Ontario Court of Justice
Date: 2019-06-26
Court File No.: Toronto D91597/16
Between:
O.P.
APPLICANT (FATHER)
— AND —
J.R.
RESPONDENT (MOTHER)
Before: Justice Robert J. Spence
Heard on: 30 and 31 May and 12 June 2019
Reasons for Judgment released on: 26 June 2019
Counsel:
- Mr. Aron David — counsel for the applicant father
- Ms. Denise Badley — counsel for the respondent mother
R. J. SPENCE J.:
1: INTRODUCTION
[1] This Application was commenced by the father on September 22, 2016, seeking access to the two children of the parties' relationship, as well as certain restrictions on the mother's ability to move or re-locate with the children.
[2] The two children, both girls, are L., age seven years, and B., age five years.
[3] The mother's Answer/Claim sought custody, child support, restricted access to the father, and certain incidents of custody including the right to obtain government documents and travel with the children.
[4] As the father did not seek custody, or oppose the mother's request for custody, the parties consented on January 19, 2017, to a final sole custody order in favour of the mother.
[5] Over the course of the case management of this file by Justice Curtis, the parties agreed to orders for both temporary access as well as temporary child support.
[6] More specifically, the parties consented to the following orders with respect to father's access:
January 19, 2017 – temporary without prejudice access as arranged between the mother and the father, or between the maternal grandmother and the father;
April 11, 2017 – temporary supervised access at Access for Parents and Children Ontario ("APCO"), once each week for one hour per visit;
May 14, 2018 – temporary unsupervised access in the community, every Sunday from 2:00 p.m. until 5:00 p.m., access exchanges to occur at Chuck E. Cheese and communication and access facilitation arranged between the father and the maternal grandmother. As part of this consent order, the parties agreed that the father's partner, D.R., was not to be present during access visits; and
April 15, 2019 – Access was expanded to six hours, namely, each Sunday from 11:00 a.m. until 5:00 p.m., the parties to refrain from communicating during access exchanges, and the father's partner, D.R., not to be present during access visits.
[7] Justice Curtis made a number of different temporary child support orders. The most recent temporary order prior to trial, not on a without prejudice basis, was on November 1, 2017. Justice Curtis ordered the father to pay $664 per month to the mother, based on an imputed income to the father in the amount of $45,000. Justice Curtis also ordered the father to pay an additional $155 per month to the mother for unspecified section 7 expenses. I note that the father did not file responding material to mother's motion for child support.
[8] On the first day of trial, the parties consented to a partial final order regarding access which addressed certain incidental issues including the right to consult and obtain third party information, obtaining passport and government documents for the children, and mutual rights to travel with the children, subject to certain conditions. The consent did not address the primary access issues regarding timing, duration and location of the regular access schedule.
2: ISSUES FOR TRIAL
[9] The father is seeking an expansion of access from six hours in the community once each week, to eight hours each alternate Saturday and Sunday (same weekend) and then, following a period of six weeks, an expansion to alternate weekend overnight access, from Saturday at 10:00 a.m. until Sunday at 6:00 p.m.
[10] In addition to this regular access schedule, the father seeks other access times, including Boxing Day, Father's Day, Valentine's Day and such other access as the parties may agree upon.
[11] The mother is opposed to father's request for overnight access. She seeks an order that access occur on alternate Fridays from after school until 9:00 p.m. and alternate Sundays from 11:00 a.m. until 5:00 p.m. (the Fridays and the Sundays to be on the same weekend).
[12] The mother also seeks an order that the access take place in the community but, under no circumstances in the presence of the father's partner, D.R. until the mother provides her written consent.
[13] On the issue of child support, the father seeks an order for support at various levels based on imputing income to him at specified dates starting in 2016, ranging from minimum wage income to a maximum of $35,741 per annum.
[14] Mother is seeking a child support order based on income to the father in the amount of $23,712 from the date of separation, February 1, 2016 until December 31, 2016 and, thereafter, imputing income to the father in the amount of $45,000 per year from January 1, 2017 and ongoing.
[15] Mother is also seeking a contribution toward child support Guidelines ("Guidelines") section 7 expenses for extraordinary extracurricular activities.
3: BRIEF BACKGROUND
[16] The parties met and began a dating relationship in 2010. Their first child, L. was born in 2011.
[17] It is unclear whether the parents actually lived together in one home once their relationship began, or whether they spent frequent time together but still each retaining their own residences.
[18] What is clear, however, is that their relationship was fraught with turmoil; and they were variously in and out of each other's lives for some years throughout their relationship.
[19] In 2012 the mother found out that the father was in a relationship with his now current partner and the parents broke up for a few months, reconciling later in the year.
[20] In 2013, the mother became pregnant again with the father's child, but she unfortunately miscarried that child.
[21] Later in 2013, she became pregnant with the parties' second child, B. who was born in 2014.
[22] The parents broke up again in 2014 but, again, they continued to see one another, off and on.
