Court File and Parties
Court File No.: D 28062/05 Date: September 3, 2015
Ontario Court of Justice
Re: Mireya Rifa – Applicant And: Roland Frederick Andrade – Respondent
Before: Justice Roselyn Zisman
Counsel:
- Andrea Scharf, counsel for the Applicant
- Roland Frederick Andrade, self-represented
- Rita Liang, representative for the Assignee, City of Toronto
Heard On: August 14, 2015
Decision on Motions to Change
1. Introduction
[1] This is a motion to change by the Respondent ("father") to change the order of Justice Brownstone dated February 15, 2006 retroactively to 2007, and to rescind or re-adjust the outstanding arrears to reflect his actual income for those years.
[2] A motion to change was also filed by the Applicant ("mother") to change the order of Justice Brownstone dated April 29, 2013 to terminate the father's access. The mother also seeks either that the temporary restraining order dated December 13, 2011 be made a final order, or that a new restraining order issue.
[3] The motions proceeded before me based on the materials filed in Volumes 5, 6, and 7 of the Continuing Record. The father relied on his financial statements sworn July 3, 2014 and April 30, 2015 and his affidavits sworn December 12, 2014, April 30, 2015 and July 23, 2015. The mother relied on her affidavit sworn July 14, 2015. Both parties' affidavits had extensive exhibits attached.
[4] Mother's counsel made oral submissions, but as she appeared to be reading her submissions I requested that they be filed with the court, which counsel did at the end of her submissions. Upon review of those submissions in preparation of this decision, in addition to a review of the legal principles and case law, parts of the submissions are written in first person, as if by the mother, and there is a request that the father provide proof of various statements he made in his materials which is clearly not appropriate. Any further disclosure should have been requested by counsel. The written submissions also state various facts that are not contained in the mother's sworn affidavit. The written submissions also request that various portions of the father's affidavit be struck, but counsel did not raise this issue in her oral submissions and therefore the father had no opportunity to respond. I did, however, previously indicate to the father that I would not consider the excerpts of articles by various authors he included in his affidavit about parental alienation. To be clear, I have disregarded any new facts in the mother's written submissions and I have only considered the portions of the written submissions that review the evidence properly before the court.
[5] The City of Toronto has a financial interest as the order was assigned on January 1, 2010 and the assignment continues in place.
[6] The motion to change by the father was initially returnable before the court on August 27, 2014. The motion to change and a default proceeding commenced by the Family Responsibility Office have been case managed by myself. Unfortunately, the father who is representing himself has had a great deal of difficulty managing the court process. There was confusion caused by the various prior court orders that were intertwined between the requirements to change the child support order and the requirements to change the access order. The proceeding has been before the court many times and has been delayed to ensure that the proper materials, including the necessary disclosure, was before the court.
[7] Although the mother's motion to terminate access and for a restraining order were not formally before the court until July 30, 2015, counsel for the mother had previously indicated that she would be seeking this relief.
[8] Both motions to change proceeded in accordance with Family Law Rule 15. No order was made pursuant to Family Law Rule 15(26) directing that the matter be heard as a trial. Accordingly, the motions to change proceeded on affidavit material only, which obviously limits the court's ability to make findings of credibility. However, I find that this does not create an impediment to determine the issues raised in these particular motions. Neither of the parties requested that these motions be heard before another judge. The only opinion offered during the various attendances before me was the very strong recommendation made to the father that he needed to provide further and better materials.
2. Background and Litigation History
[9] There is a long history of litigation between these parties. I do not intend to review all of the previous history, allegations or court proceedings, except as they may be relevant to the motions before the court.
[10] The parties are the natural parents of Alyanne Karly Andrade-Rifa born March 2, 2003 ("Alyanne" or "the child"). Although the parties dated for several years they only resided together from June 2002 to June 2004.
[11] In accordance with the order of February 15, 2006, the mother was granted final sole custody and the father temporary day access. On a final basis the father was required to pay child support of $453.00 per month based on his 2004 income of $52,860. The parties agreed that the father pay child support directly to the mother and that support would not be enforced by the Family Responsibility Office unless he was more than a month in arrears. The order also acknowledged that the father was seeking increased access and the mother wished him to establish a record of consistency.
[12] Between February 15, 2006 and June 25, 2010 there were at least 6 attendances with several changes to the access order, many adjournments including those necessary to investigate allegations made by the mother to the children's aid society about the father. On June 25, 2010 as a result of the father not being present, his motion with respect to access was dismissed as abandoned and the order simply provided that the father's access would be as agreed upon between the parties.
[13] The father commenced a further motion to change in 2011 with respect to access. A temporary order was made on June 16, 2011 for the father to have supervised access every Sunday for two hours at the Supervised Access Centre at Access for Parents and Children in Ontario ("APCO"). The father was required to produce the notes for APCO before the order could be varied.
[14] On August 22, 2011 the father attempted to commence a motion to change with respect to child support. In a Form 14B endorsement, the court ordered that the father's motion to change could not proceed until he attached to his financial statement his tax returns for the years 2006, 2007, 2008, 2009 and 2010. The endorsement notes that the outstanding order of February 15, 2006 had stipulated that the father was required to provide annual disclosure of his tax returns and he had not done so.
[15] The court made a temporary restraining order on December 13, 2011 which prohibited the father from attending within 200 metres of the mother and the child except for the purpose of exercising access, and prevented him from any contact directly or indirectly with the mother or child except for the purpose of arranging access pursuant to the June 16, 2011 order. The motion was on notice to the father who was present in court but was only based on the mother's affidavit. The motion to review the restraining order was adjourned to February 24, 2012.
