ONTARIO COURT OF JUSTICE
CITATION: W.H. v. M.H.1, 2019 ONCJ 696
DATE: September 25, 2019
COURT FILE No.: D11064-17A
BETWEEN:
W.H.
Applicant
— AND —
M.H.1
Respondent
Before Justice Roselyn Zisman
Heard on July 24, 26 and 31 and August 26 and 27, 2019
Reasons for Judgment released on September 25, 2019
Paula McGirr.................................................................................... counsel for the applicant
Zarmina Mirza............................................................................. counsel for the respondent
Reasons for Decision
Zisman, J.:
[1] This case proceeded before the court as a focused hearing in accordance with Family law Rules 1(7.2), originally scheduled for only two half days. However, due to the addition of an unexpected witness and the fact that both parties required the use of an interpreter the case proceeded for 5 half days.
[2] It is the Applicant’s (“mother”) position that she have sole custody of the children with incidental orders regarding obtaining documents and travelling without the father’s consent, that the father have no access, that income be imputed to him at minimum wage and that there be a restraining order against the father.
[3] It is the Respondent’s (“father”) position that the parties have joint custody, that he exercise unsupervised access to be facilitated by his sisters, that both parties be permitted to travel outside of Canada with the children and the non-travelling parent provide a travel letter, that the parties not change the children’s names, that he pay child support once he obtains employment and that any child support arrears be rescinded.
[4] The issues to be determined were:
a) Should there be an order of joint or sole custody?
b) What incidental parenting orders are appropriate?
c) Should the Respondent have access? If so, what are the terms of access?
d) Should income be imputed to the Respondent? If so, how much income should be imputed? Should any child support arrears be rescinded?
e) Should a restraining order issue?
Background and undisputed facts
[5] The parties were married in Pakistan on […], 2006. This was an arranged marriage. Both parties were originally from Afghanistan.
[6] The Respondent (“father”) is 47 years old. He has a Master of Psychology degree from Afghanistan.
[7] He is a Canadian citizen and resided in Canada for about 13 years prior to the marriage.
[8] The mother is 37 years old. She has a Grade 5 education from Afghanistan.
[9] The father sponsored the mother and she arrived in Canada in November 2006. The mother now has permanent residency status in Canada.
[10] The parties have two children M.H.2 born […], 2007 and S.H. born […], 2012.
[11] The parties separated on May 5, 2017. The mother alleged that the father assaulted her on that day. The mother subsequently alleged that the father had sexually assaulted her on previous occasions.
[12] The father was charged with both assault and sexual assault. The terms of his release required that he not communicate directly or indirectly with the mother except pursuant to a family court order or through a mutually agreed third party to arrange access. The father was also prohibited from attending within 100 metres of the mother.
[13] The mother commenced her Application on June 26, 2017. Despite several attendances, the parties could not agree to any substantive orders. There were several extensions granted for the father to serve and file his pleadings.
[14] The father was initially represented by his criminal counsel and then by Zeenath Zeath.
[15] A contested motion was heard on January 23, 2018. The mother was granted sole custody. The father was granted access at a supervised access centre (“APCO”) once a week for 2 hours. Both parties were ordered to attend for an intake appointment within 10 days. Based on minimum wage being imputed to the father, he was ordered to pay child support as of the date the Application was issued. The father was given credit for the $300 he had paid directly to the mother.
[16] On consent, the Office of the Children’s Lawyer (“OCL”) was appointed.
[17] Subsequently, the father was ordered to pay costs of $1,500 payable within 6 months.
[18] Although the OCL initially declined to become involved, the mother’s counsel wrote to the OCL and the OCL then agreed to accept the case.
[19] The OCL investigation was delayed as the father had difficulty finding an interpreter to come with him to the appointment.
[20] However, an initial interview was completed on July 9, 2018 with the father and with the assistance of a professional interpreter. At that meeting, the clinical investigator explained the process to the father and that it was the policy of the OCL not to proceed with the investigation without obtaining releases to obtain any police and child protection records. The father stated that he wished to review the authorizations with his counsel. Subsequently when contacted by the OCL clinical investigator, the father advised he was seeking new counsel.