[23] In 2015, the mother became pregnant as a result of a relationship with another man. This child was born in 2016. It was following the birth of this child that the parents' separation which had occurred in February 2016 finally became permanent in April 2016.
[24] The mother claims that D.R. began to threaten the mother beginning around 2012 and continuing until about 2016. She says that D.R. would approach her on occasion and, sometimes with her friends, she would attempt to intimidate the mother by saying things like, "I'll F*** you up", "leave him alone", "he's my man". Mother claims that D.R. sent Facebook messages to her stating she was a "whore", "you're a slut", "you're ugly", "you're worthless".
[25] Of even greater concern to the mother, she says that D.R. directed nasty names to the parties' two children, including "black, ugly and bald".
[26] For his part, the father testified that D.R. did say offensive things about L. in 2012, but he said that she has done nothing like that since 2012. He testified that he is unsure what words D.R. used but he does acknowledge that "feelings were hurt and stuff happened".
[27] In 2016, the mother was stricken with cancer. During her hospitalization at Princess Margaret Hospital, she says she tried to reconcile with D.R. by telephone. She claimed it was important for her to do this because, in the event of her death she wanted to ensure that if L. and B. were to live with their father and his partner D.R., that D.R., in particular would be caring and nurturing toward the two children.
[28] The mother said that despite her efforts to patch things up on the phone, D.R. continued to threaten and intimidate her, even threatening to come to the hospital to harm her. The mother says that she had to put together a security plan whereby visitors to the hospital would be screened before being allowed to visit with her.
[29] On March 31, 2016 a text message exchange occurred between the mother and the father as follows:
Mother at 10:49 p.m.: don't worry about my babys dad hes around now and ppl are getting to know him
Father at 10:51 p.m.: O so that's y u are trying to push me out my kids life try to give them a new dad. U do that ill shoot him in his head so u really have no baby dads
Father at 10:52 p.m.: Gwan push me
Mother at 10:53 p.m.: Oh is that threat perfect I cant have no gun totting man around my children or myself. Perfect thanks for that.
[30] Because of this exchange the police charged the father with threatening death. The charge was resolved in February 2018 by the imposition of a one-year Peace Bond.
[31] By this time, the litigation between the parties was well underway.
4: ACCESS
4.1: Introduction – Best Interests
[32] The starting point for determining access is the Children's Law Reform Act ("Act"), which provides as follows:
Merits of application for custody or access
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
[33] Of the foregoing considerations, the primary ones which are relevant to this case are paragraphs 24(2)(a), (f) and (g).
[34] In my discussion of best interests and my analysis of the evidence, I do not propose to address these considerations separately. Rather, because there tends to be overlap in the evidence pertaining to the considerations, my discussion will be more holistic in nature.
4.2: Analysis
[35] The parents disagree about the extent of the father's involvement with the two children prior to the parties' separation in February 2016. Father says he was involved as much as possible and as much as the mother would permit. Mother says that father was never really interested in the children, and that his involvement with them was sporadic.
[36] The evidence adduced at trial was insufficient to enable me to make a finding on this issue one way or the other. In any event, I consider it to be of greater importance what the evidence reveals about the father's parenting and his judgment as a parent since the parties separated.
[37] As I noted earlier, the father had APCO access once each week for approximately one year, leading up to May 2018.
[38] It is unnecessary to describe in detail the supervisors' notes about the quality of those visits, other than to summarize the overall thrust of how those visits transpired. The following is not disputed.
[39] Between July 2017 and May 2018, the father had 23 visits with the children at APCO. The father filed the access supervisors' notes for each of those visits. The supervisors' notes reflect that those visits were positive overall. The children seemed to enjoy themselves and often demonstrated real enthusiasm when they saw the father come into the access room.
[40] The notes reveal that the father acted appropriately toward the children. He demonstrated love and affection and engaged the children in child-friendly activities.
[41] On more than one occasion, L. asked about spending more time with her father; she specifically asked if she could come to certain outings with him, or whether he could come to her gymnastics class. The father responded appropriately and deflected questions from the children where it was appropriate to do so, and where he was able. At no time did he denigrate the mother or in any way attempt to blame the mother for the restrictions on his access.
[42] The children asked the father on more than one occasion about their half-brother, the father's son with his current partner, expressing a desire to see him. B. stated that she wanted to come to the father's house to visit with her brother.
[43] The mother did not dispute the accuracy of the APCO notes. She was asked at trial to acknowledge the overall positive nature of the APCO visits. She was disinclined to do so. Instead, she stated that in her opinion the notes didn't accurately reflect the father's parenting because the father would have known that he was being watched and therefore he was probably "acting" rather than revealing his true nature.
[44] The mother was highly critical of, what she claimed, was the father's lack of involvement in the children's lives, asserting that he would drop in and out of their lives as it suited him. At one point in her testimony she referred to the father as merely a "sperm donor".
[45] However, when pressed on the specifics of the children's interaction with the father, she did agree that the children do love him. In particular, L., the older child who knows him well probably has the strongest relationship with him.
[46] Ultimately, she did agree that the children "do love their dad".
