ONTARIO COURT OF JUSTICE

Date: June 14, 2019

Court File No.: Halton 101/17

BETWEEN:

Vincent Popp

Applicant

— AND —

Meghan D'Entremont

Respondent

Before: Justice Victoria Starr

Heard on: March 29, 2019

Reasons for Judgment released on: June 14, 2019

Counsel:

• J. Krause — counsel for the applicant(s)
• R. Sowley — counsel for the respondent(s)

VICTORIA STARR J.:

INTRODUCTION

[1] This is the court's decision and reasons with respect to a motion made by the mother pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99, for summary judgment on the issues of custody, access, and child support.

SUMMARY JUDGEMENT MOTIONS – LEGAL FRAMEWORK AND PRINCIPLES

[2] Below I set out the legal framework and principles that have guided me in reaching this decision.

[3] Motions for summary judgment are governed by Rule 16 of the Family Law Rules.

[4] 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.

[5] 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: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

[6] Although subrule 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has met its obligation before it makes a final order accordingly.

[7] 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 interest 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

[8] Subrule 16(6.2) addresses the issue of oral evidence. It provides:

Oral Evidence (Mini-trial)

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

[9] Subrule 16(5) addresses the issue of evidence that is not from personal knowledge. It reads:

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

[10] Subrule 16(9) reads as follows:

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may also,

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

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).

[11] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 CSC 7, outlined a two-step process to deciding whether the case should be dealt with summarily. That two-step process is as follows:

1. The judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact finding powers in Rule 16(6.1) and (6.2). There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute on the merits and is a timely, affordable and proportionate procedure.

2. If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the powers set out in subrule 16(6.1). These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (Hryniak, paragraph 66).

[12] To reiterate and further flush out the meaning of "no genuine issue requiring a trial": There will be no genuine issue requiring a trial when:

a) the moving party has proven on a balance of probabilities that the responding party's claim or defense has no chance of success (see Kawartha at paragraphs 78 and 79); and,

b) 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). As the Supreme Court stated, at para. 50 of Hryniak, "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." (Kawartha, paragraph 63)

[13] If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This is the mini-trial procedure set out in subrule 16(6.2). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (Hryniak, paragraph 63).

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

[15] The court in Hryniak also set out the following:

a) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

b) The Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

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

[16] With respect to the approach and standard of evidence for use at a summary judgment motion, rule 16(5) is permissive in nature and provides discretion to the court as to whether or not to admit hearsay evidence and attach whatever weight to it, if any, that the court deems appropriate. In Hryniak, Karakatsanis J. wrote:

[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact finding.

[17] The Court of Appeal in Kawartha has given clear direction as to the exercise of such discretion in child protection matters. In those cases courts are directed to conduct a careful screening of the evidence to eliminate inadmissible evidence; and, the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (Kawartha, paragraph 3 of paragraph 80). The Court of Appeal also directs an approach of exceptional caution in the context of child protection proceedings (paragraph 64). The Court of Appeal's direction to apply the trial worthy standard to the evidence and its direction to employ extreme caution, is directly tied to the unique features of child protection litigation (paragraph 71 - 79). Such an approach is required in such cases, in part, because child protection litigation engages Charter rights and must take into consideration the reality of the child protection litigant (paragraphs 63 - 69).

[18] This same approach is not necessarily called for in family / domestic cases such as the on the motion before me. There will be some situations where the highest standard will be necessary (i.e. where the stakes are very high and one or both litigants quite vulnerable. In such situations the court may elect to apply the standard and caution directed in Kawartha and may refuse to admit or rely on any hearsay. In others such as where both parties are represented by counsel and where the stakes are not as high (i.e. the decision will not result in the permanent termination of a child's relationship with a parent), the court may elect to take the more flexible and adaptive approach directed in subrule 16(5) and by the Supreme Court of Canada in Hryniak, may be appropriate, by admitting and relying on hearsay evidence that it finds reliable. Thus, and as directed by the Supreme Court of Canada in Hryniak, on a summary judgment motion in non-child protection matters, it will be up to the presiding judge to decide whether the evidence needs to be equivalent to that at trial. That decision will depend on many factors, including whether the judge is confident that they can fairly resolve the dispute.

[19] Having said that and although his comments do not directly pertain to the standard of evidence to be applied or the admissibility of hearsay on such motions, Justice A. Pazaratz, considered the Ontario Court of Appeal's decision in Kawartha, in his recent decision in Simpson v. Cuff, 2019 ONSC 2856, at paragraph 22 he clearly expresses the view that this court shares and that is, that in civil family matters involving children, the court ought to proceed cautiously.

THE ISSUES

[20] This motion raises the following issues:

(a) Is this an appropriate case for the court to entertain a motion for summary judgment on the custody and access and child support issues?

(b) If so, what orders regarding custody and access is in the child's best interests?

(c) If so, what is the father's income for child support purposes, the level of child support payable and commencement date?

(d) What, if any, costs are payable for this motion and by whom?

POSITIONS

[21] The mother takes the position that the father has no chance of success with respect to his claim for joint custody, and that the only possible outcome at this point in time and based on the evidence before the court, is that a final order shall issue granting her sole custody of the parties' child, a final order dispensing with the father's consent for her to travel with the child and a final order dispensing with the father's consent for her to obtain government issued documents for the child such as a passport.

[22] She takes the same position with respect to the father's claim for unsupervised access and for an equal time sharing regime. From her perspective, the only possible outcome at this point and on a balance of probabilities is that an order will issue for the father's access to continue to be supervised and limited.

[23] It is also her position that the father cannot succeed in securing an order that he pay $107 per month in child support and that she is all but guaranteed success with respect to securing an order that the father, at minimum, be required to pay $259 per month in table child support from March 1, 2017 to October 31, 2017, and $266 per month from November 1, 2017 onwards, based on an imputed income to the father of $31,200.

[24] The respondent father takes the position that there are genuine issues requiring a trial, and as such, he asks that the mother's motion for summary judgment be dismissed and that the court schedule the case for a trial management conference.

[25] In his affidavit, he also outlines a variety of orders that he wishes this court to grant. These include: A final order for production of CAS records; a final order that the father have access to the child on alternating weekends from Friday to Monday; a temporary order that the father pay child support of $107 per month starting April 1, 2019; a final order for exchange of 2018 income tax returns and notices of assessment no later than May 5, 2019 and re-evaluate the father's support obligations; a final order that the parties exchange their positions on overpayment/underpayment by April 19, 2019; and, although no such order is requested in the application and thus, the court' lacks jurisdiction to grant such an order, a final order that the mother not be permitted to move the child's residence outside of the Town of Halton Hills, without the father's consent or a further court order.

[26] With respect to the dismissal of the summary judgment motion, his counsel sought to demonstrate that there are genuine issues requiring a trial in five key ways: First, she pointed out that the evidence on the whole raises the real possibility that parental alienation is occurring and that the mother has and is actively excluding the father from the child's life. She asserts that the reasons the mother gives as to why joint custody is not feasible are manufactured and part of her efforts to alienate and exclude him from having any meaningful role in their son's life.

[27] Second, the father believes that the matter should proceed to a trial because there is a lack of clarity with respect to the involvement of the Children's Aid Society. The father claims he requires the CAS records in order to be able to clarify their role and involvement, to demonstrate that there are concerns with the mother's parenting and that she continues to use drugs, and to demonstrate that the mother is not credible.

[28] The father has only now and in response to the mother's motion asserted that he needs these records to proceed; this despite the passage of two years of litigation. Further, up to the date of this hearing, the father had taken no steps to obtain such records (i.e. bring a motion for production of same). Even at this hearing his request is improperly put before the court because it is not set out in a notice of motion and because the request is made without notice to the Halton Children's Aid Society. I add to this that the father is seeking joint custody and an equal time sharing regime. Such a position is not consistent with his allegations that she may be an unfit parent. I note as well that there is no evidence to support such an allegation and much that supports a finding to the contrary. He is speculating and fishing for evidence to support his unfounded allegations, or, he is merely seeking the evidence solely to mount a collateral attack on the mother's credibility.

[29] If he is fishing for evidence to support his unfounded speculations, then there is little to establish that the production of such records is necessary, probative, and relevant, and certainly not enough to outweigh the prejudice to the mother and child in terms of delay. Put another way, the request at this late stage is neither reasonable nor proportional. If he is looking for the records solely for the purpose of attacking the mother on the collateral issue of credibility, the request is improper and cannot succeed. For all these reasons, I place no weight at all on this submission.

[30] Third, there is the lack of evidence put forward by the mother to support her claim that access should be supervised because the father is a drug addict. The same applies to the mother's allegation that the father is a criminal, is involved in criminal activity, and/or associates with criminals.

[31] Forth, there are significant credibility and reliability issues with respect to the mother's evidence. In this regard his counsel points to a number of areas where either the father's or the mother's evidence conflicts, or where she asserts the mother has given contradictory or inconsistent evidence. An aerial view of the examples she highlighted include:

• Whether the parties ever lived together, and when;
• Whether the father was harassing her during her pregnancy or disinterested;
• Why the mother gave an alias to the hospital on her admission to give birth to the parties' son;
• When, how, and why the Children's Aid Society became involved with the mother;
• Payments the father made or did not make of child support;
• 2018 Christmas access;
• How many times the father has moved.

[32] Fifth, counsel for the father relied on three cases: Botelho v. Botelho, 2012 ONCJ 556, A.P. v. K.B., 2013 ONSC 6397, and Cunningham v. Cunningham, 2014 ONSC 3088. To her credit, counsel acknowledged that these cases are of limited value as all distinguishable on their facts, and, that they are all cases decided before the Supreme Court of Canada's decision in Hryniak.

[33] When asked why she had put them before the court for consideration, she essentially said that it was to demonstrate that there are cases where the issues are similar and that the court's decision to grant summary judgment is often made primarily because it has before it independent and neutral evidence from a third party professional, such as a social worker or clinical investigator employed by the Office of the Children's Lawyer. I understand her point to be that as this court has no such evidence before it and there has been no opportunity to test the evidence it does have through cross-examination. It should not grant the motion and instead direct the matter to proceed to trial.

ISSUE #1: IS THIS AN APPROPRIATE CASE FOR THE COURT TO ENTERTAIN A MOTION FOR SUMMARY JUDGMENT ON THE CUSTODY AND ACCESS AND CHILD SUPPORT ISSUES?

