Court and Parties

Ontario Court of Justice Location: 47 Sheppard Ave. E, Toronto, Ontario Date: September 23, 2022

Before: Justice R. Zisman

Applicant: Selam Belay Tekle Counsel for Applicant: Self-represented

Respondent: Aman Ghebrezgiabber Counsel for Respondent: Self-represented

Heard: September 20, 2022 (focused trial)

Endorsement

[1] This is my decision with respect to a focused trial held on September 20, 2022.

Background

[2] The parties were married on May 7, 2011 and separated on June 2, 2018.

[3] An uncontested divorce was granted in September 2019. The parties verbally agreed that the children would remain in the primary care of the mother and the father would have access. There was no agreement regarding child support.

[4] The parties have 3 children Naod Mehari born […], 2011, Niat Nehari […], 2021 and Yosan Mehari born […], 2017.

[5] The parents were originally from Eritrea and met in Sudan. They came to Canada as refugees 2012. They originally lived in Winnipeg and then moved to Toronto on May 7, 2016.

[6] The mother has been the children’s primary caregiver since their birth although the father would take a role in caring for the children also.

[7] The children have resided with the mother since the separation. The father would spend time with the children but on no fixed schedule. There were some limited overnights as the father only resided in a one bedroom apartment. The father has not paid child support since the parties separated although he would transport the mother and children to appointments, shopping and to visit family. He paid for some groceries and other items for the children.

Court proceedings

[8] The mother who was represented by counsel commenced this Application on December 31, 2020 for orders of joint custody [now decision-making responsibilities], access [now parenting time] to the father on alternate week-ends, and child support. The mother also sought ancillary parenting orders with respect to travel and obtaining the children’s documents. The mother further sought an order that the father delete all messages and photos he took using the mother cell phone and that neither party to talk negatively about the other to the children.

[9] The father was represented by counsel when he filed his Answer. He claimed primary residence, joint decision-making responsibilities but if the parties could not agree he would make the final decision and alternate week-end parenting time for the mother. He also sought ancillary parenting orders with respect to travel and an order that neither party speak negatively about the other. If the children remain with the mother, then he sought an order that he not pay any child support until he obtains full-time employment or earns more than minimum wage and is no longer in receipt of social assistance.

[10] The first appearance was on May 17, 2021. The parties did not reach any agreement.

[11] At the case conference held before Justice Curtis on July 28, 2021, both parties were represented by counsel and had the assistance of a Tigrigna interpreter. They agreed that the father pay child support of $288 per month based on his annual income of $18,146.80 as of August 1, 2021 on temporary without prejudice basis to parents’ right to claim a different amount or a different start date.

[12] The parties were ordered to exchange Requests for Disclosure. The father was also ordered as of July 1st, 2022 to produce to the mother copies of his income tax returns and Notices of Assessment or Notices of Re-Assessment and disclosure required by section 24.1 of the in accordance with the child support guidelines. The father’s request for a Voice of the Child Report was dismissed.

[13] The parties attended again before Justice Curtis on November 23, 2021 for a further case conference. The mother remained represented by counsel and the father was self-represented. The parties again had the assistance of a Tigrigna interpreter. An order was made that the father have parenting time on every other week-end from Friday at 6 pm to Sunday at 6 pm. A motion date was set with timelines for filing materials.

[14] On December 31, 2021 a temporary motion was heard by Justice Curtis. The father filed no materials and his request for an adjournment was denied. Despite not filing any materials the father was permitted to make submissions. A Tigrigna interpreter was again available to assist the parties.

[15] A temporary order was made that provided that the mother have sole decision-making responsibilities, primary residence and that the father pay child support of $645 per month based on an imputed income of minimum wage being $31,200 as of January 1, 2022.

[16] A further case conference was held on March 29, 2022. The father did not file a conference brief as ordered. The Tigrigna interpreter was again present. The father advised he had consulted but not yet retained counsel and was strongly urged to obtain counsel. The endorsement states that the father was advised of the details he needed to support his claim for an inability to work due to medical reasons.

[17] The father was ordered to produce to the mother, who was still represented by counsel, by April 29, 2022 a letter from a doctor to support his claim of inability to work due to medical reasons, updated sworn financial statement and bank records for all bank accounts from June 2018 forward on an ongoing basis.

[18] The father was cautioned that he was not permitted to write letters and send them directly to the judge. He was again ordered to comply with the Family Law Rules and file a conference brief.

[19] The father requested that the parenting order of November 23rd be changed to reduce his parenting time to every other week-end from Saturday at 6 pm to Sunday at 6 pm.

[20] The parties again attended before Justice Curtis on May 19, 2022. The mother remained represented by counsel and the father was self-represented. He was again urged to obtain counsel. A Tigrigna interpreter was again available. Although the endorsement states that a case conference was held it appears from the endorsement that there were settlement discussions on all issues as the endorsement states that the parties are far apart and a trial was needed.

