Court File and Parties

Date: September 25, 2018

Court File No.: D46033/08

Ontario Court of Justice

Between:

Shona Lerato Hyman

Applicant

- and -

O'Neil Denny Wright

Respondent

Counsel:

• Andrew Sudano, for the Applicant
• Acting in Person, for the Respondent

Heard: September 21, 2018

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The applicant (the mother) has brought a summary judgment motion seeking final orders for: custody of the parties' two children, ages 10 and 7 (the children), incidents of custody, access for the respondent (the father) to take place at a supervised access centre on alternate Saturdays and for child support, including special expenses pursuant to section 7 of the Child Support Guidelines (the guidelines).

[2] The mother has also made a claim in her application for retroactive child support, but is not seeking that relief by way of summary judgment. She asks that a trial be scheduled for this issue.

[3] The father declined the opportunity to see duty counsel before this motion was argued.

[4] The father asks that the entire case be dismissed. He argues that the court has no jurisdiction to deal with these matters. He claims that the children are his property. He submits that since he did not enter into a contract with the mother regarding the issues before the court or consent to the temporary orders that have been made to date, that the court has no authority to make any orders. He claims that the temporary orders made by the court were in violation of his human rights and contrary to the Canadian Bill of Rights and to international law. He wants it to be left up to him and the mother to work out all parenting and support issues.

[5] In his Answer/Claim, the father sought joint custody of the children. However, he did not pursue this claim at this hearing. Instead, he wants the entire case dismissed.

[6] The mother relied on three affidavits, together with a financial statement, sworn on September 4, 2018, that she filed in support of her motion. The father relied on the two affidavits that he filed.

[7] The issues before the court are as follows:

a) Is there a genuine issue requiring a trial on any of the claims made by the mother in her summary judgment motion?

b) If a trial is not required:

1. What parenting orders are in the children's best interests?

2. What is the appropriate child support order for the children?

Part Two – Legal Considerations – Summary Judgment

[8] The mother brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.

[9] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[10] Pursuant to subrule 16 (4.1) the responding party 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. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court).

[11] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[12] Subrule 16 (6.1) provides that in determining if there is no 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 interests of justice for such powers to be only exercised at trial:

1. Weighing the evidence

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[13] Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[14] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. The judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[15] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49).

[16] Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hyrniak case law where courts examined whether a party has any reasonable chance of success no longer applies. See: Kawartha, paragraph 45.

[17] The key question is whether it is in the interest of justice for the court to resolve the case summarily? To do so, the court is required to consider whether the process allows it to make the necessary findings of fact, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure? See: Kawartha, paragraph 45.

[18] The inquiry into the interests of justice (a) considers the consequences of the motion in the context of the litigation as a whole, and (b) is a comparative process. See: CAS of Ottawa v. K.F., 2018 ONSC 3905; Children's Aid Society of Niagara Region v. B.P., 2018 ONSC 4371.

[19] The summary judgment process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial. See: Kawartha, paragraph 43.

Part Three – Should All or Part of This Case Be Determined by Summary Judgment?

[20] The court finds that there are no genuine issues requiring a trial on any of the claims made by the mother on her motion.

[21] The court finds that the summary judgment process allows it to make the necessary findings of fact and apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result - the process allows the court to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure.

[22] The mother set out specific facts in her evidence establishing that there are no genuine issues requiring a trial.

[23] The father, in his evidence, failed to set out specific facts establishing that there are any genuine issues requiring a trial. Instead, the father (often incoherently) focused on his rights and grievances and his position that the court has no authority to make parenting and support decisions about him and the children.

[24] The court did not need to use its expanded powers to make this decision.

[25] The material facts in this case were not disputed or were only baldly denied by the father. These facts establish that the mother has an overwhelmingly strong case on all issues before the court. The court has the necessary evidence before it to make final orders in a fair and just manner.

Part Four – Material Facts Not in Dispute or Only Baldly Denied by the Father

[26] The mother is 37 years old. The father is 38 years old.

[27] The parties never cohabited.

[28] The parties had two children together. K. is 10 years old and R. is 7 years old.

[29] The children have always lived with the mother. The mother has one other child living with her from another relationship.

[30] The father has two children from another relationship, ages 15 and 13. They do not live with him. Pursuant to a November 2, 2010 order of Justice Steven Clark, the father is required to pay child support of $400 each month to the mother of those children.