[16] However, on the return date, it appears from the endorsement that the restraining order was not reviewed. Instead, the father brought a motion to change his access order but he was not permitted to proceed with this motion as he did not produce the APCO notes, as required by the June 16, 2011 order. The father was ordered to pay costs of $500 and he was not permitted to proceed with his motion to change the access order until the costs were paid in full. The father had also previously been ordered, on September 21, 2011, to pay costs of $250 for a wasted court attendance, and not permitted to take any further steps until those costs were also paid.
[17] At a further attendance on April 24, 2012, the endorsement states that the father had paid the cost and access was going reasonably well, but the child was not ready for unsupervised access.
[18] By October 29, 2012, however, the endorsement states that there were issues with the father being chronically late and cancelling access. The order made on that court attendance required the father to demonstrate perfect attendance and promptness for 6 months before he would be permitted to vary his access. The order also stipulated that if the mother cancelled a visit she was required to provide a medical certificate confirming that the child was too ill to attend for access. The father was ordered to pay costs of $500 and not permitted to take any further steps on the case until the costs order was paid in full.
[19] The father commenced another motion to change his access. The endorsement of April 29, 2013 states that the father had still not paid the costs ordered on October 29, 2012 and that he was seeking a further 4 month adjournment, but he had still not attended for access for 6 consecutive months as ordered on October 29, 2012. It was ordered that the father's motion to change was stayed pursuant to section 109 of the Courts of Justice Act and that he could revive it on 14 days' notice, upon serving and filing proof that he had attended for access as required for 6 consecutive months and that all cost orders against him had been paid in full. The order also provided that on a final basis the father was to have supervised access at APCO as per the order of June 16, 2011, except that access was to occur on alternate Saturdays from 2:00 p.m. to 4:00 p.m.
[20] In August 2013 the Family Responsibility Office began default proceedings against the father with respect to the final child support order of February 15, 2006 that was amended on June 25, 2010 to clarify that it was a final order.
[21] The father began this motion to change the order of February 15, 2006 with respect to his child support obligation and to rescind the arrears, and he also sought to exercise access in accordance with the outstanding order of April 29, 2013.[1]
[22] In September 2014, the father attended at APCO for an intake appointment so that he could begin to again exercise supervised access in accordance with the outstanding order. When the mother was contacted by APCO to attend for her intake appointment she advised that she was not prepared to do so and was waiting for the outcome of the court proceedings, as it was her intention to bring a motion to terminate the father's access.
[23] There were several further attendances to ensure that the father's disclosure was completed. Mother's counsel at various attendances sought "to quash" the father's motion to change as he had not complied with the cost orders, or on the basis that he needed leave to proceed, or on the basis that he had not complied with the order that he attend for 6 months of consecutive access (which he could not do as the mother was not prepared to participate in supervised access). For clarification I advised the parties that I intended to proceed with both motions on their respective merits.
3. Motion to Change Child Support
3.1 Applicable Statutory Test and Law Regarding a Variation of a Support Order
[24] The prerequisite to any variation of an existing support order is a finding that there has been a change in circumstances since the making of that order that would result in a different child support order.
[25] Therefore in this case, the onus is on the father, as the applicant on the motion to change, to prove on a balance of probabilities that since the order of February 15, 2006 his financial circumstances have changed.
[26] The relevant legislation provision is subsection 37(2.1) of the Family Law Act R.S.O. 1990, c. F-3, as amended, which provides that:
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6
[27] Therefore, it is clear that the court has the discretion to grant the relief sought by the father, however the granting of any variation of ongoing or retroactive child support and the reduction or recession of child support arrears is discretionary.
[28] A court also has the discretion to impute income to a parent in an amount it considers appropriate.
[29] The Ontario Court of Appeal in Drygala v. Pauli, supra, set out the following three questions which should be answered by a court in considering a request to impute income:
- Is the party intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage, or reasonable health needs?
- If not, what income is appropriately imputed?
[30] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed.[2]
[31] In considering if income should be imputed to a payor, subsection 19 (1) of the Child Support Guidelines, O. Reg. 391/97 is relevant. That section in summary provides that income may be imputed when:
(a) the parent is intentionally under-employed;
(b) income has been diverted which would affect the level of child support to be determined;
(c) the parent's property is not reasonably utilized to generate income;
(d) the parent has failed to provide income information when under a legal obligation to do so; and,
(e) the parent unreasonably deducts expenses from income, such reasonableness is not solely governed by whether the deduction is permitted for income tax purposes.
[32] "Intentional under-employment" does not require a finding of bad faith or the intention to defeat a support claim. The issue is whether the support payor, through his own conduct, that is, not as a result of circumstances beyond his control, is earning less than he or she is capable of earning.[3]
[33] Further, the onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to those deductions, failing which an adverse inference may be drawn.[4]
[34] Subsection 19 (2) of the Child Support Guidelines also makes it clear that the reasonableness of an expenses deduction is not solely governed by whether or not the deduction is permitted under Income Tax Act.
3.2 Relevant Evidence with Respect to Father's Financial and Medical Conditions
[35] The father has extensive experience in coaching and training elite and recreational athletes in a variety of sports and in training non-athletes for personal fitness. He also has experience working as a chef and in kitchen and restaurant management. At one time he was a trainer/chef for the Raptors basketball team and went on road trips with them during the basketball season.
[36] The mother deposes that when they were together he would receive cash payments and received benefits of travelling and living expenses that were not included in his gross income when the parties agreed in 2006 that the father's income was $52,860 for child support purposes.