[47] It was clear from the evidence, however, that the mother's primary concerns centred on D.R. and the father's attitude and lifestyle, both past and current.
[48] I noted in the earlier section of these reasons, the parents' relationship was a difficult one, a fact which was not denied by the father.
[49] Despite a strong desire expressed by the mother to work things out with D.R. and for D.R. to acknowledge the importance of L. and B., mother says that D.R. has yet to do so and, because of this, she is concerned that the children will not be well cared for and appropriately nurtured if access were to occur in D.R.'s presence.
[50] The issue for this court to decide is whether the acrimony between mother and D.R. is an adult issue alone – and therefore something which does not impact on the children – or whether it is something which spills over onto the children, potentially affecting their wellbeing and best interests.
[51] Father argued that the decision of Justice Sherr in Ascento v. Davies, 2012 ONCJ 491 applies to this case. In Ascento, there was a conflict between the mother and the father's new girlfriend. Justice Sherr pointed out that the adults need to act maturely and insulate the child from the conflict. However, while Justice Sherr did permit access to take place in the presence of the father's girlfriend, he declined to order overnight access so long as the father's girlfriend was involved with those visits.
[52] While the present case is indeed one of adult conflict, it has wider implications, for the reasons which I have outlined and for the additional reasons which follow.
[53] For the reasons which follow, I conclude that the presence of D.R., is an element which could have an adverse impact on the children, unless her involvement with the children is handled cautiously by the court.
(1) The mother claims – and the father does not deny – that D.R. at the very least said some very negative things about the children in the past. Mother claims it went much further than that, as I have discussed earlier in these reasons. Mother's more detailed evidence on this issue is not denied with any real specificity by the father. Furthermore, because of the father's overall lack of credibility as, I will discuss later in these reasons, I find mother's account more believable.
(2) I infer from the father's consent to the temporary access orders that father was acknowledging the potential for a negative outcome if D.R. were to be present during father's access with the children.
(3) Mother claims that D.R. has a children's aid society history. She claims that she was told this by the father. Although the father denies this, I am more inclined to believe the mother given my findings in the next section of these reasons dealing with child support, that father's credibility in this case is very poor.
(4) My inclination to believe mother and to disbelieve father is further buttressed by the present circumstances where D.R.'s nine-year-old child T. (from a prior relationship), does not live with D.R. The father said that T. lives with his grandmother. He also said that he does not know where the grandmother lives. He tried to offer as a reason for this living arrangement that the school T. attends is closer to the grandmother's home than D.R.'s home. All of this begs the question why a nine-year-old child would not be living with his mother and not attending a school near his mother's home. D.R. did not testify and, accordingly, all that the court is left with is a somewhat disingenuous explanation by the father, an explanation which raises a red flag for the court.
(5) Father knew from very early on in these proceedings that the presence of D.R. in the children's lives was an ongoing issue, and that it would be an issue at trial. And yet, despite this, he chose not to bring his partner to the trial to testify, to allow the court to hear from her and to weigh her evidence. When father was asked why he declined to bring D.R. to the trial, he stated that this case is "very important to me, so I asked [D.R.] and my mother not to come". This response makes little sense to the court. If the issue of access is indeed important to the father – as it undoubtedly is – he would absolutely want D.R. to be present and to testify unless, perhaps, her testimony would have damaged the father's case.
[54] Overall, the court concludes that the father does indeed love his children and the children love their father. Both children – L., in particular – seem anxious to spend more time with him, to go to activities with him and to meet and develop a relationship with their two-year-old half-brother.
[55] However, the court has concerns about the potential negative impact that the presence of D.R. could have on the children, particularly if she is injected into their lives in too hasty a manner.
[56] The court is also concerned about the father's questionable judgment and lack of maturity which arises from poor insight into his past and ongoing behaviour.
[57] The mother says that when she and the father were together, he regularly engaged in selling drugs. In fact, the father's Form 35.1 Affidavit which he swore on September 22, 2016 discloses that father was convicted for possession of cocaine in June 2011. He was sentenced to a period of probation for 18 months.
[58] Mother claims that the father has in fact continued to be involved in the drug trade on an on-and-off basis since 2011. The father denies this, stating in his reply affidavit evidence:
I acknowledge that in 2010 I was charged with possession of cocaine for the purpose; however, this was 9 years ago, and this was before I had three children. After I was charged, and after I pled guilty . . . I changed my ways. I have not sold any drugs since this time and I have not been charged criminally for any drug-related offences since this time. My only other criminal charge was for uttering threats, for which I was convicted, and for which I entered into a peace bond . . . which expired in February 2019.
[59] However, in his trial testimony he said that the conviction for possession of cocaine was a "mistake" because the drugs weren't his, but he decided to plead guilty anyway.
[60] The father's own evidence is internally inconsistent. On the one hand he says that he decided to plead guilty even though he was not in possession of drugs for the purpose of trafficking; and on the other hand, he acknowledges that he did sell drugs but that "I changed my ways".