[31] The parties had a physical altercation which resulted in police involvement in August, 2013. The father subsequently cut off communication with the mother and the children for over two years and paid no child support to the mother.

[32] The father resumed contact with the children at the mother's request in November, 2015. She needed his consent to obtain counseling for K., who was being bullied at school. The father initially agreed, but subsequently declined to provide his consent. The parties argued and the father stopped seeing the children again for several months.

[33] The father began seeing the children again, but only briefly. After another argument between the parties, the father did not see the children from Father's Day 2017 until after this court case started.

[34] The mother issued her application on June 26, 2017.

[35] The father filed his Answer/Claim on August 14, 2017, seeking joint custody of the children.

[36] On September 29, 2017, the court made a temporary without prejudice order (based on the father's stated annual income of $40,000), that he pay to the mother the guidelines table amount of support for two children of $579 each month, starting on October 1, 2017. The father was also ordered to provide the mother with financial disclosure.

[37] On November 10, 2017, after contested motions, the court ordered that the mother have temporary custody of the children. The father was given temporary alternate Saturday access to the children for 6-hour periods, with access exchanges to take place at Access for Parents and Children in Ontario (APCO). The court ordered that both parties were to follow APCO's rules. The court adjusted temporary child support to $565 each month, starting on July 1, 2017, being the guidelines table amount based on the father's annual income assessed at $39,124. The court also ordered the father to pay $50 each month, starting on January 1, 2018, towards the children's daycare expenses, pursuant to section 7 of the guidelines. The father was permitted to pay the arrears created by the order at the rate of $50 each month. The issue of retroactive support was reserved to the trial judge.

[38] The father has not paid any child support since March 1, 2018.

[39] At the father's access visit on January 13, 2018, R. reported to APCO staff that while out on their visit, the father had slapped him on the arm and it hurt. K. told the APCO staff member that he saw the father hit R. and yell at him.

[40] On February 21, 2018, on consent, the parenting issues were referred to the Office of the Children's Lawyer (OCL). The parties were required to complete the OCL intake forms and deliver the forms to them.

[41] The OCL declined to accept the case because the father refused to complete the necessary intake forms.

[42] Once the visits began, the father was frequently late picking the children up from and returning them to APCO.

[43] The mother deposed that the children were telling her that the father was demeaning her and her family to them during his visits. The father did not deny this. The mother deposed that the children were returning from visits acting in a rude and disrespectful manner and having increased difficulties focusing at school.

[44] The mother deposed that the father followed her and the children into the access centre from his car at the March 10, 2018 visit, contrary to APCO's rules. She said that this scared her. The father was warned not to do this again and APCO put safety procedures into place.

[45] On April 27, 2018, the case came back before Justice Roselyn Zisman. She endorsed that the father did not file the OCL intake forms because he did not want the OCL involved in his private life. She also endorsed:

Father does not feel he needs to comply with the pickup and dropoff times. Father sees no need to comply with any order as it "violates his rights as a parent".

[46] Justice Zisman then set a timetable for the mother to bring a motion to change temporary access.

[47] The mother's motion returned before Justice Carole Curtis on May 16, 2018. The father sought an adjournment. Justice Curtis adjourned the motion on terms that access would now be fully supervised at APCO and that the father was not to otherwise contact or communicate with the mother or the children. She ordered the father to pay outstanding child support of $1,230 by June 8, 2018 and to pay the mother's costs of $500.

[48] The father appealed Justice Curtis' decision. The appeal has not been heard.

[49] The father has not paid any of the support arrears or costs ordered by Justice Curtis.

[50] The mother subsequently obtained permission to amend her notice of motion to seek final orders by summary judgment.

[51] The father last exercised access to the children on May 5, 2018. APCO left several messages with the father to contact them to arrange access. He did not return their calls.

[52] On June 1, 2018, APCO placed the visits on hold due to the father's failure to contact them or return their phone calls.

[53] As of September 3, 2018, the father was $7,010.63 in child support arrears.

[54] The mother receives subsidized daycare for the children. Her monthly daycare costs are $187.32.

[55] The mother has requested updated financial disclosure from the father. He has ignored those requests. He did not provide the court with any current financial disclosure for this motion.

[56] The father has filed only one financial statement in this case, sworn on August 10, 2017.

[57] The father deposed in his financial statement that he was earning annual income of $38,400.

[58] The father's 2015 notice of assessment shows line 150 income of $40,447.

[59] The father's revised 2014 notice of assessment shows line 150 income of $45,778.

