Court File and Parties

Date: December 28, 2016

Court File No.: D91092/16

Ontario Court of Justice

Re: Nerys Nakin Dockery – Applicant

And: Horace Dockery – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Jane Ja-Eun Huh - for the Applicant
• Respondent - self-represented

Heard On: December 21, 2016

Endorsement on Temporary Motion

Introduction

[1] This is a motion by the Applicant ("mother") for an order that the Respondent ("father") comply with the outstanding disclosure order of November 18, 2016, custody of the child of the marriage, Eden Ayele Dockery born September 23, 2012 ("the child" or "Eden"), child and spousal support retroactive to December 2015 and that the father surrender the child's OHIP card.

[2] The father in his materials sought an order for unsupervised alternate week-end access and a non-removal order.

Background and Litigation History

[3] The parties were married on July 6, 2013 in St. Kitts and Nevis. Their son Eden was born on September 23, 2012. After the marriage, the father returned to Canada. The mother continued to work as a civil servant in the Office of the Director General of the Organization of Eastern Caribbean States Commission where she had been employed for 11 years.

[4] The mother came to Canada on December 19, 2015 to complete a post-graduate certification program in public relations and corporate communications at Seneca College.

[5] The parties did not reside together when the mother and child arrived in Canada. There are different versions as to the reason. The mother states that the father refused to allow her to live with him and she was left to care for Eden on her own while she completed her educational course and to support herself and their son from her savings.

[6] The father is employed as a real estate agent with Century 21 and works part-time for Air Canada. He is also the sole owner of a mortgage consulting business.

[7] The mother earned the equivalent of about $31,899 Canadian while she worked in St. Kitts and Nevis. The mother completed her course of studies in August 2016 and then was able to find employment through a co-op placement earning $24.50 per hour on a temporary contract from September to December 2016 and estimates her total earnings to be $12,862 [1] for the year. She has used her savings and her church has loaned her some funds to support herself and her son.

[8] The mother commenced court proceedings in June 2016. The first case conference was held on November 18th although by an endorsement dated September 12th, the parties were encouraged to negotiate some child support pending the return of the case.

[9] A case conference was held on November 18th. In the mother's affidavit she refers to several statements made by the father during the case conference with respect to his 2015 income being $127,225. I find that it is improper to rely on these statements for the purposes of a motion. The endorsement does not refer to any admission made by the father with respect to his income and no order was made based on any admission of the father's income. Parties should feel free at a case conference to discuss issues that may be the basis for a settlement and not be legally bound by those statements. I find this is to be particularly important when one party is self-represented and may make statements that upon seeking legal advice may not be accurate. In this case, the issue of the father's income is the pivotal issue on this motion. I find that it would be improper to rely on a statement he made at a case conference about his income in 2015 without consulting a lawyer or without the benefit of the advice of his accountant.

[10] At the case conference, the father was ordered to provide financial disclosure 14 days prior to the return date that included copies of a fully completed and sworn financial statement, copies of his tax returns for 2013, 2014 and 2015 with all attachments and a 5 year summary from CRA and an income and expense statement. He was also ordered to provide proof of all of his 2016 income and copies of any court orders with respect to his support obligation for his other children. It was also agreed that the father would have access for 2 hours every Saturday supervised by a friend of the mother's.

[11] As there was no agreement with respect to the support issues, a motion date of December 21st was set. Counsel for the mother was to serve and file her Notice of Motion and affidavit by December 9th, the father to serve and file his responding affidavit, financial statement and disclosure by December 16th and any reply by mother's counsel by December 20th.

[12] The father requested and was given an extension to serve and file his responding materials and financial disclosure to December 15th.

[13] Counsel for the mother complied with all of the deadlines for filing. The father then filed a further affidavit which was a reply to the mother's reply affidavit on December 20th. I advised the father that I would not rely on his further affidavit as it was not properly before the court and that he was not entitled to file a reply to the mother's reply affidavit.

[14] Accordingly for this motion I have relied on the Notice of Motion filed by the mother and her supporting affidavits sworn December 8th and 20th and her financial statement sworn June 22, 2016 and the affidavit of Ms Paonessa updating the mother's financial statement. I have relied on the father's affidavit sworn December 13th and his financial statement sworn December 7th and the financial disclosure he filed.