[21] On August 17, 2018 the court was advised by the OCL that the father refused to consent to the clinical investigator obtaining police and child protection documents. As a result, the OCL investigation was discontinued.
[22] On November 7, 2018, Ms Zeeth, the father’s counsel, was removed as counsel of record.
[23] On the same day, the court ordered a Voice of the Child Report as the court wished to understand the children’s views and preferences. The father did not compete all the information required on the intake form. Despite numerous requests to provide all the pages of the intake form, the father did not comply. The OCL determined that there was insufficient information to determine if it could be of assistance.
[24] After a lengthy delay, the APCO visits commenced. The children refused to meet with or see the father on November 17, December 1st and December 15th, 2018. APCO closed its file in accordance with its policy of not forcing children to engage in access after 3 failed attempts.
[25] On March 5, 2019 a focused trial was set to proceed. The mother’s evidence in chief was to be by affidavit and as the father was self-represented he was permitted to testify orally. The father indicated he had several witnesses he wished to call to testify and he was ordered to provide a “will say” statement from any such third party. The trial was to proceed on May 17, 2019 with or without counsel.
[26] Father’s new counsel, Zarmina Mirza sought an adjournment as she had just been retained. Despite the objection of the mother’s counsel the adjournment was granted with costs being reserved. The trial was then set for a whole day on June 14, 2019. A pre-trial motion to deal with evidentiary issues was scheduled for June 7th.
[27] The pre-trial motion date and the trial was again adjourned as the father’s counsel was involved in an accident and was injured.
[28] The pre-trial voir dire proceeded on July 24th. Largely on consent, the father’s counsel agreed to redact several letters that were attached to the father’s affidavit on the basis that they were not relevant, the authors of the letters did not file affidavits and were not being called as a witness.
[29] Further, the reports from 2 doctors and multiple “sickness certificates” were struck as no notice pursuant to the Evidence Act had been served, the doctors were not being made available for cross-examination and the letters and certificates had minimal probative value.
[30] Despite the father’s counsel confirming that she would only be calling the father as a witness, counsel sought to rely on an “expert” report of Dr. Esmail Arfai, a psychiatrist that was dated May 27, 2019 but not served on the mother’s counsel until July 17th at 3:13 a.m.
[31] Despite the late notice of this report, the court held that it was relevant and would be admitted if the doctor was made available for cross-examination. The court agreed to accommodate his schedule. Costs were reserved.
Criminal Proceedings
[32] On the last day of the trial, counsel advised the court that the decision regarding the father’s criminal trial was being released the next day. Both counsel agreed that it would be relevant for the court to be advised of the outcome of the criminal proceedings and to review any reasons for the decision.
[33] The criminal court case proceeded for 5 days. On August 28, 2019 the reasons for decision were released and the father was acquitted of all charges. The court found that the father’s evidence was unconvincing, self-promoting and exhibited many inconsistencies. His evidence left the court with no reasonable doubt about his guilt.
[34] Although the court found the mother’s evidence to be overall plausible, the court held that there were many inconsistencies in her testimony. The court therefore held that the Crown had not met its burden to prove the criminal charges beyond a reasonable doubt.
Credibility findings
[35] The test for findings in a civil case is only on a balance of probabilities as opposed to the much higher burden of proof in a criminal case. Accordingly, despite the father’s acquittal in the criminal proceedings the court in this proceeding may still come to an opposite conclusion.
[36] Further, the issues to be determined in this proceeding are much broader than in the criminal trial that where the issue was whether the father assaulted the mother on the specific dates with which he was charged.
[37] I find that the father’s evidence was evasive, rambling and non-responsive. He changed versions of events frequently. He would not answer even the simplest questions directly and wanted to control the narrative.
