Court File and Parties
Date: March 20, 2017
Court File No.: D90015/16
Ontario Court of Justice
Between:
F.K. (Applicant)
Paula McGirr, for the Applicant
- and -
M.C. (Respondent)
Barry Nussbaum, for the Respondent
Heard: March 16, 2017
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial was about the respondent's (the father's) support obligations for the parties' three children (the children). Also, the parties sought restraining orders against each other.
[2] The applicant (the mother) asked the court to impute the father's annual income at $53,473 for support purposes. The Child Support Guidelines (the guidelines) table amount for three children at this income is $1,035 each month. The mother asked that these payments start on May 1, 2016. The mother also asked that the father be restrained from directly or indirectly contacting her, or coming within 500 metres of her place of employment or school, if any, and any place that she might reasonably be expected to be. [1]
[3] The father claimed that he could not pay any child support. He proposed that no support be paid for 6 months, followed by an order that he pay child support of $300 each month. [2] The father also sought a restraining order against the mother on terms similar to the order she sought against him.
[4] The parties had previously resolved all parenting issues in this case.
[5] The issues for this trial were:
a) What is the father's income for support purposes? Should income be imputed to him?
b) When should child support begin?
c) If child support arrears are created by this order, how should they be paid?
d) Should a restraining order be granted against either party?
e) If not, should an order be made pursuant to clause 28 (1) (c) of the Children's Law Reform Act (CLRA) restricting contact or communication between the parties (a section 28 order)?
[6] Both parties testified and were cross-examined.
Part Two – Background Facts
[7] The mother is 42 years old. The father is 39 years old.
[8] The parties were born in Bangladesh. The mother has been resident in Canada since 1990. The father has been resident in Canada since 1997.
[9] The parties were married in Bangladesh in 2005.
[10] The parties have three children. The oldest child is 10 years old and the other children are twins who are 6 years old.
[11] The parties separated on July 19, 2011.
[12] The children have lived with the mother since the separation.
[13] The family was involved with the Children's Aid Society of Toronto (the society) from 2012 until August 29, 2016. A protection application was issued in this court by the society on July 29, 2012. The children were found in need of protection on February 20, 2013, pursuant to clauses 37 (2) (b) and (g) of the Child and Family Services Act. [3] The children were placed in the care of the mother, subject to society supervision. The father's access was to be supervised by the society. [4] The supervision terms included terms that:
a) The mother to engage in counseling, related to her experiences of domestic violence by the father.
b) The mother to immediately report to the society and the police any attempts by the father to have unauthorized contact with her and the children.
c) The parties to have no contact with each other in the presence of the children.
d) The father to not make any attempts to contact the mother or the children or have access to the children unless authorized by the society in advance.
[14] The protection findings included the children being exposed to domestic violence by the father against the mother. The children disclosed to society workers that they had observed serious violence and anger by the father and were afraid of him.
[15] The father spent about 8 months in Bangladesh towards the end of 2013 and in early 2014.
[16] The father spent time in jail in Canada during 2014 due to breaches of criminal release conditions. In the fall of 2014, the father pled guilty to three counts of fail to comply and one count of fail to appear in criminal court. These charges related to an underlying charge of assault against the mother. [5] A term of the father's probation was to have no contact with the mother.
[17] The supervision order was extended several times on subsequent status review applications in the child protection case. [6] The mother was encouraged in 2015 to start this case. It was agreed that once an appropriate domestic court order was made, the child protection case could be terminated.
[18] The mother issued this application on January 7, 2016. The case was heard parallel to the child protection case.
[19] The mother was granted final custody of the children in this case on March 10, 2016.
[20] On May 17, 2016, the court made a temporary section 28 order in this case prohibiting the parties from contacting each other except through their counsel or through the society. The court also ordered the father to pay temporary child support to the mother of $300 each month, starting on May 1, 2016, subject to adjustment to quantum and start date. The father was also ordered to make specified financial disclosure to the mother.
[21] The supervision order in the child protection case was terminated on August 29, 2016.
[22] The parties resolved the remaining parenting issues in this case on December 20, 2016. The father exercises day access with the children with third party exchanges.
[23] The mother is in receipt of social assistance.
[24] The father has remarried. He and his wife live with his parents. The father says he is not working.
[25] The father's child support payments are in good standing.
Part Three – Child Support
3.1 Legal Considerations
[26] Section 19 of the guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
[27] 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.
[28] 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.