[61] The court's concern is not so much whether he has an 8-year-old conviction for trafficking in cocaine but, rather, what the father says about past criminal conduct, more particularly, his attempt at trial to deny what he had previously acknowledged, namely, his culpable behaviour.
[62] And this poor judgment is tied in with other events which the mother raised in her evidence. When mother asked father for money to assist in paying for some children's activities, father refused and subsequently sent mother a picture of himself holding a bundle of cash money and displaying a big smile on his face. The father says that this was not his money but, rather, cash which belonged to a friend. He said he took the picture of himself holding the money together with the message that he didn't need to steal.
[63] On father's birthday in 2017 mother submitted as evidence in this trial a picture of his birthday cake which displayed on it: a bottle of Hennessy brandy, marijuana cigarettes or "spliff", scales which mother says are used for weighing drugs, money, and white powder which mother says is cocaine.
[64] In response, the father didn't deny either the existence or the description of these various items which were displayed on the birthday cake. However, father said this was a "joke" birthday cake. He said it was given to him as a gift by a friend. He was asked on cross-examination what he thought of the gift. His response: "I thought it looked cool, very creative".
[65] The father's statement that a cake laden with alcohol, money, drugs and drug paraphernalia is "cool, very creative", demonstrates, in the court's opinion, a poor level of maturity and judgment. The court concludes from the foregoing that father is lacking in insight and good judgment. Poor insight and poor judgment in a parent are the antithesis of what children ought to be exposed to.
[66] These two young children who are still at a very impressionable age need to be parented by someone who has maturity and insight into how behaviours can impact on growth and development. It is questionable whether father can provide that kind of role model for the children.
[67] That said, the father to his credit never sought custody of the children. He only ever sought access in this litigation. It is likely that his questionable maturity would have more of an impact on the children, the more time he spends with them. If primary parenting is provided by the mother – as it will be – with limits on the father's access, there is likely to be less opportunity for immature judgment and behaviour to spill over onto the children.
[68] In considering the amount of time the children should spend with their father, the court must take these factors into account.
[69] The court must also balance the children's need to have a loving and nurturing relationship with their father while at the same time moving cautiously with respect to D.R. as the access continues to expand.
[70] It is these two main considerations – the father's judgment/maturity and the potential negative impact of D.R. on the lives of the children which requires the court to move somewhat cautiously.
[71] The balancing of these considerations are reflected in the final access order I make at the end of these reasons. The final order will permit access to expand slowly, incrementally, increasing first the non-overnight access, and later allowing that access to occur in the presence of D.R. and, finally, increasing and liberalizing the access on an overnight basis in father's home.
[72] Over this period of increasing access, the children will have the opportunity to get to know D.R. during daytime access only. Allowing the children to get to know D.R. and to become used to her presence in their lives, will make the transition to eventual overnight access in the father's home easier and less jarring for them.
5: DETERMINING INCOME FOR CHILD SUPPORT PURPOSES
5.1: The Parties' Respective Positions
[73] The father says that he was in receipt of social assistance from 2010 until 2017.
[74] For a period between July 2017 and September 2018 the father worked for a company called Ferpal Construction.
[75] He says that despite efforts to find employment since his job ended at Ferpal, he has been unable to find a job of any sort.
[76] For the period November 1, 2016 until June 30, 2017, prior to commencing work at Ferpal, the father submits that income should be imputed to him at minimum wage in the amount of $23,712 and that he should pay child support for two children in the amount of $355 per month in accordance with the Guidelines.
[77] For the period commencing July 1, 2017 until September 30, 2018, when the father was working at Ferpal, he says he should pay child support in the Guideline amount of $542 per month, based on an income of $35,741.
[78] And finally, for the period commencing October 1, 2018 forward, the father says that income should be imputed to him in the amount of $29,120, and that he should pay child support in the Guideline amount of $447 per month for the two children.
[79] The mother argues that since the date of separation in February 2016, and until December 31, 2016, income should be imputed to father at minimum wage and that he should pay support based on that amount.
[80] However, she argues that for the period commencing January 1, 2017 and forward, income should be imputed in the amount of $45,000 per year. She argues that both Guideline table support and Guideline section 7 contributions should be paid by the father based on that level of income.
[81] For the reasons which follow, I have concluded that income ought to be imputed to the father in the amount of $45,000, as requested by the mother.
[82] The starting point for this analysis is the father's own evidence as to his employment-related history.
5.2: The Evidence of Father's Employment-related History
[83] Between July 17, 2017 and December 21, 2017, the father worked for Ferpal Construction in the capacity of Watermain Technician. His Record of Employment dated December 23, 2017 reveals that his job came to an end due to a shortage of work.
[84] During the five months he worked at Ferpal he earned $29,028.
[85] He returned to Ferpal on May 28, 2018 and worked there until September 19, 2018.
[86] His Record of Employment issued by Ferpal on October 4, 2018 reveals that the father quit his job.
[87] During that four-month period he earned $26,108.
[88] He had been employed as a pipe layer, a job which involves working on the ground.