[60] The father did not provide copies of his income tax returns and notices of assessment for 2016 and 2017. He filed no proof of his 2018 income.

[61] The father did provide 3 pay stubs, the last being for the pay period ending on October 29, 2017. His gross year-to-date income in that statement was $32,098. This covers a 43-week period. Projected out over a year this comes to $38,816.

[62] At the summary judgment hearing, the father claimed that he had lost his job, was now working for a friend and making about $3,000 each month ($36,000 annually). None of this was in the form of proper evidence. The father provided no documents to support this. He had provided no evidence of his financial circumstances to the mother despite her requests. An adverse inference is drawn against him due to his failure to provide proper financial disclosure. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.

[63] The best evidence before the court is that the father has been earning annual income of $38,816 since January 1, 2017.

[64] The mother's line 150 income on her 2017 notice of assessment was $27,893. Most of that income came from employment insurance ($24,304).

[65] The mother's line 150 income on her 2016 notice of assessment was $43,585 and was $38,539 on her 2015 notice of assessment.

[66] The mother deposed in her September 4, 2018 financial statement that she is earning annual income that projects to $38,882 – essentially the same income as the father. This is the best evidence of her 2018 income for the purpose of this motion.

Part Five – Jurisdiction of the Court

[67] Section 38 of the Courts of Justice Act sets out that the Ontario Court of Justice has jurisdiction to hear family law cases under the Children's Law Reform Act and the Family Law Act.

[68] In Part III of the Children's Law Reform Act (governing custody and access), subsection 18 (1) defines court as the Ontario Court of Justice, the Family Court or the Superior Court of Justice.

[69] Clause 22 (1) (a) of the Children's Law Reform Act sets out that the court has jurisdiction over a custody or access case where the children are habitually resident in the Province of Ontario at the start of the application. That is the case here. The court's jurisdiction is not contingent on the agreement of the father.

[70] Subsection 28 (1) of the Children's Law Reform Act sets out the court's powers in making custody and access orders. This includes the right to determine any aspect of the incidents of the right to custody or access (clause 28 (1) (b)). The court may also make any additional order as the court considers necessary and proper in the circumstances, including an order limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child (subclause 28 (1) (c) (i)).

[71] Section 24 of the Children's Law Reform Act sets out that the court shall make custody and access decisions that are in the best interests of the child. Factors for the court to consider in determining a child's best interests are set out in subsection 24 (2). Subsection 24 (3) sets out that the court shall only consider a parent's past conduct if it is relevant to their parenting. Subsection 24 (4) sets out that in assessing a person's ability to act as a parent the court shall consider any violence and abuse against the other parent or a child.

[72] Subsection 1 (1) of the Family Law Act defines court as including the Ontario Court of Justice.

[73] Section 31 of the Family Law Act sets out the obligation of a parent to support their children.

[74] Subsection 33 (1) of the Family Law Act authorizes the court to order a parent to pay child support for his or her children.

[75] Subsection 33 (7) of the Family Law Act sets out the purposes of a child support order. It reads as follows:

Purposes of order for support of child

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

[76] Subsection 33 (11) of the Family Law Act provides that child support orders shall be made in accordance with the guidelines.

[77] Section 34 of the Family Law Act sets out the powers of the court in making support orders. This includes the power to order that support be paid periodically and that it be paid in respect of any period before the date of the order.

[78] Subsection 3 (1) of the guidelines sets out that the presumptive rule in ordering child support for a child under 18 is to order the applicable table amount and the amount, if any, determined under section 7.

[79] Section 7 of the guidelines defines special or extraordinary expenses as follows:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[80] The court has jurisdiction to order the father to pay child support for the children. It will do so by applying the guidelines. The court's jurisdiction is not contingent on the agreement of the father.

[81] Subrule 1 (2) sets out that the Family Law Rules apply to cases in the Ontario Court of Justice.

[82] Rule 16 sets out the process for bringing a summary judgment motion. Subrule 16 (6) sets out that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[83] Provided that the court finds that there are no genuine issues requiring a trial, the court has the jurisdiction to make the parenting and support orders sought by the mother by way of summary judgment.

Part Six – Custody

6.1 Legal Considerations

[84] The court has considered the factors set out in subsections 24 (1) - (4) of the Children's Law Reform Act in determining what parenting decisions are in the children's best interests.

