Court File and Parties

Date: September 9, 2020

Court File No.: D40074/20

Ontario Court of Justice

Between:

R.B.J.

GLENDA PERRY, for the APPLICANT

APPLICANT

- and -

B.N.R.J.

BRADLEY BERNS, for the RESPONDENT

RESPONDENT

Heard: September 2, 2020

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties are the parents of two girls (the children) who are 10 and 5 years old. In January 2020, the respondent (the father) planned to move with the children from Toronto to Nigeria. The applicant (the mother) came to this court and obtained an order that the children not be removed from Canada. The father subsequently moved to Nigeria without the children. He is presently employed at River State University in Nigeria as a professor of Human Anatomy. The children continue to live with the mother in Toronto.

[2] The mother has brought a summary judgment motion seeking final orders for custody of the children, the ability to obtain government documentation for the children without the father's consent and the right to travel with the children outside of Canada without the father's consent. She also seeks a final order prohibiting the father from applying for or renewing any government documentation for the children.

[3] The mother has also brought a motion for temporary relief, seeking orders for child support and that the father's access be supervised in Toronto by a professional access supervisor.

[4] For the purpose of the child support calculation, the mother asks the court to impute the father's annual income at $89,491, with support to start on February 1, 2020.

[5] The father does not contest that the children's primary residence should remain with the mother in Toronto. He plans to continue to live in Nigeria and visit the children in Toronto during the summer and the winter school break each year. However, he opposes the mother's summary judgment motion as he is seeking a joint custody order. Although he did not bring his own motion, in his affidavit, the father deposed that he is seeking extensive unsupervised access with the children when he comes to Canada. He asks that temporary child support be based on his annual income of $54,936, starting on July 1, 2020.

[6] The issues on this motion are as follows:

a) Is there a genuine issue requiring a trial about whether the mother should have custody of the children, as opposed to an order for joint custody?

b) Is there a genuine issue requiring a trial about the mother's requests regarding government documentation for the children or travel outside of Canada with the children?

c) What temporary access order is in the children's best interests? In particular, should the father's access in Canada be supervised by a professional access supervisor due to the risk that he may remove them from Canada?

d) What is the father's annual income for the purpose of the temporary child support calculation – and when should the support order start?

Part Two – Background Facts – Parenting Issues

[7] The mother is 36 years old. The father is 49 years old.

[8] The parties and the children were born in Nigeria.

[9] The parties were married in Nigeria in October 2008.

[10] The father moved to Canada in May 2010. The children stayed in Nigeria with the mother.

[11] The father attended graduate school in Toronto and obtained his doctorate at the University of Toronto faculty of medicine in 2014. He subsequently worked in Toronto as a medical research associate.

[12] In February 2015, the mother and the children moved to Canada.

[13] The parties have been living separate and apart since at least September 2017. The children lived with the mother and visited with the father.[1]

[14] The children moved in with the father on November 20, 2018. The reason why this happened is in dispute between the parties.

[15] The children lived with the father until January 24, 2020.

[16] The father deposed that his contract as a medical research associate ended at the end of April 2019.

[17] The father traveled with the children to Nigeria twice in 2019. The mother consented to both trips. The second trip was supposed to be from May 29 to August 30, 2019. The father did not return with the children to Canada until December 1, 2019.[2] The father deposed that the mother consented to this extension. The mother denies this.

[18] The children were enrolled in school in Toronto in December 2019.

[19] The children became Canadian citizens on December 4, 2019.

[20] The father deposed that he obtained his job as a professor in Nigeria at River State University during his second trip to Nigeria in 2019. He planned to move there with the children in January 2020. He says that the mother consented to this move. The mother denies this.

[21] The father renewed the Nigerian passport of the younger child in November 2019. The father then arranged for the children to obtain Canadian passports which were issued on December 24, 2019. He said that the mother signed the application to permit him to do this. The mother denied this.

[22] The mother deposed that the father did not tell her that he was planning to move to Nigeria with the children. As soon as she learned about his plans on January 15, 2020, she obtained a lawyer and came to court to stop this.

[23] On January 16, 2020, on a without notice motion, the court made a temporary order that the children not be removed from the City of Toronto, pending further court order, and pursuant to section 36 of the Children's Law Reform Act ordered that any peace officer where the children were located should enforce the order. The court adjourned the balance of the motion for service on the father.