[29] 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:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational or medical needs, or those of a child?
If not, what income is appropriately imputed?
[30] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. 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.
[31] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
[32] 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.
[33] 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.
[34] When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi; Drygala, supra, paragraph 39.
[35] The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton and Stoangi v. Petersen.
[36] Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. See: Luckey v. Luckey; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood. This misconduct extends to a payor's criminal behaviour which results in imprisonment. See: S.H. v. R.A.A., [2016] O.J. No. 2344 (OCJ).
[37] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
[38] A person's lifestyle can provide the criteria for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.
3.2 Positions of the Parties
[39] The mother's position is that the father is earning or is capable of earning $53,473 per annum. She provided a wage survey from the internet showing that this is the average income for a computer programmer. The weight to be given to this evidence will be discussed in more detail below.
[40] The mother deposed that the father was the president of a technology company formed in January, 2001. The father operated this company with his brother. The mother was an officer of the company and handled administrative matters. The mother deposed that the company was very successful and operated internationally. She produced a document indicating that the business at one point had annual sales of over one million dollars. [7]
[41] The mother acknowledged that the father's brother defrauded him. She had little knowledge about what has happened to the business.
[42] The mother testified that when they resided together the father consistently earned unreported cash income providing technology support to customers. She believes that he continues to do so.
[43] The father deposed that he is unemployed and has no ability to pay child support at this time. He denied earning any cash income.
[44] The father said that his brother defrauded him and their company has not operated for many years.
[45] The father deposed that he has not held employment in any sustained capacity since April, 2011. He provided income tax returns from 2012 to 2015 revealing nominal income.
[46] The father said that he dropped out of university after one year. He said that he does not have a certificate in Information Technology and this restricts his employment opportunities. He said that his only experience in this field came when he operated the company with his brother.
[47] The father deposed in his affidavit that he worked occasionally in early 2016 as an Uber driver. However, he was told that he could not continue working with Uber due to his vehicle being too old. During cross-examination, he also said that he was terminated from Uber due to his criminal record.
[48] The father said that he also worked part-time for two months in 2016. This job paid him $13 per hour, for 20 hours each week. He said that he was terminated from this job. He said that he was not performing well due to the stress in his life. The father did not produce a record of employment from this employer.
[49] The father said that his criminal record is making it harder for him to find work.
[50] The father also said that he has psychiatric disorders that make it harder for him to earn income. He said that these disorders relate to stress and anxiety. He has seen a psychiatrist and has been prescribed medication.
[51] The father deposed that he has lived with his parents since 2014 and they have supported him. During cross-examination, he added that his wife and other family and friends have also supported him.
[52] The father deposed that he has debts of over $176,000.
[53] The father proposed that he pay no child support for 6 months. He would then pay $300 each month to the mother – the amount he has been paying pursuant to the temporary order.
3.3 Credibility
[54] The father submitted that the mother was not a credible witness because she committed mortgage fraud against him. The mother was criminally charged with mortgage fraud in March, 2016. However, the evidence led by the father fell well short of convincing the court that the mother had committed fraud. The father did not produce probative direct evidence on this issue. The criminal charges were withdrawn against the mother in October, 2016. The father has not pursued civil proceedings against the mother. The mother provided a clear explanation about her role in obtaining mortgage financing for the matrimonial home and it did not include committing fraud.
[55] The court found the mother to be a credible witness. She provided her evidence in a calm and consistent manner. She did her best to directly answer questions put to her. She gave logical explanations when challenged about her evidence.
[56] On the other hand, the father was a very poor witness. He was unnecessarily argumentative. He was frequently evasive, particularly when asked hard questions. He often answered questions tangentially. He sometimes changed his answers in a rapid fashion and seemed to be making up evidence as he went along. At times, his answers simply made no sense. He was not credible.
[57] The father provided a poor explanation about how he is supporting himself. He claims to have no income. In his trial affidavit, he said that he relies on his parents to support him and to provide the necessities of his life. He said that he has borrowed money from his parents to pay child support.
[58] However, the father's parents are in receipt of Ontario Disability Support Payments. This is very modest income. It is hard to believe that the father's parents have the ability to support anyone other than themselves. When challenged about this, the father said that his wife is making his child support payments. This evidence was new - he did not mention this in his trial affidavit. According to the father, his wife is only working part-time. It is unlikely that she is able to provide much financial support for him.
[59] The father has a cellphone. Until recently, he had a car and paid its expenses. [8] The father has travelled to Bangladesh twice in the past five years.
