Court File and Parties

Toronto Registry No.: DFO-15-12660

Date: 2017-03-08

Ontario Court of Justice

Between:

M.-A.M. Applicant

— And —

J.C.M. Respondent

Before: Justice Sheilagh M. O'Connell

Heard on: 18 January 2017

Reasons for Judgment released on: 8 March 2017

Counsel:

• Ryan G. Gillissie, counsel for the applicant mother
• Respondent father J.C.M., acting on his own behalf

JUSTICE S.M. O'CONNELL:—

1: INTRODUCTION

[1] This is a motion for summary judgment brought by the applicant, M.-A. M. ("the mother"). The mother seeks the following final order:

1. An order that the respondent, J.C.M. ("the father") shall have no access to the child, P.C.M., born on […] 2014;

2. An order that the mother may apply for and renew all government issued identification documents for the child, including his Canadian passport, without the required consent of the father;

3. An order that the mother may be permitted to travel with the child outside of Canada for vacation purposes without the consent of the father;

4. Commencing on 1 January 2015, an order that the father shall pay child support in the amount of $406.00 per month for the child based on an imputed income of $45,000.00, pursuant to the Child Support Guidelines;

5. An order that the father pay his proportionate share of the child's section 7 expenses, including but not limited to child care, uninsured medical and dental expenses in the amount of $208.00 per month, based on an the mother's income of $24,578.00 and the father's imputed income of $45,000.00;

6. An order that the father pay arrears of child support owing and fixed in the sum of $6,958.00 as of 1 August 2016;

7. An order for costs in the amount of $2,500.00 on a partial recovery basis.

[2] Custody of the child was not an issue for this summary judgment hearing. On 29 January 2016, on consent of the parties, the Honourable Justice Ellen B. Murray granted the mother final custody of the child.

[3] At the commencement of the summary judgment hearing, the father, through his agent, consented to final orders regarding access, identification documents and travel. The father did not wish to have access to the child and he consented to the waiver of his consent to permit the mother to obtain identification documents for the child and for travel purposes.

[4] The remaining issues for the summary judgment hearing were child support and a restraining order.

[5] The father sought the dismissal of the mother's claims for child support, section 7 expenses and costs. He takes the position that he should not be legally obligated to pay child support.

2: THE ISSUES

[6] The father argues that he is not legally obligated to pay child support because the mother engaged in a "premeditated theft of the father's DNA" during "a hostile sexual act of DNA theft" leading to the birth of the child. According to the father, he was a victim of the theft of his DNA by the mother "to satisfy the [mother's] motive to bear a child prior to the [mother's] biological reproductive expiration."

[7] The father is also seeking a restraining order against the mother and for an order that she be prohibited from any direct or indirect contact with him or members of his family as he claims that she has stalked him and members of his family following the child's birth.

[8] The mother seeks the dismissal of these claims and an order that income be imputed to the father for child support purposes, based on the undisputed evidence filed and the father's refusal to comply with his legal and court-ordered obligation for financial disclosure.

[9] The court is tasked with determining whether there is a genuine issue requiring a trial of the above issues and if not, the appropriate remedy.

3: PRELIMINARY PROCEDURAL ISSUE

[10] Although the father was acting on his own behalf at the time of the summary judgment hearing, his father, the child's grandfather, was permitted to act as his agent or as a support person at the hearing. The father had been previously represented by counsel.

[11] The summary judgment motion had originally been scheduled to proceed on 21 September 2016. However, the father requested an adjournment as he claimed that he had not been served with the court materials until the date of the hearing. The Honourable Justice Brian M. Scully granted the adjournment request and strongly recommended that the father retain a new lawyer, according to his endorsement. The father chose not to retain a new lawyer.

[12] At the hearing before me on 18 January 2017, the father did not to attend but sent his father (the grandfather) to appear as his agent and requested that he appear on his behalf. Substantial materials had been filed by the father, which appeared to have been prepared with the grandfather's assistance.