[34] The motion was heard on March 29, 2019, in accordance with the two stage test set out in Hryniak.

[35] At the first stage I determined that there are genuine issues requiring a trial. I made this determination after hearing submissions and based only on the evidentiary record before me and without using my fact finding powers in Rule 16(6.1) and (6.2). My decision was based on three key considerations: first, there was a need for some clarification of the evidence. Second, I had concerns about credibility. Third, I wanted the father to have the opportunity to address certain evidence of the mother that he had either not had an opportunity to address as her fresh evidence was set out in her reply affidavit, or, because I felt fairness required that he be afforded an opportunity to address the issue more fully.

[36] I determined that the concerns with respect to credibility and the clarifications required could and would be addressed by calling oral evidence at the hearing. I found that it would not be contrary to the interests of justice for me to receive the oral evidence or to use my enhanced power to weigh it, evaluate the credibility of each parent with respect to certain material facts in issue, and draw any reasonable inference from the evidence. I was satisfied that through that mini-trial process and with the use of those enhanced powers, I would be able to arrive at a fair and just result. I indicated that this process would serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[37] I gave directions with respect to the subject matter of the examinations to follow. The father was permitted to give evidence in chief with respect to his living arrangements in reply to the mother's evidence that he had moved 12 times since she had known him and 9 times in the last 5 years. Counsel for the mother was permitted to cross-examine the father with respect to the evidence given in chief and as well permitted to cross examine him with respect to his employment status, efforts to find employment, and financial circumstances. As counsel for the father had, during her submissions, challenged either the reliability or credibility of the mother's evidence on 7 different fronts, the court directed that she could cross-examine the mother on each of those challenges. Each party was permitted to give oral evidence in reply. Although they each declined to make any further submissions after the oral evidence had been received, each counsel was afforded the opportunity to do so.

[38] At the conclusion of the hearing I placed my decision on reserve and adjourned the hearing.

[39] During the hearing there was discussion with respect to the legal principles applicable to motions for summary judgment. The court referred counsel to the Divisional Court's decision in Kawartha-Halliburton Children's Aid Society v. M.W., 2018 ONSC 2783, affirming the decision of Justice Allen R. Rowsell, of the Superior Court of Justice dated October 13, 2017. After the hearing the Ontario Court of Appeal released its decision, Kawartha-Halliburton Children's Aid Society v. M.W., 2019 ONCA 316. The court offered counsel the opportunity to attend to make oral submissions. Both declined the invitation, stating they did not wish to do so. Mr. Sowley did, however, send an email wherein he gave a short statement of his client's position.

EVIDENTIARY ISSUES

[40] Before moving forward with the substantive issues I wish to address certain evidentiary issues.

[41] In deciding this motion for summary judgment, the court applied the trial worthy standard to the evidence and a strict approach to the admission of hearsay. The court struck various paragraphs of, and exhibits to, the affidavits as a result. Additional exhibits were struck at the start of the second stage. An additional portion of the evidence – what the Society is purported to have told the father about his drug test results – has now, for the reasons given later herein, been found to be inadmissible double hearsay.

[42] I took a more flexible approach with respect to the drug test reports. I admitted these and gave weight to them because both parties put tests results pertaining to themselves or the child into evidence, neither objected to the admission of said reports, both sought to rely on the reported results, and most importantly, each party admitted their drug use and that the results as reflected on the reports were accurate.

[43] There were times when I found the evidence of each parent unreliable, and times when I suspected they were not being entirely truthful or forthright. For example, in the case of the mother, there was her evidence that she and the father never lived together; and, her evidence regarding the reason she gave an alias when being admitted to hospital to give birth to the parties' son. With respect to the first, the fact is not material and the mother conceded during cross that the father had in fact resided in her parents' home with her for a very brief period of time. I accept her explanation as to why she deposed otherwise. With respect to the second point, the fact is not material and in any event, I am confident that it was not to hide the fact that she had been using illegal drugs. Both her drug tests and more importantly, the newborns, came back negative.

[44] There were also times when it was alleged that the mother's evidence was inconsistent. Some of the alleged inconsistencies ultimately turned out not to be inconsistencies at all (i.e. the father had moved, payments the father had made in child support), and were resolved either by a more careful reading of her affidavit, or by way of clarification given by her during her oral evidence.

[45] There were also several areas where the mother's evidence conflicted with that of the father. In several instances the conflict did not relate to a material fact and thus, it was not necessary to make findings as to whose version was to be preferred. In other instances (i.e. Whether the father was harassing the mother or whether she was purposely excluding him), the issue came down to a matter of interpretation and perspective and whose interpretation and perspective was the more reasonable. In every instance I found the mother's perspective more reasonable and thus, preferred her perspective to that of the father.

[46] This is primarily because I found the father's evidence with respect to matters touching on custody or access to be severely coloured by his misperception that he is completely blameless and a victim, his inability to step outside of himself to see things from a perspective different from his own, and, by his rights based mentality. I address these issues and give more detailed reasons below as the issue arises.

[47] On the financial issues and for reasons that will be abundantly clear when that issue is addressed later in these reasons, I found I could not rely on the father's evidence, in part because it was simply not believable.

ISSUE #2: WHAT ORDERS REGARDING CUSTODY AND ACCESS ARE IN THE CHILD'S BEST INTERESTS?

Custody and Parenting Time – Additional Legal Considerations

[48] Below I set out the additional legal considerations relevant to deciding questions related to custody and access.

Generally

[49] Custody and access to a child, as directed in subsection 24(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("the CLRA"), are to be determined based solely upon the best interests of the child. The factors to be relied upon in determining a child's best interests are set out in s. 24(2), (3), (4), and (5) of the CLRA.

[50] Subsection 24(2) provides that in determining what is in a child's best interest the court shall consider all the child's needs and circumstances, including the following factors:

(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.

[51] Subsections 24(3), (4) and (5) of the CLRA address past conduct and domestic violence. They have limited to no application in this case.

Joint Custody

[52] In appropriate cases joint custody gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child's life, over and above time sharing with the child.

[53] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 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 is communication between the parents.

[54] 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. Bruto, 2008 ONCA 260 (Ont. C.A.), Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).

[55] Courts do not expect communication between separated parties to be perfect. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

[56] In the case of S. (S.) v. K. (S.), 2013 ONCJ 432 (Ont. C.J.), Justice S.B. Sherr states that Courts should also assess the dynamics of a family when determining if a joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:

(a) more or less likely to de-escalate or inflame the parents' conflict;

(b) more or less likely to expose the child to parental conflict; and,

(c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent.

Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

Access Generally

[57] The following additional principles apply to a consideration of whether a particular form of access by a parent is in a child's best interests:

(1) A child should have maximum contact with both parents if it is consistent with the child's best interests;

(2) There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. This is not a hard and fast rule, however.

(3) The best interests of the child, which include a loving relationship with both parents, should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being.

(4) 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.

Supervised Access

[58] The following additional principles apply to a consideration of whether unsupervised or supervised and limited access by a parent is in a child's best interests:

[59] As Justice J. Blishen noted in the case of Jennings v. Garrett, at paragraph 137, it is possible through a supervision order to do the following:

a) protect children from risk of harm;

b) continue or promote the parent/child relationship;

c) direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting;

d) create a bridge between no relationship and a normal parenting relationship; and,

e) Avoid or reduce the conflict between parents and thus, the impact upon children.

[60] The decision of Catizzone v. Cowell, 2016 CarswellOnt 13332, is also instructive when deciding whether it is in the best interests of a child to order supervised access. In that decision the court adopted, as the relevant legal principles, those principles set out in the case of Guenther v. Vanderhoof, 2014 SKQB 296 (Sask. Q.B.). The key principles are set out in paragraph 42 of that decision, and include:

a) Maintaining a protocol of supervised visits can in certain circumstances risk undermining the development of a natural and meaningful relationship between Eden and her father which is her entitlement. (See: Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193 and Guenther v. Vanderhoof, 2014 SKQB 296 (Sask. Q.B.)), at paragraph 12.

b) The court should be alert to the concern that supervised access creates an artificial environment which may impede the development of a natural parent and child relationship (see: Guenther v. Vanderhoof, 2014 SKQB 296 (Sask. Q.B.)), at paragraph 13 and Dinius v. Hoskins, 2008 SKQB 114, [2008] S.J. No. 153 (QL).

c) If supervised access is necessary, it should be for a short term (see: Guenther v. Vanderhoof, 2014 SKQB 296 (Sask. Q.B.)), at paragraph 13 and Dinius v. Hoskins, 2008 SKQB 114, [2008] S.J. No. 153 (QL).

[61] It is also important to remember, supervised access is not ordinarily a viable long-term plan. It is generally intended to be a bridge to unsupervised access and to a normalized parent child relationship. As Justice Pazaratz states in the case of Izyuk v. Bilousov, 2011 ONSC 7476, [2011] O.J. No. 5814, at paragraphs 53 and 54:

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.

[62] Given that supervised access is not generally ordered in cases where it is expected that it will continue ad infinitum, an additional consideration in the analysis includes a determination as to whether the circumstances that have given rise to the need for supervised access are likely to change. The onus must be on the access seeker to demonstrate this.

[63] Where there is a reasonable prospect of improvement, it may be appropriate to impose supervised access on a final basis. In such circumstances, stipulating conditions for variation or providing for a review of the order within a specified period of time may be appropriate. Such orders will achieve the appropriate balance between the child's short and long term best interests, the need for finality in litigation, and providing the parent a fair meaningful, fair and reasonable opportunity to address the problems. See Boveiri v. Mousavi, 2016 ONCJ 98, and McCash v. McCash, 2012 ONCJ 503.

[64] With all of the forgoing to inform and guide me in reaching this decision, I turn next to discuss my findings and then analysis.

The Evidence and Court's Findings

Generally

[65] The parties were in a brief relationship in 2016. They do not agree on when it ended but it was no more than 2 – 3 months. They also do not agree on whether they ever lived together. While relevant to the court's assessment of credibility and the reliability of each parent's evidence overall, these differences in their evidence and perspectives are immaterial to the merits of the substantive issues the court is asked to decide. It is sufficient for this court to find, as it does, that: the parties were in a relationship in 2016 that lasted for only a few months, were not living together for the lion's share of the mother's pregnancy, were not living together at the time when their son was born, have not lived together since their son was born, and most importantly, have never parented their son together.

[66] The parties' son, G., was born […], 2017.