[15] At the commencement of the motion, mother's counsel advised the court that the mother's initial affidavit was prepared before the father provided his disclosure. Although filed late, she was content to proceed. Despite the fact that the father's financial disclosure was disorganized, filed without any index or properly tabbed and was simply attached to his affidavit with little explanation, he generally complied with the disclosure order. However, although he was ordered to file proof of the two court orders that required him to pay child support for other children, he only filed a copy of one recent endorsement, dated October 14, 2016, that on consent required he pay $900 per month for two children based on an average income of $60,500 to commence December 2016.

[16] Further, counsel advised that the father had still not returned the child's OHIP card to the mother. The father at the request of the court did so in the courtroom.

[17] The father also stated that he was consenting to the mother having temporary custody of the child.

Position of the Parties

[18] It is the mother's position that she is entitled to spousal support on a compensatory and non-compensatory basis. She resigned her position and gave up her entitlement to a full pension so that the parties and their son could live together as a family. Further, she deposes that the father kept promising to sponsor her and their child over the years and although he did not do so, he did agree to support her upon her decision to come to Canada. She deposes that she is in dire financial circumstances and requires both spousal and child support including that the father contribute to the child's daycare expenses. She acknowledges that the father has sometimes paid her $500 per month and other times he has not paid anything.

[19] It is the mother's position that the father should pay child and spousal support based on his 2015 income that he estimated at the case conference to be $127,225. It is also her position that all support payments should be retroactive to December 2015.

[20] It is the father's position that he should not pay any spousal support. It is his position that the mother had difficulties in her workplace and that she quit her job as she wished to relocate and live elsewhere. It is also his position that the parties separated in January 2015 while the mother was still working.

[21] The father's position is that the parties had already separated and that he did not agree to sponsor the mother under the marriage program but did agree to assist her in coming to Canada through an education program as long as she agreed to his terms with respect to support.

[22] It is the father's position that his child support obligation should be based on the average of his last 4 years of income being $41,322 with credit for any funds he has paid to date. He did not make any submissions with respect to his obligation to pay for his share of the child's daycare expenses.

[23] With respect to access, both parties blame each other for the father not exercising access in accordance with the temporary consent.

[24] I have also considered that at this stage of the proceedings temporary orders are based on limited evidence without the benefit of cross-examinations and such orders are meant to come to a reasonable acceptable solution to a difficult problem pending trial. The parties have presented divergent histories of their relationship that have not been scrutinized. Further, the father's disclosure has raised issues that need to be tested by cross-examination and will require that he provide further evidence and explanation.

Issues to be Determined

1. Is the mother entitled to temporary spousal support? If so, in what amount?

2. What is the father's income for support purposes? Should income be imputed?

3. Is the mother entitled to a claim for retroactive support?

4. What are reasonable access arrangements for the father?

5. Should there be a non-removal order?

Applicable Legal Principles and Statutory Provisions Regarding Spousal Support

[25] Section 30 of the Family Law Act ("FLA") provides that every spouse has an obligation to provide support for the other spouse "in accordance with need, to the extent that he or she is capable of doing so."

[26] In considering if the mother is entitled to spousal support, whether on a temporary or final basis, the court is required to consider the objectives of a spousal support order set out in subsection 33(8) of FLA as follows:

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial home)

[27] In Bracklow v. Bracklow, [2] the Supreme Court of Canada recognized three bases for an award of spousal support:

1. compensatory based on the economic circumstances of each spouse's role during the marriage;

2. non-compensatory based on need in circumstances where a spouse cannot become self-sufficient; and

3. contractual based on an agreement between the parties.