[85] Although he did not seek this relief at the summary judgment hearing, the court will consider the father's claim for joint custody contained in his Answer/Claim.

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

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

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

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

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

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

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

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

[88] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

6.2 Analysis

[89] The court finds that it is in the children's best interests to order that the mother have sole custody of them. There is no genuine issue requiring a trial on this issue. The court makes this decision for the following reasons:

a) The children have always lived with the mother. She has historically made all major decisions for them. She has done this in a responsible manner. They have been thriving in her care. The mother is the parent who has provided the children with continuity and security. She is the parent who has best been able to meet their physical and emotional needs and is the parent who has provided them with guidance and education and the necessaries of life. She is the parent who has been able to act in a mature manner.

b) The children have had a sporadic relationship with the father. He has gone long periods of time where he has had no contact with them. This includes over two years from August, 2013 until November, 2015. He has chosen not to see them since May 5, 2018.

c) The father has failed to adequately support the children. He has not paid any child support since March 1, 2018. Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. See: Jama v. Mohamed, 2015 ONCJ 619; P.H. v. T.J., 2017 ONCJ 166; Pinda v. Pankiw, 2018 BCSC 190.

d) The father prioritizes his own needs to those of the children. The evidence indicates that when he doesn't get his own way, he will act in a petulant and immature manner and choose not see the children. He demonstrates absolutely no insight into the emotional harm his failure to see them may cause them.

e) There is no evidence of constructive historical communication between the parties. The evidence shows a history of arguments. The police have been involved with the parties. Both alleged that the other was violent. The mother is afraid of the father.

f) The mother reached out to the father in November, 2015 to sign a consent for K. to obtain counseling. The father refused to sign the consent.

g) There is no evidence to support a conclusion that the parents' communication will improve.

h) The father has shown himself to be ungovernable. He did not comply with orders of the court concerning access, support and payment of costs. He did not complete the required forms for the OCL. He did not comply with the rules of APCO with respect to picking up and returning the children on time. If he cannot work cooperatively with the court, the OCL and APCO, how can the court expect him to work cooperatively with the mother?

[90] The mother seeks the following additional orders:

a) That she may obtain government documentation for the children, including passports, without the father's consent.

b) That the father not contact the mother or the children outside of the father's supervised access visits.

[91] The court finds that there are no genuine issues requiring a trial on either of these issues.

[92] The evidence indicates that the father will not cooperate with any request made by the mother regarding the children. The issue of counseling for K. is an example of this. It is in the children's best interests that the mother be able to obtain government documentation for them in a seamless manner, without the father's obstruction.

[93] It is also in the children's best interests to put restrictions on the father's contact with the mother and the children. The father believes that no one can tell him what to do – he should be able to see the children whenever he wants and on his terms. He states that the children are his property. He does not respect the mother or court orders. A very structured order is required to avoid chaos for the children and to ensure that protections are in place so that the father cannot undermine their stability with the mother. The orders sought by the mother will be made.

Part Seven – Access

7.1 Legal Considerations

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

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

[96] In Izyuk v. Bilousov, 2015 ONSC 3684, the court made the following observations about supervised access orders at paragraphs 52-54:

52 Supervised access is not intended to be a long-term solution to access problems. M. (B.P.) v. M. (B.L.D.E.) (1992), 59 O.A.C. 19; Boudreault v. Charles 2014 ONCJ 273; M.T. v. M.G., 2010 NSSC 89. Slawter v. Bellefontaine, 2012 NSCA 48.

53 Supervision may be an intermediate step in certain situations such as:

a. Where there are substance abuse issues which need to be addressed.

b. Where the child requires protection from physical, sexual or emotional abuse.

c. Where there are clinical issues involving the access parent.

d. Where the child is being introduced or reintroduced to a parent after a significant absence.

54 In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve.

[97] While supervised access is usually a temporary arrangement, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. See: Tuttle v. Tuttle, 2014 ONSC 5011.

7.2 Analysis

[98] The mother seeks a final order that the father have supervised access at APCO on the following terms (many of the terms being part of the existing temporary orders):

a) The father shall visit the children on alternate Saturdays at APCO's Victoria Park and O'Connor location (the maximum length of visit permitted by APCO is two hours).

b) The parties are to follow all rules of APCO.

c) If the father cancels a visit it will not be made up.

d) The mother may only cancel a visit due to a child's serious health issue. If cancelled, it must be made up as soon as APCO can accommodate the visit.

e) The father shall not allow anyone else, other than his two other children, to participate in the visit.

f) The mother may have family members exchange the children from the access centre.

g) The parties are to equally share APCO's costs.

h) The parties are to immediately contact APCO to set up the visits.

i) The parties are to immediately attend any intake interview arranged by APCO.