[37] The father suffered a series of medical issues that he deposes have severely impacted on his ability to earn income at the level he previously enjoyed.
[38] In 2008 the father suffered an injury to his knee which impacted on all of his movements, and as a result he deposes he was forced to reduce his work load.
[39] The father deposes that at this time he attempted to bring a motion to change but was not permitted to do so until he completed his tax returns. I have reviewed the court record and although the only formal motion before the court related to the father's access, it is possible that there were also informal discussions regarding the father's desire to change his child support obligation and the requirement that in order to do so he needed to complete his tax returns. The mother did not dispute the father's recollection in this regard.
[40] According to the father, as he was awaiting completion of his tax returns, it appears that his knee injury was healing when in 2009 he was involved in a high speed accident while riding his bike. He was thrown from his bike over a car and was battered and bruised. The injuries were primarily to his right hip, right shoulder and neck. The father deposes that he was unable to lift even light objects and he had limited mobility with his arm and suffered extreme pain in his shoulder. He deposes that not only was his temporary ability to work impacted but also his permanent capacity. He was diagnosed with hypermobile and dysfunctional sacroiliac joint.
[41] In June 2010 the father began to receive social assistance. However, he was also able to secure a short term contract to teach basic culinary skills and a food handler's certification program in a woman's shelter, but the program was not renewed by the government. It appears from the payment statements the father produced outlining his receipt of social assistance that this income was reported, as the amounts he received vary considerably.
[42] During the winter of 2010 to the spring of 2011 the father was employed as a part-time swing chef, but he deposes that he was dismissed as he was unable to keep up with the work load.
[43] In the spring of 2011, the father deposes that a member of his church suffered a stroke and his wife asked the father to take over a window washing and cleaning service while her husband convalesced. The father, along with his adult son, started to wash windows. The father deposes that he was able to manage this work although he suffered some numbness in his arm and hand. The father also continued to train his one remaining client and obtained another client that he trained. It appears that the father continued window washing until August 2012. There was no evidence provided as to the precise financial arrangements regarding either the window washing or the personal training the father had undertaken; although the father did provide a letter from one of his clients, his bank statements, and provided proof of the social assistance he received in 2011.
[44] In late August 2011, the father also became involved in a proposed restaurant venture that was financed by a third party. During the first several months he did not draw a salary, and thereafter drew a salary of $300 a week as of December 2011. The project lasted until August 2012 at which time the investors decided not to continue. He did not receive any social assistance in 2012.
[45] Over the next several months the father deposes he continued to suffer pain especially in his hip, and it was determined that he required surgery that occurred in July 2013. Although the surgery was uneventful the father contracted an infection that prolonged his recovery for many months. The father provided proof that he received social assistance from August 2013 to September 2014.
[46] The father deposes that he was unable to resume working even part-time until about July 2014 when he once again began to train one client on a regular basis. By October 2014 that client relocated to Texas but the father continued to train him through Skype, the internet, and a video library that he was developing. In November 2014 the father also began a job as a catering chef for a catering company working 10 to 16 hours a day, but was forced to reduce his hours due to recurring pain.
[47] In January 2015 the father began his current position consulting to Amagine Technologies directing and developing a health and fitness program for their employees. The father deposes that he continues to suffer a high degree of pain even from moderate standing, and his latest MRI indicated that he has several deteriorating conditions and that he will never to be able to work full-time again.
[48] The father filed various notes from his doctors that were difficult to interpret or understand. The father was encouraged to file a comprehensive report from a doctor.
[49] The father obtained and filed a report dated April 29, 2015 from Dr. Laurie White, who has been the father's family doctor since 1985. Dr. White's report, along with a detailed treatment plan, reviews the father's medical history. Dr. White states that the father's medical problems limit his ability to work. Dr. White confirms that the father had a knee injury in 2008, that he was hit by a car in August 2009 and sustained injuries to his lower back and shoulder, and that he developed severe osteoarthritis in 2013 and had a hip replacement in July 2013. She confirms that the father developed an infection that required two revision surgeries and 12 weeks of antibiotics, both intravenous and oral antibiotics. Dr. White further states that the father has a degenerative disc disease of the lumbar spine and pain in his lower back, suggesting irritation of his sciatic nerve. Dr. White confirms that the father is compliant with his treatment plan except that he could no longer afford to attend for treatment with a physiotherapist or osteopath. Dr. White also states that the father suffers from attention deficit disorder, which limits his ability to concentrate.
[50] It is the opinion of Dr. White that the father's ability to work as a cook and fitness trainer is therefore limited. The report states that his current work as a fitness supervisor still requires prolonged standing as well as repeated bending and straightening of his back and lifting, and that he is unable to stand for more than about 45 minutes. The report further states that he is prevented from doing physical work for more than 20 hours a week. Dr. White also prepared a very detailed Medical and Disability and Income Reduction Statement.
[51] Dr. White summarizes her opinion about the father's limitations for employment as follows:
As outlined in the Medical Disability and Income Reduction Statement, since 2008 his medical conditions (knee, hip, shoulder, back) have significantly reduced his ability to perform the job requirements of his 2006 job as a Specialized Elite/Private Coach. This ranged from approximately 75 percent disability in 2008 as a result of his injury to being unable to perform 90 percent of job tasks after August 2009 following an accident that left him with shoulder and back injuries. Since then degenerative conditions have resulted in increasing disability and a right total hip replacement, complicated by multiple infections and surgical revisions in 2013 left him unable to perform any work activities until later 2014. He continues to be restricted in his ability to perform the physical requirements of coaching and cooking jobs. Throughout this period his ongoing issues with Attention Deficit Hyperactivity Disorder hampered his ability to manage the administrative aspects of being a sole business owner and the added demands of handling issues related to his diminished finances and disability.