[89] Father was asked at trial why he quit his job. He responded that he quit because he felt the job was unsafe. He did not elaborate.
[90] There is no evidence the father was injured on this job, or even that he was put into a perilous situation while he was performing his job-related duties.
[91] Prior to his job working as a pipe layer, he had previously refused to take employment which had been offered to him by Ferpal because the job involved working at heights, a job for which Ferpal had trained him.
[92] He was asked at trial why he refused to take the job. He responded that he felt the job was unsafe because it involved working at heights.
[93] How did he know the job would be unsafe? The employer telephoned him to describe the nature of the job, and the father decided – based solely on the job description over the telephone – that the job would be unsafe.
[94] Following his decision to quit his job on September 19, 2018, the father applied for, and was in receipt of Employment Insurance, "sickness benefits". He said he was experiencing "stress" as a result of having worked in an unsafe work environment.
[95] In order to substantiate his claim to sick benefits, he had provided a note from a doctor at a walk-in clinic.
[96] Subsequently, on November 9, 2018, Service Canada sent a letter to the father which reads, in part:
We have approved your Employment Insurance sickness benefits from October 1, 2018 to November 24, 2018. If you are still unable to work after the end of this period, you will have to provide additional medical evidence.
Once you have received all your special benefits, we will not pay you any regular benefits because you voluntarily left your employment with FER-PAL CONSTRUCTION LTD. on September 19, 2018 without just cause. We believe that voluntarily leaving your employment was not your only reasonable alternative.
[97] The father was asked at trial what steps he took after September 19, 2018 to find alternate employment.
[98] He responded that he subsequently applied to "many places" in his attempt to find employment. He said he did this by connecting himself to temporary employment agencies.
[99] However, in cross-examination he acknowledged that he did not connect with the employment agencies until mid-April 2019, just days before he filed his trial affidavit, which constituted his evidence-in-chief.
[100] In other words, he took no steps for close to seven months after leaving Ferpal to even begin to look for replacement employment.
[101] In addition to the kind of work the father performed at Ferpal, he has also been trained in carpentry. In fact, he completed and became fully qualified as an apprentice carpenter, but he took no steps to actually work in that capacity. He provided no reason for not pursuing opportunities in the field of carpentry.
[102] The father has also taken training in welding and pipe laying.
[103] He also took a course in hairdressing, which he said he did not complete. He could not remember the year that he took this course.
[104] The father was asked at trial what kind of job was he looking for. He responded that he wanted a "safe job", a job where he would not be hurt. He was asked for an example of the type of job that he felt would meet this criterion. He was unable to provide any examples.
[105] Despite his assertion that he had been "looking at places online" for a safe job, he had no documentary evidence to provide to the court respecting any such job searches.
[106] As well, although the father repeatedly asserted that the various jobs he engaged in were potentially unsafe, the father was never hurt on any of his jobs. Nor did he provide any evidence to the court that he was not properly trained to undertake any of the jobs that he was offered or that he engaged in.
5.3: Father's Evidence Lacks Credibility – Lifestyle and Financial Disclosure
[107] During the years that the father claimed that welfare was his only source of income, he took several trips internationally.
[108] In 2013, he travelled to Granada with the mother. He was asked why he took this trip. He responded, "It's a nice country".
[109] In 2015, he travelled to Panama, Cuba, Costa Rica and Jamaica. He stated that all of this was in the same week and that his mother paid for the trip.
[110] In 2016 the father travelled to Mexico.
[111] In 2018 the father travelled to Cuba.
[112] The maternal grandmother testified at trial. She is a travel agent. The father booked a number of his trips through the grandmother and on one or two occasions he paid for those trips by cash.
[113] In July 2018 he purchased a 2017 Altima vehicle at a cost of $17,000. His bank statements reveal that loan payments for this vehicle continue to be automatically deducted from his bank account, in the amount of $530 per month.
[114] Two things are not explained by the father regarding this purchase. First, how did the father manage to obtain a car loan for (he says) the entire purchase price of the vehicle when his only source of income was Ontario Works in the amount of $773 monthly?
[115] Second, how does he manage to make the monthly payments of $530 on a total social assistance income of $773 each month?
[116] In addition to the vehicle loan payments, the father claims to be spending $300 monthly on car insurance, as well as expenditures for gasoline.
[117] Prior to purchasing the Altima, he says he owned a Mazda which he purchased in 2013 or 2014. This was also a period when he says his only income was from welfare. Although he says he purchased this vehicle, he registered the ownership in the name of the mother because the insurance was less expensive.
[118] He was asked why he holds onto his vehicle given the expense involved. He responded that it helps him to "check out the workplace" opportunities. His "family support" helps him to maintain his vehicle.
[119] In his financial statement sworn December 10, 2018, in addition to $798 monthly for vehicle expenses, he claims to spend nothing on meals outside the home, clothing entertainment and gifts.
[120] However, as mother's counsel took him through some of his bank statements on cross-examination, it was revealed that:
(1) In December 2018, he spent more than $40 on fast food over the course of three days; and
(2) In November 2018, he spent $58 on toys, $163 at Foot Locker, $74 at a Nail Salon and another $213 at "Samko and Miko".