[13] It was apparent that the grandfather was actively involved in supporting and assisting his son through the case management process and he was permitted, with the consent of the mother's counsel, to make submissions on his son's behalf at the summary judgment hearing.

[14] Given that the father did not have a lawyer at the time of the summary judgment hearing, having chosen not to retain one and to rely upon his father instead, the court exercised considerable caution and ensured that the father had every opportunity to advance his case through his non-lawyer agent.

4: BACKGROUND FACTS

[15] The parties were involved in an intimate relationship for a number of months in 2013. The mother deposes that they lived together for approximately six to seven months. The father denies this but acknowledges that they were in a sexual relationship for a number of months.

[16] The parties met at work while the mother was working as an audio technician and the father was working as an apprentice ironworker or 'rigger' at a music festival. The mother was 38 years old and the father was 23 years old when they met.

[17] During the relationship, the mother became pregnant with their child, "P.M.", who was born on […] 2014. The mother notified the father of the pregnancy and, according to her evidence, she wanted the father to be involved in the life of the child. The parties ended their relationship before the birth of the child.

[18] Prior to commencing these proceedings, the parties were involved in settlement negotiations and four-way meetings with their respective lawyers at the time. These negotiations were not successful and the mother commenced her application for custody and support on 5 February 2015. The father served and filed his answer shortly thereafter.

[19] The father does not dispute that he is the biological father of the child. P.M. is now almost three years old. It is not disputed that the father has had no contact with the child since June of 2014, shortly after P.M.'s birth.

[20] The father initially brought a claim for access in his answer to the mother's application for custody and support. However, on 29 April 2015, in a letter from his previous lawyer, the father advised that he will not be pursuing any contact with the child.

[21] The father subsequently amended his answer-response in December of 2015 and, in his amended answer, he did not seek access to the child.

[22] Following a case conference before Justice Murray, the case management judge, a motion for temporary child support was heard on 16 March 2016, wherein temporary child support was ordered. Previous to that, on 15 April 2015, the father made a lump-sum voluntary payment of child support in the amount of $3,720.00, representing child support in the amount of $310.00 per month for the twelve-month period from April 2014 to April 2015, based on an income of $35,609.00.

[23] The father appealed the temporary order of Justice Murray dated 16 March 2016 and has subsequently appealed a further temporary order of Justice Murray dated 23 June 2016 regarding financial disclosure. The court was advised that these appeals have been perfected and are currently pending in the Superior Court of Justice.

5: THE FATHER'S DESCRIPTION OF THE PARTIES' RELATIONSHIP

[24] The father deposes that although he was in a sexual relationship with the mother, the "strict terms of their sexual engagement" was that "no form of the [father's] DNA ejaculate was to enter the [mother]'s reproductive system", according to his sworn affidavit.

[25] The father does not dispute that the parties did not use condoms or other forms of birth control except for what appears to be known as the 'withdrawal' method. However, the father deposes that the mother told him that she was "medically infertile."

[26] The father deposes that he terminated all sexual activity with the mother after the mother "premeditatively violated Criminal Code Section 402.1 during a hostile sexual act of DNA theft of the father's ejaculate."

[27] The father did not pursue criminal charges against the mother for alleged sexual assault or alleged DNA theft; however, the father did undergo a polygraph test which he attached to his affidavit to corroborate his evidence.

[28] The father deposes that, although he initially agreed to stay friends with the mother, he eventually terminated all contact with her as a result of her verbally and mentally abusive conduct and when she threatened to have him arrested.

[29] The father further deposes that the mother engaged in stalking him, his parents and grandparents. He attached a photo of the mother and the child at a visit at his grandparents' home in which he alleges that the mother showed up unannounced and uninvited. The mother admits to attending the grandparents' home on one occasion with the child when he was approximately six months because she wanted to introduce them to their great-grandchild. The mother has not returned.