[38] For example, when asked to explain various discrepancies in his financial statements, he blamed all 3 lawyers that represented him for simply preparing the statements without consulting him. When asked how he was able to obtain lines of credit that totalled over $40,000, he told counsel to ask the bank.
[39] He refused to admit that he had not co-operated with the OCL regarding both the investigation and the Voice of the Child Report despite clear documentary evidence to the contrary.
[40] The father initially even refused to agree that the children would not see him at the APCO visits. He then clarified that the children would like to see him and then finally agreed that the children had not seen him but blamed the mother for telling them something about him.
[41] The father contradicted the information he gave his own psychiatrist Dr. Arafi especially with respect to his employment history and income. Dr. Arafi testified that the father asked him several times to change his report which he refused to do.
[42] The mother’s evidence overall was plausible with respect to her being isolated, being controlled by the father and prohibited from engaging with the wider community. I also accept her evidence that the parties argued in front of the children and at times the arguments became physical.
[43] However, I find that the mother exaggerated the severity of her circumstances and contradicted herself and changed her evidence several times.
[44] For example, although the mother testified that the father confined her to their home, she testified that she went on her own to apply for social assistance. The mother testified that the father controlled the finances but then admitted that she received the child tax benefit and money that she received from her family. The mother testified that she was not able to have friends or contact her family but she had a cell phone and she gave some evidence of going out with friends. Further, she testified that the father was not home and away at work so it was not clear how he could have prevented her from going out.
[45] Some of the mother’s timelines were vague and difficult to understand so it was not clear if some of the activities happened during or after the separation.
[46] Due to concerns about both parties’ evidence, the court scrutinised the evidence to assess if it was internally and externally consistent and if it was plausible.
Evidence regarding the parties’ relationship
[47] The parties have very different versions of their relationship and the issue of domestic violence.
[48] The mother deposes that she has always been the children’s primary caregiver and assumed almost exclusive responsibility for meeting all their needs during the marriage and since the separation. The father was rarely home and took no responsibility for the children.
[49] According to the mother she separated from the father due to a lengthy history of physical, emotional, verbal, financial abuse inflicted by the father on her and in many instances in the presence of the children.
[50] When the mother moved to Canada she was forced to live in the basement of the father’s mother’s home and she was often not permitted to leave. The basement contained no cooking facilities, entertainment systems or a full bathroom. The mother was only permitted upstairs once a day. She was not treated well by the father’s mother or his sisters.
[51] She was kept isolated from making friends and not permitted to attend school to learn English.
[52] The mother deposed that the father’s older brother made sexual comments and overtures to her in the presence of the father and his family and no one intervened.
[53] The mother deposed that the father forced her to go the bank and open a bank account which gave him access to funds she might receive from her family. The father, his mother and sister were outraged that she shook hands with the bank manager and locked her out of the house for several hours.
[54] When they moved into their own apartment, the mother alleged that the father’s conduct worsened as he became more controlling, would not let her leave the apartment without him, constantly checked up on her and accused her of having relationships with other men. He called her demeaning names in front of the children.
[55] The mother alleged that the father controlled all the finances and would not let her have any money but later admitted that she had access to the funds she received from the child tax benefit.
[56] The mother alleged that the father forced her to have sexual relations with him and forced her to engage in sexual practices to which she did not consent.
[57] The mother alleged that the father was a hoarder and upon learning that she had thrown out some of the items he had hoarded, he forced her to rummage through a large pile of garbage alleging that she had thrown out the children’s passports and identity documents.
[58] Although the mother states that the father never directly hit her, he would frequently do things and call them an accident such as holding her arm too tightly, twisting her wrist and pushing her around.
[59] The mother alleges that the father would frequently hit the children and would stop her from intervening. He was angry and mocking in the way that he spoke to M.H.2 in particular. The mother alleged that on one occasion he slapped M.H.2 so hard her nose bled. Another time, he forced M.H.2 to the floor, put a mattress on her, sat on the mattress and almost suffocated her. The mother reported this to the police who took statements from the mother and M.H.2.