[121] A review of the balance of the bank statements disclosed in the trial brief revealed many other expenditures for which the father had shown $Nil on his sworn financial statement.
[122] In addition to these discrepancies, there were further inconsistencies and unexplained financial transactions:
(1) A monthly withdrawal from his bank account in the amount of $55.41 shown as "IBI JUSTFA" is not disclosed on his sworn financial statement. The father was asked to explain this expenditure. He responded, "I have no idea, someone got access to my account".
(2) On January 14, 2019, there was a deposit for $1,400. He was asked the source of these funds. He had no recollection.
(3) On the same date, there was a deposit for $2,926 and then a withdrawal in the same amount. He claimed these funds had come from his sister and that he was simply returning the money to her.
(4) On January 2, 2019, the sum of $240 was deposited to his account. When the bank statements were first disclosed to mother's counsel, that counsel specifically requested father's counsel to ask the father the source of these funds. Father's counsel responded that the father did not recall. However, at trial, the father stated these funds came from his mother.
(5) On a number of bank statements throughout 2018 there are withdrawals in the amount of $450 described on the statement as "Transfer to Personal Payee MEKA". The father was asked to explain this, to which he responded that these were payments to his sister. He was asked why he was sending money to his sister, to which he responded, "to be honest I don't even remember".
[123] All the foregoing, when taken together, significantly undermines the father's credibility in the court's view.
5.4: Imputing Income to the Father
[124] Paragraph 19(1)(a) of the Child Support Guidelines states:
- (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
[125] Before I turn to the leading case on imputing income, I wish to comment on the interplay between lifestyle and imputing income. The Ontario Court of Appeal in Bak v. Dobell, 2007 ONCA 304, had the following to say about the issue of lifestyle in the context of imputing income for support purposes, at paragraphs 41 and 43:
[41] Equally clearly, however, a payor's lifestyle often will be relevant to whether a court may impute income under s. 19(1) of the Guidelines. For example, it may be apparent from lifestyle that a payor is receiving undeclared income because he or she has historically worked, lives comfortably with the usual trappings, and yet declares minimal income for tax or child support purposes. In such a case, the recipient who calls evidence of the payor's lifestyle will ask the court to draw the reasonable inference that the payor must have a greater income than he or she has disclosed.
[43] On this issue, I conclude that lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support.
[126] The leading case on imputing income is Drygala v. Pauli. At paragraph 23 of Drygala, the Court of Appeal set out the three-part test for imputing income:
Application of Section 19(1) (a) of the Guidelines
[23] In my view, in applying this provision, the trial judge was required to consider the following three questions.
- Is the spouse intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
- If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[127] In the present case, the court concludes that the father is either intentionally unemployed or intentionally underemployed and, accordingly, that #1 applies.
[128] The evidence of the father's lifestyle also strongly suggests that the father may have undisclosed income, income which allows him to meet certain expenses, as discussed earlier in these reasons.
[129] Accordingly, the court must then decide what income is appropriate to impute to the father.
[130] In determining what income to impute, the court must consider what the father could reasonably earn based on all available evidence. The court cannot simply pull a number out of the hat, or speculate as to the father's income-earning potential. See Lawson v. Lawson.
[131] The evidence before the court is that father has been trained in a number of different areas, including pipe laying, welding and carpentry. In fact, the father was fully qualified to work as an apprentice carpenter but chose not to do so, for no reason that he was able to articulate.
[132] The evidence also disclosed that father was offered jobs by Ferpal but he chose not to pursue those jobs and, instead, quit.
[133] Service Canada determined that it was unreasonable for him to quit, and that there were "reasonable alternatives".
[134] Father's evidence that he quit or refused to take jobs that were offered to him because the available jobs were unsafe is not credible. There was no evidence presented by the father that any of the jobs he was offered were unsafe, or that he was not properly trained to take on such job opportunities.
[135] The best evidence of father's income-earning capacity comes from the income he earned at Ferpal most recently before he made the decision to quit his employment in September 2018. In the space of less than four months, the father's earnings at Ferpal amounted to $26,108.
[136] If that income is extrapolated into a full year's earnings, he could have earned more than $78,000.
[137] The father did say that the Ferpal work availability was seasonal and that jobs were not always available to him. However, his two Records of Employment revealed that in 2017, he worked from July 17, 2017 to December 21, 2017. And in 2018, he worked from May 28, 2018 to September 19, 2018.
[138] Putting father's position at its highest and assuming that those two work periods were all that would be available to the father, the total amount he earned during those two work periods was in excess of $55,000 ($29,028 + $26,108). That was earned over a 14-month period – July 2017 to September 2018.
[139] This works out to $47,143 over a 12-month period.
[140] Accordingly, in the court's view, the mother's submission that the father ought to be imputed at $45,000 is more than reasonable.