[52] With respect to the prognosis, Dr. White states that she is unable to predict when the father will be able to make a full recovery and return to his previous employment, but it is hoped that will be able to do so. Although not in the report of Dr. White, her notes that were also produced state that she referred the father to a psychiatrist and that as of April 28, 2015 he was still waiting for an appointment.
[53] The father has filed his tax summaries and Notices of Assessment for the years 2007 to 2014. His gross and net business income and other sources of income are as follows:
| YEAR | GROSS BUSINESS INCOME | NET BUSINESS INCOME | EXPLANATIONS |
|---|---|---|---|
| 2007 | $57,290 | $40,043 | Line 150 income $40,043 |
| 2008 | $56,925 | $36,642 | Line 150 income $36,642 includes employment income of $2,381 and net business income |
| 2009 | $33,730 | $20,141 | Line 150 income $21,156 includes net business income and interest of $15 |
| 2010 | $18,199 | $5,648 | Line 150 income $19,673 includes employment income of $11,345, social assistance of $2,679 and net business income |
| 2011 | $26,061 | $7,751 | Line 150 income $11,200 includes net business income and social assistance of $1,577 |
| 2012 | $13,786 | $3,600 | Line 150 income $3,600 which is his net business income |
| 2013 | $2,526 | ($849) | Line 150 income $3,071 includes net business income and social assistance of $3,866 |
| 2014 | $5,270 | $5,270 | Line 150 income $10,327 includes employment income of $2,515, social assistance of $7,812 and net business income. Notices of Assessment not yet received |
| 2015 | $28,800 to $36,000 | Estimate for current employment income - invoices produced for January to March with income ranging from $2,400 to $3,000 per month |
3.3 Analysis
[54] The father has recalculated the arrears since 2007 based on his net income. The father submits that he overpaid child support based on his net income for the years 2007 to 2009, in the amount of $5,760 or $5,689 (both numbers are used). He also submits that based on his net incomes for January 1, 2010 to December 31, 2014 he should receive a credit of $19,080.
[55] It is the father's position that he is willing to pay ongoing child support based on his anticipated 2015 income of $28,800. This is based on his income of $2,400 per month. I note, however, that on two of the invoices he produced he received $3,000 per month, and based on the average of the three months of invoices he produced his income for 2015 would be $33,600.
[56] Based on the current Statement of Arrears filed the amount owing as of August 6, 2015 is $23,759.31, plus a further $400 administrative charge. The father has not paid any voluntary support since the order was filed with the Family Responsibility Office other than the outstanding cost orders.
[57] Counsel for the mother and the representative for the City of Toronto agreed that the father should not be required to pay support for the months of March 2013 until December 2013 as a result of the diagnosis of his hip difficulties, hip surgery, and allowing a reasonable time for his recuperation, but the order should not be varied for any other time period.
[58] The mother submits that the father's medical condition is exaggerated and that based on the information in his own affidavit it is clear that despite his alleged medical conditions that he was able to do physical jobs such as window washing, working as a chef, and acting as a personal trainer for a few private clients.
[59] It is further the mother's position that the report of Dr. White is based on the father's self-reporting and that it does not coincide with some of the handwritten notes the father filed from his specialists. As pointed out to mother's counsel, if there was an issue with Dr. White's report then either counsel could have sought an order for questioning, or asked for an oral hearing and the opportunity to cross-examine Dr. White.
[60] The mother's counsel submitted that the father did not provide proof that he was dismissed as a chef, or provide his contract from the restaurant venture he was involved in for 10 months, or provide sufficient details about the work he did in that venture, or why it ceased operation.
[61] But as I indicated to mother's counsel, this information was never specifically requested by her from the father and as he is self-represented he was under the impression that all he had to provide was proof of his income and comply with the disclosure order made on December 19, 2014. If mother's counsel was taking the position that the father did not comply with the required disclosure order, in my view it was incumbent on her to advise the father in writing as to the disclosure still outstanding and not ambush him at this hearing. I find that in this case in particular it was obvious in the several attendances before this motion was argued that the father was having a great deal of difficulty in understanding what documents he needed to provide and there was ample opportunity for counsel to simply outline what, if any, financial disclosure was still outstanding.
[62] I find that there is ample evidence to prove that as of about 2008 the father's medical conditions began to affect the father's capacity to earn an income in the range of his 2006 income. Although there was no evidence as to the father's gross and net incomes in 2006, based on the mother's statements that the father earned more than $52,860 and that the amount was less than his actual income, I assume that the $52,860 was an amount that reflected a compromise between the parties.
[63] However, I would not permit a retroactive variation to 2007 as sought by the father. I find that his gross income in 2007 and 2008 was $57,290 and $56,924 respectively. His gross income only dropped in 2009 to $33,730. The father took no steps to vary his child support order in 2008 when he had his knee injury or in 2009 when he was hit by a car and when it appears that these conditions began to impact on his ability to work to his full capacity. Further, the only proof he has offered to the court of payments he made to the mother are copies of his bank records that show transfers of monies. He has not proven that these monies were in fact transferred to the mother; there are no receipts or acknowledgment of payment from the mother. The only accurate proof of any payments commences in January 2010 when the court order was filed with the Family Responsibility Office for enforcement. The calculation of arrears in the Statement of Arrears filed commences as of January 2010.