[24] The father attended on the return date of January 23, 2020 and advised the court that he would be leaving to live and work in Nigeria indefinitely and that the children would stay with the mother. The parties consented to a temporary order, on a without prejudice basis, that included the following terms:

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

b) The children shall reside with the mother.

c) The mother shall keep the father advised in writing of where she is living, the children's school, the children's doctor and service providers. She will notify the father if she makes a major change.

d) The father shall deliver all the children's documentation, including passports, to the mother by January 24, 2020.

e) The father will have access to the children each day by Whatsapp, either by video or telephone. Specific times were set out for these calls.

f) The children's residence shall remain in Ontario and the children shall not be removed from Ontario without further court order.

g) The father shall advise the mother of his address, change in address, his place of employment and his intention to travel to Ontario.

[25] The father moved to Nigeria shortly after the January 23, 2020 court date. He has not returned to Canada. He says that he was unable to visit the children during the summer in 2020 because of the COVID-19 pandemic. He exercises virtual contact with the children.[3]

[26] The father deposed that his plan was to come to Canada each December and during each summer to see the children. He also has an adult daughter and three grandchildren in Canada whom he will visit in Toronto.

[27] The children have remained in the mother's care since January 24, 2020 and are doing well.

Part Three – Summary Judgment Law

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

[29] 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.

[30] 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: Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

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

[32] 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.

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

[34] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

[35] Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16(6.1). If, after this initial determination, there still appears to be a genuine issue requiring a trial, the judge may resort to the additional fact finding powers to decide if a trial is required.

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

Part Four – Legal Considerations – Joint Custody Orders

[37] 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 communication is.

[38] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy.

[39] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235. 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.

[40] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. See: Geremia v. Harb.

[41] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.

[42] Ultimately, the court must decide if a joint custody order is in the child's best interests and consider the factors set out in subsection 24(2) of the Act in reaching this decision.

Part Five – Is There a Genuine Issue Requiring a Trial Regarding the Mother's Request for Final Custody of the Children?

[43] If the father had sought custody of the children and an order permitting them to live with him in Nigeria there would have been a genuine issue requiring a trial, as the parties have very different versions of events. However, the father did not seek this relief. The father will be living in Nigeria and does not oppose an order that the children have their primary residence with the mother in Toronto.

[44] This means that the court has to determine if there is a genuine issue requiring a trial regarding the father's claim for joint custody, and if not, who should be granted custody of the children.

[45] The court finds that there is no genuine issue requiring a trial regarding the issue of custody. It is in the best interests of the children that the mother have final custody of them.

[46] The court was able to come to this conclusion without the need to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence.

[47] The court makes this finding based on the material facts of the case not in dispute, combined with the evidence of poor communication and lack of respect and trust between the parties, as evidenced in their affidavit material.

[48] The court finds that it can reach a fair and just determination on the merits of the mother's request for custody; the summary judgment process allows it to make the necessary findings of fact and apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.

[49] The first hurdle to a joint custody order in this matter is the distance between the parties – they are living on different continents. This creates a barrier to effective communication and joint decision-making.

[50] However, this is a hurdle that could be overcome if there was a modicum of trust and respect between the parties. This is essential if the parties are going to be able to effectively make joint decisions about the children. A review of their affidavits reveals that there is little trust or respect between them. Their communication is far too poor to make a joint custody order.

[51] It is unnecessary to determine which parent's allegations are true to reach this conclusion.

[52] The father showed little respect for the mother as a parent in his affidavit material. His allegations against her included the following:

a) She chose to have little involvement with the children when the children were in his care after November 20, 2018.

b) The mother rejected his offer for her to have the children spend time in her home.

c) The mother's home was unkempt when the children were living with her, with dirty laundry scattered about, garbage stacked up with diapers filled with feces and dirty cookware piled carelessly with cockroaches.

d) The children were frequently "acutely ill" in her care.

e) When he visited her home, he had to clean her house, do the laundry and cook healthy meals for the children.

f) The children are frequently late for school in her care.

g) She won't assist the children with their homework.

h) She flew into rages when he raised her parenting deficits.

i) She has mental health problems and he wanted her to seek treatment.

j) She watches pornographic movies in the presence of the children.

k) The mother was jealous of his girlfriend and harassed him about this.

l) She deliberately waited until just before he planned to leave for Nigeria to sabotage his ability to move there with the children. He claimed that "he sustained emotional and psychological distress due to her premediated actions that imperiled his job".

