Court File and Parties

Court File No.: D80153/15 Date: 2016-10-11

Ontario Court of Justice

Between:

I.A.

G. Alexander Novak, for the Applicant

Applicant

- and -

M.Z.

Lauren Israel, for the Respondent

Respondent

Heard: October 5, 2016

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] The applicant (the father) seeks supervised access to the parties' two-year-old daughter (the child).

[2] The respondent (the mother) seeks an order that the father have no access to the child. She also seeks a restraining order against him. The mother asks the court to order the father to pay her child support starting on January 1, 2015. She asks that the court use the father's 2015 income to assess his child support obligations from January 1, 2015 until April 30, 2016 and to impute his income at the minimum wage to assess his child support obligations after May 1, 2016.

[3] The father did not oppose the mother's request for a restraining order. He asks that his ongoing child support be set at $40 each month. This is the guidelines table amount of support pursuant to the Child Support Guidelines (the guidelines) for an annual income of $12,000. The court made a temporary order on October 15, 2015 that the father pay child support of $169 each month starting on October 1, 2015. The father asks that this order remain unchanged for the purpose of past support obligations.

[4] The parties agreed to a focused hearing of these issues pursuant to subrule 1 (7.2) of the Family Law Rules. The affidavits and financial statements of the parties constituted their direct evidence. The parties agreed to time limits for cross-examination and re-examination. Neither counsel required the full time limit to complete their examinations. Only the parties testified.

[5] The issues for this court to determine are:

a) Is it in the child's best interests to have access with the father at this time?

b) Should a restraining order be granted?

c) When should child support begin?

d) What amount of child support should the father pay? In particular, should income be imputed to him?

Part Two – Background Facts

[6] The father is 28 years old. He lives with his mother in Toronto.

[7] The mother is 32 years old. She lives with the child in Toronto.

[8] The parties began their relationship in 2013. The mother testified that the father lived with her on and off during 2014. The parties ended their relationship in December of 2014.

[9] The parties had the one child together.

[10] On or about January 14, 2015, the father was charged with uttering threats to cause bodily harm to the mother. These charges were eventually withdrawn with the father entering into a peace bond.

[11] The father issued this application on January 21, 2015, seeking access to the child.

[12] The mother filed her Answer/Claim on February 23, 2015.

[13] On March 6, 2015, the court made a temporary without prejudice order that the father have access to the child at the Toronto Supervised Access Centre (TSAC).

[14] The father did not attend at court on April 1, 2015. The court endorsed that the temporary March 6, 2015 order was now with prejudice.

[15] The father did not attend at court again on July 7, 2015. The court was advised by the mother that visits had started at TSAC, but the father was saying that he would not attend there anymore.

[16] The father deposed in his trial affidavit that the child would not stop crying during his two visits at TSAC and that both visits had to be terminated after ten minutes.

[17] The parties reconciled in the summer of 2015.

[18] The parties separated again on September 5, 2015. The child remained with the mother.

[19] On September 25, 2015, the father was charged with Threaten Bodily Harm, Mischief and Breach of Recognizance arising out of incidents with the mother on September 5, 2015. His criminal release conditions included a term requiring that he have no contact with the mother except through family court order made after that date.

[20] The parties both attended at court on October 15, 2015. On consent, the parties agreed that: the father would have temporary supervised access at TSAC; the parties were only to contact or communicate with each other through counsel (pursuant to section 28 of the Children's Law Reform Act (The Act)) and that the father would pay the mother temporary child support of $169 per month, starting on October 1, 2015, based on an annual income of $21,072.

[21] The father was arrested again on December 19, 2015 and charged with breach of his bail conditions for contacting the mother in November of 2015. The father was not granted bail as he was already on bail for the original uttering threats charge in January of 2015, as well as the charges from September of 2015. The father was in jail for 3 days. He pled guilty and received a conditional discharge with 12 months of probation.

[22] On January 25, 2016, the father's access was suspended by the court pending the return date. TSAC would not facilitate the father's access as his probation term prohibited contact with the mother unless there was a family court order permitting access made after November 20, 2015 (the court had made its order prior to that date). The father was given leave to bring a motion for access. The court told the father that he would need to demonstrate stability, insight into his actions and to take responsibility for his behaviour to move forward.

