Court File and Parties
Date: November 8, 2019
Court File No.: D21760/18
Ontario Court of Justice
Between:
T.L. Applicant
-and-
D.S. Respondent
Counsel:
- Patricia Gan, for the Applicant
- Acting in Person, for the Respondent
Heard: November 6, 2019
Justice: S.B. Sherr
Reasons for Judgment
Part One – Introduction
[1] This trial was about the parenting and child support arrangements for the parties' two children, ages 11 and 8 (the children).
[2] The applicant (the mother) seeks sole custody of the children. She asks to be able to travel outside of Canada and obtain documentation for the children without the respondent's (the father's) consent. She seeks specified parenting time for the father, including alternate weekends and holidays. She asks for third party exchanges and 48 hours notice if the father wishes to exercise the scheduled parenting time.
[3] The mother also asks the court to impute minimum wage income to the father and to require him to pay her child support of $447 each month, starting on October 1, 2018.
[4] The father also seeks sole custody of the children. He proposed that the mother have alternate weekend and holiday parenting time with them. He seeks a term that no male companions of the mother be present during her time with them.
[5] The father did not make a proposal for parenting time if the mother is granted custody of the children.
[6] The father asks that the mother add the children to her benefits plan at her place of employment. He is not seeking child support.
[7] The father is opposed to any order requiring him to pay child support at this time as he is unemployed.
[8] Only the parties testified. They both filed affidavits as part of their direct evidence and were permitted to give additional oral evidence. Both were cross-examined.
[9] The issues for this court to decide are:
a) What parenting orders are in the children's best interests?
b) If the mother is granted custody of the children, what, if any, income should be imputed to the father?
c) When should the child support start?
Part Two – Background Facts
[10] The mother is 37 years old. The father is 38 years old.
[11] The parties were married on August 17, 2007.
[12] The parties had the two children together.
[13] Both parties actively parented the children prior to their separation on September 12, 2018.
[14] On September 27, 2018, the father was charged with sexual assault with a weapon, assault and forcible confinement arising out of an incident with the mother on September 12, 2018. The mother described a violent assault by the father against her. The father denies the allegations.
[15] Trial dates have not been set in the father's criminal case. His criminal release terms provide that he is to have no contact with the mother except pursuant to a family court order to provide access with the children.
[16] The children have lived with the mother since the separation. The father has moved to Brampton, Ontario and lives in a one-bedroom basement apartment.
[17] The mother issued this application on December 12, 2018.
[18] On April 23, 2019, Justice Carole Curtis granted temporary custody of the children to the mother and ordered the father to pay child support to the mother in the amount of $447 monthly, starting on April 1, 2019, based on an imputed annual income to him of $29,120.
[19] The father filed his Answer/Claim on May 22, 2019.
[20] On May 30, 2019, Justice Curtis granted the father temporary parenting time with the children on alternate weekends from Saturdays at 10:00 a.m. until Mondays at 8 a.m. to be arranged through the father's cousin, S.B.
[21] The father, by his choice, exercised sporadic parenting time with the children up until June 27, 2019. He spent one weekend with them in January, two weekends with them in February and didn't see them again until late April, when he spent a weekend with them. He saw the children on one weekend in May and on one weekend in June.
[22] On June 27, 2019, Justice Curtis dismissed a motion by the father for temporary custody of the children. She increased his temporary child support to $471 each month, based on an annual income of $30,769. She also ordered the father to pay $1,000 for the mother's costs.
[23] On June 28, 2019, the father quit his job. He has not worked since then.
[24] The father, by his choice, has only seen the children for one weekend since June 27, 2019, although he has played videogames with them on-line and has had some telephone calls with them.
[25] The father has not paid any child support to the mother since the separation.
[26] The father has not paid the costs order made by Justice Curtis on June 27, 2019.
Part Three – Parenting Orders
3.1 Legal Considerations
[27] Subsection 24(1) of the Children's Law Reform Act (the Act) provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.