[53] Despite these serious concerns, the father never came to court to obtain a custody order. He never reported these concerns to a Children's Aid Society. And – he left to live in Nigeria indefinitely and let the children remain with the mother.

[54] The mother states that the father attempted to illegally abduct the children to Nigeria. She denies that the father told her about his plan to move to Nigeria. She also denies consenting to the children obtaining Canadian passports or to the children moving to Nigeria.

[55] The mother fears that the father will abduct the children to Nigeria if he is permitted unsupervised contact with them.

[56] The mother's allegations about the father included the following:

a) He financially controlled her during their relationship – she was completely dependent upon him.

b) He would threaten to have her deported, if she didn't do what he said. He told her that he knew powerful people in Canadian immigration – one person being his girlfriend.

c) He moved his adult child and her three children into her home in 2018. After conflict with the father's adult child, the mother moved out in November 2018. The father, she said, promised to help her and the children find alternate accommodation. The children were only to live with him briefly while this happened. He broke this promise and instead, kept the children with him.

d) He would only let her see the children in his presence after November 20, 2018. He would not let her take the children to her home. He blocked her phone calls.

e) He tried to get her to sign an agreement in 2019 giving him custody of the children. She refused to sign it.[4]

f) He would speak negatively about her to the children and undermine her relationship with them.

g) He pressured her into consenting to the children traveling with him to Nigeria twice in 2019 by threatening to have her deported.

h) He overheld the children for 3 months in Nigeria in 2019 without her consent. She feared that he would not return the children to Canada.

i) She learned about his intention to take the children to Nigeria for the first time on January 15, 2020, just a few days before he planned to leave.

j) He fraudulently obtained the children's Canadian passports and an investigation is underway.

k) His girlfriend gave the children a phone, after he left for Nigeria, and it contained a tracking device.

l) His girlfriend has instructed the children to take pictures and record what is going on in her home. The mother has taken the phone away.

[57] There is no evidence that the mother is seeking sole custody as a mechanism to exclude the father from the children's lives. There is no allegation that she has ever failed to facilitate the father's access when the children have lived with her.

[58] A joint custody order is also not required to correct a power imbalance between the parties. The court's only concern about a power imbalance is that of the father potentially controlling the mother.

[59] Since there is no genuine issue requiring a trial as to whether there should be a joint custody order, the court next needs to determine if there is a genuine issue requiring a trial as to who should be granted custody of the children.

[60] It is in the best interests of the children that the mother be the custodial parent. The children's schools, doctors and service providers are all in Toronto. Decisions will need to be made about the children in Toronto. The father is on a different continent and not as accessible. The evidence indicates that the mother makes responsible decisions about the children. She is meeting their physical and emotional needs. There is no genuine issue requiring a trial on this issue.

[61] The father has been and should continue to be an important parent for the children. The court will order that the mother shall make reasonable efforts to consult with him before making any major non-emergency decision regarding the children.

Part Six – Summary Judgment Request Regarding Issues of Government Documentation for the Children and Travel Outside of Canada for the Children

[62] The mother seeks final orders that:

a) She can obtain and renew all government documentation for the children without the father's consent.

b) She can travel with the children outside of Canada without the father's consent.

c) The father be prohibited from applying for or renewing any government documentation for the children.

[63] It does not necessarily follow that if a parent is granted custody of a child that the right to obtain government documentation for the child without the other parent's consent or to travel with the child outside of Canada without the other parent's consent will be ordered. These are parental rights distinct from who has custody of the child, and without a dispensation order from a court, the consent of an access parent is usually required by government authorities. These are important parental rights that are not to be dispensed with lightly.

[64] In this case, the evidentiary basis for denying the father these parental rights is seriously contested. The mother claims that the father overheld the children in Nigeria in 2019, obtained passports for the children without her consent and tried to abduct the children to Nigeria. She claims that the father would use these rights to control her from Nigeria and prevent her from obtaining important documentation for the children or to restrict international travel that is in their best interests. The father claims that he has always consulted with the mother and obtained her consent before traveling internationally with the children and that he has always acted reasonably about government documentation for them. He says that the mother is lying about his conduct. He asks that he not be denied these important parental rights.

[65] There is a genuine issue requiring a trial regarding the mother's requests to travel with the children outside of Canada without the father's consent and to obtain government documentation for the children without the father's consent based on the parties' conflicting affidavits.

[66] The court next considered whether it could make this decision by weighing the evidence, assessing credibility or drawing reasonable inferences from the evidence. It cannot. To justly determine these issues, the court needs the benefit of the cross-examination of the parties. Other witnesses will likely need to testify for the court to make the necessary findings of fact.