[23] The father did not bring his access motion. On April 15, 2016, the mother was granted final custody of the child and other incidents of custody.

[24] On August 8, 2016, the case was set for trial.

[25] The father deposed that he has not seen the child since August 13, 2015.

[26] The father has not paid any child support to the mother, despite the temporary court order.

[27] The father is still facing outstanding charges of Fail to Comply, Mischief and Threaten Bodily Harm with respect to the mother.

Part Three – Access

3.1 Positions of the Parties

[28] The mother's position is that it is not in the child's best interests to have access to the father. She testified about considerable domestic violence by the father towards her, often in the presence of the child. She believes that the father is uncontrollable, violent and does not respect court orders. She believes that any contact with the father will place her and the child at risk of physical and emotional harm.

[29] The father's position is that he should have supervised access with the child. This would start at one hour each week and gradually increase to two hours each week. He promises not to contact the mother. He wants to have a relationship with the child. He submitted that the mother has no basis to be afraid of him. He has known where she has lived for the past year and has not gone there. He said that he has had no incidents with the mother since November of 2015. He said that he is prepared to take a parenting course.

[30] The father denied the mother's allegations of violence. He conceded that he would be verbally inappropriate with her when they argued. He also claimed that the mother would be verbally inappropriate with him.

[31] The father attended in 2015 for anger management counseling at Just for Today Harm Reduction Services. He filed a letter dated December 2, 2015 sent from the counselor to his criminal lawyer. This letter contained the following positive comments:

a) The father attended and completed all 16 counseling sessions in an expedited fashion which required consistent and conscientious attendance.

b) The father never attempted to minimize the seriousness of this matter nor justify or rationalize his behaviour at the expense of the mother.

c) The father made a considerable effort to be willing to not only learn but apply alternative skills for nonviolence with a firm recognition that he is responsible for maintaining a dignified and respectful interpersonal level of communication and interaction.

d) The father has been making a commitment to alter and address his actions.

e) Generally speaking, the father made some very positive shifts in his attitude and demeanor while attending at the agency and all case notes to date show a very proactive and positive attitude on his part.

f) The father accepted feedback in a very mature fashion.

g) The father has shown great remorse.

[32] The counselor expressed confidence that the father has developed and continues to develop healthy and productive methods for dealing with feelings of anger and disappointment and that he will continue to pursue peaceful relationships free of violence, control or abusive tactics.

3.2 Legal Considerations

[33] Section 24 of the Act sets out that the court must make custody and access decisions in the best interests of the children. Subsection 24 (2) of the Act sets out criteria for the court to consider. Subsection 24 (4) of the Act also sets out that in assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse or the child. The court has considered these factors in making this decision.

[34] Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[35] It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from maximum contact with both parents, provided that it is consistent with their best interests. See: Gordon v. Goertz, supra.

[36] A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington, 2000CarswellOnt 4889 (SCJ).

[37] In V. S. J. v. L.J.G., [2004] O.J. No. 2238 (S.C.) at paragraph 135, Justice Jennifer Blishen provided a useful overview of the factors that have led courts to terminate access:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.

2. 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.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

4. Ongoing severe denigration of the other parent.

5. Lack of relationship or attachment between noncustodial parent and child.

6. Neglect or abuse to a child on the access visits.

7. Older children's wishes and preferences to terminate access.

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

[39] In M.K. v. T.R., [2014] O.J. No. 596, this court denied access to a father and considered the following:

a) The father had been violent and controlling towards the mother during their relationship.

b) The father denied having been violent. This made him a poor candidate to change.

c) The mother's stress and anxiety over the prospect of reintroducing the father into the family life was a significant consideration as it risked destabilizing the children and causing them anxiety.

d) Access is only to be ordered in circumstances where it will benefit the child.

[40] This case was followed, in very similar circumstances, by Justice Robert Spence in Scarlett v. Farrell, 2015 ONCJ 35. Justice Spence denied access to the father, finding that access would not add anything beneficial to the child's life, but rather that it would likely risk destabilizing the child, thereby resulting in significant emotional harm (par. 161).