[21] The endorsement states that the father was advised that the medical letter he produced was inadequate to accomplish his goal of relying on an inability to work due to medical conditions and the information needed was reviewed in detail with the father.

[22] Trial planning was discussed and there was an order that the parties’ evidence in chief would be by affidavits and time limits were set for cross-examination. The mother was to serve and file her affidavit by June 22 and the father by July 22nd. The trial was to proceed during the trial sittings on September 12 to 23, 2022.

[23] The father indicated that he intended to call family members who assisted the parties with mediation, as claimed by him only, but he refused to provide any other information about his witnesses. The father was cautioned about the way to enter medical evidence.

[24] The timelines for serving and filing were subsequently extended to July 25th for the mother and August 15th for the father.

[25] The mother who was still represented by counsel served and filed her trial affidavit sworn on July 24th on July 25th, 2022. That affidavit claimed amongst other relief, sole decision-making responsibilities as “the Respondent will not cooperate with me and will give me a hard time,” primary residence and that child support be based on the father paying child support based on a minimum income of $31,200.

[26] On August 9th, 2022, 14B motions were submitted by the mother and the father with Minutes of Settlement attached signed by the parties on July 27th, 2022, with no witnesses. Both 14B motions appear to be in the same handwriting and state that, “it is the right of the Applicant and the right of the Respondent that the court make the Court order based on the Settlement Agreement signed by the Applicant and the Respondent.”

[27] The Minutes of Settlement [^1] state that the father shall have sole decision-making responsibilities and primary residence of all of the children, that there will be no child support payable by the mother as she is in receipt of Ontario Works until she is employed and the mother to have parenting time on every second week-end from Friday at 6 pm to Sunday at 6 pm.

[28] The 14B motions were before Justice Sherr on August 10th. He directed the court staff to send his endorsement and the 14B motions to mother’s counsel as the court needed assurance from the mother’s counsel that the mother was consenting to the relief requested.

[29] On August 16th, a Notice of Change in Representation was filed that the mother was now self-represented.

[30] On September 1, 2022 a further 14B motion from the mother was filed with the court. Again, it appears to be in the same handwriting as the prior 14B motions and request the same relief.

[31] Justice Curtis endorsed that no orders were made. The endorsement noted that the mother had been represented by counsel throughout the proceeding until a few weeks before and just before trial became unrepresented. Justice Curtis ordered that the trial proceed.

[32] It is against this background that the trial proceeded before me on September 20th, 2022.

[33] The only witnesses were the parties. The mother relied on her trial affidavit and was cross-examined by the father. The father provided oral testimony. The mother chose not to cross-examine him.

Issues to be determined

[1] Should the court make an order in accordance with the Minutes of Settlement submitted by 14B motions?

[2] If the court declines to make an order in accordance with the Minutes of Settlement, what order is in the best interests of the children with respect to primary residence, decision-making responsibilities and parenting time?

[3] Should either parent be required to pay child support and if so, based on what income?

Validity of Minutes of Settlement

[34] Parties are able to resolve their issues by entering into domestic contracts. As the parties here are separated and divorced they can enter into an agreement that with respect to their respective rights and obligations:

[35] Sections 54, 55 and 56 of the Family Law Act are the applicable sections that govern. They provide as follows:

Separation agreements

54 Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to decision-making responsibility or parenting time with respect to their children; and

(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54 ; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27) ; 2020, c. 25 , Sched. 1, s. 28 (8).36

Form of contract

55 (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1) .

Provisions that may be set aside or disregarded

Contracts subject to best interests of child

56 (1) In the determination of a matter respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1) ; 1997, c. 20, s. 10 (1); 2020, c. 25 , Sched. 1, s. 28 (9).

Contracts subject to child support guidelines

1. (1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. 1997, c. 20, s. 10 (2); 2006, c. 1, s. 5 (8)

[2] In this case, the Minutes of Settlement are not witnessed and therefore fail to meet the requirements of section 55 of the Family Law Act.

[3] Further section 56 (1) and (1.1) sets out the court’s ability to disregard any provision with respect to both child support and any provisions regarding children where the court deems that the provisions are not in a child’s best interests.

[4] In this case, the court is concerned about the timing of the Minutes of Settlement and the mother then becoming self-represented. The mother signed the Minutes of Settlement without having the benefit of legal counsel. A counsel that had represented the mother since the inception of her Application.

[5] Further, the court has the discretion, as set out in section 56 of the Family Law Act, to disregard any provision, even in a valid domestic contract, that is contrary to the best interests of a child.

[6] At the commencement of the trial the father indicated that the parents have the right to make decisions about their children, they signed Minutes of Settlement and want the court to make that order. The father used similar language as set out in the 14B motion that had been submitted.