[99] The court finds that there are no genuine issues requiring a trial on the access issues and will grant the access orders sought by the mother.

[100] The mother deposed that the children enjoy their visits with the father and want to see him. However, she understandably wants the access to take place in a safe, consistent and controlled manner.

[101] Despite having had sporadic access with the children, the father was granted temporary day access in the community, with the exchanges to take place at APCO. This gave the father the opportunity to prove to the court that he could exercise access in a responsible manner so that it would have the confidence to safely expand his access.

[102] Instead, the father chose to act irresponsibly.

[103] The father refused to cooperate with the OCL intake process, despite consenting to its involvement. This frustrated the court's ability to obtain the views and wishes of the children.

[104] The father chose not to comply with APCO's rules – he did not believe that he should be bound by them. He came late to visits and returned the children late. He followed the mother into the APCO location from his car, contrary to APCO rules, causing her to fear for her safety. He demeaned the mother to the children during his access, causing the children distress and to act out with the mother and at school.

[105] The father was defiant about his breaches of the court order. He told Justice Zisman that he didn't have to comply with dropoff and pickup times because it violated his rights as a parent. He maintained that position before this court.

[106] Justice Curtis had little option on the temporary motion but to change the temporary access order so that the father's access would be fully supervised.

[107] Once that order was made, all the father had to do was show that he could exercise access in a responsible manner and his access would have likely been expanded.

[108] Instead, the father acted in an immature and selfish manner. He ignored APCO's calls to meet with them, resulting in the access being placed on hold. He has chosen not to see the children since May 5, 2018. He is placing his own pride ahead of the need of his children to have a consistent relationship with him.

[109] The father also stopped paying child support.

[110] It is in the children's best interests that the father's access be fully supervised until he can prove that he will put the children's needs first and exercise access in a responsible and consistent manner. To order otherwise would unduly compromise the children's stability and sense of security.

[111] Supervised access is required at this point, but hopefully will not be a long-term order. Whether it becomes a long-term order will depend on the father. The court order will provide that if the father can attend his visits consistently, follow APCO's rules and act responsibly at the visits for a period of six months, this will constitute a material change in circumstances for the purpose of a motion to change the access terms. However, to change this order, the father will need to be able to show that he can do this. The mother should not be put through further litigation until he does. He will need leave of the court before being permitted to bring any motion to change the parenting terms of this order until such time as he completes six months of supervised access.

Part Eight – Child Support

[112] The mother seeks an order that starting on January 1, 2018, the father pay her the guidelines table amount of child support for two children, together with $108.64 each month for his share of the children's daycare expenses. She is content that the temporary support order dated November 10, 2017 cover the father's child support obligations from July 1, 2017 until December 31, 2017.

[113] The court finds that there are no genuine issues requiring a trial on these support issues. The court has the necessary evidence before it to make this decision in a fair and just manner.

[114] The court finds that the daycare expenses claimed by the mother are eligible special expenses pursuant to section 7 of the guidelines and that these expenses are reasonable and necessary. She requires child care as she works full-time. The monthly amount of daycare expenses claimed by her ($187.32) is also reasonable.

[115] The father's annual income for the purpose of the support calculation is $38,816 (see paragraphs 61 to 63 above).

[116] The mother's annual income for the purpose of the support calculation is $38,882 (see paragraphs 64 to 66 above).

[117] The guidelines table amount for two children at this income is $582 each month.

[118] Subsection 7 (2) of the guidelines sets out that the guiding principle in determining the payment of a special expense is that the expense is shared by the parties in proportion to their respective incomes.

[119] The mother prepared a software calculation in support of her claim for section 7 expenses. However, she used her 2017 income (when she was unemployed) for the purpose of this calculation. The court finds that it is appropriate to use her 2018 income. Further, the mother did not take into account any income tax deduction or credits when calculating the section 7 expense in her software calculation. Subsection 7 (3) of the guidelines sets out that in determining a special expense, the court must take into account any subsidies, benefits or income tax deductions or credit related to the expense.

[120] The software analysis (that will be attached to this decision) shows that the father's proportionate share of the monthly daycare expense, after taking into account income tax deductions and credits related to this expense is $46 each month. This is the amount that will be ordered.