[60] On the evening of May 5th, 2017, the father had disappeared for about a week prior, when he returned the mother alleges they argued. The mother was holding a cellphone, the father tried to remove it, pushed her very hard, knocking her to the ground and injuring her shoulder. The mother called the police but the father left before the police arrived. He was subsequently arrested and charged with assaulting the mother.
[61] The father was vague in his evidence with respect to the incident that led to the final separation. He was evasive as to where he had gone and whether he told the mother as to his whereabouts.
[62] The father denies all the allegations made by the mother. He specifically denies that he was physically abusive to the mother or the children. He denies that the mother was confined to the basement of his family’s home and deposes that she had full freedom of the home and freedom to leave the home and that there were no restrictions on her. According to the father, the mother attended social gatherings and had access to a phone card to call her family.
[63] The father deposes that he opened a joint bank account so the mother could access funds but as she kept forgetting the PIN number, so he would just give her funds for her expenses.
[64] The father deposes that they moved out of his parents’ home about 5-6 months after the mother arrived in Canada. He states he would call the mother frequently because he loved her and to ensure her well-being. He denies being abusive or controlling. He alleges that the mother became more controlling and abusive to him, even in front of the children. The mother became upset because the father did not have the financial means or ability to sponsor her uncle to come to Canada.
[65] The father denies that he has any mental health issues, anger issues or hoarding behaviour. He deposes that the mother would frequently throw out important papers. With respect to the incident the mother referred to, he states that the mother admitted that she has thrown important papers out and they both went to sort through the garbage to find the documents.
[66] The father denies that he ever abusive to the children and that he has always been a loving and caring father to them. It is his belief that the mother has alienated M.H.2 from him and that the children have been severely brainwashed by the mother to hate him.
[67] The father alleges that he has always been a joint caregiver and took an important part in feeding, changing, soothing and caring for the children. As the children became older he would drop them off at school and take them on outings on the week-ends.
[68] The father accuses the mother of being neglectful and abusive, frequently leaving the children alone for 5-7 hours and on occasion hitting them.
[69] Both parties agree that the relationship had many difficulties; the mother blames this on the father being abusive and controlling and the father blames this on the strain the mother put on him because she was not satisfied with her financial circumstances.
Evidence Supervised access visits
[70] Despite the father’s supervised access visits being ordered on January 23, 2018, the visits did not commence until November 2018.
[71] The father gave some evidence that there was a delay because he did not have an interpreter. His evidence was rambling and incoherent on this issue but it appears that he needed an interpreter to translate the standard APCO agreement before he would sign it.
[72] On consent, the notes of the access visits were filed.
[73] On the first visit on November 17, 2018. The mother and children arrived on time as did the father. The father brought 2 gift bags for the children. The interpreter advised an access staff member that the mother told him that she told the children they were here to see their father and they did not want to see him. The access staff person introduced herself to the children and asked if they knew why they were there and both the children stated that they knew they were there to see the father. Both children stated that they did not want to see their father.
[74] When asked why they did not want to see their father, M.H.2 said that while they were home with the father he would place bottles under their feet and then stare at them if their feet touched the bottles. S.H. stated that the father hit her when they were driving.
[75] The father wished to give the children the gift bags he brought. But he was advised that in accordance with the APCO agreement he was not to bring gifts but the father insisted that there was no law against him bringing gifts.
[76] The children were again asked if they wished to say hi to their father and they both refused. A staff member advised that she would be in the room to ensure everyone felt safe. M.H.2 stated that the father yells at them and they never have fun. The staff assured the children that there were rules at the centre and no one could yell or touch them inappropriately. When asked if this would make them feel comfortable, they both stated again that they did not want to attend the visit.
[77] The staff left the room and then returned and told the children that there were toys in the access room and they could play with the toys and see their father. Both the children again said they did not want to see the father at all. The visit was then terminated.