[67] The father, throughout most of this litigation, questioned the child's paternity. He sought and was granted an order for paternity testing. He failed to take the steps required to have said testing done. In 2019, at the suggestion of the court he abandoned this challenge. Thus, at this time, there is no dispute that he is G.'s biological father.

G. and the Mother's Parenting

[68] G. is 2 years old. His primary caregiver is and always has been, his mother and she has care for him, virtually exclusive of any meaningful involvement by the father for all of his life.

[69] G. is a well-adjusted and happy child who is meeting his developmental milestones. There is no evidence that he has any special needs.

[70] G. and his mother reside with G.'s older half-sister and all three reside with the mother's parents. G. has a loving relationship with and is well bonded with his mother, sister and grandparents.

[71] The mother has the support of her parents and her plan of care consists of maintaining the status quo with respect to G.'s living arrangements and care.

[72] G. has thrived and done well in his mother's care.

[73] With the possible exception of her decisions about contact between G. and his father and her use of drugs during her pregnancy, both of which are fully addressed below, there is no evidence of any concerns with the mother's parenting judgment, or decision making when it comes to matters related to the care and upbringing of G.

The Father: his Judgment, Parenting, and Limited Involvement

[74] Two or three days after G.'s birth the father brought the within application and brought an emergency motion that came before the court on March 7, 2017. In his motion he sought, among other things, that he have weekly access to G. every weekend for three months, followed by an equal time sharing regime, and an order that G. not have contact with Samantha Popp (the father's cousin).

[75] The father's motion was dismissed due to the lack of urgency. None-the-less when the parties attended court the mother insisted that the father's access be supervised. The father agreed to this and an order was made. The father claims that he really had no choice but to agree to supervised access on the basis that "any access was better than no access". The parties agreed and the court ordered that the father's access would be supervised by a mutually agreed upon third party.

[76] The father exercised supervised access to G. initially for about a year – from March 2017 to February 2018. This was followed by a full year of no contact or access to G. at all. Supervised access with G. resumed in February 2019.

[77] During the period of March 2017 to February 2018 the father's access was supervised and the visits were for approximately 2 hours, once a week. The visits were supervised as follows:

(a) Between March 2017 and July 2017, there were at least 2 visits to the park and possibly 2 luncheons where both the father and his current common-law spouse, Ms. Emerson were present along with the mother;

(b) Starting in early July 2017, by the father's cousin, Samantha Popp, at her home. This ended when she advised she was no longer able to continue supervising the visits;

(c) After Ms. Popp stopped supervising, access was supervised by the maternal grandmother. This continued until the father made some derogatory remarks about her and she refused to continue to supervise the visits.

[78] As I have noted, from February 2018 to January 2019, the father exercised no access to G. Access stopped because the parties could not agree on an alternate third party supervisor and while the option of exercising access at a supervised access centre was always available, the father was unwilling to exercise access at a supervised access centre.

[79] The outcome of the October 2018 court attendance was that the parties agreed to have the father's access take place at, and be supervised by, the Thrive Supervised Access Centre in Milton. Access did not begin there until February 25, 2019. At the time when this motion was heard only one visit had taken place. Two visits had been scheduled with the second cancelled due to inclement weather.

[80] The father failed to provide the court with any evidence from his access supervisors.

[81] There is no evidence that the father has taken a parenting course.

[82] The father failed to put any details of his plan of care before the court. All the court knows is that his plan is for G. to live in his current residence. During his cross-examination he advised that his current partner and her two children do not live in the same home he lives in. There are no details of who will care for G. when the father is working, such as in the event that G. were to be placed in his father's care for equal time or when the father exercises access to G.

Drugs and Alcohol

[83] Both parties have historically used illegal drugs, including cocaine. The parties disagree about how far along the mother was in her pregnancy when she last used cocaine and about how long after learning of her pregnancy it was that she stopped using cocaine and whether the father gave her cocaine while she was pregnant and attending a concert. These disagreements need not be resolved to decide the issues and are thus, immaterial.

[84] What is material is that the mother stopped some time during her pregnancy, her unchallenged evidence that when the baby was born she and the baby were tested for drugs and the results were negative, and that despite the father's suspicions and allegations, there is no evidence at all to establish on a balance of probabilities that she has used drugs since G.'s birth or while in a caregiving role.

[85] There is, however, sufficient evidence for me to find as I do, on a balance of probabilities that she has maintained her sobriety since before G.'s birth. There is no debate that the Children's Aid Society was involved with the mother due to her drug use. They monitored her for quite some time and had her undergo regular drug testing. The mother's unchallenged evidence is that all test results were negative. The Society never removed the child from her care. There is no evidence to contradict the mother's evidence that she has not used drugs since sometime before G.'s birth and that the Society is no longer concerned that she may be using drugs while in a caregiving role.

[86] The mother's unchallenged evidence is that the Society is no longer involved and has closed its file. It is reasonable to infer from this evidence that there are no concerns with respect to the mother's caregiving and decision making that put G. at risk of harm or rise to the level requiring third party intervention and monitoring such as by a child welfare agency.

[87] I am satisfied on a balance of probabilities that the mother provides competent care for G. and does not and is not likely to use drugs or illegal substances while in a caregiving role.

[88] The father admits that he failed a drug test in February 2017. That test, he admits was positive for cocaine. The father claims he does not know how he tested positive. The only explanation he can offer is that he was at a New Year's Eve party a month earlier and someone must have slipped cocaine or some other substance into his drink.

[89] He also deposes that he was told by the CAS that the reading was so low they were surprised that he even tested positive and it was so low that it did not show any historic or ongoing drug use. I place no weight on his evidence about what he was told by the Society. Not only is it highly suspect given the findings of the Mother risk Commission as to what can and cannot be concluded from such tests, but it is inadmissible double hearsay. The Society workers are not the ones who administered the test or interpreted the results. The information they supposedly gave to the father is speculative and could only have come from another third party source.

[90] While the father denies that he used cocaine at the New Year's Eve party he does not deny that he has used cocaine in the past.

[91] On the July 10, 2017 court attendance the father agreed to an order that he undergo drug testing on July 15, 2017. He was again ordered, on consent, to undergo drug testing on November 28, 2017. The father complied with these orders.

[92] The father admits to testing positive for marijuana (an illegal substance at the time) on July 15, 2017 and on November 28, 2017. He deposes that he uses marijuana to help him cope with anxious feelings. He relies on the fact that it has now been legalized. He gave no details of his anxiety issues and produced no evidence from a medical professional to support his stated need to use marijuana to address anxiety issues. While it may be legal now, it is clear that the father used marijuana at a time when it was not and thus, engaged in an illegal activity.

[93] The father also admits that he drinks alcohol. He claims that he does not drink alcohol to excess and never while in a caregiving role to G. The mother's evidence suggests that he does drink alcohol to excess and I prefer her evidence on this point especially since the father also gave evidence about sleeping at peoples' houses so they could party and he would not have to drive. Despite this evidence, there is not enough for this court to find that the father cannot control his drinking or that he would drink alcohol to excess while in a caregiving role to G.

[94] The father put no evidence before the court of any steps that he took to address his use of cocaine in the past.

[95] The court finds that there is sufficient basis to be concerned that the father may resort to substances that may impair his functioning and thus, ability to parent, while in a caregiving role, particularly in times of stress or high anxiety. However, the risk that he cannot and would not manage his consumption while in a caregiving role, is, based on the evidence, low.

[96] None the less, as between them, this court finds that the risk to G.'s wellbeing as a result of drug or alcohol use by his parents, is non-existent when he is in his mother's care and low were he to be in his father's care, and even lower, if the father's access was supervised.

Mother's Motives and Behaviour, Father's Allegations of Alienation and Exclusion

[97] The father claims that the mother has actively excluded him from greater involvement and participation in G.'s life. The main examples he gives in his evidence are:

(a) After their separation but while she was pregnant, she withheld information about the unborn baby and her pregnancy and refused to engage with him at the level he thinks she should have;

(b) While she was pregnant but the parties separated, she would rarely tell him about doctors or ultrasound appointments, however, when she did, he would make sure to be there. The mother's evidence is that she blocked his number and even changed her number because of his excessive and unwanted, and too frequent calls to her;

(c) She did not notify him when she went into labor (he describes this as the climax of the mother's "refusal to include him in his baby's life");

(d) When he went to the hospital to see the baby after he learned of his birth he was told that the mother had told staff that she did not want him visiting as she was scared of him. It is worth noting that when he asked them to ask the mother again and they did, the mother agreed to the visit and he got to see G.;

(e) She did not give G. his last name, even though they had previously agreed to this.

(f) She denied any of his extended family members access to G. following his birth and while still at the hospital, save and except for G.'s paternal grandfather, who was given access;

(g) After G.'s birth, the mother refused to communicate with him. He continually asked to see G. but the mother refused to allow this. It is important to note that the period of time the father is talking about is a matter of days, not weeks, and that within a week or two immediately following G.'s birth, the mother, according to the father, had agreed and begun to meet the father and his current spouse at the park and for lunch so that the father could see G.

(h) The mother refused to allow the father to have unsupervised access to G. She has continued to insist on supervised access, without any justification;

(i) She does not allow his family to have contact with G.

(j) She cancelled a birthday party she had invited him and his family to attend.

[98] The mother's unchallenged evidence is that she did invite and take the father to some prenatal appointments and an ultrasound. The father did not give any specific examples of times when he asked to attend an appointment and was refused. His assertion that she refused to provide him with information and allow him to participate in the prenatal care, is, for the most part, a bald allegation.

[99] I find that the mother did not inform the father of the child's birth and did try to restrict his access on the day of G.'s birth and in the days immediately thereafter. She did, however, eventually allow the father access on the day of G.'s birth along with access by the paternal grandfather. I do not, however, find her behaviour to have been unreasonable in the circumstances or motivated by a desire to alienate or exclude the father.

[100] While I understand the father must have been excited and eager to see and spend as much time as he could with his newborn son, his expectations of the mother during this period were unreasonable and not realistic. The mother had experienced complications and stress during the latter part of her pregnancy. She was no longer in a relationship with the father. She saw and experienced the father's overtures as harassing and thus, his communications and contact with her stressful. I note as well that when the father describes their relationship in the period shortly before G.'s birth it is basically that it was poor and barely civil.

[101] Labour is not generally an easy experience for the mother or child. Many mother's need to rest after the ordeal, as do babies. The days immediately after a child's birth can also be stressful as a new mother learns her baby and how to care for him and vice versa.

