CITATION: Harry v. Moore, 2021 ONCJ 341
DATE: June 17, 2021
COURT FILE NO. D30421/19
ONTARIO COURT OF JUSTICE
B E T W E E N:
SUE SUVANIE HARRY
MEAGHAN PARTRICK, for the APPLICANT
APPLICANT
- and -
HEADLEY MOORE
ACTING IN PERSON
RESPONDENT
HEARD: JUNE 8-9, 2021
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] This trial was about the parenting and child support arrangements for the parties’ two-year-old son (the child).
[2] The applicant (the mother) seeks parenting orders that the child have his primary residence with her, that she have sole decision-making responsibility for the child and that she be permitted to obtain or renew government documentation for the child and be permitted to travel with the child outside of Canada, for vacation purposes, without the respondent’s (the father’s) consent.
[3] The mother has no immigration status in Canada. She seeks an order that she may bring an emergency motion to the court, on 48 hours notice to the father, to seek an order for relocation of the child, if a deportation order is to be executed against her.
[4] The mother seeks an order that the father’s parenting time with respect to the child take place on alternate weekends and Father’s Day and other parenting time as they can agree upon. She seeks an order that the father not remove the child from Canada without her prior written consent or further court order.
[5] The mother seeks child support from the father, retroactive to the date of the child’s birth in January 2019 and asks the court to impute the father’s annual income at $52,884 for support purposes.
[6] The father seeks parenting orders for joint decision-making responsibility and for equal-parenting time with the child. He opposes the mother’s requests to be able to dispense with his consent regarding the child’s government documentation or to travel with the child outside of Canada.
[7] The father seeks an order prohibiting the mother from removing the child from Canada without his prior written consent or further court order.
[8] The father asks that his child support obligation be fixed at $74.13 a month, from the child’s date of birth, based on his gross annual income of $14,737, with credit for support payments he has made since then.
[9] The parties each sought orders for various incidents of parenting (such as who is responsible for transporting the child on parenting exchanges and information sharing) that will be addressed in this decision.
[10] The direct evidence of the parties was provided by affidavit. The father was given permission to provide supplemental oral direct evidence. The parties examined each other. No other witnesses were called.
[11] The issues for trial are:
a) What parenting orders regarding primary residence, decision-making responsibility and parenting time are in the child’s best interests?
b) Is it in the child’s best interests to permit the mother to bring an emergency motion, on 48 hours notice to the father, to seek an order for relocation of the child if a deportation order is to be executed against her?
c) What restrictions, if any, should be placed on the parties removing the child from Canada?
d) How much child support should the father pay to the mother? In particular, what is the father’s income for support purposes – should income be imputed to him?
Part Two – Background facts and court history
[12] The mother is 31 years old. The father is 32 years old.
[13] The mother was born in St. Vincent. She came to Canada in 2010. She has no immigration status in Canada.
[14] The mother has two children from a previous relationship. Her son lives with her mother in St. Vincent. Her 8-year-old daughter lives with her in Toronto, together with the child and the mother’s 17-year-old nephew.
[15] The mother works part-time as a general labourer. Her work hours change weekly.
[16] The father lives with his parents at their home in Brampton. He is a self-employed mechanic.
[17] The father has a child from another relationship. This child does not live with him. The father said that he is paying child support of $250 each month for this child, although he said that he plans to soon reduce this amount to $110 each month.
[18] The parties started their relationship in April 2017. They ended their relationship when the child was born in January 2019. They have not reconciled since that date.
[19] The child has lived with the mother since the separation.
[20] The mother and the father fought at the hospital when the child was born. The mother asked the father to leave.
[21] Two days after the child’s birth, the mother received a call from the police while at the hospital. The father had alleged that the mother had “run off” with the child. The police did not pursue the matter after speaking to the mother.
[22] The father also called the Peel Children’s Aid Society (Peel) claiming that he was concerned for the child’s safety. Peel investigated and closed its file.
[23] The mother issued this application on March 15, 2019.
[24] The father’s Answer/Claim is dated April 24, 2019.
[25] On June 3, 2019, Justice Carole Curtis, on consent, made a temporary order that the father have supervised parenting time with respect to the child at Access for Parents and Children in Ontario (APCO), for one hour weekly, as soon as APCO could accept the matter. She also ordered that the father pay temporary child support to the mother of $248 each month, starting on June 1, 2019, based on an imputed minimum wage annual income to him of $29,120. Justice Curtis also ordered the father to provide specified financial disclosure to the mother.