[78] The next visit was scheduled for December 1, 2018. The father brought toys, markers and coloured pencils. The children were asked if they wanted to go into the other room and play and they both refused. When asked for a reason, M.H.2 stated that, “he used to pull my hair and drag me around the house and play with me like I was a doll”. S.H. stated that “a long time ago we were in the car and he slapped me.”
[79] Staff again approached the children and told them that there were toys for them and asked it they wanted to go see. M.H.2 said no. When asked if she liked colouring pencils and markers, M.H.2 stated that she did but “I don’t want anything from him.” When S.H. was asked if she wanted to go, she replied that she already had markers and colouring pencils. When staff told the children that the father brought other toys they still would not go.
[80] When staff approached the children for the third time, they both repeated that they did not want to go see their father. M.H.2 asked if they had to come the next week. She was told that after 3 refusals the file would be put on hold and that their parents would decide what would happen next.
[81] The next visit was scheduled for December 15, 2018. Again both the children refused to see the father. When asked why M.H.2 stated that, “he does not care about me or my sister”. When asked why she thought that, she stated that, “he punishes me, he pulled my hair and punishes me for [no] reason.” S.H. stated that, “when I was a little baby he was throwing me on the bed and my sister saw it and got my mom.”
[82] Staff left the room and then returned later and told the children they could just stand in the doorway and say hi. The staff reassured the children that they would be with them. Both the children refused and the visit was terminated.
Evidence of Dr. Esmail Arfai
[83] Dr. Arfai was called as a witness by the father. Counsel conceded that she was not calling him as an expert witness but he would provide evidence as the father’s psychiatrist regarding the assessment report he prepared and his ongoing treatment of the father.
[84] Dr. Arfai has been a psychiatrist since 1965 and in private practice since 1996. He met with the father only for 45 minutes before he wrote his report of May 27, 2019 but has seen him subsequently and is now treating him. His treatment consists of medication for the father’s depression, anxiety and sleep problems and psychotherapy to assist the father in solving his problems.
[85] The father was referred to Dr. Arafi by his family doctor for a psychiatric assessment. The father’s main concerns were that he was not seeing his children, he had been wrongfully charged with assaulting and sexually abusing the mother and mistreating his children.
[86] The father told Dr. Arafi that he found out shortly after he married the mother that she only had a Grade 5 education and so she is easily controlled by her family.
[87] According to Dr. Arafi, the father reported that prior to the marriage he had earned an income of about $40,000 and that he was providing counselling and advice. Dr. Arafi was also told that the father had been working at K[…] Farms.
[88] The father reported that after the criminal charges and his inability to see his children his mental state deteriorated and he was unable to work.
[89] Dr. Arafi testified that father became totally disabled and was under pressure to pay support for his children and was unable to provide the support ordered by the court.
[90] In cross-examination Dr. Arafi clarified that he had not diagnosed the father as being totally disabled but that the father told him this and he assumed this was the situation as the father was in receipt of social assistance.
[91] Dr. Arafi diagnosed the father with post traumatic stress disorder with general anxiety and with panic attacks and that his depression was in the extreme range.
[92] In cross-examination Dr. Arafi agreed that in accordance with the DSM-5, a diagnosis of post traumatic stress disorder required an exposure to an event that involved actual or possible threat of death, violence or serious injury that can happen by one of four ways: directly experiencing the traumatic event, witnessing the traumatic event occurring to others, learning that someone close to you experienced or was threatened by the traumatic event or repeated exposure to graphic details of traumatic events.
[93] Dr. Arafi agreed that the father did not fit into one of these categories but he had his own tools and another category of post-traumatic stress disorder known as adjustment disorder. Dr. Arafi agreed that only a small percentage of people diagnosed with adjustment disorder would fall into the category of post-traumatic stress disorder. He did volunteer the he had been recently assessed by the College of Physicians and Surgeons and told to use the DSM in his diagnosis.
[94] In cross-examination, Dr Arafi tried to explain his diagnosis of adjustment disorder was based on the father coming to Canada but agreed that had been over 13 years before his marriage in 2006 but he testified that the father’s arrest could have triggered his adjustment disorder.