[28] Where there are dependent children, the primary rationale for spousal support is compensatory. As stated by Chief Justice McLaughlin in Bracklow, spouses "must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union". [3]

[29] As the authors of the Spousal Support Advisory Guidelines ("SAAG") emphasize, in cases where there are dependent children, the obligation for spousal support flows from parenthood rather than the marital relationship. It is not driven by the length of the marriage, marital interdependency, and merger of the parties' economic lives over time, but the need to provide care and support of children. The authors highlight that what they refer to as the "parental partnership" rationale for spousal support considers not only past loss, but also the potential for ongoing financial disadvantage arising as a result of current and future child care responsibilities. They further point out that for shorter marriages with young children these present and future child care responsibilities are more significant. [4]

Application of Principles Regarding Spousal Support to the Facts

[30] Based on the affidavit evidence of both of the parties, the marriage between the parties was short and they did not reside together. They were married on July 6, 2013 and based on the father's evidence separated in January 2015 before the mother came to Canada. It is the mother's position that they separated only when she came to Canada in December 2015.

[31] In support of the father's position he has produced several emails between the parties during the Fall of 2015 when it is clear they were having disagreements especially with respect to finances and the father assisting the mother coming to Canada.

[32] In support of the mother's position she attached a letter dated November 11, 2015 signed by the father to the Canadian High Commission stating that he is the mother's spouse and undertakes to ensure that sufficient financial funds are available to cover her expenses during the duration of her studies in Canada. He further states that the mother and their son will be residing with him in their family home.

[33] The father deposes that the mother drafted the letter and he "may have signed it". But he deposes that there was another arrangement which he states is set out in emails he attached to his affidavit. In reviewing those emails, it appears that the mother agrees to paying all of her expenses if the father agrees to pay for two semesters of school, her tuition of $15,000 and $500 per month to support the child. She further requests the father obtain an apartment for her and their son, obtain an OHIP card and look into school programs for their child. It is not clear that the father ever accepted these terms. What is also not clear from the email exchange is whether or not the relationship is actually over or if the parties are still struggling to see if there is a relationship that can be salvaged. What is not disputed is that there is no executed separation agreement and neither party began divorce proceedings.

[34] Both parties agree that this was a short relationship. Regardless of whether or not the parties had already separated when the mother and child came to Canada the father agreed to financially assist them and except for providing $5,500 from December 2015 to December 2016 [5] he did not provide proof of any other funds he provided.

[35] The mother has been the parent solely responsible for meeting all of the needs of their child. She gave up her job to come to Canada. Since coming to Canada the mother has completed her educational course and she was able to obtain a temporary contract employment position. However, based on her responsibilities to her child and the fact that she currently is only in possession of a student visa she has done all that could be expected to support herself. Currently she is in need of financial support. She has used her savings and is now relying on loans to support herself and the child.

[36] I find that the mother is entitled at this stage of the proceedings to spousal support both on a compensatory and needs basis. It could also be argued that the mother was entitled to spousal support based on a contractual basis as the father agreed to support her while she completed her course of study.

Applicable Legal Principles Regarding Temporary Spousal Support

[37] As this is a motion for temporary spousal support, the relevant applicable principles [6] to be applied are as follows:

a) temporary support is to provide income for the dependent spouse from the time the proceedings were instituted until trial. It should only be ordered when a prima facie case for entitlement has been made out;

b) on a temporary support motion, the needs of the dependent spouse and the ability of the other spouse to pay support take on greater significance than the need to achieve self-sufficiency;

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

d) temporary support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage;

e) temporary support is to be based on the parties' means and needs, assuming that a triable issue exists. The merits of the case in its entirety must wait a final hearing; and

f) temporary support should be ordered within the SSAG range unless exceptional circumstances dictate otherwise.

Application of Legal Principles with Respect to Temporary Spousal Support to the Facts

[38] At this stage of the proceedings, I find that the mother has met the onus on her to establish a prima facie case for entitlement.

[39] The issues raised by the father with respect to the mother quitting her job and coming to Canada after they had already been separated are issues that are properly dealt with at trial. At this stage of the proceeding, the mother has established that she suffered an economic disadvantage as the primary caregiver of the child and that she gave up the stability of a permanent job and accepted a reduced pension to join the father in Canada so that they could be a family.

[40] The focus on a temporary motion is on the means and needs of the parties. The mother has an obvious need for spousal support. She is the child's primary caregiver. She is currently not working and as she is only in possession of a student visa her options for employment are also limited.