[26] In August 2019, APCO closed its file because of the father’s conduct during its intake process.
[27] The father never saw the child at APCO. He had no parenting time with respect to the child until much later.
[28] On October 1, 2019, Justice Curtis made an order setting a deadline for the father to comply with her previous financial disclosure order. She ordered costs of $1,200 against him.
[29] On November 20, 2019, Justice Curtis made a further costs order of $1,500 against the father.
[30] Justice Curtis heard a contested motion on January 3, 2020. She endorsed that the father had filed no material for the motion despite having been granted extensions of time to do so. She made temporary orders that the mother have sole decision-making responsibility for the child and that the mother could obtain government documentation for the child and travel with the child outside of Canada, for vacation purposes, without the father’s consent. Justice Curtis made a finding that the father’s annual income was $52,884 and ordered him to pay temporary child support of $487 each month, starting on February 1, 2019.
[31] The father requested DNA testing to confirm that he was the child’s biological parent. The testing was completed on February 1, 2020 and it confirmed that the father is the child’s biological parent.
[32] On March 9, 2020, Justice Curtis made a third costs order against the father of $700. She endorsed that the father had repeatedly failed to meet court-ordered timelines causing needless adjournments.
[33] The case was then administratively adjourned due to the pandemic.
[34] In June 2020, the mother reached out to the father to start parenting time with respect to the child outside of APCO. She testified that she was motivated by the death of her sister’s child. She wanted the child to know the father. The parenting time was initially supervised by the mother for short periods of time and gradually increased to full days, with the level of supervision decreased. By September 2020, the father began having alternate weekend parenting time, unsupervised. This is the informal parenting arrangement presently in place between the parties.
[35] Justice Curtis endorsed that the father did not attend at the November 6, 2020 court date. Her endorsement states that the father had not complied with the consent disclosure order made on June 3, 2019. The three costs orders, she noted, were unpaid.
[36] On February 22, 2021, Justice Curtis conducted a combined settlement/trial management conference and the matter was sent to the trial sittings.
Part Three – Decision-making responsibility and primary residence
3.1 Legal considerations
[37] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act (the Act). The court has considered these factors, where relevant.
[38] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
[39] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[40] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
[41] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.
[42] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
- 1 Protection of children from conflict
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
[43] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can’t be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
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.
The younger the child, the more important communication is.
[44] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.
[45] 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, 2005 CarswellOnt 3209 (OCJ). 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, 2009 6423 (ON S.C.).
3.2 Positions of the parties
[46] The father believes that he and the mother have proven that they can communicate effectively concerning the child – they have been able to make parenting arrangements for the child since June 2020 without court intervention.
[47] The father claimed that he and the mother were getting along wonderfully until their separation. He feels that they can co-parent successfully.
[48] The father feels that it is important for the child to have both parents equally involved in his life. He expressed concerns that the mother has been making poor decisions and unilateral decisions for the child. He has felt excluded.
[49] The mother disagrees with the father and feels that their communication is very poor. She finds the father to be very challenging to deal with. She says that he does not comply with parenting exchange arrangements they make. She says that he is often late, sometimes misses his parenting time and instead of exchanging the child in her building’s lobby, as agreed, he will sometimes come directly to her apartment unit.
[50] The mother described how the father was verbally abusive to her during their relationship. She said that he was controlling, would criticize her clothing and accuse her of having affairs. She said that she did not have OHIP and the father refused to pay the hospital bill for the baby’s delivery. She said that she endured his poor treatment of her for too long because she felt vulnerable due to her lack of immigration status in Canada. She said that the father is argumentative and wants things his own way. She pointed to his difficulties with APCO as an example of how difficult he is to deal with. She wants to restrict her engagement with him. She believes that she has made child-focused decisions for the child and has facilitated the child’s relationship with the father. She submits that she is willing to first consult with the father about any major decision regarding the child. However, she does not want to be placed in the position where she has to make these decisions jointly with him.
3.3 Analysis
[51] The evidence was overwhelming that the mother should have sole decision-making responsibility for the child and that the child’s primary residence should be with her. A joint decision-making responsibility order is not in the child’s best interests.
[52] The parties do not trust the other. The father has little respect for the mother.