[121] The court will not exercise its discretion to reduce the father's share of this special expense (due to his other child support obligations) because:

a) He provided no evidence that he is actually paying child support for his other two children. Given his abysmal payment history for the children in this case, it was incumbent on him to provide this proof.

b) An adverse inference is made against the father due to his failure to provide adequate financial disclosure.

c) The special expense contribution is modest. The father should be making some contribution to this expense.

d) The father has not acted in good faith. He has not complied with court orders or properly supported the children. The court is not inclined to exercise its discretion in his favour in these circumstances.

[122] The court gave the father the opportunity to pay support arrears in a modest amount in its temporary support order. The father has essentially chosen to ignore that order. By doing so, he has lost, in the eyes of this court, the opportunity for a similar payment order to be made on a final basis. He will have to work out the arrears issue with the Family Responsibility Office.

Part Nine – Conclusion

[123] The court finds that there are no genuine issues requiring a trial with respect to the relief sought by the mother in her summary judgment motion.

[124] The court makes final orders as follows:

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

b) The mother may obtain government documentation for the children, including passports, without the father's consent.

c) Pursuant to section 28 of the Children's Law Reform Act the father shall not contact the mother or the children outside of the father's supervised access visits.

d) The father shall have fully supervised access to the children at APCO on the following terms and conditions:

1. The father's access visits shall take place on alternate Saturdays for two hours at APCO's Victoria Park and O'Connor location.

2. The parties are to follow all rules of APCO.

3. If the father cancels a visit, it will not be made up.

4. The mother may only cancel a visit due to a child's serious health issue. If cancelled, it must be made up as soon as APCO can accommodate the visit.

5. The father shall not allow anyone else, other than his two other children, to participate in the visit.

6. The mother may have family members exchange the children from APCO.

7. The parties are to equally share APCO's costs.

8. The parties are to immediately contact APCO to set up the visits.

9. The parties are to immediately attend any intake interview arranged by APCO.

e) If the father can attend his visits consistently, follow APCO's rules and act responsibly at the visits for a period of six months, this will constitute a material change in circumstances for the purpose of any motion to change the access terms in this order.

f) The father will require leave of the court before being able to bring a motion to change the parenting terms of this order if he wishes to bring this motion before completing six months of supervised access visits. Any such motion shall be by Form 14B, not exceeding two pages. It shall be served on the mother and filed with the trial coordinator's office.

g) The father shall pay to the mother the guidelines table amount of child support for two children of $582 each month, starting on January 1, 2018. This is based on his annual income, assessed at $38,816.

h) The father shall also pay the mother $46 each month, starting on January 1, 2018, for his share of special expenses, being daycare expenses.

i) The terms of the temporary support order dated November 10, 2017, as it pertains to the father's support obligation from July 1, 2017 until December 31, 2017, is final.

j) The issue of retroactive child support shall be tried. The trial shall address the father's child support obligations, if any, for the period prior to July 1, 2017.

k) The parties shall, by June 30th each year, exchange complete copies of their most recent income tax returns and notices of assessment.

l) A support deduction order shall issue.

m) The Family Responsibility Office is asked to adjust its records in accordance with this order.

[125] If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by October 5, 2018. The other party will then have until October 12, 2018 to serve and file a written response.

[126] If the mother seeks her costs, she shall serve and file her written costs submissions by October 19, 2018. The father will have until October 31, 2018 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.

[127] All submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

[128] The trial coordinator will contact the parties to set the date for the trial of the retroactive support issue. The father told the court on the summary judgment motion that he will not attend for this trial. In the event that the father does not respond to the trial coordinator's request to set this date within 10 days of the first call to him, the trial coordinator may set the trial date without his input.

[129] The mother shall serve and file any supplementary evidence at least 21 days before the date scheduled for trial.

[130] The father shall serve and file at least 7 days before the date scheduled for trial:

a) An updated sworn financial statement.

b) His full 2016 and 2017 income tax returns and notices of assessment.

c) His record of employment explaining why his employment at Northrock Mechanical Inc. ended.

d) Any other evidence that he wishes to rely on for the trial regarding the mother's claim for retroactive child support.

[131] The court has little confidence that the father will pay the support ordered. Court staff is directed to send a copy of these reasons for decision to the legal department of the Family Responsibility Office for prompt enforcement.

Released: September 25, 2018

Justice S.B. Sherr