[64] As in many cases, neither counsel for the mother or the representative of the City of Toronto explained how the father is deemed to be entitled to receive social assistance, but then at this hearing it is submitted that the father was capable of earning at least $52,860 a year. There is no evidence that his inability to work was questioned, that he was asked to undergo a third party medical examination, or that his efforts to obtain employment were questioned. No evidence was provided as to the criteria for a person to obtain social assistance through Ontario Works as opposed to someone's entitlement to a disability payment pursuant to the Ontario Support Disability Program. The court was not asked to take judicial notice of the criteria for entitlement to either program, which I am doubtful in any event I would have been prepared to do. I find that this contradiction in the assignee's position to be troubling. If the assignee intends to question a payor's entitlement to social assistance and take the position that the payor was capable of earning an income in the same amount as he earned prior to receiving social assistance, then some evidence should be presented to explain why a payor's entitlement to social assistance is only questioned in a court proceeding after he has already been deemed eligible to receive such assistance.
[65] I find that the father has provided credible medical evidence to meet his onus of proving that there has been a change in his condition such that he is unable to earn the level of income he earned in 2006. I find that none of the submissions by counsel for the mother, as supported by the assignee, rebut the evidence he has presented.
[66] It is the mother's position that income be imputed to the father. There is no question that the court has the discretion to impute income to the father pursuant to section 19 of the Child Support Guidelines.
[67] I find that the mother has not met that onus except for the limited purpose relating to the deduction of the father's business expenses. As indicated, there is no evidence to rebut the father's medical evidence that confirms he is unable to work full-time and he is unable to return to his previous employment as a coach and trainer or as a chef. I find that over the years the father has attempted to find other employment but that it is an unrealistic submission that the father could ever return to being a coach or trainer of elite athletes in view of the many years he has not had such a position. It is further unrealistic to believe that he has the ability to be a full-time chef based on his physical condition which is degenerative, and his emotional fragility. It was clear from the father's demeanour in court that he also was having a great deal of emotional difficulties in even presenting his case and his family doctor has referred him to a psychiatrist.
[68] Although not argued by mother's counsel,[5] the law is clear that as the onus is on the father to prove a change in his income, he is also a required to prove that his deductions for his business expenses are reasonable. The father has only submitted summaries of his tax returns[6] and his Notices of Assessment and therefore there is no evidence as to what his business expenses are. Also, in the affidavits he filed there is no explanation as to his business deductions. Accordingly, there is no proof as to whether or not any of his business expenses would be considered appropriate deductions for child support even if they were permitted by the Canada Revenue Agency. Based on the father's calculations, these claims for business expenses substantially reduce his gross income in several years.
[69] I have recalculated the father's income and his child support obligations based on his gross business income and other sources of income as of 2010, being the year I find he is entitled to a retroactive variation in child support as follows:
| YEAR | IMPUTED INCOME | CHILD SUPPORT DUE | EXPLANATION |
|---|---|---|---|
| 2010 | $32,109 | $295 x 12 = $3,540 | |
| 2011 | $27,633 | $225 x 12 = $2,700 | |
| 2012 | $13,786 | $74 x 12 = $888 | |
| 2013 | $6,392 | nil | Mother and city agree no support due March to December 2013 |
| 2014 | $15,597 | $108 x 12 = $1,296 | |
| 2015 | $33,600 | $288 x 8 = $2,304 | Based on estimated income averaging invoices produced |
| Total arrears due: $10,728 |
[70] I have estimated the father's 2015 income based on the average of the invoices he produced. This is higher than the father's estimate of $28,800 which was based on only receiving $2,400 per month; that was the lowest amount of the three invoices he produced. This should provide some incentive to the father to comply with an annual disclosure requirement in the event that the income estimate is too high. Further, if there is any overpayment it will be credited to his arrears.
[71] Although the father has no assets and currently has significant debts, he has been able to find some employment and hopefully his physical health will continue to improve so that he is able to earn a higher income and reduce his outstanding arrears. In the interim, I find that he can pay a minimum of $100 per month on the arrears. I recognize that at this rate it will take the father an extremely long time to repay the arrears, nevertheless the father did not meet his child support obligation when he had the means to do so and should not be able to avoid his responsibility by any further reduction of the arrears.
4. Motion to Change Access
4.1 Applicable Statutory and Legal Principles Regarding a Change to Custody or Access
[72] Section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 provides the statutory authority for varying a custody or access order. It states:
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.
[73] The Supreme Court of Canada decision in Gordon v. Goertz sets out a two-stage process for the court to conduct:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change of circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
4.2 Relevant Evidence Relied Upon to Terminate Access
[74] The mother reviews in her affidavit the historic evidence and submits that since the child was a toddler she has been fearful of her father and has not wanted to have access to her father.
[75] The father attached to his affidavits copies of the supervised access notes for about 43 visits, and in my review there was nothing to suggest the child was afraid of her father or that she was reluctant to attend or stay for the visit. When I asked the mother's counsel to point to any notation in the supervised access notes to support her submissions she was unable to do so.
[76] The mother relies on the brief report of Dr. Sheila Jacobson, the child's paediatrician, which in its entirety states as follows:
I am the paediatrician for Alyanne. She is under the excellent care of her mother and has not seen her father for at least two years (because he has been absent) and does not have an ongoing established relationship with him. She also expresses fear of seeing him.
I do not believe that there would be a significant benefit to her seeing her father, unless she feels she would like to become reacquainted with him.