[53] The father’s conduct, poor judgment, and his focus on his own needs ahead of the child’s needs in this matter supported the mother’s version of her history with him. Where her evidence conflicted with the father’s evidence, the court preferred her evidence.
[54] Despite his saying that he felt that the mother was a good mother and that they had had a wonderful relationship prior to the separation, the father stated the following about her:
a) She has a criminal lifestyle.
b) She makes poor decisions about the child.
c) She is not safe or responsible.
d) She has neglected the child’s medical needs.
e) She does not properly supervise the child, letting her other child babysit him.
f) The child is often filthy and comes to him with old and tattered clothing.
g) She is only interested in his money and in impoverishing him.
h) She does not want to collect child support for the child – only for herself. He feels that he should be permitted to pay support directly to the child, not to the mother.
i) She only separated from him to obtain sole decision-making responsibility for the child and to facilitate taking the child with her if she was deported.
j) She attempted to alienate him from the child.
k) She only permitted him to start have parenting time in June 2020 to improve her position in the court case.
l) In 2017, she acted in a violent manner towards him and assaulted him with a knife. He said that she lied to the police and he was arrested. He described her as abusive, dangerous and unpredictable.
[55] The father provided no independent evidence to support his allegations.
[56] The court is satisfied that the mother is providing good care for the child. It is not disputed that the child is happy and healthy. The mother described a responsible daily routine for the child. She has always been the child’s primary caregiver and the child has benefitted from having stability and consistency with her.
[57] The mother took the very child-focused step of arranging parenting time in June 2020 despite the father being unable to get through the APCO intake process. She had no obligation to do this – a supervised parenting time order was in place. She sensibly introduced the child to the father in a gradual manner by increasing the parenting time and decreasing the level of supervision.
[58] The mother testified that the parenting time has generally gone well. The child is happy to see the father and happy when he returns home to her. She was pleased with this.
[59] The evidence informed the court that the father is a very difficult person to get along with. He presented at trial as defensive and mistrustful. He is a very poor candidate for a joint decision-making responsibility order.
[60] It is highly unusual when APCO suspends someone from its program. It is experienced in dealing with troubled people. It is an exceptional situation when someone is suspended before even completing the APCO intake process.
[61] APCO sent the father a letter in August 2019 setting out the following concerns:
a) He had attended his intake appointment, filled out the forms and left before the meeting.
b) He provided a contact number that they could not reach him at and an emergency contact person that he did not want them to call.
c) He removed the emergency contact person, failing to provide a new contact as two emergency contacts were required.
d) He continuously attended at its office when not scheduled to attend.
e) He would not follow its cellphone policy.
f) He spoke to multiple staff in an aggressive and abusive manner.
g) He indicated in his referral package that he disagreed with the referral.
h) He refused to agree to complete a requested form to change the schedule for visits if the weekly spot was not available.
[62] The father testified that APCO staff were rude and unresponsive to him during the intake process. He claimed that they made up false stories to attack his character. He expressed the opinion that APCO was in partnership with the mother’s law firm.
[63] The father’s conflict with APCO resulted in his not seeing the child until June 2020. The court has little doubt that this conflict was the father’s fault. This was poor judgment on his part. He failed to prioritize his child’s need to have a relationship with him ahead of his conflict with APCO.
[64] The father has shown a pattern of poor judgment and controlling behaviour. When the mother separated from him, he chose to call the police and Peel to investigate her, claiming that she had taken the child and that the child was not safe. This was nonsense and vindictive. The files were closed.
[65] Parents who require the involvement of the police and Children’s Aid Societies are poor candidates for joint decision-making orders. See: L.B. v. P.E., 2021 ONCJ 114.
[66] The father expressed his dissatisfaction with Peel’s investigation at trial. He claimed that if they had properly investigated, the mother and the child would have returned to his home and he and the mother could have mediated their issues.
[67] The father did not reserve his hostility to APCO and to Peel. He believes that Justice Curtis has dealt with him unfairly. He stated that he and the mother would be able to work things out, if not for the mother’s counsel. He believes that the mother’s counsel is just trying to run up legal fees at the expense of his family.
[68] The father also expressed disdain for his previous lawyer. He claimed that the lawyer had forced his signature on his December 14, 2020 financial statement. He said that the lawyer “tried to meddle around and messed up my case and then took me off the record”. He said that the lawyer did the same thing in Brampton regarding his case regarding his other child.