3.3 Credibility

[41] The parties had very different accounts of their relationship. An assessment of credibility was essential to make the necessary findings of fact to determine the issues in this case.

[42] The court found the mother to be a credible witness. She did her best to give complete answers in a thoughtful manner. She did not attempt to evade questions. She was able to provide specifics of incidents concerning the father that were not shaken on cross-examination. She expressed considerable guilt about some of her choices in this matter – in particular, remaining (and reconciling in 2015) with the father when he was violent to her, often in front of the child.

[43] The father was not a reliable or credible witness. He had a poor memory of events. He minimized his actions and was quick to blame others for his behaviour. Examples of his lack of credibility were:

a) The father has not paid any child support despite consenting to a temporary order. The father claimed that he did not pay any support because he did not understand the process – he wants to pay support. This made no sense as the mother brought up his failure to pay child support several times at court appearances. The father then blamed his previous lawyer for his failure to pay support, saying "I don't mind paying".

b) The father claimed at trial (for the first time) that he had saved cash ($1,000) to pay child support. He claimed that "he is trying to figure out how to pay it" and that "he would love to give her (the child) the $1,000". This was not credible. He chose not to pay child support when he knew he had this obligation.

c) The father claimed that he has not been violent with the mother. Yet his counselor wrote that the father told him that when he loses control of a given situation he may have a tendency to react angrily and or violently. The father told him that cultural aspects have been influential in his attitudes and perspectives (the father came to Canada from Afghanistan when he was 12 years old). The father denied telling his counselor this and claimed that the counselor misunderstood him.

d) The father initially claimed that he had actively sought work. It became evident on cross-examination that this was not the case.

e) The father represented to the court in October of 2015 that he was earning $21,300 per annum. The temporary child support order was based on this representation. The father actually earned $30,549 in 2015.

f) The father called the Catholic Children's Aid Society of Toronto (CCAS) in the fall of 2015. He testified that he was concerned about the mother's environment. On cross-examination, it became clear that he made false allegations that the mother was exposing the child to persons in the drug and sex trade. The father denied at trial that he had expressed a concern about the child's exposure to persons in the sex trade to CCAS. A letter filed by the worker from CCAS said differently. There is no reason they would create such an allegation. The father was not credible. The father acknowledged at trial that the applicant is an excellent mother and the child was not at risk. He justified his behaviour by saying, "I was going through a lot".

[44] The court found the father to be evasive when confronted with uncomfortable questions.

[45] The court preferred the mother's evidence when it was in conflict with the father's evidence.

3.4 Findings of Fact

[46] The court makes findings of fact (primarily based on the mother's evidence) as set out in the following paragraphs.

[47] The father helped the mother care for the child after her birth. He would assist in changing diapers, changing the child and caring for her for short periods of time.

[48] The father's participation with the child quickly dwindled. He had little involvement with the child after December of 2014.

[49] The child has never met her paternal grandparents. The mother testified that they did not approve of her relationship with the father.

[50] The father was abusive to the mother while they were together during 2014. He would often leave the home, go out drinking all night and then sleep until late in the afternoon the following day. The father would become enraged if the mother or child woke him. The father would not engage with the child or participate in her care at these times.

[51] The mother was afraid of the father. She tip-toed around him and tried to pacify him. The father would often apologize to the mother and promise to change after his outbursts. She wanted to believe him. She wanted her family to remain together.

[52] The father was verbally abusive to the mother. He would scream at her and demean her. His behaviour escalated when he was drinking. Many of his outbursts were in the presence of the child.

[53] The father would tell the mother that he would make her life difficult if she ever tried to leave him.