[30] It is not disputed that, in March of 2014, the father sent an e-mail to the mother demanding that she cease and desist all contact with him other than through his parents and that any further contact with him directly could result in charges of criminal harassment.

[31] It is further not disputed that the parties have had no contact since 2015, except through counsel.

6: THE FATHER'S FINANCIAL AND EMPLOYMENT CIRCUMSTANCES

[32] The father is an apprentice ironworker and was a training member of Ironworkers Local 721. When the parties met, the father was working as an apprentice ironworker and rigger.

[33] It is not disputed that the wage scale for an apprentice ironworker of Local 721 is approximately $37.26 per hour.

[34] In 2014, according to the father's T-4 slip, the father's gross annual income was $34,609.92. This evidence is not disputed by the father.

[35] In 2015, the father provided four T-4 slips totalling an income of $16,037.93 in 2015. The father provided no medical evidence or otherwise regarding why his income had dropped significantly after the mother commenced her application for child support.

[36] On 1 June 2016, the mother's counsel requested in writing that the father produce his 2014 and 2015 income tax returns and all attachments, all personal banking statements for the year 2015, current paystubs, all paystubs from Nasco [1] in 2015 and a job search if the father was unemployed.

[37] It is not disputed that, in response, the father sent a complaint letter against the mother's lawyer to the Law Society of Upper Canada and failed to produce the financial disclosure requested.

[38] According to the order of Justice Murray dated 23 June 2016, the father made the following admissions in court regarding his income:

(a) The respondent worked approximately 100 hours for Nasco in 2016. Other than that, he has not worked and is not seeking work in 2016. He is doing volunteer work.

(b) The respondent has not filed tax returns for 2014 or 2015.

[39] In his responding affidavit in the summary judgment motion, the father deposes that, since the beginning of 2016, his membership with the Ironworkers Union had been revoked. No explanation was provided regarding the reason for the revocation. However, during argument, the father through his agent produced two letters that were entered on consent as exhibits at the hearing.

[40] The letters, dated 16 and 17 February 2016, are from the Ministry of Training Colleges and Universities and the Ontario College of Trades and confirm that the father's membership status had been suspended for non-payment of his annual membership fee. This correspondence clearly indicates that, once the father's membership with the Ontario College of Trades is in good standing, his training agreement and apprenticeship with the Ironworkers can be reactivated, but he is not permitted to work in his trade in the meantime.

[41] The mother filed evidence from a former co-worker who deposed that, during the summer of 2016, he directly observed the father working as a rigger and general labourer during the Luminato Festival and two other music festivals.

[42] According to the grandfather, the father was not working at the time of the summary judgment hearing. When asked why, the court was advised that the father is feeling very cautious about working because he feels that the mother is indirectly stalking him by obtaining affidavits from other co-workers about his employment.

7: THE LAW AND GOVERNING PRINCIPLES

[43] Rule 16 of the Family Law Rules, O. Reg. 114/99 [as amended], governs the use of summary judgment motions in family law proceedings. In May of 2015, following the Supreme Court of Canada's decision in Hryniak v. Mauldin, [2] rule 16 has been significantly amended to broaden the powers of the court on a summary judgment motion. The rule now includes the same summary judgment powers set out in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure.

[44] The relevant provisions of rule 16 now read as follows:

16. When available.— (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16(1).

(2) Available in any case except divorce.— A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16(2).

(4) Evidence required.— The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16(4).

(4.1) Evidence of responding party.— In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

(5) Evidence not from personal knowledge.— If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16(5).

(6) No issue for trial.— If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16(6).

(6.1) Powers.— In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5(1).

(6.2) Oral Evidence (Mini-trial).— The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5(1).

(7) Only issue amount of entitlement.— If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount. O. Reg. 114/99, r. 16(7).

(8) Only issue question of law.— If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16(8).

(9) Order giving directions.— If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1(7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure). O. Reg. 114/99, r. 16(9); O. Reg. 69/15, s. 5(2, 3).

