Court File and Parties

Court File No.: D71078/14 Date: 2015-11-02

Ontario Court of Justice

Between:

FADUMO JAMA Applicant

-and-

ABDI MOHAMED Respondent

Counsel:

• Juliet Mohammed, for the Applicant
• Paulina Sbrocchi, Agent for the City of Toronto, Assignee

Before: Justice S.B. Sherr

Heard: September 21, October 28 and 30, 2015

Reasons for Decision

Part One – Introduction

[1] The applicant (the mother) seeks an order for sole custody of 5 of the parties' 8 children. These 5 children (the children), range in ages from 6 to 18 years old. The mother asks for an order that any access by the respondent (the father) to the children be in her discretion. She seeks an order for child support, retroactive to January 1, 2011. She asks to impute the father's income at $25,000 per annum, for the purpose of the child support calculation.

[2] The mother is on social assistance. She has assigned her claim for child support to the City of Toronto (the City). The City's agent presented evidence and cross-examined the father on the child support issues.

[3] The father seeks joint custody of the children. He submitted that he wants "free access – to see the children whenever he wants". He asks that the court not make any order for child support.

[4] The trial of this matter was conducted over parts of three days. Only the parties testified.

[5] This case was primarily about child support. Very little time was spent by the parties discussing the parenting issues.

Part Two – Background

[6] The parties were married in Somalia in 1985. They lived together in Somalia until 1989 when the father moved to Denmark, while the mother remained in Somalia. The father came to Canada in 1991 and sponsored the mother. She came to Canada in 1995.

[7] The parties have 8 children. Three of the children are no longer eligible for support and aren't the subject of this application. The children attend school full-time and live with the mother in Toronto. One child is now attending Ryerson University.

[8] The mother is 47 years old. She was born and raised in Somalia. Except for a very brief period of employment, she has been a stay-at-home parent. The mother has been in receipt of social assistance since January 5, 2009.[1]

[9] The father is 49 years old. He was born and raised in Somalia and attended Somalia University. He became a Canadian citizen in 1994.

[10] The parties are still married. The mother deposed that she and the father separated in March of 2001 and subsequently attempted to reconcile on several occasions without success. The father said that they separated in October of 2010. This decision doesn't turn on which version is correct. The parties have lived separate and apart for a long time.

[11] The father presently lives with a friend in a condominium in Toronto.

[12] The father worked as a machine operator for Canada Post when he came to Canada. He worked as a machine operator and in quality control for Magna International from 1995 to 2011. He lost this job in 2011 and returned to Somalia for one year. The father has also been self-employed at times as a taxi driver. The father deposed that he has only been able to find part-time work since 2011. He was on social assistance from June 28, 2012 until February 28, 2014.

[13] The mother issued this application on June 18, 2014.

[14] The father filed his Answer/Claim on November 12, 2014.

[15] On December 5, 2014, Justice Carole Curtis, on consent, ordered the father to serve and file financial disclosure at least 7 days before the next court date. This disclosure included: his income tax returns and schedules for 2011 to 2013; his records of employment from 2011 to 2013; and a job search list for the prior three months.

[16] The father only partially complied with the financial disclosure order, filing his income tax returns for 2011 to 2013. He did not provide the schedules to his income tax returns, his records of employment or a job search list.

[17] On February 13, 2015, the parties consented to a temporary order providing that:

a) The father would have access to the children every Saturday or Sunday from 10 a.m. to 4 p.m. The father would confirm in advance which weekend day he would be exercising access by calling the mother's residential landline. Access exchanges were to take place in the lobby of the mother's apartment.

b) The father would serve and file additional financial disclosure at least 7 days before the next court date, including: a current sworn financial statement; his 2014 income tax return and notice of assessment; his most recent statement of earnings; his statement of business income for 2012; his current mortgage statement; copies of all credit card and bank statements for the past year; and a job search list.

[18] At the appearance on May 4, 2015, the court endorsed that the father had not provided any financial disclosure and had only exercised one access visit since the last court date. A trial date was set for July 17, 2015.

[19] At the request of the parties, the trial was subsequently rescheduled to begin on September 21, 2015.

[20] The father provided limited financial disclosure at trial. He did not produce any evidence of his income in 2014 or 2015, records of employment or a job search list. He did not provide the schedules to any of his income tax returns. This was important since he claimed rental income and income from self-employment. He did not provide his current mortgage statement or the credit card and bank statements ordered.

Part Three – Credibility

[21] The parties had very different versions of their relationship.