[102] Given all of the forgoing, I cannot fault the mother for not wanting any contact with the father while she was in labour, while she was in hospital, or for the first few days following the baby's birth.

[103] I accept that the father's motives in repeatedly contacting the mother prior to the birth of the child were not intended by him to harass the mother and that he did not see his behaviour as "harassment". I accept that he wanted information he felt he had a right to know, including how she and the unborn baby were doing. None-the-less, the mother felt he was harassing her. Her feelings were so strong about this that she changed her number. She behaved consistently with how one might expect a person who is receiving unwanted or harassing calls to behave.

[104] Further, given his behaviour around the time of the child's birth and thereafter I have no difficulty finding that the effect of the father's behaviour, no matter his motives then or now, equate to what the reasonable person would perceive as badgering, annoying, pestering, pressuring, and irritating; or in short, harassment. This is certainly consistent with how he has behaved since G.'s birth. As such and in all the circumstances I am not persuaded that the level at which she engaged with the father prior to G.'s birth was unreasonable.

[105] Examples of some of the behaviours that support the mother's version of events and which have led me to this conclusion include: his derogatory remarks about her on social media; his derogatory remarks about her parents; showing up at the hospital uninvited and demanding to see the baby and starting a court case and bringing a motion within days of the child's birth, and all without any regard for the stress this might cause the mother and by extension, the baby. His insistence on paternity testing and then not following through with arranging for the testing; his insistence on access but then failing to exercise any access for almost a year; and, his constant criticism of her and laying of all the blame for everything at her feet, are further examples of continued harassment.

[106] The evidence is not sufficient for me to find that the mother has excluded the father's family from the child's life and in any event suggests otherwise. He gave no details to back up this claim, such as details of any specific requests made and refused. Further, his own evidence establishes that the mother allowed both him and his father to have contact with the child on the day of his birth. In addition, the mother's unchallenged evidence is that she has a good relationship with the father's mother and her partner, and has allowed them to see G. regularly. She even invited the father and his family (according to the father) to G.'s birthday party. While it is true that the birthday party was cancelled, there is no evidence to suggest that it was cancelled for the purpose of excluding the father and his family.

[107] Even if they had agreed at one point in time that the mother would give the child his last name (something the mother denies), I find the mother's ultimate decision not to give the baby the father's last name reasonable in the circumstances. The parties were not living together, not getting along and had not been for many months, the child was in her primary care and residing with her, and, the father questioned paternity until 2018.

[108] While it is true that the mother has always insisted that the father's access be supervised, this is not an emblem of motive or action on her part to alienate, marginalize, or exclude him. I have already addressed his use of drugs and alcohol and the concerns with it. As reasons for insisting that his access be supervised, there is also the fact that he tested positive for cocaine (regardless of his reason) and twice for marijuana, and her own observations about his level of impairment and behaviours when drinking. All of this informed her decision and position. It was thus not arbitrary or without foundation. He was also completely inexperienced at caring for the infant, having never lived with the infant. It was not unreasonable of her in all the circumstances to insist on supervised access until the concerns had been addressed. I find her motive was to ensure that the child was well cared for and safe.

[109] There are also many examples of the mother's willingness to facilitate a relationship between father and child through access, of her generosity of spirit towards the father, and of her attempts to be inclusive, rather than exclusive, of the father. These include:

(a) Prior to the child's birth the mother did tell the father about some of her prenatal appointments and she allowed him to accompany her to some. She was not required nor is it reasonable to expect, as the father clearly does, that she would tell the father of every appointment, or invite and have him attend with her at every one of them;

(b) On the day of the child's birth, despite her arrangements to avoid him being present at the hospital, once he was there, she agreed and allowed the father to have access to the child at the hospital;

(c) Whether because the father brought an emergency motion or not on the heels of the child's birth, the fact is that the mother facilitated contact between father and child by attending with the child for park dates and luncheons with the father and his girlfriend. On the father's version of the evidence, she did so repeatedly and on more than the four occasions in total that she claims she did;

(d) She agreed to the father's cousin supervising his visits. There is no evidence, nor a suggestion, that the mother had anything to do with the cousin's inability or unwillingness to continue on as the access supervisor.

(e) When the father's cousin would no longer supervise the father's access, she arranged for her mother, the maternal grandmother to do so;

(f) Through her mother, the mother offered the father access over the Christmas period in 2018. The father did not take her up on that offer;

(g) At the end of November 2018 G. was in the hospital. The mother told the father this so that he could come to see him. The father choose not to do so;

(h) The maternal grandmother was prepared to agree to resume supervising the father's access under certain reasonable conditions (i.e. father to meet with her, father to apologize to her). The father refused to do either;

(i) The mother has allowed the father's father and the father's mother to have contact with G.;

(j) Throughout these proceedings she has been agreeable to the father having access at a supervised access centre. In fact, she initiated the intake process at Thrive right away once the father agreed to the judge's suggestion (made in October 2018) that he exercise access supervised by them at one of their centres. Despite the mother's prompt efforts, it was only after the January 2019 court date that the father registered for the supervised access program.

[110] I find that the limited access the father has had is the result of disagreements from time to time as to who should serve as supervisor; the father's refusal to exercise and/or failure to pursue an order for access at a supervised access centre; the father's decision to forgo access; the father's behaviour towards the maternal grandparents; and his cousin's inability or unwillingness to continue to serve as access supervisor.

[111] For all these reasons I find that the father has not established on a balance of probabilities that this is a case of parental alienation, a case in which the mother seeks to marginalize or exclude the father, a case in which the mother has demonstrated an unwillingness to foster a meaningful and beneficial relationship between father and son, or in which the mother has unreasonably impeded, limited or restricted access. In fact, on a balance of probabilities, I find here the exact opposite to be the case. I further find that the mother's behaviour is completely understandable and has been reasonable in all of the circumstances.

Analysis – Custody, Parenting Time, and Access

[112] There are many reasons that lead me to conclude that the father cannot be granted joint custody, an order directing that G. reside with each of his parents for equal amounts of time, or, an order for unsupervised access; and why, sole custody to the mother with limited supervised access by the father is the only reasonable outcome and the only outcome that is, on a balance of probabilities, in G.'s best interests.

[113] First, the father has very little experience parenting G. He has never been alone with G. He has never had access to or been responsible for supervising and caring for G. for more than a few hours. He has also never parented or been responsible for G.'s care, independently and without the safety net of a supervisor.

[114] There is no third party evidence before the court about how the visits that have taken place have gone; whether there were any issues or incidents of concern; or, which speaks to his competence and ability to recognize and address the child's needs or about his ability to provide independent and competent supervision and instrumental care for the child.

[115] There is no evidence before the court to support his claim that he has the ability to parent G. safely or competently, except for his bald assertion that he assisted in raising his stepson who is now an adult and cares occasionally for his step-grandson. He provided no details about the care he may have provided to his stepson or step-grandson, or of any parenting courses he has taken.

[116] The evidence the father has put before the court, when coupled with his inexperience parenting G. independently, is simply not enough for this court to find he is competent to care for G. alone, let alone half time or even for a few hours.

[117] Second, the father has been an inconsistent presence in G.'s life. He was absent for almost half of G.'s life. It is not likely that G. knows his father, has a close and loving bond with him, or formed any attachment to his father, let alone a secure one. His father is a virtual stranger to him. They need time to get to know one another and to form those attachments.

[118] Third, the father's housing situation appears to me to have been very unstable. Although he asserts that he has not moved as many times as alleged, during cross-examination, it was clear to me that he has moved frequently, lived in a home that may not have been habitable or it is, is still under renovation, and may not be safe for a two year old. In any event and most importantly, it is clear that the father sleeps in the home of others frequently on an almost weekly basis.

[119] Fourth, the court has serious concerns about the father's ability to recognize G.'s needs and do what is required to meet those needs, particularly when he is called upon to put G.'s needs ahead of his own. His decision not to exercise any access rather than supervised access at a centre for over year, and his pursuit of an equal time sharing regime within days of G.'s birth and now, having had only one visit with G. in over a year, clearly demonstrates this.

[120] Fifth, there has been insufficient opportunity for the court to evaluate the father's competency, level of commitment, and the growth of the father and son relationship.

[121] Sixth, although the father claims his limited role in G.'s life is because the mother has actively excluded him from participating in decisions about G., I have found that this is not the case. It is, quite frankly, his own fault that he finds himself in the position that he is. The ball was always in his court. He has had two years to address the shortcomings I have set out above. For example, he could have been exercising access through a supervised access centre all along. He could have taken a parenting program. He could have done more. He chose not to do so.

[122] Seventh, the court is concerned, for the reasons already given, about the father's drug and alcohol use. While I make no finding that he is continuing to use cocaine or that he cannot control his consumption of marijuana or alcohol, the evidence supports a finding that there is some risk that he may use drugs or alcohol while in a caregiving role to G. Should this happen, he may be unable to supervise G. at the level such a young child requires, and he may not be able to recognize and meet G.'s needs due to impaired judgment.

[123] The risk exists primarily because of his past admitted usage, his reasons for continuing to use marijuana, and the lack of evidence demonstrating that he has done anything to address his anxiety issues or to support him in maintaining sobriety and preventing relapse during times of high anxiety. This suggests that supervised access may be appropriate, at least until such time as the father can produce evidence that his anxious feelings can be managed without the use of marijuana and can demonstrate that he has sobriety supports in place to assist him in abstaining from using alcohol and drugs (even legal ones like marijuana) while in a caregiving role.

[124] In these circumstances, the court has no confidence that the father can and will safely and competently care for G., if he is left to care for G. for long periods of time or without supervision. It would take at least six months to a year of consistent and positive supervised access visits and about six months after that of gradually expanding the duration of the visits and of gradually reducing the level of supervision before the mother and the court would be in a position to move forward with more normalized access such as access on alternating weekends.

[125] In this circumstances and at this time an equal time sharing regime, unsupervised access, or even access for more than a few hours at a time, is quite simply, not in G.'s best interests.

[126] For the reasons already given and the reasons that follow, I find that the only parenting arrangement in terms of custody and primary residence that will serve G.'s best interests is one that grants the mother sole custody and primary residence.