[41] On temporary motions there is a need for a quick and easily calculated amount of spousal support. The SSAG are particularly useful at this stage knowing that precise calculations can be made later.

[42] Applying these principles, I have already outlined the basis for finding that the mother has established her entitlement on a temporary basis to spousal support and her immediate need. The next step is to determine the father's ability to pay.

Applicable Legal Principles in Calculating Income for Child and Spousal Support

[43] The starting point for the determination of income for both child support and spousal support is the definition of income under the Federal Child Support Guidelines ("CSG"). Section 16 sets out that income is determined using the source of income set out under the heading "total income" in the T 1 issued by Canada Revenue Agency subject to sections 17 to 20 and adjusted in accordance with Schedule III.

[44] If that would not be the fairest way of determining income, in accordance with section 17 of the CSG, the court can average the income over the last 3 years and determine an amount that is fair and reasonable having regard to any pattern of income, fluctuations in income or receipt of a non-recurring amount.

[45] There are practical difficulties in using different incomes for child support and spousal support. The authors of the SSAG suggest that in the interests of simplicity and consistency that the same income be used and that some adjustments can be made through selecting a particular amount in the ranges. Therefore it is suggested that the relevant time for determination of the incomes of the spouses is the date of the hearing at both the interim and initial stages. [7]

[46] Income can also be imputed to a party for spousal support purposes. In determining the payor's means the court may impute income in appropriate cases, including where the payor spouse is intentionally under-employed. As noted in Rilli v. Rilli, [8] the test in Drygala v. Pauli [9] for imputing income for child support purposes applies equally to claims for spousal support.

[47] "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. [10]

[48] 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:

a) Is the party intentionally under-employed or unemployed?

b) 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?

c) If not, what income is appropriately imputed?

[49] 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. [11]

[50] In considering if income should be imputed to a payor, section 19 of the CSG 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.

Calculation of the Father's Income

[51] In my view, the mother has met the onus on her to prove that income should be imputed to the father.

[52] I find that it is an appropriate case where the court should draw an adverse inference against the father for his failure to fully comply with his disclosure obligations. [12]

[53] Although the father has complied generally with the order for disclosure, I find that the court must draw an adverse inference due to his failure to explain the many discrepancies in the disclosure he has provided. Further, if the father had filed his disclosure in accordance with the original timelines set by the court, it is obvious that mother's counsel would have requested further disclosure.

[54] 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. [13] In this case, the father has not provided any explanations for his deductions.

[55] It may be that at trial or upon the father explaining the discrepancies in his financial disclosure and providing proof that the deductions from his gross income are reasonable that a different income may be attributed to him.

[56] In calculating the father's income and asking the court to impute income, I rely on the following:

a) The letter from Century 21 dated November 11, 2015 states that the father has been employed as a broker since 2007 and his annual earnings are $120,000;

b) The father also provided a Royal Bank bank statement indicating a balance as of October 8, 2015 of $30,643 which then indicates a cash withdrawal of $20,019 on October 29th ostensibly as proof that he paid the mother's tuition but he has not filed any proof that he ever paid this amount on behalf of the mother;

c) The father's financial statement sworn December 7, 2016 indicates a balance of only $2,817 in the same bank account and no explanation as to where the $20,019 was deposited. He indicates he has a Registered Savings Account of $8,302 and has managed to accumulated an RESP account of $19,726;

d) The father's financial statement indicates his expenses are $81,440 annually with an income of only $48,816. But he has not included debts that he indicates he is paying to Canada Revenue Agency of $4,096 per month and for GST/HST of $1,758.97 per month or $70,259.64 annually;

e) The mother produced the father's 2012 and 2011 Notices of Assessments that indicate his Line 150 income was $147,652 and $129,899 respectively;

f) The father produced a 2012 Notice of Assessment (without his name on it) indicating an income of $56,483 but the actual 2012 tax return he produced showed an income of $40,651.79. The father does not explain the discrepancy in the Notices of Assessment produced by the mother and his Notice of Assessment and why if he refiled for example, there would not be a Notice of Re-Assessment;

g) The father also provided copies of his 2013, 2014 and 2015 tax returns all of which have been recently filed and a 5 year tax summary from 2011 to 2015. His line 150 income is composed of his employment income from Air Canada and his net self-employed income. There are also some small business losses for his mortgage business and in a few years small RRSP withdrawals added to his income;

h) Based on the information provided by the father I have summarized his income as follows:

YEAR	EMPLOYMENT INCOME	GROSS COMMISSION	NET COMMISSION	LINE 150 INCOME
2011	$9,502	$69,916	$79,418
2012	$12,657	$62,288	$28,578	$40,651
2013	$5,769	$48,732	$24,737	$29,751
2014	$17,273	$32,977	$3,246	$19,765
2015	$18,642	$108,582	$57,163	$75,121
2016	$19,242 (estimate based on year to date income)	$42,133 (based on unsigned statement provided re 2016 sales)		$61,375 (total of income disclosed)

[57] Despite the mother providing the copies in her possession of the father's 2011 and 2012 Notices of Assessment in her affidavit of December 8th, 2016 the father does not explain the discrepancy between those Notices of Assessment and the Notices of Assessment he has produced. The father does not provide any explanation regarding his expenses or the fee structure he has with Century 21. He does not explain why Century 21 wrote a letter in October 2015 indicating his income was $120,000 when he claims his income is much less. He does not explain why in this lucrative real estate market he is estimating his real estate income for 2016 will only be $42,133. He does not provide any information about his mortgage consulting business for which he claims he has never made any income and claims losses of about $755 annually. He further does not explain why in his 2015 tax return his primary occupation is listed in one place as real estate sales and in another as a mortgage agent and in another as auto sales.

[58] In the mother's reply affidavit she deposes that the father has a cash business buying and selling homes in his sister's name. I am not prepared to consider this submission not only because there is no proof provided for this allegation but it is not proper reply and should have been raised in the mother's affidavit supporting her motion so that the father had an opportunity to respond.

[59] I have considered that in another recent court proceeding, the father's income was imputed to be $60,900. But that was based on a consent between the parties and it is not clear from the endorsement how this was calculated and what, if any, scrutiny there was of the father's financial information.

[60] Although it is difficult to determine the father's actual income given the many discrepancies between his stated income and without any explanation as to how he can be meeting his expenses, I find that based on the evidence presented by the mother and based on the father's own financial statement and his disclosure that it is reasonable to impute $120,000 income to him. I base this on the letter his employer provided and based on his gross income for 2015 with an arbitrary deduction of about $7,000 for motor vehicle expenses which he claims on his 2015 tax return to be $8,857 but without further proof I find it is reasonable to reduce this amount for some personal use. As the case law requires the person deducting any expenses to prove those expenses, I am not prepared to further reduce the father's income. The father was well aware of the issues regarding the discrepancies in his income for support purposes and he had an opportunity to provide explanations and failed to do so.

[61] Mother's counsel provided a Divorcemate calculation based on the mother's income of $12,862 and the father's income of $127,225. I have imputed income to the father of $120,000. Further, the calculations do not include the cost of $9,300 for daycare for which the mother has claimed the father should contribute. Without including this cost, the father's obligation to pay spousal support would be higher than required by the SSAG.

[62] Based on the calculations that I have prepared [14], I find that the mid-range of spousal support is appropriate as it would result in an almost equal Net Disposable Income for both parties. I therefore find that the father is obligated to pay child support of $1,037 per month, his share of the daycare cost of $341.00 per month and spousal support of $2,162 per month.

[63] With respect to the daycare expense, the father owes $4,092 for his share of the daycare expense for January to December 2016. There is no evidence as to whether or not the child is currently enrolled in daycare but if he is as a result of the mother further attending school, looking for employment or being employed the father will have an ongoing obligation to pay his share of the daycare expense.

Applicable Legal Principles Regarding Retroactive Child and Spousal Support

[64] The mother seeks child and spousal support retroactive to December 19, 2015. She is entitled to support retrospective to the date of the application which she commenced in June 2016.

[65] The court has the jurisdiction to order retroactive child support pursuant to section 34(1)(f) of the FLA.