[28] Subsection 24(2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court must also consider subsection 24(3) of the Act that deals with past conduct relevant to parenting and subsection 24(4) of the Act that deals with violence and abuse. The court has considered all of these relevant factors.
[29] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[30] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.
3.2 The Best Interest Factors
[31] The following is the court's analysis of the best interest factors set out in subsection 24(2) of the Act.
Factor #1: The Love, Affection and Emotional Ties
The love, affection and emotional ties between the child and:
(i) each person 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.
[32] The parties both spoke of their children with love and affection. They acknowledged that the children love the other parent.
Factor #2: The Child's Views and Preferences
The child's views and preferences, if they can reasonably be ascertained.
[33] The views and preferences of the children were not presented to the court. The evidence provided is that they are happy, healthy and well-adjusted children. They enjoy their school and have friends in their community.
[34] The father acknowledged that it would be difficult for the children to leave their school and friends.
Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment
[35] The children remained in the family home with the mother after the separation. They continue to go to the same school and programs in their community.
[36] The children live in a stable home environment with the mother.
[37] The father acknowledged that he has inadequate housing for the children. He lives in a one-bedroom basement apartment. He says that he will look for alternate housing. His home environment is not stable at this time.
Factor #4: The Ability and Willingness of Each Person Applying for Custody
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.
[38] The mother has provided the children with guidance and education and the necessaries of life. The children have no special needs.
[39] The mother has been the primary caregiver of the children since the separation. She has responsibly attended to all of their physical and emotional needs.
[40] The father alleged that the mother is neglecting the children's hygiene. There was no corroborating evidence led for this allegation, such as evidence from the children's school. Further, despite his professed concern about the mother's care of the children the father has chosen to have little parenting time with them in 2019.
[41] The children are thriving in the mother's care. They are doing well in school. She has them involved in extra-curricular activities.
[42] The mother has assumed the full financial responsibility for the children.
[43] The father provided the children with guidance and education prior to the separation. He was involved with their schoolwork. He has given them very little guidance and education since the separation.
[44] The father has failed to pay the mother any child support since the separation. Properly supporting your children financially is an important component of responsible parenting. See: Jama v. Mohamed, [2015] ONCJ 619; Cuevas v. Allen, 2017 ONCJ 562; Pinda v. Pankiw, 2018 BSSC 190.
Factor #5: Any Plans Proposed for the Child's Care and Upbringing
[45] The mother set out a clear and appropriate plan to care for the children. She has re-arranged her work hours to maximize her time with them. She has arranged for an after-school program for the children three days each week and a private sitter on the other two days. She has enrolled the children in extra-curricular activities and sends them to summer camp.
[46] The mother is prepared to facilitate generous parenting time with the father if he will exercise it. She just asks that the father give her 48 hours notice. She also wants him to return the children on time as he has overheld them on occasion.
[47] The father provided what amounted to a plan to have a plan. His short-term plan is to have the children live in his basement apartment in Brampton. He only has one bed. He knows it will be difficult for the children to leave their school and friends but feels that they will eventually be able to adjust to this. He plans to move their school and community again once he obtains more suitable accommodation.
[48] The father did not present a clear plan about how he would financially support the children.
Factor #6: The Permanence and Stability of the Family Unit
The permanence and stability of the family unit with which it is proposed that the child will live.
[49] The mother has demonstrated that she can provide the children with a stable and permanent home.
[50] The father has not demonstrated that he can provide the children with a stable and permanent home. He has been an inconsistent presence in their lives in 2019. When asked what access he would like if the mother was granted custody of the children he indicated he would not exercise access. He said, "it won't benefit them and it won't benefit me".
Factor #7: The Ability of Each Person Applying for Custody or Access
The ability of each person applying for custody of or access to the child to act as a parent.
[51] The mother has demonstrated that she is a responsible and positive parent for the children.
[52] Although the father loves his children very much, he has not been a responsible parent since the separation.