[127] First, regardless of the reasons, the fact is that it is the mother who has made all decisions related to G.'s care and upbringing and it is she who has been his primary caregiver. The evidence is that G. is a healthy, happy and well cared for two year old. By advancing a claim for shared parenting and joint custody, the father has implicitly conceded that the mother is a competent caregiver to G. and a parent capable of making good decisions for him. In any event, that is my finding.

[128] As such, the mother is the only parent at this point who has the requisite knowledge, skill and experience recognizing and meeting G.'s needs. She is the only parent who has demonstrated that she can be child focused, can put G.'s interests ahead of her own, and the only parent with a solid track record of being committed to parenting G. and of making good decisions when it comes to G.

[129] Second, G., having always resided with his mother is bonded to her and theirs is a strong and loving relationship. He also has relationships with his half-sister and maternal grandparents with whom he has always resided. It is in his interest that his day to day contact and relationship with these important people and supports continue, uninterrupted.

[130] Third, the mother has the support of her family with whom she resides.

[131] Fourth, the mother has provided a stable and loving home for G. and there is no reason to suspect that this will change.

[132] Fifth, through her behaviours the mother has demonstrated that she is willing and able to facilitate access and a relationship between G. and his father and certain members of G.'s extended paternal family.

[133] Sixth, the mother has demonstrated that she will abide by court orders for access.

[134] Seventh, the mother's plan of care for G. is the least disruptive and the more child focused plan. It will provide him with the continuity and consistency of his relationships, routine, care, home, and the level of nurturing a child of his age needs, and which has enjoyed thus, far, his entire life. The father's plan would introduce a great deal of uncertainty and change into G.'s life. If implemented it would mean G. will be living with people that G. does not know. Very little to nothing is before the court about the individuals G. will come into contact with or about their suitability to be around G., or about the support they will provide. There is no contest that the mother's plan is far superior to that of the father.

[135] Eighth, the mother has shown that she is willing and able to provide G. with the necessities of life. The father, on the other hand, does not appear to have that ability, having failed to be consistent in making financial contribution towards G.'s needs by paying consistent support. Part of being a responsible and committed parent is doing what is required to support one's children to the best of one's ability. This is a duty owed to the child. It is a duty, which for additional reasons given later, the father has completely shirked.

[136] Further, this is most definitely not a case for joint custody. In addition to the reasons I have already given, I note these additional "joint custody" specific reasons:

[137] First, the father has demonstrated almost no good will or respect for the mother or her parents, all of whom G. depends on to be at their best while caring for him. He has engaged in communications that are demeaning and derogatory about the mother and her parents. He has shown no remorse and accepted no responsibility for his behaviour.

[138] Second, the father has not always followed agreements reached with the mother about G. and has not obeyed at least one agreement that he reached with the mother to pay $250 a month in support and at least one court orders (order for paternity testing).

[139] Indeed the evidence before the court and to which I have already referred along with two of his social media postings suggests the father is rights based and self-absorbed and self-focused, rather than focused on his child and what is in his best interests. It also suggests that his perception is warped and not reflective of what is really occurring. He sees himself as the victim of the mother and of the administration of justice, when in fact, he is not. The reality is that the ball to having a meaningful relationship with and access to his son, has always been in his court. The following two social media posts are emblematic of this unjustified perspective:

Facebook post:

"Well more lies and bullshit in court today….. Looks like it will be end of Oct before I see my son again!! Missed walking, talking, all of it, while the toxic junkie and her heroin addict boyfriend see him all they want... Although I see them all over, He is never with them. But hey guess while I fight the parents for any Right as a man to see my son. They can to whatever they want and see him all the time. Fuck the system!

Facebook Post:

Nailed it!! Welcome to Canada Dads!!!!!! This is followed by a clip from another sources, presumably, Canada Dads, that states:

"FAMILY COURT

A place where showing love is classed as being emotionally unstable. Contacting your children is classed as harassment. False allegations are encouraged and accepted. Perjury is accepted. The truth is ignored and you pay to see someone that's already yours."

[140] Third, although they do not agree on the reason, there is no question that the parents have no history of co-parenting.

[141] Fourth, the parents have no demonstrated track record of communicating or co-operating with one another, effectively.

[142] Fifth, there is a great deal of mistrust. The father unjustifiably blames the mother for everything and accepts no responsibility. The father has been overbearing and at times harassing of the mother. He has unreasonable expectations of her and of G. and is focused on his rights, not G.'s needs. The father can be quite disrespectful of the mother and her family.

[143] Sixth, the father has, since the day G. was born, demonstrated profoundly poor judgment when it comes to G. and a profound inability to put G.'s needs ahead of his own. It is dubious whether he even has the ability to recognize G.'s needs, let alone the ability to meet his needs if they conflict with the father's own needs. His decision to forgo access altogether rather than attend a supervised access centre, his decision to start a court case and to seek an equal time sharing regime for a new born, his refusal to meet with and apologize to the grandmother so that she would resume supervising his access, are but three examples of this.

[144] Seventh, the parties' relationship is marred by power and control issues and the father unjustifiably sees himself as the victim of the mother. The parties also have very different views and expectations about what is good for G. In all likelihood if the parties were to have joint custody, the father's mistrust of the mother, his misperceptions about her motives, and his overbearing approach, would result in continuous conflict and impasses, and impede the making of timely, child focused, and effective decisions for G.

[145] An order for joint custody would, in all the circumstances and the dynamics of this family, be a recipe for disaster. It would condemn the parties to endless stress and conflict. It would result in continuous power struggles. G. would likely eventually be exposed to his parents conflict and it is highly probable that when decisions have to be made affecting G. that there would be unacceptable delay and lost opportunities for G. as a result.

[146] For all these reasons I grant the mother sole custody of G., direct that his primary residence shall be in her home; dismiss the father's request for joint custody and for G. to reside with each parent for equal periods of time; and grant the mother's request for the father to have supervised access to G.

[147] With respect to the father I wish to make some additional points so that it is clear to him that there were factors upon which I placed little to no weight, and so that he knows what is expected of him next. I turn now to that discussion.

[148] For the reasons I have already given, I find that the father's housing situation is not in and of itself, sufficient reason in this case to order that the father's access continue to be supervised. I have placed no weight on how many times the father has moved or on the seemingly transient nature of his sleeping arrangements in arriving at my decision that access should continue to be supervised.

[149] The mother claims that access must be supervised because the father is a drug addict, she has also alleged that he is involved in criminal activity, is a criminal, and associates with criminals. These circumstances of the father she claims would put G. at risk of harm. The evidence is not sufficient for this court to make those findings.

[150] I wish to make it clear that if the father's use of alcohol or drugs was the only concern, I would not order supervised access on that basis. The risk, based on the weakness of the evidence before me, is sufficiently low as to be outweighed by the other considerations that could favour unsupervised access (i.e. the need to maximize contact and the need to move to normalized access so that a normal relationship can develop in a natural setting).

[151] As I have said, it will take at least six months of further supervised access before the court and the mother would be in a position to evaluate the father's access and relationship with G. with a view to moving forward. Supervised access will provide a means for each party to put before the court the evidence the court will need to move forward. This includes evidence:

(a) About the nature of and quality of G.'s relationship and bond with his father and his level of comfort in his father's care;

(b) Demonstrative of this father's commitment to exercising access regularly and consistently over a significant period of time;

(c) Demonstrating that the father has the knowledge, skill and demonstrated ability to supervise G. and to keep this very young and vulnerable child safe;

(d) Demonstrating the father's knowledge, skill and experience at providing competent instrumental care for G.;

(e) Demonstrating that the father can provide for G.'s safety, emotional, developmental, and psychological needs, over gradually increasing and eventually prolonged periods of time.

[152] Based on his track record I have real concerns that the father will not do the work and will instead, walk away. I am also mindful of the general tendency of courts not to make indefinite orders for supervised access and of the negative aspects of prolonged supervised access. Should the father fail to do the work that needs to be done or walk away, G.'s best interests may ultimately be better served by terminating access altogether.

[153] I have crafted an order that aims to address the uncertainties, provide the father with a meaningful opportunity to address the underlying concerns, ensure that the father has a way to move access forward once he has at least six months of supervised visits under his belt before access is adjusted, and, ensure there is sufficient evidence of the kind needed to evaluate his access.

[154] Specifically, I have included in my order the ability of the parties to adjust the level of supervision, choice of supervisors, and to expand access by agreement. I have also included in my order a term that gives each party the right to seek a review of the terms of this order relating to access in six months' time. In the father's case, his right to seek a review is contingent on his having taken certain steps such as exercised consistent, regular access for six months straight, having taken a parenting course, and on establishing that he has developed a strong and positive relationship and bond with G., and of his being able to demonstrate, competency in caring for and supervising G., and upon being able to demonstrate management of his anxious feelings through methods that do not impair one's functioning or judgment.

Incidents of Custody and Access: Dispensing with consent to travel and for government issued documents, disclosure of records, restriction on mobility, information sharing and communication

[155] The father asked for an order for production of the CAS records. I have already addressed this claim and will not repeat myself. For the reasons already given, this request is dismissed.

[156] The father asked the court to place a restriction on the mother's ability to relocate the child's residence (mobility restriction). This was not relief requested in his application. As I have already said, I have no jurisdiction to make such an order and thus, dismiss the claim.

[157] Due to their poor communication, their negative perceptions of the other's behaviours, the father's unreasonable expectations and rights based approach, the conflict between the parties and the degree of mistrust, I am concerned that even with sole custody to the mother, the tension, stress, and conflict between the parties will continue. I have little doubt that this will be what happens if no communication and information sharing protocols are put in place. It is not in G.'s best interests for the conflict to escalate or remain unabated. If the conflict continues or escalates it is likely that G. will eventually be exposed to it and that could negatively impact his wellbeing.

[158] It is also very important and in G.'s best interests that his father be an informed parent who is knowledgeable about G.'s needs, circumstances, and about important events, milestones, etc. Having this information will improve the quality of the access experience and help G. and his father in developing a close, and loving relationship. The father has a right to access information from third parties about G., but it is time he stopped looking to the mother to get and give it to him, and that opportunities that enable him to blame the mother for his lack of input or to information be limited. It is also important for G. that his father have an opportunity to provide his perspective when major decisions regarding G. are to be made by the mother.

[159] To achieve the forgoing goals I find it necessary and in G.'s best interests to put in place certain communication, access to information, travel and documentation protocols.