[66] The criteria for a claim for retroactive child support is well known and set out in the seminal case of D.B.S. v. S.R.G. et al [15]. The court held that generally a claim for an increase in support should be calculated as of the date of "effective notice" that is, when the recipient indicated that an increase in child support was requested and that unless the payor demonstrated bad faith or blameworthy conduct, the award should not be more than three years before formal notice. In this case, there was formal notice when the application was issued. But the mother also deposes that she was attempting to obtain an assurance of financial support from the father even before she came to Canada in December 2015. Based on the email correspondence between the parties that it is clear they were attempting to negotiate support.

[67] The court further held that the decision to order retroactive support should be based on a consideration of factors and that none of the factors is decisive. The court should strive for a holistic approach and strive to balance the payor's need for certainty with the need for fairness and flexibility. The factors to be considered are:

a) The reasonable excuse for the delay in seeking an increase in support;

b) The conduct of the payor;

c) The circumstances of the child, both past and present;

d) Any undue hardship.

[68] The court has jurisdiction to make a retroactive order for spousal support pursuant to section 34(1)(f) of the FLA. In Spett v. Pearo [16] Justice Riccheti reviewed the case law and held that generally temporary retroactive spousal support orders are made where:

i. there appears to be a prima facie entitlement by the recipient spouse to spousal support during the period in question;

ii. during this period the payor spouse has made little or no spousal support or other reasonable financial contribution to the recipient's expenses (such as mortgage, food etc.);

iii. there is some immediate need on behalf of the recipient spouse to deal with debts or other financial issues which have occurred during this period of time failing which the recipient spouse will suffer some hardship, and

iv. the payor spouse has the ability to make a payment for some retroactive spousal support through the payor's funds or borrowings available to the payor spouse without causing undue hardship.

Application of Legal Principles to the Facts Regarding Retroactive Child and Spousal Support

[69] In this case, the father was aware that the mother was seeking support for herself and the child upon her arrival in Canada. The parties were not successful in negotiating the terms although the father did pay some support.

[70] As of the commencement of this application the mother is entitled to both child and spousal support. Much of the delay is a result of the father not being prepared to proceed and needing additional time to provide his financial disclosure.

[71] I find that the mother and child have an immediate need for support retroactive to the date they arrived in Canada. The mother presently does not have a job, she has used all of her savings and is now relying on the charity of her church to survive. I find that the father has some savings and that he must have some undisclosed income or savings as he did not explain the disappearance of the $20,000 cash withdrawal from his bank account in October 2015 or how he is able to meet his expenses from his declared income.

[72] I therefore find that the child and spousal support order should be retroactive to December 19, 2015 with the father receiving credit for the $5,500 it is agreed that he has paid.

[73] If at a trial, it is determined that the father has overpaid support there can be an adjustment at that time both with respect to the amount and the duration of his spousal support obligation.

Access

[74] Despite the order made at the case conference for supervised access, the father has not had access. The mother advised the father that the friend who was supposed to supervise his access was not available on the day and time agreed upon. The father then emailed the mother asking that the mother arrange another day for the access when her friend would be available to supervise. He was clear that he was not comfortable with the mother supervising. The mother did not respond.

[75] During submissions, the mother agreed to the paternal grandmother supervising the father's access and it was further agreed that the original time of 2 hours would continue. The matter was held down for the parties to further discuss the details and commencement date.

[76] Unfortunately the parties could not agree on the details of access and the mother had to leave before I could deal with the issues.

[77] Based on the submissions and the evidence, I ordered that the father should have access on Saturdays from 2:00 to 4:00 p.m. to be supervised by the paternal grandmother to commence on December 24th and each Saturday thereafter with pick up and drop off at a local community centre.

[78] There is no evidence that there are any concerns about the father's parenting. However, given that the father has no relationship with the child, it was prudent for the mother to require that for a short time that his access be supervised by someone else. Unfortunately the mother's friend is no longer a viable alternative as a supervisor. Such an arrangement using someone that the mother knew and trusted might have given the mother more confidence regarding the father's interaction with the child. However, the mother did agree that the paternal grandmother could supervise and this seems a reasonable solution in the short term.