(10) Costs of unsuccessful motion.— If the party who made the motion has no success on the motion, the court shall decide the amount of the other party's costs of the motion on a full recovery basis and order the party who made the motion to pay them immediately, unless the motion was justified, although unsuccessful.

(10) Costs of unsuccessful motion.— Revoked: O. Reg. 69/15, s. 5(4).

(11) Costs — Bad faith.— If a party has acted in bad faith, the court shall decide the costs of the motion on a full recovery basis and shall order the party to pay them immediately.

(11) Costs — Bad faith.— Revoked: O. Reg. 69/15, s. 5(4).

(12) Motion for summary decision on legal issue.— The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16(12).

(13) Evidence on motion for summary decision of legal issue.— On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission. O. Reg. 114/99, r. 16(13).

[45] In Hryniak v. Mauldin, the Supreme Court of Canada set out the process to be followed in applying the expanded summary judgment rule. The court held that the judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.

[46] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine whether the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[47] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph [51]). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph [63]).

[48] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph [64]).

[49] The use of the expanded powers is not a full trial on the merits but is designed to determine whether there is a genuine issue requiring a trial.

[50] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph [66]).

[51] The court also set out the following:

(a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. (Paragraph [5].)

(b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. (Paragraph [24].)

(c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial. (Paragraph [34].)

(d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. (Paragraph [43].)

(e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective. (Paragraph [50].)

(f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute. (Paragraph [50].)

(g) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding. (Paragraph [57].)

(h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial. (Paragraph [58].)

[52] It is also necessary to consider subrule 2 of the Family Law Rules to ensure that a case is dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity. A summary judgment motion is a tool that can contain and control a child's drift in litigation. This is also in keeping with the process set out by the Supreme Court of Canada in Hryniak v. Mauldin.

8: APPLICATION OF THE LAW TO THE FACTS

8.1: The Father's Defence against Paying Child Support

[53] There is no legal basis for the father's attempt to create a new defence to child support. The father's claim that the mother committed a "hostile sexual act of DNA theft" does not alleviate his obligation to pay child support.

[54] Subsection 31(1) of the Family Law Act, R.S.O. 1990, c. F-3, as amended, provides that "every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education to the extent that the parent is capable of doing so."

[55] The Family Law Act recognizes only one defence to child support, which is set out in subsection 31(2) of the Act. This subsection provided that a parent's legal obligation to support a child does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. This is not the case here.

[56] The father has not pursued criminal charges against the mother and appears to be relying upon the law of tort. The Ontario Court of Justice has no tort jurisdiction. An application for child support before the Ontario Court of Justice is not the forum before which to attempt to establish the tort of "hostile sexual act of DNA theft." Even if the father did pursue this claim in the Superior Court of Justice, I am not aware of the tort of "hostile sexual act of DNA theft."

[57] The Ontario Court of Appeal addressed a somewhat similar claim in its recent decision, P.P. v. D.D., 2017 ONCA 180, [2017] O.J. No. 1030, 2017 Carswell Ont 2850. This was an appeal of the decision of Superior Court Justice Paul M. Perrell [3] which dismissed a father's statement of claim against a mother and refused the father leave to amend his statement of claim.

[58] In that case, a father brought a civil action for damages against the mother for fraud, deceit and fraudulent misrepresentation after she became pregnant and gave birth to a child. The father claimed that, on the basis of the mother's intentionally false representations to him with respect to her use of birth control and her implied intention not to conceive a child, he engaged in sexual intercourse without using a condom. The father claimed that, as a result, his consent to sexual intercourse was vitiated by fraud and he claimed damages for the emotional and financial harm that he suffered from unplanned parenthood.

[59] The Court of Appeal characterised this claim as "a tort claim for involuntary parenthood made by one parent against the other." (See paragraph [46] of the decision). The father also advanced a tort claim in "sexual battery", alleging that the mother's misrepresentation regarding birth control vitiated his consent to sexual intercourse. (See paragraph [69] of the decision.)