[77] The mother has also outlined several incidents where the father has been seen to be in the vicinity of where the child is, and on one occasion he spoke to the child. Those incidents and the father's explanations are as follows:
a) April 21, 2014: Father attended at the school and attempted to obtain information as to whether the child still attended the school by stating that he required the information for immigration purposes, and when he was denied the information he left. The father disputes he attended the school, but based on the affidavit of the vice principal I am satisfied that it was him who attended the school;
b) April 22, 2014: A friend of the mother's reported that she saw the father hiding in an alleyway close to the school grounds. The father denies that he was hiding and offers an explanation as to why he was in the area;
c) August 2014: While in a supermarket, the father saw Alyanne and he approached her, put his hand on her shoulder, and she ran to her mother showing signs of "extreme stress". The mother deposes that the father "stalked" them by followed them and after inspecting the mother told her she looked good. The father deposes that he happened to be eating a meal at the supermarket and coincidentally saw Alyanne and said hello and gently touched her on the shoulder, they spoke, and then she and the mother left. The father denies that the child was fearful or that he followed them out of the supermarket or that he said anything inappropriate;
d) March 1, 2015: The father was observed "stalking" the mother and child by attending at their apartment building, which was verified by the property management company who confirmed that the security video surveillance camera captured the father at about 9:30 p.m. The father deposes that he accompanied his son who was trying to serve the mother on his behalf with some court documents;
e) April 16, 2015: The father was seen "stalking" the mother and child at a local volleyball court. The father provided a copy of an invoice from a mobile store in the vicinity where he was that day and denies that he was stalking anyone. The father confirms that he happened to see the child and mother and briefly watched his daughter from a distance playing volleyball with her friend; and
f) May 2015: The father approached Alyanne at an annual field and track meet at Varsity Stadium. The mother called the police and alleges that Alyanne was "visibly upset" and that she was terrified. The father again denies this incident. The father deposes that he was on his way to the YMCA and was walking his bike past Varsity Stadium when he saw some children wearing t-shirts from Alyanne's school, that he waited and a short time later he saw the mother leading a few children including Alyanne. One of the mother's friends approached him and he told her he was concerned about speaking to her as he was aware that several of the mother's friends had sworn affidavits accusing him of stalking the mother. She walked away and shortly thereafter he noticed this woman speaking to the mother. The father continued to watch from outside the stadium, hoping to see his daughter compete. The father deposes that he then saw the mother walking outside the stadium in his direction and he then left. The father agrees that he was contacted by the police and told them that he was aware there was a restraining order, but the father maintains that he never approached the mother or child.
[78] The mother in her affidavit refers to several comments made by the police regarding the father and about this incident. I am not prepared to put any weight on those alleged comments. The mother could have easily obtained and produced a copy of the police occurrence report regarding this incident. In view of the serious allegations being made, I find that it was incumbent on her to do so. It is unclear from either of the parents' statements when the police were called, if they spoke to the child, or if they observed if she was frightened of the father, or if she even saw him.
[79] The mother deposes that the father has not exercised access since July 2013 and that despite his hip replacement operation he could have exercised access within the normal recovery period of about 9 weeks even with his post-operation infection. The mother further deposes that she was informed by the supervisor of APCO that they would have made accommodations for the father. The mother also submits that the father was not interested in seeing the child and did not pursue access until the Family Responsibility Office began enforcement proceedings in August 2013.
[80] The mother did not produce any documentation to substantiate her statement about APCO or that the father did not try to make arrangements to see Alyanne.
[81] On the other hand, the father produced evidence to substantiate his position that he was not medically capable of exerting access at APCO and that he tried to make other arrangements to see his daughter.
[82] It is clear that the father attended for an intake appointment in September 2014 at APCO as the first step in resuming his access. He had also earlier attempted to commence court proceedings but there was some confusion about whether or not he needed leave of the court to commence a motion to change with respect to access as opposed to child support.
[83] The father produced a letter from Dr. Gandhi, his surgeon, that the normal healing period for a hip replacement was extended in the father's case due to the post-operation infection, and that he was on bed rest and had a slow recovery. Dr. Gandhi further states that in October 2013 the father informed him of his desire to resume access at the access centre and he advised the father that his wound was still not quite closed and his mobility notwithstanding his hard work in rehab was still very poor and he still had to use two canes to walk. He recommended that the father put off returning to the access centre for a few more months until the wound was completely closed and his mobility improved, as he was concerned about the possibility of dislocation.
[84] The father also produced letters he wrote to the mother's then lawyer in July 2013 asking for alternate arrangements to be made for his access. When the lawyer advised that she no longer represented the mother, he wrote the mother and enclosed his letters to her lawyer. The mother did not respond.
[85] Between the summer of 2013 and the fall of 2014, the father was also attempting to deal with the enforcement proceedings and navigate the legal system regarding commencing his motion to change.
[86] In September 2014, the father attempted to resume supervised access through APCO but the mother would not co-operate and stated that she wished to wait for the court proceeding.
4.3 Analysis
[87] The mother seeks an order to terminate the father's access whereas the father is seeking that the outstanding order for supervised access be reinstated.
[88] As the mother is seeking to vary the outstanding order for supervised access to the father, the onus is on her to prove on a balance of probabilities that there has been a material change in circumstances affecting the child such that the order should be varied and the father's access should be terminated.