[69] When so many other people are proposed as being the problem, the court is likely to draw the conclusion that you are the problem. That is the case here.
[70] The father’s proposal to only pay $74.13 each month for child support spoke volumes about his placing his own needs ahead of the child’s. The court will set out below why the father will be required to pay a much higher amount of child support. Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: McBennett v Danis, 2021 ONSC 3610; Jama v. Mohamed, [2015] ONCJ 619.
[71] Further, the father’s desire to pay child support directly to the child (the court assumes he meant by buying items for the child) and not to the mother is strong evidence of a controlling personality – a trait ill-suited for a joint decision-making order.
[72] Another example of the father being unable to effectively co-parent with the mother has to do with the daycare issue. The father wants the child to go to daycare. He made arrangements for the child to go to daycare. He criticized the mother for not sending the child to this daycare. However, he arranged for the child to attend daycare in Brampton where he lives. This is unrealistic. The mother lives and works in Toronto. She would not be able to transport the child to Brampton.
[73] The evidence also reveals that the father does not comply with court orders. He had three costs orders made against him in these proceedings due to his unreasonable behaviour. Costs remain unpaid. He failed to comply with timelines for filing court material throughout this case. At trial, he still had not complied with the order to provide disclosure of his 2020 and 2021 income. If the father cannot act reasonably in a controlled court case, one questions how he can be expected to reasonably co-parent with the mother in an uncontrolled setting.
[74] The court has no confidence that the father would reasonably execute consents in a timely manner for the mother to obtain necessary government documentation for the child or to travel with the child outside of Canada for vacation purposes. The court will make the orders that are sought by the mother to dispense with the father’s consent.
Part Four – Parenting time
4.1 Legal considerations
[75] The test for determining parenting time is what order is in the best interests of the child. The court considered the best interests considerations set out in part 3.1 above.
[76] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[77] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.
[78] Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204.
[79] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.
4.2 Analysis
[80] The level of communication and trust between the parents does not come anywhere close to supporting an order for equal-parenting time.
[81] The difficulties with the parties’ communication are mainly attributable to the father.
[82] The child has primarily resided with the mother. The child’s need for stability and continuity has been met with the mother. He only started overnight parenting time with the father in September 2020. It is not in the child’s best interests to make significant changes to this parenting arrangement and to have him spend extended time away from his primary caregiver.
[83] Given the father’s difficult conduct, it is also in the child’s best interests to reduce transitions of the child between the parents to protect the mother and the child from conflict.
[84] The court is encouraged that the father’s parenting time with the child has been positive. He presently has parenting time from Fridays at 6 p.m. until Sundays at 6 p.m. on alternate weekends. The father described his relationship with the child with love and affection. The child enjoys his time with the father. He has been able to spend two nights away from his mother without any problems.
[85] The father also testified that the child has a loving relationship with paternal family members, including his half-sister. These are relationships that should be fostered.
[86] This evidence informs the court that there should be some increase in the father’s parenting time with respect to the child.
[87] The court will maintain the father’s parenting time on alternate weekends. However, the weekend parenting time shall be expanded to end on Mondays at 6 p.m. This schedule will stay in place until the child starts attending school or attends full-time at daycare.
[88] Once the child starts attending school, or attends full-time at daycare, the weekend visits will end on Sundays at 6 p.m., unless it is a long weekend, in which case it will end on Mondays at 6 p.m. At that time, the father will also have parenting time with the child on each Wednesday from 4:30 p.m. to 7:30 p.m.
[89] Neither party sought a holiday parenting time schedule and in the absence of such a request, the court is not prepared to order one.
[90] The parties agreed that the father should have parenting time on Father’s Day each year. This will be included in the order and the mother will have the child with her on Mother’s Day each year.
[91] Both parties asked that the other be responsible for transporting the child on parenting exchanges. The father has been transporting the child and the court sees no reason to change this. The mother does not have a consistent work schedule. It is difficult for her to travel to Brampton. She also needs to care for her 8-year-old daughter.
Part Five – Removal of the child from Canada
[92] The mother seeks an order permitting her to bring an emergency motion to the court, on 48 hours notice to the father, to seek an order for relocation of the child, if a deportation order is to be executed against her.
[93] The mother relies on this court’s decision in N.E.C. v. A.A.A., 2010 ONCJ 54, in support of this request.