[60] After extensively reviewing the case law, the court dismissed the father's appeal on all grounds. Regarding the tort of involuntary parenthood, the court held that to award damages would be contrary to the spirit and purpose of Ontario's statutory family law regime and would "run against the clear trend in the law moving away from fault based claims in the family law context". (See paragraph [57] of that decision.)

[61] Speaking for the majority, Justice Paul Rouleau stated the following at paragraphs [62] to [65] of that decision:

[62] The child support obligation of a parent in Ontario is legislated in s. 31(1) of the Family Law Act, which clearly states that every parent has an obligation to provide support for his or her child to the extent that the parent is capable of doing so. The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception. The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.

[63] It would be contrary to the spirit, purpose and policy reflected in Ontario's no-fault child support regime to view parents as equally responsible for maintaining a child but, at the same time, to allow recovery by the appellant against the mother for the loss purportedly suffered by him as a result of that responsibility, which loss would presumably increase as he devotes more of his time and resources to the child's upbringing.

[64] The appellant asserts that he accepts and has complied with his statutory duty to pay child support. Nevertheless, the appellant seeks to recover in excess of $4 million in damages from the child's mother in compensation for losses flowing from the child's birth and his responsibilities toward that child. In the circumstances of this case, to allow the appellant's claim would, in effect, be to allow the appellant to circumvent the equal obligations to the child imposed on parents by law — obligations that are imposed without regard to fault or intention.

[65] Little would distinguish this proposed claim from claims other parents may decide to bring against their former spouses or sexual partners seeking compensation for the burdens imposed on them by the birth of an unwanted child, where it is claimed that the child's conception was the result of a misrepresentation, duress or even the negligence of the former spouse or sexual partner with respect to matters such as fertility or contraceptive use or misuse. Such actions would engender disharmony between mothers and fathers and would be contrary to the spirit of this province's family law legislation.

[62] The court also acknowledged that the recent amendments to the Children's Law Reform Act, R.S.O. 1990, c. C-12 ("Bill 28") regarding the manner of conception in cases such as artificial insemination by sperm donors are clearly relevant to the presumption of parentage for the purpose of determining child support under the Family Law Act. However, that was not the case before the Court of Appeal nor is it the case before me.

[63] Here, the father's parentage is not disputed, nor is it disputed that the parties were engaged in consensual sexual relations without using birth control, but for the well-known and unreliable 'withdrawal' method. The father knew that the mother was not using birth control and the fact that they practised the withdrawal method suggests that he did not entirely rely upon the mother's claim that she was medically infertile. In my view, the father clearly assumed the risk of consensual sexual activity without practising safe sex or using a condom.

[64] In the case of Miller v. Ufoegbune, 11 R.F.L. (5th) 347, [2000] O.J. No. 3979, 2000 Carswell Ont 3760 (Ont. Fam. Ct., 26 July 2000), Senior Justice David M. Steinberg stated the following when a father advanced a similar argument:

[4] The fact that the child was not wanted by him and that Darnell's conception was a surprise to him is not a defence to this claim. When parties engage in sexual relations, they are deemed to do so on the understanding that, however unlikely and however unanticipated, a pregnancy may result. The fact that a subsequent birth may result should not detract from any of the responsibilities imposed by law on either parent. In that regard, section 31 of the Family Law Act provides:

Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education to the extent that the parent is capable of doing so.

[65] Accordingly, pursuant to my jurisdiction under subrule 16(12) of the Family Law Rules, I am dismissing this claim. There is no genuine legal issue requiring a trial of this issue. The father is legally obligated to pay child support.

8.2: The Determination of Child Support

[66] The following material facts are not in dispute:

1. When the parties met, the father was an apprentice iron worker and was a training member of Ironworkers Local 721. In 2014, according to the father's t-4 attachments, the father's gross annual income was $35,609.92.