[54] Specific examples of the father's abusive, controlling and erratic conduct are as follows:

a) In the summer of 2014, while the mother was pregnant, the father threatened to smash a bottle over her head and allege to the police that she had done it.

b) In October of 2014, the parties struggled over a set of keys and the keys cut the mother's finger. The father reacted by cutting his own finger and neck to persuade her not to call the police and make an assault allegation.

c) The father threatened to plant drugs in the mother's home to have her criminally charged if she left him.

d) On December 26, 2014, the mother attempted to facilitate a visit between the father and the child after their separation. The father refused to tell the mother when he would return the child. The father then insisted that they drive together with the child to the police station so that someone official could be involved. On the way to the police station, the father changed his mind and as the car was moving (slowly), unbuckled the child's car seat with the child in it and jumped with the child out of the moving car. No one was hurt, but this was frightening to the mother and placed the child at risk of physical harm.

e) On January 10, 2015, the father contacted the mother and threatened her and her family. The father was charged. The mother deposed that the father would threaten to "f- her up" or "f-up her family". He would tell her that no one could tell him what to do. The father was charged and released on bail. A bail term was to have no contact with the mother.

f) The father immediately breached the bail term by contacting the mother on January 19, 2015. The mother did not contact the police. She did not want to get the father into further trouble.

g) The father starting calling the mother again in April of 2015, begging her to give him another chance. He promised her that he had changed.

h) The father's behaviour improved for a short period after the parties reconciled in the summer of 2015. However, he quickly reverted to his abusive behaviour towards the mother. The mother deposed that the father began isolating her from her family and friends. He would not let her take the child outside the home. He threatened to hurt her, her family or himself if she left him. He would stay out late, drink and sleep until late in the afternoon.

i) The mother was too frightened of the father to leave. She said at one point he threatened that he would bring a gun to her apartment if she left him.

j) The parties separated for the last time on September 5, 2015, when the father was screaming at the mother in front of the child. He told the mother how much he wanted to kick her in the face with his safety shoes. The father yelled at the child, "your mom is a bitch and I will make sure you know that when you grow up".

k) The mother took the child and went to live with her parents for 5 days. The father called her and told her he would catch her at her parents' home and "f-her up". The mother returned home with the police. The father had damaged property, including the closet and the television. There was broken glass on the floor. He took the mother's laptop, cell phone, photos and scrapbooks. The father was contacted by the police and refused to surrender for 3 days. He was eventually charged with multiple offences.

l) The father contacted CCAS shortly after this separation and made false allegations about the mother.

m) The father was arrested on December 19, 2015 for a further breach of bail for having contacted the mother in November of 2015. He pled guilty to this charge.

n) The father approached the mother after court on January 25, 2016, again breaching his bail conditions (as well at the non-contact order of this court). The mother did not call the police.

o) The mother deposed that the father intentionally stood in her way and physically intimidated her at the conclusion of the August 8, 2016 court date. This may have been a subjective perception, but given the weight of evidence, the court finds that this likely happened.

[55] The mother admits that she made a poor decision reconciling with the father during the summer of 2015. She was aware that this was a breach of the father's bail terms. It also placed her and the child at risk of harm.

[56] The father had minimal participation with the child during the parties' reconciliation and showed little patience with the child.

[57] The father submitted that the mother's facilitation of access and her reconciliation with him shows that she did not fear him. The court disagrees and does not draw this inference. The mother's ambivalence to separating from the father is a common reaction this court sees in victims of domestic violence. It is often difficult for victims of domestic violence to extricate themselves from abusive relationships. It is complicated when a child is involved, the victim's self-esteem has been damaged and the victim feels a sense of responsibility (often disproportionate) for the breakdown of the family.

[58] The mother is afraid of the father. She will avoid going anywhere that she knows the father frequents.

3.5 Analysis

[59] It is not in the child's best interests to have access with the father at this time.

[60] A starting point to assess a child's best interests when making an access order is to ensure that the child will be physically and emotionally safe.

[61] It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe.

[62] The evidence demonstrates a disturbing pattern of violent and unstable behaviour by the father.

[63] The father's impulsive decision to take the child and jump out of a moving car in 2014 was incredibly reckless and dangerous.

[64] The father has demonstrated a lack of control when he is frustrated or angry.

[65] The father has been abusive and controlling towards the mother. This behaviour has been exacerbated by alcohol.

[66] The evidence contradicted the counselor's optimistic portrayal of the father's gains in insight and behaviour management.

[67] The counselor's report is dated December 2, 2015. The last session with the father the report refers to was October 22, 2015.