[53] Children need their parents to be consistently present in their lives. The father has not been consistently present in the children's lives since the separation. He exercised sporadic parenting time up until June 27, 2019. He claimed this was due to financial reasons, but he was working at that time.
[54] The father has only exercised parenting time for one extended visit since June 27, 2019 (in October 2019, and then he overheld the children). He offered several excuses including:
a) He couldn't afford to exercise his parenting time.
b) It was too hard for him to send the children home to the mother.
c) He was worried that the mother would use his parenting time to make new false allegations about him.
d) He was "a bit frustrated" with Justice Curtis' decision on June 27, 2019.
[55] None of these excuses justify the father's failure to regularly see the children. He put his own needs and pride ahead of the children's need to see him.
[56] The court is also very concerned about the father's statement that he will not see the children if he isn't granted custody. This reflects very poorly on his judgment and ability to prioritize the children's needs ahead of his own.
[57] The court is very concerned with the father's failure to pay any child support to the mother, despite court orders. He was employed until June 28, 2019 and still chose to pay no support. His decision to quit his job the day after Justice Curtis' decision on June 27, 2019 reflects very poorly on his judgment and ability to be a responsible parent.
[58] The father has not complied with any of Justice Curtis' orders regarding parenting time, child support and costs. It is difficult for the court to trust a parent who has shown he will not be governed by court orders.
Factor #8: The Relationship by Blood or Through an Adoption Order
The relationship by blood or through an adoption order between the child and each person who is a party to the application.
[59] This is a neutral factor.
3.3 Analysis
[60] The evidence is overwhelming that it is in the children's best interests for the mother to be granted sole custody.
[61] The parenting time provisions proposed by the mother are very generous, particularly in light of the serious criminal offences that the father has been charged with respecting her and the father's conduct since the separation. Her proposal is reflective of her desire to facilitate the children's relationship with the father and her ability to put the children's needs ahead of her own.
[62] The mother's parenting time proposal for the father is similar to that ordered by Justice Curtis. She asks that the weekend access end on Sunday evenings and not on Monday mornings. That request is in the children's best interests. The father has been unreliable in exercising parenting time and returning the children on time. It is important that the children attend school on Monday mornings. The father can't be counted on to return them in time for school. To maximize the father's parenting time with the children, the mother proposed that the weekends start on Friday evenings instead of Saturday mornings. The mother's proposed parenting schedule will be ordered.
[63] The third-party exchange and communication terms contained in Justice Curtis' order will be made final. They are necessary due to the criminal release terms for the father and the father's animosity towards the mother. Trial dates have not yet been set for his trial.
[64] The holiday schedule proposed by the mother is very reasonable and will be ordered, with minor amendments for clarity.
[65] The mother's request that the father provide her with 48 hours notice if he wishes to exercise parenting time is very reasonable and is in the children's best interests given the father's inconsistent exercise of parenting time and his evidence that he will not exercise it if the mother is granted custody.
[66] The mother's request to be able to travel with the children on vacation outside of Canada and to obtain documentation for the children without the father's consent is also in their best interests. The father is very angry at the mother about the criminal charges and wants no involvement with her. He has not complied with court orders. It is unlikely that he would facilitate the mother obtaining necessary documentation for the children or consent to travel that would be beneficial to them.
[67] The court hopes that the father will choose to see the children. It was evident how much he loves them. He has been an important figure in their lives and they need their father to be there for them.
Part Four – Child Support
4.1 Legal Considerations
[68] Section 19 of the Child Support Guidelines (the guidelines) permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
[69] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731.
[70] The court in Drygala stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
[71] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:
a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.
b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.
c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
[72] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552.
[73] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
[74] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, [2008] O.J. No. 417.
[75] Many courts have held that where underemployment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations should not be reduced or cancelled. See: Luckey v. Luckey, [1996] O.J. No. 1960; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood, [2006] O.J. No. 4860.