[67] The court next considered whether it should hold a mini-trial on this issue pursuant to subrule 16(6.2).

[68] The court finds that this would not be an appropriate process in this case. These issues are intertwined with the access issues. If the parties cannot resolve these issues, a trial is required for a fair determination of them.

[69] The court wants to make it very clear that the court is not rejecting the mother's version of events. She may end up being successful in obtaining the relief sought after a trial.

[70] The court does make a finding that there is no genuine issue requiring a trial regarding the mother's request to prohibit the father from applying for or renewing any government documentation for the children. There is no reason that he should be doing this. This will be granted on a final basis.

Part Seven – Temporary Access

7.1 Legal Considerations

[71] On temporary access motions, subsection 24(1) of the Act sets out that the court must make its decision based on the best interests of the children. The court has considered the relevant best interest factors set out in subsection 24(2) of the Act.

[72] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz.

[73] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D..

7.2 Positions of the Parties

[74] The mother seeks a temporary order that there shall be no in-person access by the father unless it is supervised by a professional access supervisor, at his cost, and that he first deposit his Canadian and Nigerian passports with his lawyer. She also asks that the father not directly or indirectly provide the children with any electronic devices without her prior consent, such item to be provided directly to her.

[75] The mother agrees to maintain the father's virtual access set out in the January 23, 2020 order.

[76] The mother's position is based on her fear that the father will abduct the children to Nigeria.

[77] The father submits that it is in the children's best interests to have extensive unsupervised access with him when he is in Canada every year in July, August and December. He proposes that the children primarily stay with him when he comes to Canada. At this time, the father is not seeking access to the children in Nigeria.

[78] The father denies that he is a flight risk. He says that he returned from Nigeria with the children twice in 2019 and obtained the mother's consent both times to travel. He complied with this court's order not to remove the children from Canada in January 2020. He said that he would not do anything to compromise his ability to come to Canada to see the children, his adult daughter and grandchildren. He says that he has maintained an apartment in Toronto for the purpose of visiting them.

7.3 Analysis

[79] This court only needs to decide what access order is in the children's best interests on a temporary basis. Failing settlement, it is very likely that the access issue will be tried before next summer.

[80] The reality is that the father may not be able to travel to Canada for access this December because of the pandemic.

[81] However, if the father is able to travel to Canada in December, the court finds on a temporary basis that it is in the children's best interests that his access be fully supervised by a professional access supervisor, at his cost, and that the father deposit both his Canadian and Nigerian passports with his counsel before access takes place. The court makes this order for the following reasons:

a) There is a legitimate concern that the father tried to permanently remove the children to Nigeria without the mother's consent in January 2020.

b) A court order was required to prevent the father from removing the children from Toronto.

c) The mother has provided evidence of controlling and manipulative behaviour by the father that needs to be further explored.

d) The father failed to provide evidence of the mother's consent for him to travel to Nigeria with the children in January 2020. A consent was provided for the 2019 trip. This was a concerning omission, particularly since he was on notice that the mother denied signing this consent.

e) The father failed to provide a copy of the mother's consent to the children's Canadian passport application. This is also a concerning omission, given that the mother had deposed that she had not signed this application.

f) The father overheld the children for three months when he traveled with them to Nigeria in 2019. He provided no evidence that the mother consented to this extension.

g) The father acknowledged that he can obtain or renew Nigerian passports for the children without the mother's consent. He also acknowledged that the children do not need Canadian passports to enter Nigeria – only to reenter Canada. This makes it much easier for him to remove the children from Canada.

h) Nigeria is not a signatory to the Hague Convention. If the father takes the children to Nigeria, it will be exceptionally difficult for the mother to have them returned to Canada.

[82] The court gave some consideration to requiring the father to post a bond as a condition of exercising unsupervised access, but ultimately rejected this idea – the risks and consequences of the children being removed from Canada are too high to justify ordering unsupervised access over the winter holidays.

[83] It is in the best interests of the children to be very clear about the terms of temporary access. Terms will be ordered that:

a) Access shall not interfere with the children's school day.

b) Access shall take place during the day and not exceed 6 hours.

c) Up to three visits each week can take place.

d) No other person may attend the access visits without the mother's prior written consent. Specifically, the father's girlfriend should not be present, as she appears to be a focal point of conflict.