[22] The father claimed that he was very involved with raising the children from 1985 until 2010. He claimed that the mother has frustrated his relationship with the children since then. He said that he still sees or communicates with the children weekly.

[23] The father also claimed that he completely supported his family from 1985 until 2011 and that after the separation (October of 2010 with his version) he would give the mother between $300 and $400 each week.

[24] The mother claimed that the father has had very little involvement with the children since the separation (2001 with her version) and mostly sees them at her apartment. She said that he has rarely paid her any child support.

[25] The mother had some credibility issues. She presented as very angry at the father and tended to exaggerate her evidence about him. At one point she said that he had only seen the children 5 times in 5 years. At another point, she testified that he only saw the children once every two to three months. At one point, the mother claimed that the father has never paid her support. This contradicted a statement in her application that the father had made a $400 support payment to her. It also became apparent in cross-examination that the father had made other payments to her before 2010, including paying for her trip to Somalia in 2007 and some dental bills.

[26] However, the mother's credibility issues paled in comparison to those of the father's. The father was not a credible witness. Some examples of these issues are as follows:

a) The father failed to reveal in his financial statement that he owned two properties in Somalia.

b) The father deposed in his financial statement that he had a 50% interest in a Toronto condominium, worth $15,000. The registered transfer of the property showed the father as the sole legal owner of the property. It was transferred to him in 2007 with a stated value of $83,000. The father deposed that there is $20,000 remaining on the mortgage. The father has far more equity in this property than he deposed.

c) It became clear that the father obtained social assistance from June 28, 2012 until February 28, 2014 on false pretenses. If he had revealed the properties he owned or the income he earned during those years, he would have not been eligible for social assistance.

d) The father testified that he had not earned net rental income when explaining why he had not reported his ownership in his Toronto condominium to the City (when he applied for social assistance). His income tax returns for 2012 and 2013 both revealed that he received net rental income from this property.

e) The father was evasive and contradictory when giving evidence about his business driving a taxi. He did not reveal this income source when first asked by the court about his employment history. He failed to provide any records establishing his revenue and expenses from this business.

f) In addition to failing to accurately report the properties he owns, the father did not reveal two of his bank accounts in his sworn financial statement.

g) The father did not comply with financial disclosure orders.

h) The father became evasive or argumentative when faced with these difficulties in his evidence.

i) The father claimed to have a close relationship with the children but was unable to demonstrate any real knowledge of their day-to-day lives.

[27] For the most part, where the evidence of the father conflicted with that of the mother, the court preferred the evidence of the mother.

Part Four – Parenting

4.1 Legal Considerations

[28] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

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

2. It can't be ordered in the hope that it will improve their communication.

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

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

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

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

[29] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260, Roy v. Roy, [2006] O.J. No. 1872.

[30] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

[31] In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: See: Garrow v. Woycheshen, 2008 ONCJ 686, Hsiung v. Tsioutsioulas, 2011 ONCJ 517.

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

[33] 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.

[34] Ultimately, the court must decide what parenting order is in the child's best interests and consider the factors set out in subsection 24(2) of the Children's Law Reform Act (the Act) in reaching this decision. This subsection 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.

4.2 Custody

[35] After observing the parties interacting over three days, it was very evident to the court that the communication between the parties is terrible. They dislike each other intensely. Very importantly, they lack respect for one another. They cannot make joint decisions together. It is not in the best interests of the children that important decisions regarding them be paralyzed because of the inability of their parents to communicate.

[36] The evidence was overwhelming that the mother should have custody of the children. They have always lived with her. She has stayed at home to raise them and has done an excellent job attending to all of their physical and emotional needs. She was able to discuss in detail her typical days with the children and their needs. She is the parent who has dealt with the children's teachers, arranged tutors and taken them to doctors. She has made responsible decisions for them.

[37] The father demonstrated very little knowledge of the children. He struggled in identifying their schools and did not know who their doctor or dentist was. He acknowledged that he has had no communication with their schools or doctors since 2011.

[38] It also became apparent that the father's access to the children has been sporadic. The court endorsement on May 4, 2015 indicated that he had seen the children just once since the consent order in February of 2015 permitted him weekly access. The father repeatedly said that he was in constant communication with the children. However, when pressed, he said that there were times he would go 2 to 3 weeks without seeing them. When asked why, he claimed that he sometimes had other things to do – an interesting comment since he claimed that he was unable to find employment.

[39] The court also has significant concerns about the father's ability to act as a parent – specifically to prioritize the children's needs to his own. By his own admission, the father has not paid any child support since 2011. As will be reviewed below, he had the ability to support the children and chose not to. Financially supporting your children in a responsible manner is an important part of being a parent.