[95] Dr. Arafi agreed that for most people an arrest and not seeing his children would not result in a diagnosis of post-traumatic stress disorder.
[96] In his report, Dr. Arafi stated that the children refused to see their father “most likely due to his wife’s influence and guide.” When he was cross-examined about this statement, he confirmed that it was his opinion that children being brainwashed occurs very, very often and this can have long standing effects on children.
[97] Dr. Arafi did not provide any prognosis but testified that the father needed to see his children and regain their trust.
[98] I find that there are serious flaws in Dr. Arafi’s report and his diagnosis. Dr. Arafi’s only source of information was the father. He was therefore not aware that the father had not abided by all of the court orders as the father has alleged or that there was no determination that the father was “totally disabled.” He was unaware that the father had not co-operated with the OCL and thus prevented the court from gaining more information about the children’s views and preferences and prevented the court from obtaining professional assistance as to how the relationship between the father and his children might be repaired.
[99] Further, based on the skillful cross-examination by mother’s counsel, it became apparent that the diagnosis of post-traumatic stress disorder may be inaccurate and that the doctor had a strong bias regarding the prevalence of custodial parents alienating children.
Analysis
1. Should there be an order of joint or sole custody?
[100] The mother has been the sole caregiver of the children since birth. The mother was a stay at home parent and the father worked full-time. She has continued in that role since the separation.
[101] The mother has met all the needs of the children. The report cards filed indicated that the children attend school regularly and punctually and they are progressing well.
[102] The father has complained to the children's aid society about the mother’s care of the children and no concerns were noted.
[103] The father’s allegations about the mother leaving the children unattended and hitting them are without any basis.
[104] Pursuant to section 24 (4) of the Children’s Law Reform Act, the court is required to consider the issue of violence and abuse in assessing a person’s ability to act as a parent in the context of the children’s best interests.
[105] I find that it is more probable than not that the father was physically abusive to both the mother and the children. Further, I find that the father was verbally and emotionally abusive to the mother and the children.
[106] The father has not shown any insight into his role in the break-down of the marriage or his relationship with his children. He repeated several times in his evidence that there was a conspiracy against him. Unfortunately, his current therapy appears to be reinforcing this belief that the mother has brainwashed the children against seeing him instead of encouraging the father to look at how his attitude and behaviour have helped create the current situation.
[107] There is no basis in the evidence for an order of joint custody. Even though the father no longer has any legal restriction in communicating with the mother, there is no history of an ability to co-operate or jointly parent.[^1]
[108] The parents do not agree about basic decisions regarding education. I accept the mother’s evidence that she wanted M.H.2 to attend a public school and not an Islamic school that the father insisted she attend. After the separation the mother enrolled both children in a public school.
[109] The father does not respect the mother’s parenting abilities. He continues to demean her and raised concerns about her lack of formal education being an impediment to her raising the children.
[110] Counsel for the father relies on several cases where courts have ordered joint custody as a means of preventing a parent from alienating a child from the other parent. However, I find that there is no evidence that the mother has alienated these children from their father. It is the memory these children have of their father prior to the separation that has influenced them independent of their mother.
[111] The court has considered the factors in section 24 (1) of the Children’s Law Reform Act and they support an order that it is in these children’s best interests for the mother to be granted sole custody.
2. What incidental parenting orders are appropriate?
[112] The mother seeks orders that will permit her to obtain government documents for the children without the consent of the father and to travel outside of Canada without obtaining the father’s prior consent.
[113] In view of the lack of communication between the parties and the father’s pattern of refusing to agree to sign standard consents that have been requested during this litigation, there is a valid concern by the mother that the father will not readily consent to any request made by her.
[114] There is no valid concern that the mother will permanently remove the children from this country. The mother is learning English and is in the process of applying to be a Canadian citizen and put down roots in this country. There is no evidence that she has any intention of moving out of the country.
[115] The orders requested are reasonable and necessary in the best interests of the children.
