother has made serious domestic violence allegations against the father. She has provided some corroboration for these concerns. Her counselor advised the court that: the mother has been seeing her about these concerns since 2008; her agency assisted the mother financially and that she supported the mother in going to the shelter for victims of domestic violence. The father filed police reports indicating allegations of domestic violence made by the mother against him. The father believed that these reports corroborated his evidence that the allegations were false. This is not clear on the material filed. These issues need to be further explored.

[34] A temporary order will also be made that the children are not to be removed from the Province of Ontario without further court order.

Part Four – Child Support

[35] The father deposed in his financial statement that he earns $65,072 per annum. The mother agreed to use this figure to calculate his support obligations for the purpose of this motion.

[36] The mother is on social assistance and receives a total of $20,400 per annum. The social assistance representative from the City of Toronto attended on the motion and advised the court that the mother's share of the social assistance payments comes to $7,240 per annum. The balance of $13,160 is attributable to her children.

[37] The guidelines table amount for three children at the father's income level is $1,265 per month.

[38] The mother asks that the father pay his proportionate share of the children's section 7 guideline expenses. She is claiming section 7 guideline expenses of between $5,000-7,000 per annum, for orthodontics, plus $500 for glasses for the parties' 9-year-old child and $500 for glasses for their 7-year-old child.

[39] The court will not permit the claim for the orthodontic expense on a temporary motion. The mother did not provide evidence that the expense will be incurred in the near future. She merely provided a letter from the doctor stating that "the child may need orthodontic treatment in the future". This issue can be revisited at trial.

[40] The mother did provide proof of payment for the children's glasses. The court finds that these expenses are reasonable and necessary and eligible section 7 guideline expenses.

[41] A software analysis shows that the father's proportionate share of the eligible section 7 guideline expenses is $66 per month if the payments are spread out over one year.

Part Five – Spousal Support

[42] Section 30 of the Family Law Act (the Act) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33(8) of the Act sets out the purposes of spousal support and subsection 33(9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.

[43] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[44] In Kowalski v. Grant, 2007 MBQB 235, 2007 CarswellMan 422 (ManQB), the court set out the following principles in dealing with temporary spousal support motions:

1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.

2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.

3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.

4. Interim support is to be based on the parties' means and needs assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

[45] In Robles v. Kuhn, 2009 BCSC 1163, the court added the following considerations:

1. On interim support motions, needs and ability take on greater significance.

2. On interim motions, the need to achieve self-sufficiency is of less importance.

3. Interim support should be ordered within the Spousal Support Advisory Guideline (SSAG) range unless exceptional circumstances dictate otherwise.

4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

[46] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide "a reasonably acceptable solution to a difficult problem until trial". See: Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.).

[47] The father claims that the mother is not entitled to spousal support. He submits that it was the mother who signed the sponsorship agreement in 2007 to support him for three years. He also says that the mother earned more than him while they lived together.

[48] In fact, the father earned income at the rate of about $31,000 per annum in Ontario before he moved to Bermuda. He is now earning a much higher income working for Bermuda Fire and Rescue. The mother earned between $30,000 and $35,000 per annum, working in retail jobs, until she was laid off by her employer in December of 2012. She has been on public assistance since that time.

[49] Notwithstanding the father's submissions in paragraph 47 above, the court finds that the mother has established an entitlement for temporary spousal support on both a compensatory and non-compensatory basis.

[50] The mother has a compensatory claim for spousal support based on the roles she has assumed during the marriage. She was the primary caregiver for the children prior to the parties' separation and has been the sole caregiver for them since their separation. This has compromised her ability to earn income. She is the parent who needs to be available to meet with teachers, take the children to medical appointments and arrange their activities. She is unable to accept part-time retail jobs (that she deposes are primarily available on weekends), as she needs to be available at those times to care for the children. The father's failure to pay any of the child support ordered also affects the mother's ability to earn income. If support was paid, the mother might be able to earn enough income to go off of social assistance. However, if support is not being paid, she risks losing important medical benefits for her family if she loses her social assistance eligibility.

[51] The mother also has a non-compensatory claim for spousal support based on her need for support and the father's ability to pay it. The court will not impute further income to the mother as requested by the father. She only has a grade 9 education and has few job skills outside of the retail field. The cost of child-care (which the father would otherwise have to contribute to) would likely eat up most of what she would be able to earn at this time. This issue can be revisited at trial.