[40] It is in the best interests of the children that the mother be granted a final custody order. She is the parent who has provided them with consistency and stability. She is the parent better able to provide them with guidance and the necessities of life. She has shown a better ability than the father to act as a parent and prioritize the children's needs.

4.3 Access

[41] The court finds that the father exercises access sporadically.

[42] The mother testified that the father will often insist on exercising access in her apartment. She finds this very uncomfortable and does not want him there. The father did not see the problem in exercising access at the mother's apartment.

[43] The father said he wanted "free access" – to take the children whenever he wanted. He also wanted overnight visits.

[44] The father has never had overnight access with the children.

[45] The mother testified that she does not mind the father having access, but she doesn't want him to have overnight access. She also wants access to be in her sole discretion.

[46] The two oldest children who are the subject of this application are 16 and 18 years old. They will decide if and when they see the father. No access order is required for them. A more structured order should be made for the other three children, who are 11, 9 and 6 years old (the younger children).

[47] It is not in the best interests of the younger children to leave access in the discretion of the mother. She presented as being very angry at the father. The court is not confident that she would consistently facilitate the father's relationship with the younger children.

[48] It is not in the best interests of the younger children to grant "free access" to the father. They need more consistency and predictability. The mother is also entitled to plan her schedule without wondering whether or not the father will appear.

[49] It is not in the best interests of the younger children to have access take place in the mother's apartment. The father does not appear to respect boundaries. The younger children shouldn't be exposed to the tension that the father's attendance at the mother's apartment causes.

[50] It is not in the best interests of the younger children to make an order for overnight access at this time. The father has not consistently exercised the day access granted to him. His condominium unit is not well-suited for overnight access. He does not have beds or a room for the younger children. He shares this unit with a friend. They each occupy a room in the two-bedroom unit.

[51] The evidence also makes it clear that the father has little interest in consistently exercising weekly access to the younger children. The mother should be free to organize activities for the younger children on some weekends without wondering if the father will exercise his scheduled access.

[52] The court order will provide that the father can have access to the younger children as follows:

a) Alternate Saturdays, commencing on November 14, 2015, from 10 a.m. to 5 p.m.

b) Access exchanges shall take place in the lobby of the mother's apartment.

c) The father shall not come within 100 feet of the mother's apartment unit.

d) The father is to confirm that he will attend for access at least 48 hours before the scheduled visit by calling the mother's landline, failing which the visit shall not take place, unless otherwise agreed to by the mother.

e) Such further and other access as the mother may agree to.

[53] The father will be entitled to the rights of information set out in subsection 20(5) of the Act. This subsection reads as follows:

Access – The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of a child.

Part Five – Child Support

5.1 The Father's Income

5.1.1 Positions

[54] The applicant asked the court to impute the father's income at $25,000 per annum. She alleged that he has either been earning this income since 2011, or has been capable of earning this income.

[55] The father claims that he has had no ability to pay child support since 2011.

5.1.2 Legal Considerations

[56] Section 19 of the Child Support Guidelines (the guidelines) permits the court to impute income to the father if it finds that he is earning or capable of earning more income than he claims.

[57] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731.

[58] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If not, what income is appropriately imputed?

[59] 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. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552.

[60] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417.

[61] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[62] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453.

[63] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[64] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616; Maimone v. Maimone, [2009] O.J. No. 2140.

[65] A person's lifestyle can provide the criteria for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

5.1.3 The Father's Evidence

[66] The father filed income tax returns for the years 2011 to 2013.

[67] The father's 2011 income tax return revealed line 150 income of $36,743.55. This included employment income of $14,874; employment insurance of $7,392; RRSP income of $2,699.64 and "other income" of $15,968.88. This was offset by $4,190.91 that the father deducted as a rental loss for his condominium. The father deposed that he was fired by his employer in June or July of 2011. He explained that he couldn't perform the job because of his distress over his family situation. He said that he was often late to work or was sick and didn't go to work.

[68] The father could not explain the "other income" of $15,968.88 in his 2011 income tax return and said that his tax preparer put that amount in. There was a reference in this income tax return to a schedule beside "other income" that the father did not provide. It is probable that this was the father's self-employment income from driving a taxi.

[69] The father's 2012 income tax return revealed line 150 income of $17,857.62. This included employment insurance income of $2,352; rental income of $1,819.63; RRSP income of $409.06; net business income of $9,030 and social assistance payments of $4,246.92. The father was in Somalia for much of 2012.