[160] I questioned each party about their willingness to use an online communication program by me during their oral evidence about the father's access to information moving forward and about the use of an online program such as Our Family Wizard for the purpose of communication and information sharing, each indicated they would agree to orders that provide for this. Indeed, the father even agreed to pay for any costs associated with Our Family Wizard. Accordingly, I have made orders below that reflect the orders I indicated I was thinking of making and which each party agreed to. I have also included a requirement that the mother seek the father's input before she makes any major, nonemergency, decisions about G.'s welfare.

[161] The mother asked for an order dispensing with the father's consent for her to be able to apply for and obtain government issued identification for G. (i.e. Passport) and for her to travel with G. out of the jurisdiction for vacation purposes. To avoid future conflict, delay and consequent lost opportunities for G., I have granted the mother's request with the caveat that she must advise the father in advance of such matters, provide him with details of any travel plans, and, provide him with make up access in the event that her travel plans interfere with his access to G.

ISSUE #3: WHAT IS THE FATHER'S INCOME FOR CHILD SUPPORT PURPOSES, THE LEVEL OF CHILD SUPPORT PAYABLE AND COMMENCEMENT DATE?

Additional Legal Considerations

[162] Applications for child support are governed by the Family Law Act, R.S.O. 1990, c. F.3. The relevant sections of that Act in this case are sections 31, 33, and 34. In determining questions regarding child support, the court is directed by the Act to apply the child support guidelines. In this case that is the Federal Child Support Guidelines, SOR/97-175 (the "Child Support Guidelines" or "Guidelines").

[163] The purpose of the Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency. Obodoechina v. Ayetor, 2013 ONCJ 6066; Lee v. Lee; Milford v. Catherwood, 2014 ONCJ 276.

[164] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party's income for child support purposes. Section 15(1) provides that subject to section 15(2), a spouse's annual income is determined by the court in accordance with sections 16 to 20.

[165] Section 16 of the Guidelines provides that subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "total income" (Line 150) in the T1 General Form issued by the Canada Revenue Agency ("CRA"), and by then making the adjustments provided for in Schedule III to the Guidelines.

[166] Both parents have an absolute responsibility to support their children to the extent that they are able to do so. Imputing income under section 19 is one way in which the court can ensure that this responsibility is met. The relevant portions of that section read as follows:

19(1) Imputing income

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 underemployed 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;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

[167] The court can impute such amount of income to a parent as it considers appropriate in the circumstances. The list of circumstances in section 19(1) is by way of example only and is not a closed list. Bak v. Dobell, 2007 ONCA 304; A. (G.) v. B. (K.), 2014 ONSC 3913.

[168] In Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.) the Ontario Court of Appeal set out the following three-part test to be applied in considering a request to impute income:

1. Is the spouse intentionally underemployed or unemployed?

2. If so, is this required by virtue of his or her reasonable educational needs, or the needs of the child of the marriage, or arising from reasonable medical needs?

3. If the answer to #2 is "no", then the court must decide whether to exercise its discretion to impute income and, if so, in what amount.

[169] In the case of Tillmanns v. Tillmanns, 2014 ONSC 6773, Justice Pazaratz reviews the general principles that apply to the imputation of income under section 19(1)(a). The principles most relevant to the case at bar and which are adopted by me, are set out below.

[170] There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependents.

[171] Courts have a significant degree of discretion when imputing income.

[172] The onus is on the party seeking to impute income to establish that the other party is intentionally underemployed or unemployed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.

[173] If the court is not satisfied that the support payer is intentionally underemployed, the inquiry ends there. But once intentional underemployment is established the onus shifts to the payor to show one of the exceptions of reasonableness.

[174] "Intentionally" means a voluntary act. It does not apply to situations beyond one's control. A parent is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning having regard to all of the circumstances.

[175] The court does not need to find a specific intent to evade child support obligations or bad faith in order to impute income. [Drygala (supra); Smith (supra); B. (G.T.) (supra)].

[176] A parent cannot avoid child support obligations by a self-induced reduction of income.

[177] The court will not excuse a payor from their support obligations or reduce those obligations where the party has persisted in non-remunerative employment or self-employment. Where a party does so, this may entitle the court to impute income.

[178] If a court finds a payor is intentionally underemployed or unemployed, a court cannot arbitrarily allocate an imputed income. There must be an evidentiary basis for the income level to be imputed.

[179] The court must consider many factors including the age, education, experience, skills and health of the party; his or her past earning history; the standard of living during the parties' relationship; and the amount of income the payor could reasonably earn if they worked to capacity. The court can also consider the pattern of income — usually during the three years leading up to termination of employment — to determine an amount that is fair and reasonable.

[180] A person's lifestyle can provide the criteria for imputing income.

[181] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. A history of deceptive behaviour or unreported income will increase the likelihood of income being imputed.

[182] An adverse inference should not, in and of itself, support imputing any amount of income that one party requests. There should be a proportionate connection between the extent of the adverse inference that the Court is being asked to draw and the evidence provided.

Positions

[183] With respect to child support, counsel for the mother submits that the evidence demonstrates that the father has not provided all of the financial information he is legally obliged to disclose, earns unreported income that he has not disclosed, and is intentionally underemployed. On behalf of the mother he submits that the father should be imputed with an annual income of at least $31,200 and required to pay the Guideline table amount for one child for this level of income.

[184] The father asserts that he earns far less than $31,200 annually. He was unemployed for part of 2017 and since August 2018, the latter because of injuries suffered from a car accident. He is in receipt of social assistance and thus, his income falls below that which would attract a support obligation under the Guidelines. He asserts that based on his income at the material times, he has overpaid support. He wants an accounting and if he has in fact overpaid, a credit applied against his obligation. He proposes that he pay the table amount for one child based on his 2017 reported Line 150 income of $16,566 (an income he claims approximates his earnings in 2018 and 2019). That amount is $107 per month.

[185] Both parties agree that the start date for the father's support obligation is March 1, 2017. This is the date of the first month following the child's birth and shortly after these proceedings were started (application issued February 24, 2017).

Findings – Undisputed Facts

[186] No formal order is in place regarding child support.

[187] The parties had a verbal agreement that the father would pay $250 a month for G.

[188] Although there was some disagreement at first based on the wording of the mother's affidavit as to the amounts he has paid, ultimately this disagreement was resolved. Consequently, it is agreed that the father paid $250 per month from March 1, 2017 to December 31, 2017, $250 for four months in 2018 and $250 for two months in 2019. This equates to total payments of $4500 between March 1, 2017 and the date of the hearing.

[189] The father's income as reported to CRA at Line 150 of his income tax returns for 2017, 2016 and 2015, is as follows:

• 2017 – $16,566
• 2016 – $21,849
• 2015 – $22,019

Additional Evidence of the Father

[190] The father told the court that he had been in the masonry trade for 20 years but that he last worked in that field in May 2017. When asked why, he told the court that he had left his job because he could not keep up with family court and seeing his son and preparing for all the court dates. The father admitted during cross-examination that he was not self-employed in 2017. He was unclear about whether he was self-employed in 2018. He admitted that taxes, EI, etc. are deducted by some employers from his pay. When asked if he received EI in 2018 he said no they had turned him down because he did not have enough hours.

[191] There is no evidence from the father as to when exactly he returned to work but it is clear that he did do so at some point after he quit in 2017.

[192] His evidence was that he again stopped working in August 2018, as a result of a car accident. With respect to his injuries from the car accident he said he had broken some fingers, had a bump on his knee, and had split the side of his skull. Later in his evidence he said that he returned to work after the accident but could not continue due to his injuries and thus, last worked in September 2018. He produced no medical or other evidence (i.e. medical reports or otherwise) to substantiate his injuries or claimed disability, or inability to work for medical reasons. His answer when asked why he did not do so was that he did not know he needed to. All the court has is his bald assertion.

[193] He also told the court that, at the time of his accident he thought he would be going back to work in two to three weeks but that this turned into six months.

[194] According to the father he lived off his savings from August through to November 2018, the charity of a church, and by going to food banks. He claimed he is now broke and planning to claim bankruptcy. His evidence was that he began receiving social assistance in November 2018. He produced a copy of a T5007 Statement of Benefits that confirms he received social assistance in 2018, but which does not indicated when. He produced evidence to show that he had received social assistance from Ontario Works for January 2019.

[195] He also told the court that:

(a) His partner has been battling cancer and does not work, does not have an income, and does not contribute to the household expenses. Although he said he lives with her and her name appears on the rental agreement along with those of her two children, he later said that this had not worked out and admitted that she lives elsewhere;

(b) He has a job with Flagstone (in the masonry field) already lined up; they are just waiting on him to be okay to begin work.

(c) He expects to be working again in 2 to 3 weeks.

(d) In his line of work the starting wage is $25 per hour and that in a good year he could earn between $25,000 and $30,000 gross. When it was put to him that the earnings of a person employed this field would amount to about $50,000 annually, he told the court that his work is seasonal and he only works for six months of the year, "so half that amount". From this I conclude that working only six months of the year, he can be expected to earn between $25,000 - $30,000 for that period and in a good year.

[196] He provided no explanation about what he meant by saying the work is seasonal, beyond that it is for six months of the year.

[197] He did not suggest that he tries to work the remaining six months of the year. There is no suggestion that he even looks for work. There is no evidence as to any job search efforts.

[198] I draw the adverse inference from his evidence and from his failure to produce any evidence at all about job search efforts in the past when he only worked for six months of the year, and that he does not actually look for work to cover the remaining six months of the year.

[199] The father speculated that his income in 2018 was the same as in 2017 and would be the same in 2019.

Analysis

[200] I impute income to the father for these key reasons. First, the father does not work year around. Whether by choice or because the work is seasonal (seasonal in the sense of the work being for a fixed period of time each year), it is clear that the father only actually works about 6 months of the year. The evidence does not persuade me that the father made any, let alone reasonable, efforts to secure full time year-round employment at any time from March 1, 2017 onwards. He gave no real evidence explaining why he has chosen work that only yields an income for six months of the year over full time work year-round, or why he persists in this kind of work. He has given no evidence to support a finding that he searched for alternate employment or employment during any of the periods when he was unemployed.

[201] The following decisions made by the father were and are not reasonable:

(a) To accept and persist in employment that has historically been and will be seasonal, and that, based on his notices of assessment, has yielded an annual income that is often less than what a full time employee earning minimum wage would earn in a year; and,

(b) Not too look for alternate work during periods when he was / is not working.