[141] Mother is content to have income imputed to father at minimum wage - $23,712 - from the date of separation, in February 2016 until the end of 2016. Father asked that the support commence in November 2016. I see no reason not to order support to commence from the date of separation.
[142] Support based on $45,000 will commence January 1, 2017 and continue on a go-forward basis, as detailed in the Conclusion section of these reasons.
5.5: Guidelines Section 7 Support
[143] Mother seeks section 7 contributions by the father for several child-related activities. Section 7 of the Child Support Guidelines provides:
Special or extraordinary expenses
- (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. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2.
[144] It is important to note from the wording of subsection 7(1) that a court has discretion whether to order a parent to contribute to section 7 expenses. And in deciding whether to exercise that discretion, the court must consider whether the expense is in the child's best interests, as well as the reasonableness of the expense having regard to the financial means of the parents and the parents' spending pattern prior to separation.
[145] Mother testified that the children have been variously enrolled in swimming, gymnastics and dance lessons. For B., those activities amount to $1,519 per year. For L., those activities cost the same. The total for both children is $3,038 per year.
[146] She seeks contribution from the father for these expenses.
[147] The mother's unchallenged evidence is that she also pays for other expenses for the children, such as Mandarin lessons and soccer, for which she is not seeking contribution from the father.
[148] The mother is a modest income earner. Her line 150 total income, for the year 2017, as shown on her Notice of Assessment reveals income of $10,572. Her 2018 total income as shown on line 150 of her Notice of Assessment is $25,391.
[149] I have imputed income of $45,000 per year to father.
[150] For a family with combined incomes of between about $55,000 and about $70,000 per year living in Toronto, and with multiple children to support, I consider the activities referred to above to be extraordinary. See for example Williamson v. Versluis, and subsection 7(1.1) of the Guidelines.
[151] Young, developing children of the ages of B. and L., would typically benefit from engaging in these kinds of activities. Those activities provide both a way to develop physically as well as to socialize with other children. Moreover, the father has stated that he has in the past attended at one or more of these activities with the children and, further, that he would like to be able to do so in the future.
[152] And it appears clear from the mother's evidence that the children are benefitting from these activities, as she testified that they have won medals for their participation.
[153] Moreover, the mother states that prior to the parents' separation, they both attended the gymnastics lessons for one or both of the children.
[154] I find that these activities are in the children's best interests.
[155] Subsection 7(2) of the Guidelines provides:
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2).
[156] Proportionate sharing is a guiding principle only, not a mandated requirement. Because mother's income fluctuates, I have decided to fix father's contribution at 60% of the total of the extraordinary expenses. In this way, both he and the mother will have some measure of predictability and certainty. The court considers this to be a fair approach in all the circumstances.
[157] Father's contribution toward the section 7 expenses – as they currently are – would amount to $1,823 yearly (60% x $3,038), or $152 per month. This amount will be added to the table amount of support pursuant to the Guidelines, for a total of $826 per month.
[158] Mother testified that the father did contribute toward some of the section 7 expenses during 2016, although apparently not all of them. Accordingly, giving father the benefit of the doubt, rather than ordering father to pay section 7 expenses from the date of separation in February 2016, I will order those support amounts to commence on January 1, 2017.
CONCLUSION
[159] In the result, the court makes the following final order.
[160] On the issue of access, the court orders:
(1) The father shall have access to both children in the community, but not in the presence of D.R. each Sunday from 11:00 a.m. until 5:00 p.m.
(2) Commencing Saturday August 3, 2019, father's access to the children shall be each alternate Saturday and Sunday (same weekend) from 10:00 a.m. until 5:00 p.m., access not to be in the presence of D.R.
(3) Commencing Friday September 20, 2019, the father shall have additional access each alternate Friday (the Friday following his alternate weekend access) from pickup at the end of school until the return to mother's residence at 8:00 p.m.
(4) Commencing Friday September 20, 2019, the father shall be at liberty to permit access to occur in the presence of D.R.
(5) Commencing with the first scheduled weekend access in March 2020, father's access shall start on Saturday at 10:00 a.m. and end Sunday at 6:00 p.m. Friday access shall remain unchanged.
(6) The father shall have additional access, to include Father's Day and Boxing Day, both from 10:00 a.m. until 6:00 p.m., as well as such additional access as the parties may agree upon from time to time, provided that any such agreement shall be in writing, or by electronic means.
(7) All pickups shall be by the father directly, and to occur in the lobby of mother's apartment building or the children's school, as applicable, unless the mother otherwise agrees in writing or by electronic means.
(8) All drop-offs shall be by father directly, and to occur in the lobby of mother's apartment building, unless the mother otherwise agrees in writing or by electronic means.
(9) For greater clarity, the father shall have the sole responsibility to personally pick up the children at the start of each access visit, and to drop off the children at the conclusion of those visits, unless the mother otherwise consents in writing or by electronic means.
(10) During all access visits, the father shall be the primary adult caring for the children. For greater clarity, the father shall not leave the children with any other adult person, other than for brief periods of time not to exceed two hours in duration.