[76] If there is no reasonable excuse for the payor's under-employment, the court must determine what income should properly be imputed in the circumstances. The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
4.2 Analysis
[77] The father worked in a warehouse at the time of the separation. He was earning annual income of about $30,000.
[78] The father quit his job the day after Justice Curtis made her temporary support decision on June 27, 2019. He expressed his dissatisfaction about how Justice Curtis was handling his case and said he was uncomfortable that fellow employees knew about his issues with the mother.
[79] These were unreasonable reasons to quit his job.
[80] The court finds that the father is intentionally unemployed. There is no valid excuse for his unemployment.
[81] The evidence informs the court that the father is actively avoiding his child support obligations. He has not paid any child support to the mother since their separation – even when he was employed. He cannot be permitted to avoid his obligations by quitting his job.
[82] The father has not made active efforts to find employment. He was required to provide a job search list by Justice Carolyn Jones on October 9, 2019 at a trial management conference. He failed to do so. His excuse was that if he filed this list at court it would be public and he didn't want anyone to see what jobs he had applied for. This was yet another example of the father disregarding a court order. An adverse inference will be drawn against him as a result.
[83] The mother's request to impute minimum wage income to the father in these circumstances is reasonable. The father was earning above minimum wage income and the court finds that he has the ability to earn this. He is a skilled labourer and is experienced working in warehouses.
[84] The father's annual income will be imputed at $29,120.
[85] The mother has also made a modest claim for retroactive support. She asks that support begin on October 1, 2018. She issued her claim for support on December 18, 2018. A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. See: MacKinnon v. MacKinnon, 75 O.R. (3d) 175. The mother's claim for retroactive support is only from the period between October 1, 2018 and December 18, 2018.
[86] Applying the retroactive support principles set out by the Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, the court finds that the father should pay the mother child support retroactive to October 1, 2018 as:
a) The mother brought the case to court promptly.
b) The father's conduct has been egregiously blameworthy by not paying any support.
c) The children have been disadvantaged by not receiving any support.
d) The retroactive support claim is modest and won't cause the father hardship.
Part Five – Conclusion
[87] A final order shall go on the following terms:
a) The mother shall have custody of the children.
b) The father shall have parenting time with the children at the following times:
i) Starting on November 23, 2019, alternate weekends from Fridays at 6:30 p.m. until Sundays at 7 p.m.
ii) One weekday evening from after school to 7 p.m., the day to be agreed upon by the mother.
iii) One of the two weeks during the winter school break, the week to be chosen by the mother.
iv) Half of the March school break.
v) An equal sharing of statutory holidays.
vi) Two weeks during the summer. The father is to advise the mother what weeks he wishes to have by May 15th each year.
vii) The children shall spend Father's Day with the father and Mother's Day with the mother.
viii) Such further and other parenting time as the parties can agree upon.
c) The father shall provide notice of at least 48 hours if he is going to exercise his scheduled parenting time with the children, failing which the parenting time will not take place, unless otherwise agreed to by the mother.
d) All arrangements for parenting time, including the exchanges, shall be facilitated through the father's cousin S.B., or a third party to be agreed upon between the parties.
e) The mother may obtain or renew all government documentation for the children, including passports, without the father's consent.
f) The mother may travel with the children for vacations outside of Canada without the father's consent. She shall provide written notice of her travel and a copy of her itinerary at least 14 days in advance. These shall be delivered to S.B., or any other third party, as agreed upon between the parties.
g) All communication between the parties shall be through S.B., or any other third party, as agreed upon between the parties.
h) The father shall pay child support in the amount of $447 each month to the mother, starting on October 1, 2018, based on an annual income imputed to him of $29,120. This is the guidelines table amount at that income for two children.
i) The father shall provide the mother by June 30th each year with complete copies of his income tax returns and notices of assessment.
[88] If the mother seeks her costs, she shall serve and file her written costs submissions by November 22, 2019. The father will then have until December 6, 2019 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.
[89] The costs submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.
Released: November 8, 2019
Justice S.B. Sherr