2. The wage scale for an apprentice ironworker in Local 721 is approximately $37.00 per hour.

3. On 29 April 2015, the father, through his former counsel, made a lump-sum voluntary payment of child support in the amount of $3,720.00, representing child support in the amount of $310.00 per month for a twelve month period from April 2014 to April 2015, which is based on a gross annual income of approximately $35,609.00 according to the Child Support Guidelines.

4. In 2015, after the mother commenced her application for child support, the father provided four t-4 slips totaling an income of $16,037.93.

5. In 2016, the father admitted to the case management judge that he continued to be employed as an ironworker, but had only worked 100 hours in his field in 2016 and that he was not seeking further work in 2016. He was doing volunteer work. He had not filed tax returns for 2014 and 2015.

6. In 2016, the father's membership status with the Ontario College of Trades was suspended for non-payment of the annual member ship fee so that he could no longer work as an apprentice with the Ironworkers. No reason was given regarding the lapse of the membership for non-payment of the annual fee.

7. The mother filed undisputed evidence of a former co-worker of the father who observed the father working as a rigger and general labourer at two music festivals in 2016.

8. The father has not produced any medical evidence or otherwise, despite requests for disclosure regarding why he is not working at the level he was working when the parties met.

9. The paternal grandfather confirmed in court that the father was not working because he was feeling cautious and concerned about the mother's indirectly stalking him by obtaining affidavits from other co-workers about his employment status.

10. On 1 June 2016, the mother's counsel requested in writing that the father produce his 2014 and 2015 income tax returns and all attachments, all personal banking statements for the year 2015, current paystubs, all paystubs in 2015 and a job search if the father was unemployed.

11. On 29 January 2016 and on 2 June 2016, the court made two orders requiring the father to produce financial disclosure.

12. The father did not comply with the above requests or court orders for disclosure. The father has provided no evidence of any kind to suggest that he is unable to work on a full-time basis.

13. The father is a young, healthy, abled-bodied, skilled person.

14. The father has not made any child support payments since 1 April 2015. The mother commenced her application for child support on 5 February 2015 and the father was served shortly thereafter.

15. In 2014, the mother paid $4,490.25 in child care expenses. In 2016, the mother paid $3,147.00 in child care expenses. The mother's income for 2016 was $24,578.00.

[67] The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that a child continues to benefit from the financial means of both parents after separation, using a methodology that strives to achieve objectivity, efficiency and consistency.

[68] Both parents have an absolute responsibility to support their child to the extent that they are able to do so. 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, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Carswell Ont 3228 (Ont. CA).

[69] Section 19 of the Child Support 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.

[70] In Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, 890 A.P.R. 132, 73 R.F.L. (6th) 233, [2009] N.J. No. 245, 2009 Carswell Nfld 21148 (N&L C.A.), the court set out the following principles at paragraph [35]:

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

2. 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 children.

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

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

5. 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.

[71] The Ontario Court of Appeal in Drygala, supra, at paragraph [23], set out the following three questions that should be answered by a court in considering a request to impute income:

1. Is the spouse 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 the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[72] 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, 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Carswell Ont 2068 (Ont. C.A.).

[73] The court stated in Drygala, supra, 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.

[74] 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, 67 O.R. (3d) 417, 177 O.A.C. 162, 232 D.L.R. (4th) 264, 42 R.F.L. (5th) 120, [2003] O.J. No. 3901, 2003 Carswell Ont 3828 (Ont. C.A.), at paragraph [23].

[75] 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, 27 R.F.L. (7th) 83, [2012] O.J. No. 3313, 2012 Carswell Ont 8996 (Ont. Fam. Ct.); DePace v. Michienzi, 5 R.F.L. (5th) 40, [2000] O.J. No. 453, 2000 Carswell Ont 425 (Ont. Fam. Ct.); Drygala, supra, paragraph [39].