[70] The father declared gross business income of $15,000 in 2012. He deposed that this income came from driving a taxi. He did not provide the schedule of business affairs that would have been attached to the tax return submitted to Revenue Canada. He did not provide any supporting documentation demonstrating how the gross and net revenue for his taxi business was calculated.

[71] The father's 2013 income tax return revealed line 150 income of $14,203.81. This consisted of employment income of $4,507; rental income of $2,344.38 and social assistance payments of $7,352. The father deposed that he stopped his taxi business in 2012 because he wasn't making any money at it.

[72] The father did not file his 2014 income tax return. He deposed that he earned about $15,000 in 2014. He filed no income information for 2015 and couldn't specify how much he earned – only that he couldn't afford to pay child support. He said that he was on employment insurance from January until May of 2015. The father deposed that he does part-time work through employment agencies – mostly working in warehouses.

5.1.4 Analysis

[73] The court finds the mother's request to impute the father's income at $25,000 per annum for the purpose of the child support analysis to be very reasonable. It is likely overly conservative.

[74] Without any detailed analysis, the father's own evidence shows a 2011 income of $36,743.55.

[75] The father did not provide the schedules ordered for his income tax returns which might have detailed how his rental and business income was calculated in 2012 and 2013. The court could not analyze the gross revenues of the father's business or determine if expenses deducted were for legitimate business purposes.

[76] The father's lifestyle is not indicative of a person who is only earning $15,000 per annum (the amount claimed by the father). He has been able to maintain three properties. He claims in his financial statement to have annual expenses of $23,352. This does not include the $300 to $500 per month that he claims he is paying towards his credit card debt. He has been able to travel to Somalia. Yet, he has only had a modest increase in debt since he swore his financial statement in November of 2014.[2]

[77] The court did not believe the father's evidence about his income. It finds that he has been earning at least $25,000 per annum since 2011.

[78] The court finds, in the alternative, that the father is intentionally under-employed. He has considerable work experience and was earning a good income prior to 2011. He provided no evidence of efforts to find work, even though he was ordered twice to provide job search lists. An adverse inference is drawn against him for his failure to provide this. The father did not provide a valid reason for ceasing his taxi business in 2012.

[79] The father did not provide a justifiable reason for his under-employment. He is in good health.

[80] The court finds that the father has had the ability to earn at least $25,000 per annum since 2011. He has some university education. He has many job skills. He has worked as a machine operator and in quality control. He has been self-employed driving a taxi. He obtained a forklift licence (in either 2014 or 2015), but has not obtained a job in this field.

[81] The guidelines table amount for 5 children at an annual income of $25,000 has been $641 per month since January 1, 2012 (when the guidelines amounts were amended).

5.2 Retroactive Support

5.2.1 Legal Principles

[82] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Reasonable excuse for why support was not considered earlier.

2. Conduct of the payor parent.

3. Circumstances of the child.

4. Hardship occasioned by the retroactive order.

[83] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

[84] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).

[85] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair (D.B.S., par. 121).

[86] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past (D.B.S., par. 123).

5.2.2 Analysis

[87] The mother provided a partial excuse for her delay in bringing the case to court. The father deposed that he left Canada for Somalia in July 2011 and stayed there for about one year. The mother and the City could not find him in that time. However, it is apparent that the mother had some communication with the father when he returned to Canada in 2012. She conceded that she did not ask the father what his address was at that time.[3] She did not issue her claim for child support until June 18, 2014. The mother did not actively seek support from the father after his return to Canada. Most likely, the mother didn't seek support from the father until the City told her that she had to.

[88] The father acknowledged that he has not paid any child support to the mother since the middle of 2011. He had the ability to pay support. He has preferred his own interests to those of the children. This is blameworthy conduct.

[89] The children's circumstances have been disadvantaged by the failure of the father to pay support. They have been living a marginal lifestyle on social assistance.

[90] A retroactive award will not create hardship for the father. He has equity in the condominium which should satisfy most of the arrears. He has equity in his properties in Somalia. He deposed that one of the properties was worth $45,000 and the other was worth $10,000. Given the father's tendency to minimize his financial worth, the properties are likely worth more.

[91] The court also considered the case of Mohamed v. Abdilurazak, [2001] O.J. No. 2952. In Mohammed, the City was the assignee of child support and sought child support against the payor. The payor did not defend the claim and filed no financial information. The City asked the court to impute a minimum wage to him. The only evidence before the court was that the payor was on social assistance. The court did not grant the order because the payor was in receipt of social assistance and there were no exceptional circumstances upon which to make a support order. It made no sense that the City was seeking to impute income to the payor at the same time as it was paying him benefits. The court suspended the court order until such time as the payor was no longer on social assistance.