[94] However, the fact situation in N.E.C. was much different. The mother in that case was already subject to a deportation order. Many of her appeal options had been exhausted. The Minister of Public Safety and Emergency Preparedness had participated at that trial. There was a real possibility that the deportation order would be executed, and the court established a process to ensure that the child was not left behind in Canada if the mother was deported.
[95] Here, there is no order for deportation against the mother. The mother deposed that she is in the process of applying for legal status in Canada. This can be a long process. If the mother is served with a deportation order, she will have plenty of time to bring the matter back to court to address the relocation issue. And, if a deportation order is made, it may not happen for a long time. It is premature to set up a process now that may not be in the child’s best interests in the future.
[96] The court will order that if the mother becomes subject to a deportation order, it will constitute a material change in circumstances and either party may bring a motion to change this order to address the child’s relocation.
[97] The mother has been in Canada since 2010. She wishes to remain in Canada. She is working and has built a life here. She has family here. There is no evidence to support the father’s allegation that she is a flight risk. There is no evidentiary basis to make an order that she cannot remove the child from Canada for vacation purposes once she obtains immigration status, or a written authorization from immigration authorities that will allow her to re-enter Canada with the child. The order will provide that the mother shall provide the father with an itinerary of any vacation she takes outside of Canada with the child at least 14 days before the trip.
[98] However, the court will make an order that the father not remove the child from Canada without the mother’s written consent or further court order. The child is not used to spending significant time away from the mother. He should not be traveling with the father for an extended time at this point. The court has concerns about the father’s judgment and will make this order to ensure the child’s stability.
Part Six – Child support
6.1 The father’s income
[99] The father testified that he received a degree from Centennial College as an Automotive Technician. He said that he took advanced courses in hybrid and electrical vehicles at Toyota University but did not complete the entire program.
[100] The father was employed as a mechanic until he started his own business, Barcode Automotive Inc., in 2017. The father is the sole shareholder and employee of the corporation. The business conducts vehicle safety inspections and repairs. The father said that he is good at his work, “good enough to support my children”.
[101] The father said that this is a mobile business. He often goes to his customer’s locations to do the work. The father testified that he operates this business out of his home and that he also rents a residential location to do some of the repairs and to store equipment.
[102] The father said that the business has not made much money. He produced income tax returns and notices of assessment setting out his annual income as follows:
- 2019 – $14,737
- 2018 – $10,036
- 2017 – $16,749
- 2016 – $12,159
- 2015 – $4,725
[103] The father filed a financial statement sworn on March 4, 2020. He deposed that his gross annual income was $43,452 and that his net annual income was $10,036. He declared that his yearly expenses were over $66,000. He listed assets of $15,000 – including two BMW vehicles, and debts totaling a little over $8,900.
[104] The father swore another financial statement on December 14, 2020. He declared gross income of $49,535 and net income of $14,737 – the same income that he declared that he had earned in 2019 in his income tax return. The father set out that his expenses came to $42,492 annually. This included $1,100 a month related to his vehicle expenses. The expenses listed in this financial statement did not include his child support paid for his two children or the gifts he claimed that he bought for them.
[105] The amount in the father’s bank account, as set out in his December 14, 2020 financial statement, had increased by over $900 since March 4, 2020. The father said that his previous lawyer forgot to include his vehicles in this financial statement. The debts listed in this financial statement increased to $12,000 from the previous amount of $8,900. In addition, there was a debt of $8,000 owing to an insurer due to a claim related to his business. This debt was unrelated to his cash flow.
[106] The father testified that he is earning approximately the same income in 2021 as he did in 2020 and that he has had similar expenses to those set out in the December 14, 2020 financial statement. He said that other than his debt to the Family Responsibility Office (FRO), his assets and debts remain the same today.
[107] The father stated that he has been able to meet all his expenses and support both of his children.
[108] The father said that he does not want to work for anyone else – such as a dealership – because there is little job security, and even less security when you are the new person. He felt that his long-term prospects are better running his own business.
[109] The father asks that child support be set in accordance with his stated annual income, in accordance with the table amount in the Child Support Guidelines (the guidelines). He asks that support be adjusted back to the date of the child’s birth. The guidelines table amount he proposes to pay is $74.13 each month.
[110] The mother claims that the father is either earning, or is capable of earning, $52,884 each year. This is the average amount that she says a mechanic earns, according to the website Indeed.com. This was the annual income amount attributed to the father on the motion decided on January 3, 2020 by Justice Curtis.