[76] Here, there is no evidence of any reasonable excuse for the father's underemployment. The court acknowledges that the shock of becoming a parent against one's wishes at a youthful age when one is not ready for parenthood must have been very difficult for the father. However, as stated earlier, this does not detract from the father's responsibility imposed by law, to support the child. The child's welfare is paramount and he should not suffer as a result of his parents' actions.

[77] The undisputed evidence establishes that the father is under-employed and that there is no reasonable excuse for this. There is no genuine issue requiring a trial of this issue.

[78] The third question in Drygala, 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, 81 O.R. (3d) 321, 214 O.A.C. 94, 29 R.F.L. (6th) 8, [2006] O.J. No. 3179, 2006 Carswell Ont 4789 (Ont. C.A.).

[79] Section 22 of the Child Support Guidelines provides that, where a parent fails to comply with the financial disclosure obligations under section 21 of the Guidelines, the other parent may apply:

(a) to have the application for an order for the support of a child set down for a hearing, or move for judgment; or

(b) for an order requiring the parent or spouse who failed to comply to provide the court, as well as the other parent or spouse or order assignee, as the case may be, with the required documents.

[80] Section 23 of the Guidelines provides that, where court proceeds to a hearing or moves for judgment under clause 22(1)(a) above, the court may draw an adverse inference against the parent who failed to comply and impute income to the parent in such amount it considers appropriate.

[81] In my view, this summary judgment process has provided all of the evidence required to fairly and justly adjudicate the determination of ongoing child support owed by the father, pursuant to the principles established in Hryniak v. Mauldin.

[82] In this case, I have no hesitation in finding that there is no genuine issue for trial regarding the determination of the father's income for child support purposes. This finding based on the undisputed facts set out at paragraph [66] of this judgment and the father's failure to comply with his legal and court-ordered obligation to explain why he is no longer earning income at the level that he was earning prior to the child's birth.

[83] Based on the undisputed evidence before me, I find that income should be imputed to the father at the level of $35,609.00, which is what he was earning in 2014 at the time of the child's birth. I am not prepared to impute income to $45,000.00, which is what the mother was seeking as, at this time, there is little evidence to support that figure.

[84] Ongoing child support should therefore be set in the amount of $310.00 per month, which is the Guideline table amount for one child based on a gross annual income of $35,609.00. This amount will be retroactive to 1 April 2015, as the father made a lump-sum payment towards child support in the amount of $3,952.00 for the prior 12-month period from April 2014 (the child's birth) to April 2015 based on this income.

[85] The mother's child care expenses are not disputed. The mother is seeking that the father's proportional contribution to the child's daycare and section 7 expenses be 64.7% of the total cost of the section 7 expenses.

[86] It is also not disputed that the mother's income in 2014 was $37,381.00. However, the mother has now returned to school seeking an Honours degree with a view to becoming a teacher. While this is a laudable goal, it has significantly reduced her income to $24,578.00 for 2016.

[87] The mother also has an obligation to earn what she is capable of earning to support the child. The parties' income was very similar in 2014 (the mother's income slightly higher) so the court will order that both parties each contribute 50% to the child's section 7 expenses, including but not limited to the child's childcare expenses and uninsured medical expenses exceeding $100.00, retroactive to 1 February 2015, the commencement of the mother's application for custody and support. The father has not made any payments towards section 7 expenses since that time.

8.3: The Father's Request for a Restraining Order

[88] It is not disputed that the mother has had no contact with the father or members of his family for over one year. There was no evidence that the mother was engaged in stalking and harassing behaviour. The mother acknowledges that she arranged to attend the father's grandparents' home with the child; however, she deposed that she simply wanted the grandparents to meet their great-grandchild. Further, after the child was born, the mother did reach out to the father and his family as she was hoping that he would establish a relationship with the child. This is not evidence of stalking or harassment.