[202] There is simply insufficient evidence upon which this court can conclude that the father actively sought out reasonable employment opportunities that would maximize his income potential so as to meet the needs of his child. There is no evidence upon which I can conclude that full time work in the masonry field or otherwise is sparse, only seasonal, or unavailable to him. From the lack of evidence I draw the adverse inference that the father chose and chooses not to look for or take on work that would maximize his earnings.

[203] Second, the father quit his job in 2017. The reasons he gave are not satisfactory. His access was minimal and while there were court attendances, the stress of attending and preparing the paperwork, etc. this is stress that all parent litigants face and without some medical evidence to establish that this father could not work full time while doing what most parents involved in court cases do every day, I find this decision unreasonable. As such, I find his reduced income in 2017 and until he returned to work thereafter, was voluntary and by choice, not out of necessity.

[204] Third, there are the health issues cited by the father as the reason why he has not worked since August 2018, to explain his inability to pay child support. He claims this is because of the injuries he suffered as a result of a car accent that prevented him from being able to return to work.

[205] In the case of Caine v. Ferguson, 2012 ONCJ 139, Justice S. Sherr had this to say about the type of evidence that a payor must put before the court in order to succeed at demonstrating that his health issues necessitate his under or unemployment:

27. In both Cook v. Burton and Stoangi v. Johnson, the courts set out that cogent medical evidence in the form of a detailed medical opinion should be provided by the payor in order to satisfy the court that health needs justify his or her decision not to work. The medical evidence provided by the respondent was very dated — nothing more recent than 2008 — and lacked any detail. While the respondent may have some minor medical limitations that will affect the amount of income that he can earn, he has not established that they preclude him from working full-time.

[206] In this case the father provided no evidence whatsoever to prove or substantiate that his injuries and resulting poor health, negatively impact his ability to work and justify his unemployment. As such, there is no evidence before the court let alone evidence that rises to the standard of evidence referred to in either Caine v. Ferguson, or in Taylor, both of which I have adopted as the standard to apply in this case.

[207] I do not accept his excuse "he didn't know he needed to produce this evidence". He was represented by counsel for this summary judgment motion. His claimed health issues are the cornerstone of his defense. Given the foregoing, I find that he knew or ought to have known that this evidence would need to be produced. I draw an adverse inference from his failure to produce this evidence and find as follows: while the father may have some minor medical limitations that could affect the amount of income that he can earn, he has not established that they preclude him from working, let alone, working full-time

[208] Fourth, the fact that a parent is receiving social assistance benefits is not determinative of the parent's income. The court is not bound by the decision of social assistance professionals respecting the parent's ability to earn income, but rather must consider all of the relevant evidence to determine whether an imputation of income to the parent is appropriate [see Katarzynski v. Katarzynski, 2012 ONCJ 294, para. 119].

[209] In this case I am not prepared to accept that the father's receipt of social assistance as determinative of his income or his inability to work.

[210] Fifth, I am not prepared to accept the father's evidence about his financial circumstances and inability or limited ability to work. His evidence is neither believable nor reliable. He simply cannot be counted on to have given an accurate picture. Indeed, it seemed to me that he tailored his evidence to support the narrative he hoped the court would believe. That narrative was shredded during cross-examination and left very little (if any) doubt in my mind that he has been more than capable of working since March 1, 2017, has in fact been working for remuneration in the form of cash and benefits that he does not report. Below are just some of the examples that have led me to these conclusions.

[211] First, there is the father's living arrangements: The father claimed he has a leased home and that the term of the lease is 5 years. He produced a document called Rental Agreement. It is dated September 1, 2017. It is addressed "to Whom it may concern". It confirms that the person Dave Faulkner, is renting living space out to the father and his current partner and three children: Sam and Reese Emerson and George D'Entremont. The agreement indicates that rent is due on the first of each month but does not indicate the amount to be paid each month. It does however state that the amount of the deposit is $1200. In and of itself, the accuracy of this evidence is suspect, on its face. Further, one would expect the amount payable in monthly rent to be reflected on the agreement, and, the father's evidence is that he pays $1,000 a month in rent. It seems odd that the agreement would require a $1200 deposit, although it may be that the additional $200 is a deposit on account of utilities as the father did say he pays for these by paying the landlord.

[212] There are, however, several other indicators that cause me to question the reliability of both the agreement and the father's evidence regarding his rent, where he lives, and has lived, and who lives with him.

[213] I note that the rental agreement was produced to aid in the father's assertion that he has not moved as many times as the mother deposed and to show that his housing situation is more stable than she claims it is.

[214] There is quite a bit of evidence suggesting that the father has not lived at the address shown on his lease since September 2017 or even since May 2018. For example, the father's notice of assessment for 2017 shows a different address for the father than that shown on the rental agreement. In the father's notice of motion and affidavit of service both dated July 6, 2018, the father has listed a different address for himself from the one shown on the rental agreement. The first time the father lists the same address as is reflected on the rental agreement on his court documents is in his Notice of Change in Representation, and in his affidavit and financial statement, all dated March 15, 2019.

[215] It is also clear from his oral evidence that he does not live with his partner and her two children or with G. as the agreement indicates, that his rent (when paid) is $1,000 a month not including utilities, and that his brother lives with him and pays him $500 a month in rent.

[216] Next there is his evidence about his means and expenses. Based on his updated financial statement, his income is $8352 annually or $696 per month. His expenses are $771 per month or $9962.32, annually. That budget does not include his payments of child support. In his financial statement sworn July 6, 2018, the father deposed that he lives with Ms. Emerson but that she does not work outside of the home or earn an income. He does not list any additional persons as members of his household on his financial statement or any amounts contributed by any other adults.

[217] During cross-examination and when cornered with the clear evidence that he could not support the expenses he was claiming based on his claimed earnings, the father admitted:

(a) His brother pays him $500 a month in rent;

(b) He renovated the house from September 2017 to May 2018 to make it livable;

(c) He has helped a friend renovate or fix his house up;

(d) He did not pay rent while he was renovating the home he claims he now lives in only covered the expense of materials for the renovations;

(e) His landlord reduces his contribution to utilities in exchange for the work he does for him.

[218] It is clear to this court that despite his evidence the father is capable of, and has in fact, been working, just not in the paid workforce. It is clear that he is receiving "pay" for his work in the form of cash or other benefits, rental income, and via reduction in his financial obligations to his landlord. It is obvious that he does not report the extra income or benefits he receives in lieu of income for the work he does.

[219] For all these reasons I am not prepared to place much weight on the fact that the father has qualified for and is in receipt of income; nor am I prepared to accept his evidence regarding his income, financial circumstances, or claimed inability to or limited ability to work.

[220] All of this leads me to find, on a balance of probabilities, the father clearly had and has the capacity and ability to work, is working, and is either choosing not to earn what he is capable of earning if he worked to his full potential, and is failing to report all of his earnings, thereby artificially deflating his income available for child support purposes. It is also plainly obvious that the father has been and is underemployed, and that this is by choice.

[221] A fifth reason why I find it is necessary and reasonable to impute additional income to the father is his failure to provide financial information while under a legal obligation to do so. That obligation is not only set out in the Family Law Act, the Family Law Rules, but in the Guidelines at sections Section 21(1) and (2).

[222] Here the father failed to produce any evidence to support his representations about his income in 2018 or his expected income for 2019. He told the court he has not filed his income tax returns for 2018; this despite a legal duty to do so and despite his obligation to produce his notice of assessment for 2018 for these proceedings. While he produced the T5007 regarding his social assistance benefits received in 2018, he failed to provide a copy of the employment information slips that would have been issued to him for portion of the 2018 tax year when he was working and not self-employed. He also failed to produce a copy of his Record of Employment that would have been issued to him when he left his job in 2018. Further, he produced no evidence of any kind regarding the job he claims he has secured and hopes to start shortly. That is, he produced no offer of employment, contract, or even letter from the expected employer setting out the terms of his employment or remuneration.

[223] Given: the centrality of the issue of child support in this case and the fact that he knew or ought to have known the court would have to determine his income and the merits of the mother's request to impute income to him on the basis of non-disclosure and other grounds; his legal obligation to produce the income information and documentation required under the applicable legislation and regulations; the concerns I have with the father's credibility and the reliability of his evidence; his obligation on a summary judgment motion to put his best foot forward and not to rely on bald allegations; and, the court's entitlement to assume that he has put all the evidence that would be available at trial before it, he has woefully failed in terms of meeting his disclosure obligations. It is thus, reasonable to impute income to him on the basis of his failure to meet his disclosure obligations.

[224] I turn now to the question of how much to impute to the father in income. It is of no use to look to his pattern of reported income (line 150 income) earned in 2017, 2016 and 2017 (the only years for which I have disclosure), if for no other reason than I have found he unjustifiably only works for 6 months of the year. The income earned in those years is not reflective of what he is capable of earning if he works to his full potential year around. I therefore do not turn to that evidence to determine the amount.

[225] In this case I find that it is reasonable to impute the father with an annual income of at least $31,200. The father has 20 plus years of experience as a mason or in the masonry field. He is returning to the field shortly and to that seasonal work. If it is a good year (and he did not tell the court what constitutes a "good year"), he expects to earn between $25,000 - $30,000 a year within a six month period.

[226] There is every reason to expect that the father can supplement his income by working full time during the remaining six months of the year, by working in some other job earning at least minimum wage; or with EI earnings; or with earnings from doing cash jobs such as renovating homes, and by continuing to collect rent from his brother. Any one of these and most certainly if he pursues more than one avenue, would likely yield a total annual income well in excess of the $31,200 the mother asks this court to impute to him.

[227] I have also considered that a payor working full time earning minimum wage, would earn at least $29,120.

[228] I have also placed weight on this consideration: the best evidence of what the father is capable of earning and paying in child support if he works to his full potential comes from the fact that he agreed to pay $250 a month in child support in 2017, and paid that amount for all of the required months in 2017, 4 months in 2018, and two months in 2019 even though his reported income was well below that which attracts that level of support under the Guidelines.

[229] He has offered no explanation as to why he agreed to pay that amount, or how he managed to make these payments. Given the lack of explanation and the balance of the evidence, I draw the adverse inference that it was because he expected to earn, knew he had the capacity to earn, or was actually earning an income sufficient to pay that level of child support. According to the Guidelines, that level of income approximates $31,200.