[68] Several incidents revealed that the father did not make the progress indicated in the report. In particular:

a) He made the malicious call to CCAS about the mother in the fall of 2015. This was an attempt to control, intimidate and hurt the mother.

b) He was charged with breach of his bail conditions on December 19, 2015.

c) The father approached the mother after the case conference on January 25, 2016, in breach of the criminal and family court orders.

d) The father likely attempted to intimidate the mother at court on August 8, 2016.

[69] The father demonstrated little insight into his behaviour and its impact on the mother and the child at trial. He denied any violence towards the mother. Threatening to f-up the mother and her family and to come to her home with a gun if she leaves him is profound violence.

[70] The father claimed at trial that he has never done anything to scare the mother. This is an alarming lack of insight into the effect of his behaviour on the mother. It was very evident that the mother is very frightened of the father.

[71] The father admitted that he had yelled and sworn at the mother, but also attributed this behaviour to the mother.

[72] The father showed little understanding of his behaviour. He was asked what specific triggers he had for his anger. He answered, "only after long days of work". He said he had no other triggers. However, the father hasn't really worked for the past 3 years. His outbursts occurred at times when he wasn't working.

[73] The father was quick to externalize blame or deny unfavourable evidence. He blamed the mother and his former lawyer for some of his actions. He denied telling his counselor that he had been violent or was affected by cultural influences.

[74] The father minimized his multiple breaches of criminal and family court orders attributing his actions at one point to "being emotional". He has demonstrated little respect for court orders.

[75] The father deposed that he owes $10,000 in fines for driving without insurance. He was first charged for driving a cousin's car without insurance. He was then stopped again by the same police officer when he drove the impounded car off the lot. The father attempted to justify this behaviour by saying that he had to get the impounded car back to his cousin. This is another example of the father showing little respect for the law.

[76] In submissions, the father's counsel attributed the father's behaviour to trauma he suffered in Afghanistan. That may be the case (it wasn't in evidence), but the father has taken no steps to address such trauma in any meaningful way.

[77] The father's lack of insight and propensity to externalize blame makes him a poor candidate to change. This is reflected in his repeated pattern of abusive behaviour when the parties reconciled in 2015 and his repeated breaches of criminal and family court orders.

[78] The court agrees with the mother that access at TSAC would not adequately protect her and the child. The court has little confidence that the father would comply at this time with court orders or the rules of TSAC. The mother and child would be exposed to contact with the father before and after visits.

[79] It was after the second visit at TSAC in April of 2015 when the father started calling the mother and campaigning for them to reconcile. There is a real possibility that he will use access as a route to contact and control the mother.

[80] The father has shown no real interest in the child other than bringing this application. He abused the mother in front of the child. He participated minimally in caring for the child. He did not bring a motion for access to the child when given the opportunity in 2016. He has not paid any child support for the child.

[81] The court considered the mother's willingness to facilitate access. The court finds that she has been willing to facilitate access – at times to a fault. She was willing to give the father unsupervised access after their separation in December of 2014. She agreed to access at TSAC and fully cooperated with the intake process. She reconciled with the father in 2015 for a brief period and again agreed to a temporary supervised access order at TSAC in the fall of 2015.

[82] The mother presented as sincere in her desire for the child to know her father and have a positive relationship with him. However, she is afraid for the child and herself if access resumes without the father making any real changes. The mother has both an objective and subjective basis for this fear.

[83] The court asked the father at the court appearance on January 25, 2016 to show stability and responsibility. He hasn't done this.

[84] The father has not seen the child since August 13, 2015. He is now a stranger to the child.

[85] The child is presently thriving in the mother's care.

[86] Any access order would risk destabilizing the mother and the child. This is not in the child's best interests.

[87] The benefits of starting access at this time are outweighed by the detriments to the child. This is an exceptional case where a no-access order is in the child's best interests.

[88] This does not mean that the father should never have access to the child. It is the court's hope that the father can take constructive steps in his life which would give the court some assurance that access will benefit the child. The court hopes that the father and the child will eventually have a positive relationship.

[89] The court notes that the father expressed a strong desire to have a relationship with the child and improve his conduct. At this stage though, he has to back up his words with actions.