[84] The court wishes to make it clear that in making this order that it is not rejecting the father's version of events. A trial judge will need to determine this based on a full testing of the conflicting evidence.

[85] The evidence indicates that the father has a close relationship with the children – they look forward to his calls. He was their primary caregiver for 14 months. Ideally, he should have generous parenting time with them. However, at this stage, the children's safety and their security of remaining in Canada with the mother are the predominant best interest factors.

[86] The court will maintain paragraphs 5 (virtual access), paragraph 6 (non-removal from Ontario) and paragraph 7 (father to advise of address and employment and travel to Ontario) of the January 23, 2020 order. The balance of the January 23, 2020 order is terminated and will be replaced by the terms of this order.

Part Eight – Child Support

8.1 Positions of the Parties

[87] The mother asks the court to impute the father's annual income at $89,491 for support purposes. She asks that temporary child support start on February 1, 2020. She agrees that the father should be credited with the $300 monthly child support he has been paying to the mother from February 1, 2020 until the end of June 2020.

[88] The mother believes that the father is earning more income than he states. She questions the validity of the pay stubs that he produced. She also feels that he is deliberately under-employed. The father earned $89,491 in 2018 as a medical research associate. She says that is the best evidence of his income.

[89] The father denies that he is deliberately under-employed and states that the pay stubs he filed reflect his actual income. He stated that he is prepared to pay the Child Support Guidelines (the guidelines) table amount for two children, based on his current annual income of $54,936[5], except for the months of December, July and August when he comes to Canada.

[90] The father asks that his support obligation start on July 1, 2020 as he will have high access costs.[6]

[91] The father's notices of assessment indicate that he earned income in Canada of $77,426 in 2017, $89,491 in 2018 and $25,907 in 2019.

[92] The father provided no evidence of income that he may have earned in Nigeria in 2019.

[93] The father explained that his temporary contract expired in Canada at the end of April 2019. He said that the research associate position was a postdoctoral position that is designed for recent PhD graduates to enable them to transition into a tenured academic position, and that it does not reflect his qualifications.

[94] The father deposed that the average annual salary for a research associate in Canada is $59,000. He said that he earned more in 2017 and 2018 because he worked under two academic supervisors who pooled money from their individual research grants to support a study on spinal cord recovery.

[95] The father deposed that he is now working as a professor of Human Anatomy at the River State University in Nigeria. He said that this position reflects his qualifications and earning potential at this time. He said that River State University is the highest paying university in Nigeria. He stated that he is an academic doctor who has an academic specialization. He does not have and never has had a licence to practise clinical medicine.

8.2 Legal Considerations

[96] 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.

[97] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of the reasonable health or educational needs of him or the children?

3. If not, what income is appropriately imputed?

[98] 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.

[99] 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.

[100] Where the payor's present income is known, it is that amount that should determine the quantum of support that should be paid, not the income for previous years. See: Vanos v. Vanos, 2010 ONCA 876; Wright v. Christie, 2011 ONCJ 109.

[101] Subsection 3(1) of the guidelines sets out that the presumptive rule is that unless otherwise provided in the guidelines, the amount of an order for child support for children under 18 years of age shall be the amount in the applicable table plus the amount determined under section 7 of the guidelines for special or extraordinary expenses.

[102] Exceptions to the presumptive rule include situations where the parties have shared custody of the children (section 9 of the guidelines) and where there is a claim for undue hardship (section 10 of the guidelines).

[103] For section 9 of the guidelines (shared custody) to be triggered, the payor must exercise a right of access or have physical custody of the child at least 40% of the time over the course of the entire year, not just an isolated period, such as the summer vacation. See: Lopatynski v. Lopatynski, [1998] A.J. No. 1312 (Alberta Q.B.). The court must determine the 40% threshold over the "course of the year". See: Ellis v. Ellis, 1997 P.E.I. J. No. 119; Pimental v. Kavaratzis, 2018 ONCJ 293.

8.3 Analysis

[104] The mother did not meet her onus to impute income to the father on a temporary basis.

[105] The mother provided no evidence that the father is earning more than he claims. At this point, her suspicions about his pay stubs are speculation.

[106] The father provided a plausible explanation, at this stage, that he is earning what he is capable of earning. His higher-paid position terminated in April 2019. He appears to have made reasonable efforts to obtain appropriate employment.

[107] The evidence of the father remains untested by cross-examination. The result may be different at trial. However, based on the evidence presented, the court is not prepared to impute additional income to the father at this stage and will use his stated his income of $54,936 for the purpose of the support calculation. This will be subject to adjustment by the trial judge.