[92] The case before me is distinguishable. The father is no longer on social assistance. More importantly, the father obtained social assistance on false pretenses. He did not report his properties, employment, rental and business income to the City. It would be against public policy to send the message to the public that if you are able to deceive the City into paying you social assistance that you will be subsequently shielded from a claim for support.[4] The taxpayer should not have to bear the cost of the father's deception to the City or his unwillingness to properly support his children.

[93] Balancing all of these factors, the father shall be required to pay the mother retroactive support of $641 per month, starting on January 1, 2012.

5.3 Arrears Calculation

[94] The father asked for credit for payments made on behalf of the children. Most of the items he claimed credit for were for the usual costs of access, such as going to the movies, the Palladium, meals on visits and buying the children video games. He won't receive any credit towards arrears for these expenses.

[95] However, the court will give the father credit for $400, being the cost of a computer he purchased for the children in early 2015.

[96] The support arrears as of this date are $29,727. This represents support accruals of $641 per month for 47 months, less a $400 credit for the computer purchase.

[97] The support arrears are owed to the City of Toronto.

[98] The court ordinarily makes an order for monthly repayment of arrears, particularly when a payor has limited assets. That is not the case here. The father has assets available to pay most of the arrears. The court has no sympathy for the father. The taxpayer has supported his family. It also appears that the taxpayer supported him with social assistance from June 29, 2012 until February 28, 2014, while he was in receipt of employment, business and property income and while he owned 3 properties.[5]

[99] The City and the Director of the Family Responsibility Office should move promptly to secure payment of the arrears. The court will leave it to the City to assess what other action they may take against the father with respect to the circumstances that led to the social assistance previously being paid to him.

Part Six – Conclusion

[100] A final order shall go on the following terms:

a) The mother shall have final custody of the children.

b) The father shall have access to the younger children on alternate Saturdays, commencing on November 14, 2015, from 10 a.m. to 5 p.m.

c) Access exchanges shall take place in the lobby of the mother's apartment.

d) The father shall not come within 100 feet of the mother's apartment unit.

e) The father is to confirm that he will attend for access at least 48 hours before the scheduled visit by calling the mother's landline, failing which the visit shall not take place, unless otherwise agreed to by the mother.

f) The father shall have such further and other access to the younger children as the mother may agree to.

g) The father will be entitled to the rights of information set out in subsection 20(5) of the Children's Law Reform Act.

h) The father shall pay child support to the mother in the sum of $641 per month, starting on January 1, 2012. This is the guidelines table amount for five children, based on the father's imputed annual income of $25,000.

i) The father shall receive a support credit of $400.

j) The child support arrears as of this date, based on the retroactive support ordered, are $29,727, payable forthwith.

k) The child support arrears are owed to the City of Toronto.

l) The ongoing child support shall be $641 per month, starting on December 1, 2015.

m) A support deduction order shall issue.

n) The father shall, starting in 2016, annually provide the mother by June 30th with copies of his complete income tax returns (including all schedules), notices of assessment and his three most recent pay stubs.

o) A support deduction order shall issue.

p) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source, such as HST or income tax refunds, or from lottery or prize winnings.

q) Approval of the order by the father is dispensed with.

[101] If either the mother or the City seek costs against the father, they shall serve and file written submissions by November 16, 2015. The father will then have until November 30, 2015 to serve and file a written response to these submissions. The written submissions are not to exceed 2 pages, not including any offer to settle or bill of costs. The submissions should be filed at the trial coordinator's office on the second floor of the courthouse.

Released: November 2, 2015

Justice S.B. Sherr

Footnotes

[1] The mother was also in receipt of social assistance from May 1, 1997 until June 30, 2000 and from August 1, 2001 until May 2, 2005.

[2] The father deposed that his credit card debt has increased to $4,000 from the $2,674 claimed in his financial statement. He provided no evidence of this.

[3] The mother said she didn't ask for the father's address because she knew he wouldn't tell her it.

[4] The father was well aware that he should have reported his income to the City. When asked why he didn't do this, he told the court that his work was not consistent; he knew that if he reported his income that he would be cut off from benefits and he would then have to re-apply once he wasn't working. He felt that this wasn't worth his trouble.

[5] In a touch of irony, the father bitterly complained during the trial that the mother was wasting the taxpayer's money by taking this case to court – and that he, as a taxpayer was upset by this.