[90] The court has asked the father in the past to demonstrate constructive change. He has not done this yet. Now the court will put the onus on him to demonstrate that he has made positive changes before access begins. It is not in the child's best interests to experiment with access without such changes taking place. The court will want to see the father do the following before restoring access:

a) Have no contact with the mother for a sustained period of time.

b) Attend for intensive counseling to address his behaviour. The counseling needs to address issues of domestic violence and possibly his own trauma.

c) Demonstrate that he can understand the impact of his behaviour on the mother and the child.

d) Demonstrate that he has learned and is applying healthier methods to deal with stress and frustration.

e) Demonstrate an ability to accept responsibility for his actions and not externalize blame onto others.

f) Take a parenting course that also addresses the impact of conflict and violence on children. Such programs are available through CCAS.

g) Demonstrate that he can refrain from criminal behaviour.

h) Show responsibility by paying child support.

i) Show that he is taking constructive steps with his life, by either working, upgrading his education or taking vocational retraining.

[91] If the father is able to take these steps over the next year, the court will consider this a material change in circumstances. If he takes these steps (and if an agreement cannot be reached with the mother), the court encourages the father to bring a motion to change the access order.

Part Four – Restraining Order

[92] The father wisely did not oppose the mother's request for a restraining order at trial.

[93] The evidence overwhelmingly supported granting a restraining order.

[94] A separate endorsement for the restraining order will be made on the standard form.

Part Five – Child Support

5.1 2015

[95] The father had income of $30,549 in 2015. This consisted of $25,000 in short-term disability payments and $5,549 for part-time work.

[96] The mother issued her claim for support on February 23, 2015. She did not include a claim for retroactive support. Accordingly, the court is not prepared to make the support order retroactive to January 1, 2015, as requested by her.

[97] Any support claimed after an application is issued is prospective support, not retroactive support. Ordinarily, once entitlement to support has been established, an applicant who has provided notice of a support claim, and who then proceeds reasonably to a disposition of the claim, is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. To do otherwise would only provide parties with an incentive to delay the final hearing. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).

[98] The court will start its child support order on March 1, 2015, based on the father's annual income for 2015. The father should have been paying the guidelines table amount from that date. Further, the father should not be rewarded for misrepresenting his income (upon which the temporary support order was based).

[99] The guidelines table amount for one child based on the father's 2015 income is $251 each month.

5.2 January 1, 2016 - April 30, 2016

[100] The father received short-term disability benefits for 2 years. These benefits expired at the end of April 2016. The father did not produce documentary evidence of his short-term disability income in 2016. The best evidence of this income from January 1, 2016 until April 30, 2016 is his 2015 income from this source - $25,000. This is the amount that the court will use to assess the father's child support obligations for this period.

5.3 The Father's Medical Condition

[101] The father has rarely worked for the past three years due to a back injury.

[102] The father provided a medical report dated February 25, 2015. The father was diagnosed with:

a) Discogenic back pain, spondylolisthesis

b) Sciatica, Right Chronic S1 Radiculopathy

[103] The medical report indicates that the father is totally disabled to return to construction work or any type of heavy labour work. It states that he requires vocational rehabilitation, job retraining and alternate employment.

[104] The father also provided a letter from his family doctor, dated June 16, 2016. This report confirms the above diagnosis. It states that the father went for a surgical opinion on February 22, 2016. Surgery may be an option. The father has gone for another appointment with the specialist, but the father has not yet received a report. The father told his doctor that he could not afford to go to physiotherapy at the present time.

5.4 The Father's Income After May 1, 2016

5.4.1 Positions of the Parties

[105] Starting on May 3, 2016, the father went on long-term disability and began receiving $1,000 each month. This income is not subject to income tax. Accordingly, there is a minor gross-up to the income to put the payor in the same position as someone who is paying taxes with the same net income. This projects to gross annual income of $12,093. The father has no other income. He asks the court to use this income to calculate his support obligation.

[106] The mother asks the court to impute the father's annual income at the minimum wage ($23,700). She claims that the father is deliberately unemployed.

5.4.2 Legal Considerations

[107] Section 19 of 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.

[108] 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(Ont. CA).

[109] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

[110] 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 or her reasonable educational needs?

3. If not, what income is appropriately imputed?

[111] 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 (Ont. C.A.).

[112] 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.