Non-Removal

[79] The mother had left the courthouse when submissions were made with respect to a non-removal order. Although the father had requested such an order, mother's counsel had not addressed this issue in her submissions nor in the mother's affidavit. Mother's counsel then submitted that the mother's visa would be expiring on March 1st and she was concerned that any non-removal order would interfere with the mother leaving the jurisdiction with the child if she was forced to do so. No information was provided as to whether or not the mother was attempting to renew her visa or her future plans regarding remaining in this jurisdiction.

[80] I had some concerns about the mother's emotional reaction in the courtroom before she left when I asked that the issue of access be resolved between the parties. Given the uncertainty of the mother's plans and the fact that the mother was not present, I made an immediate non-removal order and also ordered that the child's passport be deposited with the court by December 29th.

[81] I then adjourned the matter to March 1st, 2017 and advised that my decision with respect to the other issues would be released in a written endorsement.

Order

[82] There will be a temporary order as follows:

1. The Applicant Nerys Dockery shall have custody of the child, Eden Ayele Dockery born September 23, 2012.

2. The Respondent Horace Dockery shall have access every Saturday from 2:00 to 4:00 p.m. to be supervised by the paternal grandmother. Pick up and drop off shall be at the community centre at Lasalle and Eglinton Avenue.

3. Based on the Respondent's imputed income of $120,000 and based on the Child Support Guidelines he shall pay child support of $1,037.00 per month as of December 19, 2015.

4. Based on the Respondent's imputed income of $120,000, the Applicant's income of $12,862 and the total cost of daycare for 2016 being $9,300 he shall pay his share of $4,092 within 30 days. He shall continue to pay $341.00 on a monthly basis as of January 1, 2017, if the Applicant provides proof that she is continuing to attend school, is looking for employment or is employed.

5. The Respondent shall pay spousal support of $2,162 per month to the Applicant as of December 19, 2015.

6. The Respondent shall receive a credit of $5,500.00 for support he has paid directly to the Applicant.

7. Support Deduction Order to issue.

8. The Applicant shall not remove the child from the jurisdiction of Toronto until further court order.

9. The Applicant shall deposit the child's passport with the court office by December 29th, 2016 and the passport shall be held until further order of the court.

[83] In the event the Applicant is seeking costs, written cost submissions not to exceed 3 pages, with any Offer to Settle and bill of costs attached, to be served and filed with the trial co-ordinator by January 20, 2017 and any response by the Respondent, not to exceed 3 pages, with any Offer to Settle and a bill of costs attached, to be served and filed with the trial co-ordinator by February 22, 2017.

Justice Roselyn Zisman

Date: December 28, 2016

Footnotes

[1] Based on the affidavit sworn November 8, 2016 of mother's counsel's law clerk filed to update the mother's financial statement.

[2], [1999] 1 S.C.R. 420

[3] Supra, paragraph 1

[4] Spousal Support Advisory Guidelines, July 2008, para. 8.1

[5] In submissions the father agreed with the mother's calculations of the amounts he provided for her and the child

[6] Kowalski v. Grant 2007 MBQB 235; Robles v. Kuhn 2009 BCSC 1163; Decker v. Fedorsen 2010 ONCJ 618, [2010] O.J. No. 5661 (OCJ); Driscoll v. Driscoll, 2009 CarswellOnt7393 (SCJ)

[7] Spousal Support Advisory Guidelines, July 2008, para. 6.7

[8] [2006] O.J. No. 2142

[9] (2002), , 61 O.R. (3d) 711 (C.A.)

[10] See also Perino v. Perino [2012] O.J. No. 6061 (C.A.)

[11] See Homsi v. Zaya 2009 ONCA 322, [2009] O.J. No. 1552 (C.A.)

[12] Smith v. Pellegrini, [2008] O.J. No. 3616 (Ont.S.C.); Mainone v. Mainone, [2009] O.J. No. 2140 (Ont.S.C.)

[13] Orser v. Grant [2000] O.J. No. 1429 (Ont.S.C.); Motyka v. Motyka 2001 BCCA 18

[14] Calculations are attached.

[15] 2006 SCC 37

[16] 2011 ONSC 5329 (SCJ) and cases cited therein.