[108] The court will start the temporary order as of February 1, 2020. The father has significantly underpaid support since the children returned to the mother's care. The court also notes that he has been able to afford to maintain an apartment in Toronto while underpaying support. There is no basis to have a later start date.

[109] The father also appears to be asking for a delay of the start date for support as a back-door around establishing an undue hardship claim, based on his access costs, pursuant to section 10 of the guidelines. The court will not permit this. The father did not make an undue hardship claim and provided no evidence that he would come anywhere close to meeting the stringent threshold test to establish undue hardship contained in section 10.

[110] There is no legal basis to make an order that the father not pay support for the months of December, July and August, as requested. Based on this order, the father does not come anywhere close to meeting the 40% parenting threshold over the course of an entire year, as set out in section 9 of the guidelines.

[111] The guidelines table amount for an annual income of $54,936 is $838 each month. The father shall pay child support in this amount starting on February 1, 2020. He shall be credited with support payments of $300 each month for February, March, April, May and June of 2020, for a total of $1,500. He shall also receive credit for any support paid to the mother since July 1, 2020, but only if acknowledged by the mother, or as reflected in the records of the Family Responsibility Office.

Part Nine – Conclusion

[112] Final orders shall go as follows:

a) There is no genuine issue requiring a trial and orders will be made on the mother's summary judgment motion as follows:

i) The mother shall have custody of the children.

ii) The mother shall make reasonable efforts to consult with the father before making any non-emergency major decision regarding the children.

iii) The children's primary residence shall be with the mother.

iv) The father shall not make any applications or requests for passports or other government documentation for the children.

b) The mother's motion for summary judgment for orders permitting her to obtain government documentation for the children without the father's consent and to travel with the children outside of Canada without the father's consent, is dismissed.

[113] Temporary orders shall go as follows:

a) The father shall provide the mother with 10 days notice before he travels to Toronto to see the children.

b) The father shall have access to the children on the following terms and conditions:

i) Supervised access to the children in Toronto by a professional access supervisor, being one of Access for Parents and Children in Ontario, Brayden Supervision Services or Family Relationships in Transition.

ii) He shall pay all costs of the supervised access, including any intake fees.

iii) The access shall not interfere with the children's school day.

iv) The access shall take place during the day and not exceed 6 hours.

v) The access shall take place at times and on days to be reasonably agreed upon by the parties and the access supervisor. He may have up to three visits each week he is in Canada.

vi) As a pre-condition of access taking place, he shall deposit his Nigerian and Canadian passports with his counsel.

vii) No other person may attend the access visits without the mother's prior written consent.

c) The father shall not directly or indirectly provide the children with any electronic device without the prior written approval of the mother. Any such item shall be provided to the mother directly to be given to the children.

d) Paragraphs 5, 6 and 7 of the order dated January 23, 2020 shall continue, on a with prejudice basis. The balance of that order is terminated and replaced by this order.

e) Based on an annual income of $54,936, the father shall pay the guidelines table amount of support for two children to the mother, being $838 each month, starting on February 1, 2020. The father is to receive credit for $1,500, being child support paid to the mother from February to June 2020. He shall also be credited with any child support that either the mother acknowledges in writing receiving after July 1, 2020, or is reflected as being paid after July 1, 2020 in the records of the Family Responsibility Office.

f) The child support is subject to adjustment to both amount and start date by the court at trial.

[114] If either party seeks their costs, they shall serve and file their written costs submissions by September 23, 2020. The other party will then have until October 7, 2020 to respond (not to make their own claim for costs). The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

[115] The court thanks counsel for their excellent presentation of the motions.

Released: September 9, 2020

Justice S.B. Sherr

Footnotes

[1] The mother deposed that the father only lived with her and the children for 6 months between September 1, 2016 and November 20, 2018. Nothing turns on the actual date of separation for the purpose of this decision.

[2] The father deposed that he wanted the children to complete their school term in Nigeria.

[3] The parties disagree on the frequency of this contact, although the mother says that the frequency has recently increased.

[4] The father claims this was a mediated settlement through relatives as is common in the Nigerian culture. The mother says that there was no mediation.

[5] The father provided this as the conversion amount in Canadian dollars from the income he is paid in Nigerian dollars.

[6] His counsel confirmed that the father is not making an undue hardship claim pursuant to section 10 of the guidelines at this time.