[52] The fact that the mother's need for support arose after the separation does not preclude her from claiming support on a non-compensatory basis (see the discussion of the case law in paragraphs 53 and 54 of Fyfe v. Jouppien, [2011] O.J. No. 4099 (SCJ)).

[53] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that the Spousal Support Advisory Guidelines (SSAG), while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See: D.R.M. v. R.B.M., 2006 BCSC 1921.

[54] A software analysis reveals that the SSAG low range of support is $342 per month. The mid-range of support is $513 per month and the high range of support is $720 per month. The mother provided the court with a software analysis showing higher support amounts in each level. However, the analysis presented was in error as it did not take into account the necessary adjustment in Schedule 111 of the guidelines for the amount of social assistance the mother receives that is attributable to the children. In this case, this is another $13,160 per annum available to the mother. This has a significant impact on the spousal support calculation.

[55] The court considered that the father's income increased significantly post-separation. However, it did not adjust his income for the purpose of the SSAG calculation, on a temporary basis, as the mother has a strong prima facie compensatory claim for support (see: Thompson v. Thompson, 2013 ONSC 5500, 2013 CarswellOnt 12392 (SCJ)), and the increase in his income occurred shortly after the parties separated. The father's post-separation increase in income was given some consideration when determining what level of support to apply within the SSAG ranges (calculated based on his present income).

[56] The court will order the father to pay temporary support to the mother of $350 per month starting on August 1, 2014 (the month the mother amended her application to seek spousal support). The amount of spousal support and the start date are subject to adjustment by the trial judge.

[57] The court is ordering spousal support at the lower end of the SSAG ranges recognizing that the father will likely be incurring significant costs to visit the children in Toronto. There are also claims by the father that require further examination and dictate a cautious approach in ordering spousal support. These claims include:

a) The father having a more costly standard of living in Bermuda than the mother has in Ontario, including higher health care costs.

b) The mother earning unreported cash income.

c) The mother spending over $1,000 per month on vehicle expenses from the $1,700 per month she receives on social assistance. The mother needs to better explain how she is meeting her monthly expenses.

d) The mother not making reasonable efforts to become self-sufficient.

e) The legal impact of his significant post-separation increase in income as set out in paragraph 55 above.

[58] The software analysis shows that the support payments will leave the father with about 45.7% of the family's net disposable income. This a reasonable distribution of net family income, balancing the father's travel costs to exercise access against the fact that the mother requires this income to support herself and 5 children.

Part Six – Security for Support

[59] The mother seeks security for the father's support obligations. She asks that the court provide security by requiring the respondent to deposit his passport with the court. The respondent opposes this request.

[60] In Kumar v. Kumar, 1998 CarswellOnt (SCJ) 1075, the court set out in paragraph 6 criteria for the court to consider when determining whether to order security for support:

a) Where there is a history of dissipation of assets.

b) Where the payor is likely to leave the jurisdiction.

c) Where the payor has in the past refused to honour a support obligation.

d) Where the payor has a poor employment history, has threatened to leave employment, lacks income, or has been uncooperative with the payee in the past.

e) Where there are assets in Ontario capable of forming the basis of a security order or,

f) Where the payor has declared he will not pay a support order.

[61] In Jones v. Hugo, 2012 ONCJ 211, [2012] O.J. No. 1735 (OCJ) (Jones) I found that the Ontario Court of Justice has jurisdiction to order a support payor to deposit his or her passport as security for support pursuant to clause 34(1)(k) of the Act. This clause reads as follows:

Powers of court

34. (1) In an application under section 33, the court may make an interim or final order,

(k) requiring the securing of payment under the order, by a charge on property or otherwise.

[62] However, I also wrote in paragraph 90 of Jones that the court should be cautious before ordering the deposit of a passport into court as security for support due to its restriction on a person's mobility rights.