[111] The mother deposed that she personally knows that the father engaged in cash-based transactions during their relationship.
6.2 Legal considerations
[112] Section 19 of 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.
[113] 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 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).
[114] 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:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of the party’s or the child’s reasonable education or health needs?
If not, what income is appropriately imputed?
[115] 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. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
[116] 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.
[117] The court stated in Drygala 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.
[118] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, 2006 13554 (ON SC), [2006] O.J. No. 1660, (Ont. Fam. Ct.). This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184.
[119] The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 2002 2806 (ON SC), 31 R.F.L. 5th 88 (SCJ).
[120] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. See: Riel v. Holland, 2003 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins, 2005 43294 (ON SC), (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137.
[121] Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances. See: Smith v. Smith, 2012 ONSC 1116. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations. See Hanson v. Hanson, 1999 6307 (BCSC); Gobin v. Gobin, 2009 ONCJ 245, [2009] O.J. No. 2191 (OCJ); Charron v. Carriere, 2016 ONSC 4719.
[122] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, 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, 2006 26573 (ONCA).
[123] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See Smith v. Pellegrini, 2008 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719.
[124] A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.
6.3 Analysis
[125] The court does not accept the annual income figures that the father claims he has been earning. They are not credible.
[126] The father is an experienced mechanic with over 10 years of experience. It makes little sense that he would continue to work for 50% of a minimum wage income.
[127] The father is leading a lifestyle far in excess of the income he claims to earn. He drives a BMW. He spends $1,100 each month on transportation – yet he proposes to pay $74.13 each month for the child.
[128] While ostensibly running a large monthly deficit (when comparing his income to his expenses), there have only been modest changes in the father’s net worth since his March 4, 2020 financial statement and no real change since his December 14, 2020 financial statement. He could not explain how this could happen. The numbers don’t work to support his evidence.
[129] The logical inference is that the father is earning much more money than he is claiming. His business records only set out what he wants to report for tax purposes and for court purposes.
[130] The financial disclosure that the father did provide was incomplete. Despite multiple court orders, he did not provide any income information for 2020 and 2021. He did not file his personal or corporate tax returns for 2020. He did not provide his 2020 notice of assessment. Financial documentation that was provided was provided late. The costs orders reflect this.
[131] It was very difficult to ascertain at trial how and from where the father’s business operated. He disclosed this information in bits and pieces and was very defensive while doing so. When it was put to him in cross-examination that his business records showed him using multiple addresses for his operations, his evidence kept shifting. He said some of this paperwork was in error or that the addresses were no longer being used.
[132] The father relied on revenue and expense statements for his business that he self-generated. The court does not find that documentation reliable.
[133] The court draws an adverse inference against the father, arising out of his failure to provide complete and timely disclosure or to provide a coherent and meaningful explanation of his business affairs.
[134] The court finds that if the father was earning the income that he claims, running his own business is an unreasonable career choice and that he is deliberately underemployed.
[135] The father has two children to support. He has no health limitations. He has the education and skills to pay meaningful child support for them.
[136] This leads to the question of what income the father is earning or is capable of earning.
[137] The father testified that he worked at dealerships when he left school. He testified that he last applied for a job at a dealership in 2011. He claimed that those jobs paid $17 or $18 an hour at that time.
[138] It is reasonable to assume that wages have increased since 2011. The Indeed.com website sets out that jobs for mechanics are advertised at between $18 and $38 each hour. Even if the court takes a conservative approach to the father’s earning capacity, he should be able to find employment that pays him $25 each hour, for a 40-hour work week, for 50 weeks each year. This equates to an annual income of $50,000.
[139] The net income that an annual income of $50,000 would generate (after income tax and other deductions) is consistent with the father’s monthly expenses and lifestyle and a good estimate of what the father is actually earning.
[140] The court will impute annual income to the father of $50,000 for the purpose of the support calculation. The guidelines table amount for one child at this income is $461 each month. Both parties agreed that support should start on February 1, 2019, so the court will not engage in a retroactive support analysis. Even if this issue had been contested, the court would not have hesitated to make this small retroactive order to ensure that the child received the appropriate amount of support.