[60] The court finds that the father was unable to adequately explain how he is supporting himself.
[61] The court further finds that the father is likely earning unreported income to meet his expenses.
[62] The father claimed that he had few job skills. However, his resume indicates otherwise. The father deposed that he exaggerated in his resume and the court should not rely on it. When asked how employers would know what in his resume was true and what wasn't true, the father answered, "very simple, they would just ask me questions". Dishonesty appears to come easily to the father.
[63] The father claimed that he lost the Uber job when they learned he had a criminal record. It appears likely that he had failed to report the criminal record to Uber when he obtained the job.
[64] The father submitted in closing submissions that he has never earned the income the mother seeks to impute to him. However, he testified that he gave the mother most of his assets on separation, including the sale proceeds of his homes. He said this came to over 1 million dollars. It is hard to believe that the father could have accumulated these assets unless he had earned a significant income.
[65] The father gave evidence that the mother attempted to blackmail him into giving him all the proceeds of the matrimonial home. His evidence about this made little sense. He initially testified that the mother's boyfriend was extorting her. The boyfriend, he said, was threatening to put up embarrassing photos of the mother on the internet, unless she obtained the proceeds of the matrimonial home from the father and she gave them to him. It made little sense that the father would pay funds to the mother for this reason.
[66] The father then changed his evidence to say that the mother and her boyfriend were conspiring together to extort him. He said that they were threatening to post the photos of her on the internet, accuse him of doing this and lay criminal charges. It makes no sense that the father would give the mother the proceeds of the matrimonial home for this reason. The father regularly has gone to the police to complain about the mother. He could have reported this alleged extortion attempt to the police and let them handle it. There is no indication that he ever did this.
[67] The father also provided no evidence that he gave the mother assets of one million dollars on separation. The mother completely denied this. She has been on social assistance for many years.
[68] The father claimed in cross-examination that he did not have RRSPs. However, RRSP income is included in each of his tax returns from 2012 to 2015. He could not explain this.
[69] The father pled guilty to several criminal offences. For each, he minimized his responsibility for the offence. He blamed the mother for one breach of recognizance. He left Canada twice while on bail, resulting in two more convictions for breach of recognizance and a conviction for fail to appear in court. He claimed he didn't understand that he couldn't leave the country, although the bail condition was very clear that he had to live with his surety. At one point, he claimed that his lawyer had told him he could leave the country – it had been taken care of. None of this evidence was credible.
[70] The court could not believe anything that the father said.
3.4 Analysis
[71] Counsel for the father conceded that the first part of the test in Drygala was satisfied – the father was deliberately unemployed. The evidence supported this concession.
[72] The onus to justify this unemployment shifts to the father.
[73] The father said that his unemployment was justified by his psychiatric disorders.
[74] The medical evidence provided by the father fell well short of what would be necessary to justify his unemployment for medical reasons.
[75] The father provided a short note from his psychiatrist dated May 25, 2016. The note states:
This person was seen by me today for psychiatric evaluation. My assessment indicates that he is suffering from a number of psychiatric disorders. He is considered unfit to work on medical grounds for the next six months.
[76] This note was not helpful for several reasons:
a) There is no detail in the note.
b) The psychiatric disorders of the father were not set out.
c) The psychiatrist provided no detail about how he reached his conclusions.
d) The curriculum vitae of the psychiatrist wasn't provided. This should always be provided. In Westerhof v. Gee Estate, 2015 CarswellOnt 3977 (Ont. C.A.), the court distinguished between participant experts and litigation experts. The latter are experts retained for the purpose of the litigation and must comply with the enhanced rules for experts. [9] The treating psychiatrist in this case is a participant expert. However, even a participant expert who gives opinion evidence must establish his or her qualifications to give such opinions.
e) There is no indication that the psychiatrist has the expertise to assess the father's ability to work. It is also not known, due to the brevity of the doctor's note, to what extent the psychiatric assessment is based on self-reporting by the father. Since the father is not a credible person, any reliance on self-reporting would render any opinion of the psychiatrist suspect.
f) The court agrees with the following statement made by Philip Epstein, in Epstein's This Week In Family Law, May 18, 2015, FAMLNWS 2015-20:
This is not to say, however, that every participant expert can simply give opinion evidence. Thus, for example, if a party self reports medical conditions and the doctor uses the self reporting to opine that the party cannot be employed, the gate keeper function of the trial judge remains in place and that kind of evidence will be inadmissible. It is one thing for a doctor to write a medical report on the plaintiff's fitness to be employed based on self reporting, and entirely different if the doctor has taken a proper history and performed the requisite tests.
g) Despite the note, the father started a job on June 1, 2016 and stayed there for 2 months.