[113] 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, (Ont. S.C.).

[114] Once under-employment or unemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. See: Riel v. Holland.

[115] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

5.4.3 Analysis

[116] The court accepts the medical evidence that the father will be unable to perform physical labour for the foreseeable future.

[117] However, the medical evidence does not say that the father cannot perform non-physical labour. The specialist's report from February 15, 2015 sets out that the father requires vocational rehabilitation, job retraining and alternate employment.

[118] The father has not gone for vocational rehabilitation or job retraining.

[119] The father did not produce a job-search list. After cross-examination, it became clear that he has made little effort to find non-physical work.

[120] The father has not gone back to school to upgrade his skills that would assist him in earning income.

[121] The father has an obligation to take positive steps to earn what he is capable of earning and support his child. He is not fulfilling that obligation.

[122] The court finds that the father is deliberately under-employed or unemployed. He has a medical excuse for this, but it is not a complete excuse.

[123] The next step is to assess what income the father should be earning.

[124] The court recognizes that the father has a number of limitations that impact on his ability to earn income. He only has a grade 9 education. He has only worked at jobs that require physical labour. His back issues limit how long he can sit. He may eventually require surgery.

[125] However, despite these limitations the father has to at least try to earn income. He isn't doing this.

[126] The court finds that the mother's request to impute minimum wage income to the father is not realistic at this point. At best, the father will only be able to earn some part-time income in a non-physical job.

[127] The court expects the father to take some steps to earn this income. It will give him the rest of 2016 to do this.

[128] No additional income will be imputed to the father for the period from May 1, 2016 until December 31, 2016. However, starting on January 1, 2017, the father's annual income will be imputed at $16,000 for child support purposes.

[129] The guidelines table amount from January 1, 2016 to April 30, 2016, based on an annual income of $25,000 is $200 each month.

[130] The guidelines table amount from May 1, 2016 to December 31, 2016, based on an annual income of $12,093 is $42 each month.

[131] The guidelines table amount starting on January 1, 2017, based on an imputed annual income of $16,000 is $116 each month.

5.5 Arrears

[132] The father owes the mother the sum of $2,510 for 2015 ($251 per month for 10 months).

[133] The father owes the mother the sum of $800 for the first 4 months of 2016 ($200 each month for 4 months).

[134] The father owes the mother the sum of $252 for the period May 1, 2016 to October 31, 2016 ($42 each month for 6 months).

[135] The total arrears are $3,562.

[136] The father testified that he has saved $1,000 in cash to pay child support – he is just waiting for the right time to pay it. Now is the right time. He shall pay $1,000 to the mother within 14 days.

[137] The father will be permitted to pay the balance of arrears at the rate of $60 each month, starting on January 1, 2017. The small repayment is due to the father's limited ability to earn income and to the Canada Revenue Agency already garnishing $200 each month from his disability payments. However, if the father is more than 30 days in default of any payment term in this order, the entire amount of arrears then owing shall immediately become due and payable.

Part Six - Conclusion

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

a) The father shall have no access to the child at this time.

b) A separate restraining order endorsement shall be issued.

c) The father shall pay the mother the guidelines table amount of child support for one child in the amount of $42 each month, starting on November 1, 2016. This is based on an annual income of $12,093.

d) The father shall pay the mother the guidelines table amount of child support for one child in the amount of $116 each month starting on January 1, 2017. This is based on an annual income of $16,000.

e) Child support arrears are fixed in the amount of $3,562, as calculated in these reasons for decision.

f) The father shall pay the mother the sum of $1,000 towards the support arrears within 14 days.

g) The father may pay the balance of the support arrears at the rate of $60 each month starting on January 1, 2017. However, if the father defaults on any payment term in this order for more than 30 days, the entire amount of arrears then owing shall immediately become due and payable.

h) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST returns) or from any lottery or prize winnings.

i) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.

j) A support deduction order shall issue.

[139] If either party seeks costs, he or she shall make written submissions by October 25, 2016. The other party will then have until November 10, 2016 to make a written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator's office on the second floor of the courthouse.

[140] The court thanks counsel for their professional presentation of this case.

Released: October 11, 2016

Justice S.B. Sherr