[89] There is a presumption that regular access by a non-custodial parent is in the child's best interests. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort.[8]
[90] In the case of Jennings and Garrett,[9] Justice Blishen reviews the case law and outlines the factors various courts have considered in terminating access as follows:
Long term harassment and harmful behaviours towards the custodial parent causing that parent and child stress and/or fear;
History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well-being;
Extreme parental alienation which has resulted in changes in custody and, at times, no access orders to the former custodial parent;
Ongoing severe denigration of the other parent;
Lack of relationship or attachment between noncustodial parent and child;
Neglect or abuse to a child on the access visit; and
Older children's wishes and preferences to terminate access.
[91] In the review of the cases, Justice Blishen concludes that in every case there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child. Most of the factors would also be relevant to a consideration of supervised access. As the termination of access is the most extreme remedy that can be ordered, the court must carefully consider the option of supervision prior to termination.
[92] In this case, the outstanding order provides for supervised access to the father. The mother relies on historical evidence to support her position that the child has always been fearful of the father and has never wished to exercise access. All of the historical evidence was before the court when the current order of April 29, 2013 was made for supervised access; these concerns do not meet the threshold test of proving a material change of circumstances.
[93] It is submitted by the mother that access should be terminated because the mother and child have become increasingly afraid of the father and that he is persistent in stalking them. It is further submitted that the father is capable of violence against the mother and abusiveness against his daughter.
[94] I do not find that the mother has met the onus on her to substantiate any of these statements. The only time the father actually spoke to the child or mother was a coincidental meeting at a local supermarket, and the other occasions when he was seen in their vicinity were explained. There is no evidence at all, in the incidents described by the mother, of the father being violent or abusive. The father admitted that when he unintentionally saw Alyanne he stayed in the area to catch a glimpse of her.
[95] The mother has not provided any evidence to support her submission that the child was afraid or that the father was inappropriate during supervised access. Through no fault of the father he could not attend supervised access due to his hip replacement operation and his subsequent recovery period. The father should have made attempts to reinstate access sooner but he became mired in the legal system. When he did attempt to reinstate his access, the mother refused to do so.
[96] I do not find that the events that the mother has characterized as refers to the father "stalking" her and the child are of sufficient concern to warrant terminating the father's access. Further, I do not find that the presumption that access to a non-custodial parent is in a child's best interests is rebutted by the brief letter from the child's paediatrician that appears to be based only on the mother's version of events.
[97] I therefore find that the mother has not met the onus on her to prove that there has been a material change in circumstances affecting the child since the order of April 29, 2013 to warrant an order terminating the father's access.
[98] The mother's motion to change is therefore dismissed and the mother will immediately arrange an intake appointment so that supervised access can resume. In view of the length of time the child has not seen her father, it is important that access occur on a regular basis and more frequently so that the relationship between the child and father can be renewed. I see no reason that the father's relatives should not also be able to attend some visits. This provision was in the temporary order for access but then omitted from the final order.
[99] I am cognisant of the fact that the child may initially be reluctant to see her father either due to the length of time she has not seen him or due to the mother's fear of the father that may have impacted the child. I find that it is appropriate for the court to monitor the access to determine if any changes need to be made to the terms of supervision. The father also requested an order for the Office of the Children's Lawyer, which I will defer at this stage of the proceedings. Accordingly, I am at this stage only making a temporary order for supervised access.
[100] I am also mindful of the difficulty that the father has had in attempting to manage the legal system and if I simply reverted to the final order for supervised access, then either or both of the parties would be required to bring yet another fresh Motion to Change if there are new events or changes to the order that may be required for the benefit of the child. I find that making a temporary order and seizing myself with this proceeding to monitor the access is a process that is consistent with the role of the court as outlined in subrule 2 of the Family Law Rules to ensure that cases are dealt with justly by ensuring that the process is fair to all parties and saves time and expense for the parties.
5. Restraining Order
5.1 Applicable Law and Legal Principles with Respect to Granting of a Restraining Order
[101] The statutory authority for a restraining order is provided in section 35 of the Children's Law Reform Act and section 46 of the Family Law Act as follows:
Restraining order
- (1) 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. 2009, c. 11, s. 15.
Provisions of order
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. 2009, c. 11, s. 15.
Restraining order
- (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) 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. 2009, c. 11, s. 35.
Same
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.
Provisions of order
(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. 2009, c. 11, s. 35.
[102] These statutory provisions have been interpreted to provide that to grant a restraining order the following are relevant factors:[10]
the fear must be reasonable;
the fear may be entirely subjective so long as it is legitimate;
the fear may be equally for psychological safety, as well as physical safety.
5.2 Relevant Evidence with Respect to the Granting of a Restraining Order
[103] It is submitted by the mother that either the temporary restraining order granted on December 13, 2011 should be made a final order or that a new restraining order be issued.
[104] The temporary order was granted based on the mother's affidavit. The father did not file a responding affidavit and the mother did not amend her pleadings to include a claim for a restraining order. The issue of a restraining order was never determined on its merits. When the final order was made on April 29, 2013 it did not include a restraining order.
[105] Although the mother appears to now be taking the position that the father has breached the order, earlier it was not clear to either the mother or her former lawyer whether or not the temporary restraining order was still in effect. When the father wrote to the mother's former counsel in July 2013, she advised the father that although the final order did not include the terms of the restraining order she hoped that father would still abide by the terms. The mother also advised the father that even though the restraining order was no longer in effect she hoped he would abide by the terms.
[106] The mother relies on the same evidence for the restraining order as she is relying on with respect to terminating the father's access.