[63] This case is quite different than Jones. In Jones, the payor earned his income in Canada. It was found that he had threatened to dissolve his business in Canada, go bankrupt and move to South Africa to frustrate his partner's ability to collect spousal support. Here, the father earns his income in Bermuda. If he cannot travel to Bermuda, he cannot earn the income his support is based upon. Historically, he has earned far less income in Canada. While he has not complied with the support orders, the father states that he intends to pay support. He claims that he hasn't paid support because he was advised that the support payments would be deducted from his pay cheques and that he shouldn't make direct payments to the mother. He said that he was waiting for this process to take place.

[64] The mother's motion to have the father surrender his passport is dismissed. However, the court wishes to make it very clear to the father that he is responsible for complying with this support order right away. He cannot wait for the support to be deducted from his pay cheque (this may never happen as he has a foreign employer). He should be making the required payments directly to the Director of the Family Responsibility Office for the benefit of the applicant. He is cautioned that if he fails to pay the support ordered, there are significant enforcement remedies that may be initiated against him.

Part Seven – Other Relief

[65] The mother asked the court to require the father to deliver to her the children's passports and birth certificates. The father claims he doesn't have them (except the Bermudian passports for two children) – the mother does. There was insufficient evidence to determine this issue at this time. This could be a factor when the time comes to deciding if the father should be granted unsupervised access.

[66] The mother also asked for extensive financial disclosure. The request is not warranted at this time. The father is working full-time and earning much more money than he did in Ontario. He receives pay cheques which show his year-to-date income. His income is not contentious. The father provided evidence of his 2013 income through his pay stubs. He will be ordered to provide the mother with copies of his last three pay stubs at least 7 days before the next court date.

Part Eight – Conclusion

[67] There shall be a temporary order on the following terms:

a) The father's access motion shall be adjourned on the following terms:

i) The father shall have access to the children (the parties' children ages 9, 7 and 6) on one weekend per month, supervised at APCO in Toronto, as soon as APCO can accommodate this. If it can be accommodated by APCO, the visits shall take place on both the Saturday and Sunday of the designated weekend for two hours. If it cannot be accommodated, only one visit shall take place.

ii) The parties are to immediately contact APCO and cooperate with their intake process.

iii) The monthly weekend access shall be in accordance with the availability of APCO to supervise the visits.

iv) The parties shall be responsible for their respective fees charged by APCO.

b) The father shall not remove the children from the Province of Ontario without prior court order.

c) The Children's Aid Society of Toronto shall file their notes and records concerning the parties and all of the mother's children in a sealed envelope with the court. They may redact any identifying third party information or privileged information. They may also move to the court on notice to the parties for further disclosure restrictions. The court will hear further submissions on the return date about disclosure of the records to the parties.

d) The case shall be referred to the Office of the Children's Lawyer. The intake forms that will accompany this decision are to be completed by the parties and provided within 14 days to the Office of the Children's Lawyer.

e) The father shall pay the mother child support of $1,331 per month on the first day of each month, starting on September 1, 2014. This is comprised of the guidelines table amount for three children, based on the father's annual income of $65,072 of $1,265 per month and his proportionate share of the medical expenses for the parties' 9-year-old and 7-year-old children of $66 per month. The special expense payments should continue for one year.

f) The father shall pay the mother spousal support of $350 per month starting on August 1, 2014.

g) The support amounts are subject to adjustment with respect to amount and start date by the trial court.

h) The father shall provide the mother with his last 3 pay stubs in 2014 at least 7 days before the next court date.

i) The matter shall return to court on November 19, 2014 at 10:00 a.m. for the continuation of the access motion and to receive submissions about the society's disclosure of their records concerning this family.

j) The parties may serve and file supplemental affidavits by November 5, 2014. The other party will then have until November 14, 2014 to serve and file any responding material.

k) The balance of the claims in the motions are dismissed.

[68] The parties shall have 10 days to make written submissions if they believe that there are any mathematical or inputting errors in the software analysis that will be sent to them with this decision. The other party will then have 7 days to make written response. The order shall not be taken out until this time period elapses, or until the court addresses any submissions made.

[69] If either party seeks costs, they are to serve and file written submissions by September 24, 2014. The other party will then have until October 6, 2014 to make written response. The submissions should not exceed two pages, not including any bill of costs or offer to settle. The submissions (if any) should be delivered to the trial coordinator's office on the second floor of the courthouse. The father may file his submissions by fax.

Justice S.B. Sherr

Released: September 2, 2014