[230] Finally, there is no evidence before me that establishes that the only masonry work available is seasonal work or that no masonry work can be done at those times of the year when the father is not working. This father is highly experienced, having over 20 plus years of experience working in that trade. Based on his own evidence, of what can be earned in 6 months, it stands to reason that if the father worked in his chosen field of trade year around, he would likely earn an income in excess of $50,000, but in any event and most certainly in excess of $31,200.

[231] For all these reasons I impute the father with an annual income for child support purposes of $31,200 for 2017, 2018, and for the purposes of setting his support obligation for 2019 and moving forward. The table amount payable based on this level of income from March 1, 2017 to October 31, 2017, is $259 per month. The table amount payable from November 1, 2017 onwards (the new tables became operable on November 1, 2017), the table amount is $266 per month. These are the levels of child support I have determined and ordered that he pay for these periods.

[232] As the parties agree upon the father's payments up to the time of this hearing, I have directed that the Family Responsibility Office apply a credit of $4,500 (18 payments of $250) when calculating his arrears.

Ancillary Financial Issues

[233] The father asked this court to make an order regarding financial disclosure. He wishes income disclosure from the mother. As she has made no claim for section 7 expenses and is not a support payor, there is no basis for me to order her to provide income disclosure, annually or otherwise. I have, however, made such an order with respect to the father. That order is a standard order that is made in almost every final support order such as this, and is consistent with the requirements for disclosure under the Family Law Act and Guidelines.

ISSUE #4: WHAT, IF ANY, COSTS ARE PAYABLE FOR THIS MOTION AND BY WHOM?

[234] The issue of costs remains outstanding. I have given directions below as to how that issue is to proceed to adjudication.

CONCLUSION AND FINAL ORDER

[235] For all of the reasons given above I dismiss the claims of the father, grant the mother the orders she seeks on this summary judgment motion, and make the final order as set out below.

1. The applicant's claims and informal requests for relief on this motion are dismissed;

2. The Respondent shall have sole custody of the child, G., born […], 2017 ("hereinafter, "the child"), and he shall reside primarily with the Respondent.

3. The Respondent shall be at liberty to apply for government issued documentation, including a passport and any other important documentation for the child named above, without the consent of the Applicant. Any requirement that the Applicant sign documentation so that such documents may be issued to the Respondent, is dispensed with and shall not be required;

4. The Respondent shall be at liberty to travel with the child named above, out of Ontario and outside of Canada without the consent of the Applicant for vacation purposes. Any requirement that the Applicant provide authorization or sign documentation to permit such travel is dispensed with and shall not be required;

5. In the event that the Respondent's travel plans with the child interfere with the Applicant's access, she shall provide the Applicant with make up access in a timely fashion;

6. When travelling out of the country with the child, the Respondent shall provide to the Applicant with particulars as to: destination, dates of travel, mode of travel, address where she and the child will be staying, and a number where she can be reached in the event of an emergency.

7. The Applicant shall have access to the child named above, as follows and subject to these terms:

   a) On alternate weekends, on either Friday evening, Saturday or Sunday, for up to three hours;

   b) All access is to be supervised by Thrive (Milton location), a private professional supervised access service such as Brayden Supervision, or Revive, or by a mutually agreed upon third party supervisor;

   c) Access shall take place, and on whichever day, time and duration (if a maximum of three hours cannot be accommodated), the supervised access centre, professional supervisor, or the mutually agreed upon third party supervisor can accommodate;

   d) If access is to be supervised by a professional supervised access service such as Brayden or Revive, or by a mutually agreed upon third party, access may take place in the community, provided the supervisor is present and supervising at all times;

   e) Any costs associated with supervised access are to be borne fully and solely by the Applicant.

   f) The parties may, by mutual agreement evidenced in writing, change the person or professional who is to supervise access, and may adjust the level of supervision, location where access is to occur, and the days, times and duration of access.

8. Either party may seek a review of the terms of this order that relate to access after December 31, 2019. The Applicant may only seek such a review if he can demonstrate that:

   a) He has exercised access consistently and regularly during the 6 month period;

   b) Has participated in and successfully completed an age appropriate, in person, 8 – 12 week comprehensive parenting course;

   c) He and the child have developed a loving bond;

   d) He has successfully and consistently provided adequate supervision of the child during his access and has consistently recognized, responded to, and competently met the needs of the child, including the need for competent instrumental and emotional care;

   e) He has sought and received support for his mental health issues (anxiety), such that he is or has addressed them through conventional medically approved methods and is able to manage them and stress without resorting to non-prescribed marijuana, alcohol, or illegal substances.

9. The parties shall communicate regarding their child via www.OurFamilyWizard.com. The parties are ordered to visit the website and each enroll in the program for at least a one year subscription not later than 10 calendar days from the date of this order. The parties shall thereafter conduct all communications regarding parenting matters using the website's features. This includes but is not limited to scheduling alterations and reimbursable expenses matters. Any costs associated with the use of the program, including the annual subscription fee for both parties to use the program, will be borne exclusively by the Applicant.

10. The Applicant shall have the same rights as the Respondent, to ask for and be given information and copies of documents that may be on file directly from any service providers or professionals who have been, are, or will be involved with the child named above. This includes: teachers, school officials, camp counsellors, professional caregivers, physicians, dentists, therapists, counselors and other health and mental health care providers. The Respondent's consent, written or otherwise, shall not be required for any professional or service provider involved with the child to release any such information, records, or report to the Applicant. Any cost associated with providing information, records or reports requested by the Applicant of any professional or service provider who has, is or will be involved with the child, are the sole responsibility of the Applicant;

11. The Respondent shall, by June 30, 2019, and through email sent to the Applicant, provide the Applicant with:

    a) A list of all upcoming appointments with medical or other professionals that she has scheduled for the child, all activities that she has enrolled the child in, and although he shall not be permitted to attend same without the Respondent's written consent, all of the details necessary to ensure that the Applicant knows when and where those appointments and activities are to take place;

    b) The names and contact information (phone numbers, addresses, etc.) of any service providers to the child.

12. The Respondent shall, within 24 hours of any new service provider becoming involved or new medical appointment being scheduled, provide the name, contact information and reason for the provider's involvement to the Applicant and the date, time, location and purpose of any appointment. If the appointment times change, she is to immediately notify the Applicant in writing, via Our Family Wizard or other method mutually agreed to by both parties.

13. In an effort to include the Applicant in the child's life and to keep him updated with information that will assist him in parenting and bonding with the child, the Respondent shall, on the 4th Friday of every month, make the Applicant aware of the child's day-to-day activities, change in routine, nap times, bed times, etc. by way of Our Family Wizard or other method of communication agreed upon by the parties.

14. Despite the fact that the Respondent has sole custody of the child, the Respondent shall consult with the Applicant before making any major non-emergency decisions affecting the child; that is major decisions about changes to the child's address/ place of residence, education, health, or religion. Wherever possible she shall seek his input no less than 30 days before a decision is to be made. If the Applicant wishes to have input, he shall provide his input and point of view, to the Respondent in writing. Once the Respondent has made her decision, she shall notify the Applicant of it in writing. Said communications, as with all communications, are to be through Our Family Wizard or such other method of communication agreed upon by the parties in writing.

15. The Applicant shall pay to the Respondent as child support for the child named above, the following amounts:

    a) Commencing March 1, 2017 and continuing on the 1st day of each month thereafter up to and including October 1, 2017, the sum of $259 per month;

    b) Commencing November 1, 2017 and continuing on the 1st day of each month thereafter the sum of $266 per month;

    This level of child support is based on the Court's imputation of income to the Applicant for child support purposes of $31,200 for the year 2017, 2018 and at present in 2019. This is the table amount during the relevant periods for one child based on the level of income imputed and the Guideline Tables in force at the relevant time. It is necessary to impute income to the Applicant pursuant to ss. 19(1)(a), (d) and (f) of the Child support Guidelines.

16. In calculating the arrears of child support that will automatically accrue as a result of this order, the Applicant shall receive a credit for payments made, including the $4500 he paid in child support up to and including March 29, 2019;

17. The Applicant shall, pursuant to s.25 of the Child Support Guidelines, by no later than May 15 of each year commencing May 1, 2020, provide the Respondent with:

    a) a full copy of the Applicant's personal income tax returns filed with CRA for the previous taxation year (to include all schedules or information slips filed with the return);

    b) proof of year to date income from all sources; and,

    c) any other documentation he is required to provide to the Respondent pursuant to section 25 of the Child support Guidelines.

18. The Applicant shall provide the Respondent with a copy of his 2018 Notice of Assessment or Reassessment for 2018 and his personal income tax return and any other relevant documents pursuant to s. 25 of the Guidelines, within 7 days of his filing of same with CRA, or if it has already been filed with CRA, within 7 days of the date of this order.

19. The Applicant shall ensure that he files his personal income tax returns with CRA each year in time to honour his financial disclosure obligations under this order.

20. The Applicant shall provide the Respondent, a copy of any Notice of Assessment or Re-Assessment issued to him for the most recent taxation year by June 1st of each year, and in any event, within 7 days of the applicant's receipt of this document from CRA.

21. Should either party wish to seek costs of this motion, the party seeking costs shall notify the other by email, with a copy of that email sent to the Judicial Secretary, by no later than 4:00 PM on June 21, 2019. Failure to give notice by this deadline, shall be deemed to be a withdrawal by that party of their claim for costs of the motion;

22. In the event that costs are sought, written cost submissions and any bill of costs to be relied on shall be exchanged as follows and on these terms:

    a) The Respondent shall serve and file her bill of costs, written cost submissions (not to exceed 5 pages, 12 point font, normal margins), and in addition, any offers to settle made and any legal authorities to be relied on by 4:00 PM on June 28, 2019;

    b) The Applicant shall serve and file his bill of costs, written cost submissions (not to exceed 5 pages, 12 point font, normal margins), and in addition, copies of any offers to settle made and any legal authorities to be relied on by 4:00 PM on July 5, 2019; and,

    c) Any written submissions in reply by the Respondent (not to exceed 2 pages, 12 point font, normal margins), and any additional legal authorities the applicant wishes the court to consider, shall be served and filed by 4:00 PM on July 12, 2019.

23. Counsel for the mother shall by June 17, 2019, complete a Support Deduction Order Information Form and email same to the Judicial Secretary with a copy to opposing counsel;

24. Separate SDO to issue;

25. The Judicial Secretary is requested to send a copy of these reasons to counsel.

Released: June 14, 2019

Signed: Justice Victoria Starr