[89] Where an applicant has a legitimate fear for his or her safety, even where that is somewhat subjective, a restraining order should be made if there are compelling facts leading to that fear. See Fuda v. Fuda, 2011 ONSC 154, 196 A.C.W.S. (3d) 746, [2011] O.J. No. 138, 2011 Carswell Ont 146 (Ont. Fam. Ct.). There must be some persistence to the conduct complained of and a reasonable expectation that it will continue unless censured by the court. See Purewal v. Prewal, 2004 ONCJ 195, 133 A.C.W.S. (3d) 1025, [2004] O.J. No. 3891, 2004 Carswell Ont 3837 (Ont. C.J.). The conduct must be of a sort that a reasonable person would regard as disturbing.

[90] Once the father and his family made it clear that they had (very regrettably) no desire for any contact with the child or the mother, the mother has respected that wish and she has not contacted them or any member of the family.

[91] There is no genuine issue requiring a trial of this issue. The father's request for a restraining order against the mother is dismissed.

9: CONCLUSION

[92] For the above reasons, the court makes the following final order:

On Consent:

1. The respondent father, J.C.M. ("the father") shall have no access to the child, P.C.M., born on […] 2014;

2. The mother shall be permitted to apply for and renew all government issued identification documents for the child, including his Canadian passport, without the required consent of the father. The father's consent is dispensed with.

3. The mother may be permitted to travel with the child outside of Canada for vacation purposes without the consent of the father. The father's consent is dispensed with.

Not on Consent:

4. Commencing on 1 April 2015, the father shall pay child support for the child named above in the amount of $310.00 per month based on an imputed income of $35,600.00, which is the table amount for one child based on that income, pursuant to the Child Support Guidelines. The arrears of basic child support are therefore fixed at $7,130.00 (1 April 2015 to 1 March 2017, a period of 23 months).

5. The father shall pay one-half of the child's section child care expenses for the years 2015 and 2016. In 2015, the total amount of section 7 child care expenses was $4,490.25. In 2016, the total amount of child care expenses was $3,147.50 for a total of $7,637.75. The arrears of section 7 expenses for 2015 and 2015 owed by the father are therefore fixed at $3,818.87.

6. The total amount of arrears of basic child support and section 7 expense arrears is therefore fixed at $10,948.87. The father shall pay these arrears at a rate of $200.00 per month, commencing on 1 April 2017.

7. Commencing on 1 April 2017, the father shall pay 50% of any ongoing section 7 expenses, including child-care expenses, uninsured medical and dental expenses that exceed $100.00. The mother shall present the father with proof of the cost of any such expenses by e-mail communication only through the father's agent, the paternal grandfather, and the father shall pay his share within fourteen days.

8. The parties shall exchange their complete income tax returns and notices of assessment by 30 June each year.

9. The father's application for a restraining order is dismissed.

10. A support deduction order shall issue.

11. The Director of the Family Responsibility Office shall amend its records in accordance with this order.

12. If the mother seeks costs, brief submissions with a bill of costs and any offers to settle to be attached to be served and filed within 30 days. Any response by the father to be served and filed within two weeks thereafter and any reply within one week.

[93] If either party finds a mathematical error in any of the above calculations, then written submissions may be filed with the trial coordinator no later than 30 March 2017. The other party will then have until 10 April 2017 to file a written response.

[94] I thank both counsel and the parties for their written materials and submissions in this matter.

Released: 8 March 2017

Signed: "Justice Sheilagh M. O'Connell"

[1] Nasco is a staffing agency for iron riggers.

[2] 2014 SCC 7, [2014] 1 S.C.R. 87, 453 N.R. 51, 314 O.A.C. 1, 366 D.L.R. (4th) 641, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, [2014] S.C.J. No. 7, 2014 Carswell Ont 640.

[3] For the lower court decision, see P.P. v. D.D., 2016 ONSC 258, 129 O.R. (3d) 175, 73 R.F.L. (7th) 108, 26 C.C.L.T. (4th) 276, [2016] O.J. No. 126, 2016 Carswell Ont 237 (Ont. S.C.), per Justice Paul M. Perell.