[141] The court agrees with the father that some adjustment to his imputed income should be made due to the pandemic. He said that business disappeared during the first few months of the pandemic in 2020 because of the lockdown. He said that customers were still more reluctant to service their vehicles during the 2021 pandemic restrictions. The court will adjust the father’s annual income for the period from April 1, 2020 to June 30, 2021. It will impute the father’s annual income at $42,000 for this period. The guidelines table amount for one child at this income is $381.
[142] As of July 1, 2021, the father’s income will again be imputed annually at $50,000.
[143] The father provided evidence of direct support payments of $800 that he made to the mother between January 2019 and when the application was issued on March 15, 2019. The parties did not provide the court with an updated statement of arrears from FRO. The court has no way of knowing whether these payments have already been credited to the father. The court will order that the father be credited with $800 for these support payments, but only if they have not already been credited in FRO’s records.
Part Seven – Conclusion
[144] A final order shall go on the following terms:
a) The mother shall have sole decision-making responsibility for the child.
b) The mother shall consult with the father prior to making any major decision for the child.
c) The father shall have the rights of information about the child, from his teachers, doctors and other professionals, concerning the child’s health, education and welfare, in accordance with subsection 20 (5) of the Act.
d) The mother may obtain or renew any government documentation for the child, including passports, without the father’s consent.
e) Once the mother obtains immigration status in Canada or an authorization from immigration authorities that would permit her to re-enter Canada with the child, she may travel outside of Canada, for vacation purposes, without the father’s consent. She shall provide the father, at least 14 days prior to the trip, with an itinerary setting out when she is leaving Canada, where she will be staying and when she will return to Canada.
f) The child’s primary residence shall be with the mother.
g) The father shall have parenting time with respect to the child at the following times:
i) Starting on June 18, 2021, on alternate weekends from Fridays at 6 p.m. until Mondays at 6 p.m.
ii) Once the child starts school or attends at full-time daycare, the weekend parenting time shall end on Sundays at 6 p.m., unless the weekend falls when the Monday is a statutory holiday.
iii) Once the child starts school or attends at full-time daycare, there shall be additional parenting time on Wednesdays from 4:30 p.m. until 7:30 p.m.
iv) The child shall spend Father’s Day with the father, if it is not otherwise his weekend with the child, from 10 a.m. until 6 p.m.
v) The child shall spend Mother’s Day with the mother, if it is not otherwise her weekend with the child, starting from 10 a.m.
vi) Such further and other parenting time as the mother shall agree to.
vii) In the event that a vacation taken by the mother with the child occurs during the father’s parenting time, make-up visits shall be arranged upon the mother’s return.
h) The following shall be terms related to the father’s parenting time:
i) He shall not remove the child from Canada without the prior written consent of the mother, or further court order.
ii) He shall be responsible for exchanging the child on parenting exchanges.
iii) He shall exchange the child in the lobby of the mother’s building or any other location that she reasonably requests. He shall not come up to her apartment unit without her prior consent.
i) If the mother ever becomes the subject of a deportation order, this will constitute a material change in circumstances entitling either party to bring a motion to change to address the child’s relocation.
j) The mother shall immediately advise the mother if she receives a deportation order.
k) Each parent shall immediately advise the other in the event of an emergency involving the child.
l) Based on an imputed annual income of $50,000, the father shall pay the mother the guidelines table amount of support for one child of $461 each month, starting on February 1, 2019.
m) Starting on April 1, 2020, based on an imputed annual income of $42,000, the father shall pay the mother the guidelines table amount of support for one child of $381 each month.
n) Starting on July 1, 2021, based on an imputed annual income of $50,000, the father shall pay the mother the guidelines table amount of support for one child of $461 each month.
o) If not already credited by FRO, the father shall be credited with the $800 he paid to the mother for support between January 2019 and the start of this application on March 15, 2019.
p) The father shall also be credited with child support paid to the mother since the start of this application, but only as reflected in FRO’s records.
q) The father shall provide the mother with complete copies of his personal income tax returns and notices of assessment and the corporate tax returns for his business by June 30th each year.
r) A support deduction order shall issue.
s) This support order replaces any temporary order. FRO is requested to adjust its records in accordance with this order.
t) All other claims made by the parties, except costs, are dismissed.
[145] If either party seeks costs, they shall serve and file written submissions by July 2, 2021. The other party will then have until July 16, 2021 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office
Released: June 17, 2021
_____________________ Justice S.B. Sherr