[77] The father produced a second note by the same psychiatrist, dated June 15, 2016. This note was also sparse. It stated that the father had been prescribed medication. It did not set out the medication. It stated that the father was incapable of working in stressful situations. No detail was provided about what this meant.
[78] The father continued to work at his new job. He was permitted to work from home. The father conceded that he did not feel much stress at home.
[79] The father provided a third note from the psychiatrist dated July 13, 2016. This note, like the others, was sparse and unhelpful. It said:
The patient was seen today for follow up assessment. He shows improvement and has been compliant with treatment recommendations. He has been advised not to engage in stressful situations.
[80] The father provided no further medical evidence.
[81] The court finds that the father is capable of working. [10]
[82] This leads to the third part of the Drygala test – what income is the father capable of earning?
[83] The evidence indicates that the father had the skills to operate a very successful technology business. This business operated internationally, and at one point generated annual revenue of over one million dollars. The father was able to purchase homes and qualify for mortgages. According to the father, he provided the mother with a million dollars on separation. The father would have had to have been earning significant income to accumulate these assets.
[84] The father's resume sets out the following job skills:
a) 12 years of solid experience in Telecom, System Analyst, Software Development, Telecom Prepaid/Postpaid Billing, Mediation, Rating, Switching, Routing and Data Migration.
b) Specialties in Telecom Billing, Global Payment Gateway, OCS, VAS, SDP, Software Development Web based application development, open source project, web security, web architecture, database design and optimization, design pattern, frameworks and open source technology.
c) Highly knowledgeable in Telecom Billing, Programming, Database and ERP specialist.
d) 10 years of experience and demonstrated expertise in all phases of software development lifestyle.
e) Experience as project lead with sound management practice.
[85] The father sets out in his resume that he has a BBA in Business Administration from the University of Toronto.
[86] The father did not provide an acceptable explanation about why he could not use these job skills to earn a good income today.
[87] The father did not provide a job search list after July, 2016. An adverse inference is drawn against him for his failure to do so. He does not appear to be actively seeking work.
[88] The father has an obligation to financially support his children. He hasn't come close to meeting that obligation, based on his ability to earn income.
[89] The mother provided a printout from Payscale Human Capital (Canada), an internet site, setting out that the average annual income of a computer programmer in Canada is $53,473. This evidence was given nominal weight. In Rodrigues v. De Sousa, 2008 ONCJ 807, the court relied on the case of Scholes v. Scholes and permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However, citing Isakhani v. Al-Saggaf, 2007 ONCA 539, the court expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination. In the specific circumstances of the payor in Rodrigues v. De Sousa, the court did not apply the wage range set out in the government publications.
[90] The wage survey sought to be introduced here is more problematic. There was no evidence led that the document is from a reputable source, such as was the case in Scholes v. Scholes or Rodrigues v. De Sousa. No foundation was provided as to the qualifications of the writers of the documents.
[91] The evidence also indicates that the father is unlikely to be able to earn the average income of a computer programmer set out in the wage survey because:
a) He has been out of the work force for many years.
b) He does not have a university degree or college certificate in computer programming.
c) The father likely exaggerated his qualifications in his resume. It is difficult to gauge which parts of it are true and which parts are not.
d) He has a criminal record which will make him unattractive to certain employers. [11]
e) He has some mental health issues that may have some adverse impact on his ability to earn income.
[92] The court finds that the amount of income the mother seeks to impute to the father is too high.
[93] Taking into account all of the factors set out above, the court finds that the father has been earning income or has been capable of earning income of $30,000 per annum.
[94] The mother's request to adjust child support starting on May 1, 2016 is very reasonable. This is a date after the application was issued. The mother has not sought retroactive child support, even though the father did not pay much support prior to this application.
[95] The monthly guidelines table amount for 3 children at an annual income of $30,000 is $591 each month.
[96] The father will be credited with all payments made since May 1, 2016, as reflected in the records of the Family Responsibility Office.
[97] This order will create immediate arrears for the father. The court will give him some time to obtain a job before it requires him to start paying the arrears. The father will be permitted to pay the arrears at the rate of $150 each month starting on September 1, 2017. However, if the father is more than 30 days late in making any ongoing or arrears payments, the entire amount of the arrears shall immediately become due and payable.