5.3 Analysis
[107] The request for a restraining order was never in the mother's initial motion to change. After the temporary restraining order was made on December 13, 2011 the mother's pleadings were not amended to include this relief. Further, in the mother's response to the father's motion to change or in her motion to change the access order she did not request this relief. The father did not object to the issue of a restraining order proceeding pursuant to the mother's motion to change. As the father is self-represented, the court has a duty to ensure that the procedure is fair and is not prejudicial to him. I find that the father was aware of the request for a restraining order and in his affidavit addressed the issue. The father wishes all of the issues determined on their merits. I find that with respect to new relief claimed for a restraining order, subrule 8 (2.1) of the Family Law Rules is permissive in that it states that a party may file a new Application. I find that to proceed with the mother's claim for a restraining order in the context of her motion to change is permissible, and using the powers pursuant to subrule 2 (2) of the Family Law Rules is an appropriate process to avoid further delay or expense to the parties.
[108] I am not satisfied that based on the mother's evidence on this motion that her fear of the father is reasonable or legitimate. Although there may have been incidents in December 2011 that justified a restraining order, since that time, based on the evidence at this hearing, in my view there is insufficient evidence that justifies a continuation of the temporary restraining order, if it is still in force which in view of the final order of April 29, 2013 is debatable, or in the granting of a new order. In view of the length of time the father has not seen his daughter it is not unreasonable that he would have used any opportunity he had to watch her when he saw her or to talk to her when he had the opportunity to do so. But I am troubled by his attendance at her school, which although denied by the father I find did occur.
[109] I find that any concerns about the father attending at the child's school or at the residence of the mother and child can be dealt with by an order pursuant to section 28 (1) of the Children's Law Reform Act that provides as follows:
- (1) The court to which an application is made under section 21,
(a) by order may grant the custody of or access to the child to one or more persons;
(b) by order may determine any aspect of the incidents of the right to custody or access; and
(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child's residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child's passport, the child's health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
[110] Accordingly, an order can be made to prohibit the father from attending at the mother's and child's residence and the child's school or other places they may be. I find that over the last few years the father has not exhibited any concerning behaviour other than the incident at the school, and even that conduct did not involve the child. I am prepared to allow him the opportunity to prove that he can abide by terms to restrict his contact with the mother and child without the necessity of a restraining order that can result in a criminal conviction if there is a breach of the terms.
[111] If the father breaches the order that I intend to make, then that may be a basis for the mother to renew a request for a restraining order.
6. Order
[112] There will be an order as follows:
1. The respondent's motion to change paragraph 3 of the order of February 15, 2006 is granted as follows:
a) the arrears as of August 6, 2015 are fixed at $10,728 payable at a minimum of $100.00 per month as of October 1, 2015;
b) As of September 1, 2015, based on the respondent's anticipated gross income of $33,600 and in accordance with the Child Support Guidelines, he shall pay to the applicant child support for Alyanne Karly Andrade-Rifa born March 2, 2003 in the amount of $288.00 per month.
2. The applicant's Motion to Change the order of April 29, 2013 is dismissed.
3. On a temporary basis there will be an order as follows:
a) The applicant shall immediately attend at the Access for Parents and Children in Ontario for an intake appointment;
b) Supervised access to the respondent shall resume as soon as possible on either every Saturday or Sunday and at times available to the supervised access centre;
c) The respondent is at liberty to bring up to two relatives to any access visit after he has attended at least four visits on his own;
d) Both parties shall attend access visits on time and on a consistent basis. If a party needs to cancel a visit, such cancellation shall be communicated to the access centre at least 48 hours in advance except for a medical emergency;
e) Any cost for supervised visits shall be shared equally by the parties.
4. The restraining order of December 13, 2011 is terminated.
5. Pursuant to section 28 of the Children's Law Reform Act and until further order of the court, the respondent:
a) shall not attend within 100 metres of the child's school, the residence of the applicant and child, or anywhere else the applicant and child may be except for the purposes of exercising access in accordance with the herein order;
b) shall not contact the child or the applicant except that he shall be permitted to mail to the child any present or card for any special occasions such as Christmas, Easter, graduation, and her birthday;
c) for clarity, the respondent's obligation to provide the applicant with disclosure as outlined below shall not be a breach of this order.
6. The respondent shall file his 2015 income tax return as of April 30, 2016 and mail to the applicant a copy of his income tax return with all attachments and a copy of his Notice of Assessment, or any Notice of Re-Assessment as of June 30, 2016 and each year thereafter as long as he is obligated to pay child support.
7. Support Deduction Order to issue.
[113] The temporary order for access shall be case conferenced before me on December 11, 2015 at 10:10 a.m. Briefs to be filed along with copies of any access notes from the supervised access centre.
Justice Roselyn Zisman
Date: September 3, 2015
Footnotes
[1] The father had hip surgery in July 2013 and submitted he was unable to exercise access for the next 4-6 months and the APCO closed their file in October 2013.
[2] See Homsi v. Zaya 2009 ONCA 322, [2009] O.J. No. 1552 (C.A.)
[3] See also Perino v. Perino [2012] O.J. No. 6061 (C.A.)
[4] Orser v. Grant [2000] O.J. No. 1429 (Ont.S.C.); Motyka v. Motyka 2001 BCCA 18
[5] I assume this is a result of counsel's position that income be imputed in the same amount of $52,000 as in outstanding order and because counsel did not advance any alternative position.
[6] The court order of February 15, 2006 and subsequent disclosure order required that he file his actual tax return not a summary.
[7] Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C.
[8] Jafari v. Dadar [1996] N.B.J. No. 387
[9] , [2004] O.J. No. 2238 (SCJ) at para. 135, case references omitted
[10] McCall v. Res 2013 ONCJ 254 and VanRoon v. VanRoon 2013 ONCJ 276 and cases reviewed therein