[116] In the opening statement by father’s counsel, she requested an order that the mother be prohibited from changing the children’s surnames. No evidence was presented on this issue by the father. There is no evidence that the mother intends to change the children’s names. I therefore decline to make this order.
3. Should the Respondent have access? If so, what are the terms of access?
[117] Whether the father should have any access is the most troubling aspect of this case. The court attempted to ascertain the issues that were impeding the children from wishing to see their father through the OCL.
[118] If the father had co-operated with the OCL investigation, the clinician might have been able to assist both the court, the parties and the children in how to re-establish the relationship between the children and the father. Despite the father’s sincere wish to see his children, he refused to authorize the clinical investigator to obtain the children's aid society records and police reports.
[119] The father also refused to properly file the intake forms so that a Voice of the Child Report could be prepared.
[120] The father’s need to blame everyone but himself for these interventions not proceeding has prevented the court from having any in depth independent evidence of the children’s views and preferences.
[121] Therefore, the only independent evidence available to the court are the APCO notes. The APCO notes clearly indicate that the children do not wish to see their father. Some of the reasons may appear far fetched or inaccurate but clearly both children have unpleasant memories of their father.
[122] Both counsel rely on case law that confirms that there is a presumption that regular access by a non-custodial parent is in the best interests of children and that the maximum contact principle should be applied.[^2]
[123] Termination of access is an exceptional remedy and in most cases supervised access should be attempted prior to any termination of access.
[124] In this case, supervised access has been attempted without success.
[125] The father has proposed that he have unsupervised access and that his sisters facilitate the access exchanges.
[126] This proposal shows the father’s total lack of insight into the children’s fears of him. It is unrealistic to propose that the children would willing go with their paternal aunts who they also have no relationship with and be agreeable to spending time with their father when they refused to do so in the safe environment of a supervised access centre.
[127] If the father had proposed some therapeutic intervention, it would have shown some insight and shown that he accepted some responsibility for his part in the present estrangement. But as the father continues to place all the blame on the mother brainwashing and alienating the children, there is an impasse that presently cannot be resolved by a court order that forces the children to see their father.
[128] In order to keep the lines of communication open, the father should be permitted to send the children letters, cards and gifts. At a minimum the children will be aware that their father has not deserted them and wishes a relationship with them. If over time the children wish to reconnect with the father, they will be able to do so. I have confidence that the mother will facilitate access if the children wish her to do so.
4. Should income be imputed to the Respondent? If so, how much income should be imputed? Should any child support arrears be rescinded?
[129] The mother seeks to impute income to the father at minimum wage. The father seeks to pay child support when he obtains employment.
[130] The father testified that in his culture it is the responsibility of the father to support his family but now he is separated from his family and everything has been taken away from him due to false allegations and he is unable to work. He testified that only if he sees his children will he be able to put his life back together.
[131] The father was extremely vague about his work history and qualifications. He denied that he told Dr. Arfai that he earned about $40,000 prior to his marriage. Dr. Arfai testified that the father spoke to him in Farsi and English and that he was very articulate.
[132] The father confirmed that he has a Master of Psychology degree from Afghanistan and that he attended college in Canada to learn English. He also testified that he attended S[…] College and took some computer and other general courses but could not recall if he graduated.
[133] There is no medical evidence that the father is unable to work or “totally disabled”. Despite the diagnosis by Dr. Arfai, he did not testify that the father was unable to work.
[134] The father has worked for K[…] Farms for about 10 years in customer service. He did not agree that his employer was his friend. He did confirm that his employer was his surety with respect to his criminal charges and that he was living in accommodations owned by his employer.
[135] From the date of the separation up to April 2019, the father was working at K[…] Farms but he gradually reduced his hours and then quit the job. He is now in receipt of Ontario Works but simply because he is in receipt of such assistance does not indicate he is not capable of working.