Part Four – Claims for Restraining Orders
4.1 Legal Considerations
[98] The parties' requests for restraining orders are made pursuant to section 35 of the CLRA and section 46 of the Family Law Act (FLA). Section 35 of the CLRA reads as follows:
Restraining order
- (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
Provisions of order
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
[99] Section 46 of the FLA reads as follows:
Restraining order
- (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
Same
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
Provisions of order
(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
[100] The legal principles for the court to apply are as follows:
a) Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
b) It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.
c) Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds for the person to fear for his or her own safety or for the safety of their child. See: McCall v. Res, 2013 ONCJ 254.
d) The person's fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154; McCall v. Res, supra.
e) A person's subjective fear can extend to both the person's physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).
f) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.
g) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.
h) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. See: Fuda v. Fuda, supra.
i) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.
j) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra.
k) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.
4.2 The Mother's Claim for a Restraining Order
[101] The mother made numerous allegations against the father to support her claim for a restraining order. The court did not rely on some of the mother's allegations in making its decision, because the mother was unable to provide direct evidence about the incidents and did not provide adequate particulars to support her allegations. [12]
[102] However, even without relying on these particular allegations, there was ample evidence to find that the mother has established an objective basis and a legitimately held subjective basis to fear for her physical and psychological safety from the father. This finding is based on the following evidence:
a) The mother deposed that the domestic violence was physical, mental, sexual, financial and emotional. This was denied by the father. The court found the mother to be much more credible than the father.
b) There was a finding of fact in the child protection case that the mother was subjected to domestic violence by the father.
c) The domestic violence took place in front of the children. When the finding in need of protection was made in 2013, the children had expressed fear of the father.
d) The court put safety measures in place for several years to protect the mother from the father in the child protection case. The society supervised the father's access to the children for a lengthy period of time. These protections were not always sufficient to protect the mother from the father.
e) The court accepts the mother's evidence that the father made numerous calls to her in 2014, insulting, threatening and intimidating her.
f) The mother received domestic violence survivor's trauma therapy from February, 2014 until April, 2016. The mother is also still receiving psychiatric treatment for post-traumatic stress disorder. It is highly unlikely that the mother would have made such a substantial commitment to treatment if she had not been harmed and hadn't feared the father.
g) The father has been convicted three times of breach of criminal court orders, including one order to have no contact with the mother. This means that his behaviour has to be more closely regulated.
h) The mother gave detailed testimony about how the father accessed her cell phone with his technical expertise, obtained personal information and demeaned her to contact persons on her contact list. The father denied this. The court preferred the mother's evidence.
i) The mother described how the father confronted her at a community festival in the summer of 2015 and swore at her.
j) The court accepts the mother's evidence that she remains very fearful of the father. [13]
[103] The court took into consideration that there isn't a temporary restraining order in place. A temporary, no-contact, section 28 order was made in May, 2016 and has been complied with. However, this is not determinative of whether a restraining order should be granted on a final basis. The court did not have the benefit of the fulsome record it had at trial on the temporary motion. The cross-examination of the father at trial provided valuable information in the court's risk assessment.
[104] The court also took into consideration that the last interaction between the parties was in the fall of 2015. [14]
[105] The court seriously considered whether a section 28 order would be sufficient to protect the mother at this time. A restraining order is serious, with criminal consequences if there is a breach. A restraining order will also likely appear if prospective employers of the father conduct a criminal record (CPIC) search. This could adversely affect his ability to work.
[106] The court has determined that a restraining order should be made and that a section 28 order is inadequate to protect the mother at this time for the following reasons:
a) The domestic violence was significant and long-standing.
b) The mother has suffered considerable harm due to the domestic violence. She has needed and still requires treatment. Her parenting was compromised, resulting in the lengthy involvement of the society.
c) The evidence indicates that the mother is very vulnerable due to this history. She is fearful of the father. She needs the protection of a strict order; otherwise there is a risk that her parenting will be compromised again if the father engages in harassing behaviour. This would not be in the children's best interests.
d) The father takes no responsibility for his behaviour. He continues to minimize it and demonize the mother. He has taken no treatment or programs to change his behaviour. This makes it less likely that he will change his behaviour.