(11) In the event the father is unable to exercise one of his scheduled access visits, he shall notify the mother in writing, or by electronic means, not less than 24 hours in advance of the cancellation of his visit.
(12) The father shall not be at liberty to cancel any of his access visits except in the case of emergencies related to health or employment or some other exigent circumstance.
(13) The mother shall not be at liberty to cancel any of the access visits except in the case of exigent circumstances pertaining to the children's wellbeing. For greater clarity, a minor illness experienced by one or both of the children shall not be a sufficient basis for cancelling an access visit unless the father specifically asks that the visit be cancelled upon being informed of the illness, and he confirms this request in writing, or by electronic means.
(14) The parents shall refrain from communicating with each other during pickups and drop-offs other than for brief exchanges only pertaining to a matter of immediate importance regarding the children and, more specifically, a matter which could not otherwise be communicated electronically.
(15) Neither parent shall speak ill of the other parent or in any way denigrate the other parent to the children.
(16) The father shall be at liberty to attend any of the children's extracurricular activities, and he shall be obligated to take the children to those scheduled activities if they occur on any of his scheduled access visits.
(17) Apart from the currently scheduled activities for the children pertaining to swimming, gymnastics and dance, neither parent shall schedule any further activities for the children which interfere with the other parent's parenting time without the consent either in writing or by electronic means, of that other parent.
(18) Each parent has the right to consult with and obtain information directly from the teachers, doctors, and/or other professionals about the health, education, and welfare of the children, in accordance with subsection 20(5) of the Children's Law Reform Act.
(19) The mother may obtain passports, passport renewals, and other government documentation for the children without the signature of the father.
(20) The mother may travel outside of Canada, for vacation purposes of 21 days or less, with the children without the consent of the father, provided that not less than 21 days before the proposed trip, she shall provide the father, with a detailed itinerary, via electronic means, outlining where the children will be going, where they will be staying, and a contact number in case of emergency.
(21) The father may travel outside of Canada with the children with the consent of the mother, such consent not to be unreasonably withheld, and not to occur until overnight access commences as provided for in this order.
[161] On the issue of child support, the court orders:
(1) Commencing February 1, 2016, the father shall pay the mother support for two children in the Guideline table amount of $355 per month, based on an imputed income to him in the amount of $23,712, such support amount to continue until December 31, 2016.
(2) Commencing January 1, 2017, and until November 30, 2017, the father shall pay the mother support for two children in the Guideline table amount of $664 per month, as well as Guideline section 7 expenses in the amount of $152 per month for extraordinary extracurricular activities, for a total of $816 per month, based on imputed income to the father in the amount of $45,000 per year.
(3) Commencing December 1, 2017 and until further order of the court, the father shall pay the mother support for two children in the Guideline table amount of $674 per month, as well as Guideline section 7 expenses in the amount of $152 per month for extraordinary extracurricular activities, for a total of $826 per month, based on imputed income to the father in the amount of $45,000 per year.
(4) All support obligations arising from this order shall be reduced by any amounts paid by the father since February 1, 2016, as verified by the records from the Family Responsibility Office.
(5) Commencing January 1, 2020 and for so long as mother continues to claim section 7 expenses, the mother shall provide the father with an invoice or a receipt for the children's expenses.
(6) Commencing in 2020, and for each year that the mother continues to claim section 7 support, she shall provide the father with a copy of her previous year's income tax return, as well as her Notice of Assessment, for the prior income tax year, by June 30th.
(7) Commencing in 2020, and for each year thereafter that the father is obligated to make child support payments, he shall provide the mother with a copy of his previous year's income tax return, as well as his Notice of Assessment, for the prior income tax year, by June 30th.
(8) The father's ongoing income disclosure shall not, of itself, form the basis for a motion to change his child support obligation from the $45,000 imputation which is provided for in this order.
[162] The parents have had virtually no meaningful communication with each other since they separated in 2016. Clearly, they will never be best friends. Nevertheless, they are the parents of two young children, both of whom will be looking to their parents as persons to model their own behaviour after as they grow and develop.
[163] It was apparent to the court that the mother still has considerable anger toward the father for the various events which occurred during the relationship as well as following the parents' final separation. And, as I noted earlier, the father must find a way to temper some of his own behaviour and start to look within himself for his own personal development.
[164] Whatever the parents' attitudes are toward each other, at the end of the day, it is the children who will suffer if the parents are unable to make some important attitudinal changes. This would be a tragedy because both parents clearly love their children, and both want what is in their best interests.
[165] Courts cannot force parents to change their attitudes. It is up to the parents themselves to decide what they want for their children and how best to make the changes which are necessary and in the best interests of their children.
[166] Should the mother seek her costs of this proceeding she shall file her written submissions at the trial coordinator's office no later than 21 days following date of this decision. The father shall have 14 days thereafter to file his responding submissions. No reply submissions will be permitted. Submissions by both parties shall not exceed three pages in 12-point font, double-spaced, exclusive of attachments including any Bill of Costs and authorities relied upon.
Released: June 26, 2019
Signed: Justice Robert J. Spence