[136] The father testified that he is unemployed due to the stress that he is going through but that he is working with a case worker from Ontario Works and he is continuing to seek treatment from his psychiatrist. The father did not provide any evidence about his efforts, if any, to find any employment or any efforts to upgrade his qualifications. The father took the position that unless he is able to see his children he is under too much stress and is too depressed to work.
[137] In cross-examination, the father agreed that the mother may have seen him at K[…] Farms standing at the cash register in June or July 2019. He denied he was working and became quite belligerent stating that there was no law against him standing behind the cash register.
[138] I find that the father is likely still working at K[…] Farms and not declaring that income.
[139] Based on the financial disclosure provided by the father, he only declared income of $14,889 in 2016, $10,809 in 2017 and $12,021 in 2018.
[140] It appears unlikely that the father would have qualified for lines of credit for about $50,000 based on such a minimum income.
[141] Section 19(1)(a) of the Federal Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed.
[142] Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed based on intentional underemployment. When imputing income is based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.[^3]
[143] I find that the father is intentionally underemployed. Based on his age, education, lack of any long lasting physical or emotional impairment, skills and employment history the father could be earning at least if not more than minimum wage.
[144] Counsel for the father also sought an order that there be a reduction of the current outstanding arrears. Based on the Statement of Arrears from the Family Responsibility Office, as of June 1, 2019 the father owed $5,842.
[145] The temporary order was made based on the father earning minimum wages. As this final order is based on the same finding, there is no basis for reducing or rescinding the arrears that have accumulated because the father has not abided by the temporary child support order.
6. Should a restraining order issue?
[146] Pursuant to section 46 of the Family Law Act, the court may grant a restraining order if the applicant “has reasonable grounds to fear for his or her safety or for the safety of any child in his or her lawful custody.”
[147] In McCall v. Res[^4] Justice Spence interpreted this provision and held that the fear must be reasonable, the fear may be entirely subjective so long as it is legitimate and the fear may be equally for psychological safety as well as for physical safety. I agree with his conclusions.
[148] Applying that test, I find that the mother’s fear of the father is reasonable based on his past history of both emotional and physical abuse against her. It was obvious from observing the mother’s reaction to the father when he testified that she still feared him. For the benefit of the mother and the children’s psychological safety it is important that they feel that the father cannot intrude unwanted upon their lives.
Order
[149] There will be an Order as follows:
The Applicant shall have custody of the children M.H.2 born […], 2007 and S.H. born […], 2012.
The Respondent shall be permitted to send the children letters, cards and gifts on their birthdays, religious holidays and any other special occasions.
Any further access shall be in the discretion of the Applicant in accordance with the children’s wishes.
Based on an imputed income of $29,100.00, the Respondent shall pay child support of $446.00 per month in accordance with the Child Support Guidelines as of October 1, 2019.
As long as the Respondent is in receipt of Ontario Works or other social assistance the Family Responsibility Office shall deduct the maximum amount permitted by the legislation.
A separate restraining order shall issue.
Support Deduction Order to issue.
[150] As the successful party, the Applicant is presumed to be entitled to costs. If costs are not settled, the cost submissions of the Applicant, not to exceed 3 pages with a Bill of Costs and any offer to settle attached, shall be submitted to the trial coordinator’s office within 30 days. The Respondent shall have 30 days from receipt of the Applicant’s costs submission to serve and filed his response. The Respondent’s response shall not exceed 3 pages with a Bill of Costs and any offer to settle attached, shall be submitted to the trial coordinator’s office within 30 days. Counsel should refer to any case law they rely on but copies of the case law are not necessary.
Released: September 25, 2019
Signed: Justice Roselyn Zisman
[^1]: Kaplanis v. Kaplanis 2005 1625 (ON CA), [2005] OJ No. 275 (OCA) [^2]: See V.S.J. v. L.G., 2004 17126 (ON SC), [2004] O.J. No. 2238 (SCJ) [^3]: Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (OCA) [^4]: [2013] O.J. No. 2187 (OCJ) See also Lawrence v. Lawrence, 2015 ONSC 3707, [2015] O.J. No. 3038 (SCJ)