e) The father has previously breached criminal court orders, leading to a need for more structure for him and protection for the mother. The protective terms that were set out in the supervision orders in the child protection case were not always sufficient to protect the mother from the father's harassment of her.
f) The father is technologically savvy and has been determined at times to harass and intimidate the mother.
g) The father presented as being very angry at the mother. He will likely be upset by this court order and be even angrier with her. This increases the risk to the mother.
h) A section 28 order is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain the father from harassing the mother to third parties. The court wants to ensure that such behaviour does not occur.
i) While the temporary section 28 order was effective in protecting the mother, the court is very aware that the frequent court appearances to monitor the order were also a strong protective factor. This decision will end the court case. Based on the factors set out above, the court does not have confidence that a less robust protective order will be adequate to protect the mother once this case ends. Put simply, the court does not trust the father.
[107] The court order will provide that the father may seek a review as to whether a restraining order is still required in 18 months. If there are no further incidents, the parties may agree to a section 28 order, or perhaps there will no longer be the need for any order to protect the mother.
[108] A separate restraining order endorsement will be issued.
4.3 The Father's Claim for a Restraining Order
[109] The father sought a restraining order against the mother. He alleges that she: arranged to have him beat up at a community festival in September, 2015; called his ex-wife impersonating a police officer; has called him taunting him and threatening to destroy his life and has participated in mortgage fraud against him.
[110] The father did not prove any of these allegations.
[111] There was no evidentiary basis to make a restraining order, or even a lesser section 28 order against the mother.
Part Five – Conclusion
[112] A final order shall go on the following terms:
a) The father shall pay child support to the mother in the sum of $591 each month, starting on May 1, 2016. This is the guidelines table amount for 3 children, based on an imputed annual income to the father of $30,000.
b) The father shall be credited with all support payments made since May 1, 2016, as reflected in the records of the Family Responsibility Office.
c) The father may pay the arrears created by this order at the rate of $150 each month, starting on September 1, 2017. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears then owing shall immediately become due and payable.
d) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings.
e) The Director of the Family Responsibility Office is asked to amend its records in accordance with this order.
f) A support deduction order shall issue.
g) The father shall provide the mother by June 30th each year with complete copies of his income tax returns and notices of assessment.
h) A separate restraining order endorsement shall be issued against the father.
i) The father may seek a review for the need for a restraining order in 18 months.
j) The father's claim for a restraining order is dismissed.
[113] If either party seeks their costs, they shall serve and file their written costs submissions by April 4, 2017. The other party will have until April 18, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.
[114] The court thanks counsel for their professional presentation of this case.
Released: March 20, 2017
Justice Stanley Sherr
Footnotes
[1] In her trial affidavit, the mother also asked to extend the restraining order to the children, but abandoned that claim in closing submissions. The evidence led would not have supported that order being made.
[2] This proposal was made in closing submissions. The father's position in his trial affidavit was to pay no child support.
[3] These clauses relate to risks of physical and emotional harm.
[4] The father's Answer/Plan of Care was struck in this proceeding as he stopped participating in the case.
[5] The father was not convicted of the underlying charge. It appears to have been withdrawn.
[6] A final supervision order on the first status review application was made on March 19, 2014. The father was noted in default as he did not participate in the case. His access remained supervised. The next final supervision order was made on October 21, 2014. The father did not file an Answer/Plan of Care and was noted in default. His access remained supervised. The next supervision order was made on March 16, 2016. The father did participate and consented to the order. Access to the father was ordered to be in the discretion of the society, such discretion to include the level of supervision required and the discretion to approve third party supervisors.
[7] This document was a fraud investigation report initiated by the father against his brother. The father did not contest the contents of the report.
[8] The father said he sold the car for $2,200 in the fall of 2016.
[9] In the Family Law Rules, this is set out in rule 20.1.
[10] As previously noted, the court also finds that the father is likely earning unreported cash income.
[11] The court recognizes that this limitation is due to the father's misconduct and has taken that into consideration.
[12] This included evidence that the father had hidden a secret camera in her bedroom, taken inappropriate pictures of her and posted them on social media and that the father was showing these pictures to people at a mosque he frequents. The court is not finding that these incidents didn't happen, only that they weren't proved.
[13] The father argued the mother was not afraid of him because she takes the children to his building for access visits. However, the mother explained that she always phones her in-laws first to make sure the father is not present and will then exchange the children in the building lobby.
[14] The father's complaints to the police, which resulted in the mother being criminally charged in March, 2016, were also viewed by her as harassment.