[7] Although parents have the right to make decisions regarding their children, once a proceeding is before the court the court is required to make decisions that are in the best interests of children and with respect to child support to make decisions that are in accordance with the child support guidelines.

[8] I find that the Minutes of Settlement, filed with the court by 14B motion, are not enforceable by the court.

[9] The court may on the evidence presented nevertheless consider that these Minutes of Settlement represent the views of the parents with respect to the appropriate parenting and child support arrangements for the children.

Primary residence and decision-making responsibilities

[10] The mother indicated that she relied on her trial affidavit dated July 24th as her evidence in chief. However, as the mother was unclear as to whether she signed her affidavit remotely, the Tigrigna interpreter translated the entire affidavit for the mother and the mother made only a few minor changes.

[11] Most importantly in confirming the contents of her affidavit, the mother did not change her position, as set out in the affidavit requesting sole decision-making responsibilities and primary residence of the children.

[12] When questioned by the court regarding the children’s schooling, the mother was able to explain how each child was doing in school, that they were attending regularly and the special educational arrangements made for her daughter who was having some difficulties.

[13] The mother confirmed that she helped the children with their schoolwork but that the father would be better at it but provided no further explanation.

[14] When asked about the father’s role, she stated that since the separation the father has transported her and the children as he drives. He has driven the mother and the children to various appointments, to go shopping and to visit family. The father would transport the children to and from school on occasion. The mother testified that she sometimes paid for the gas and for the shopping although the father did assist her sometimes with buying groceries and other things for the children.

[15] When asked by the father about her housing, she confirmed that she felt the area she lived in was safe but the father did not agree.

[16] In answer to other questions with respect to the involvement of the Children's Aid Society, the mother initially stated that there was a proceeding with the Children's Aid Society. When asked to clarify if the parties were in court, the mother stated that there were some concerns about the hygiene of her home and the children and her were temporarily residing in a shelter. The apartment was being cleaned up and they would be moving back to their apartment at the beginning of October. There were no court proceedings and the society appears to be simply assisting the mother and children.

[17] The father despite not filing an affidavit for the trial was permitted to testify. He confirmed that he had raised concerns about the safety of the children with the mother and in particular regarding the area in which they were residing. He confirmed that his concerns were investigated in November 2021 and the file was closed. He further confirmed that he had not made any other complaints to the society.

[18] The mother confirmed that she signed the consent to place the children with the father and stated that this is what she wants. The mother provided no explanation as to why she agreed to this or why she had changed her position.

[19] However, after the evidence was completed and when asked to make a closing statement and tell the court what orders she wanted, the mother replied that she relied on her trial affidavit.

[20] The father was asked by the court to explain his plan to care for the children if they were placed in his care. He testified that he was currently living in one room but had applied for larger subsidized housing. He testified that he applied in 2016 and was told it took 7 years to obtain accommodations. He testified he believed that he would obtain larger accommodations shortly. He did not provide any verification from the housing authority.

[21] When asked the last time he had spoken or had a meeting with the school about his children he testified that he had tried but had not been able to meet or speak to anyone.

[22] As the father does not yet know where any new housing might be located, his plan was to keep the children in the same school for now but he may need to change their school in the future.

[23] I have considered the best interests criteria as set out in section 24 of the Children’s Law Reform Act.

[24] The mother has been the primary caregiver of the children since their birth and the children have resided with her sole care since the separation in June 2018. The mother made the decisions for the children. There was no evidence that any decisions were not in the best interests of the children.

[25] The Children's Aid Society conducted an investigation in November 2021 with respect to concerns raised by the father and closed their file. I draw the inference that they did not verify the concerns and clearly the children remained in the care of the mother.

[26] The society is apparently involved again. Although I have little evidence regarding this, based on the evidence provided it appears that the society is assisting the mother and children with respect to some housing issues. It is clear the society has not started a child protection proceeding or taken any steps to remove the children from the mother’s care. I again draw the inference that the society does not have serious concerns about the mother’s care of the children that warrant a formal child protection application or a removal of the children from her care.

[27] Based on the evidence before the court that I accept, the mother has met the needs of the children and provided a stable environment for them.

[28] Based on the evidence presented that I accept, the father has always spent time with the children but not on a regular or consistent basis since the separation.

[29] During the court proceedings, the father initially on consent was granted parenting time every second weekend from Friday at 6 pm to Sunday at 6 pm. He then requested that his parenting time be reduced to only every second Saturday at 6 pm to Sunday at 6 pm. He offered no explanation as to why he sought a reduction of his parenting time.

[30] In the father’s Answer and Claim he indicated that he could not have regular overnight parenting time to the children due to his lack of appropriate accommodations. He wished primary residence of the children once he obtained a 2 bedroom apartment.

[31] At present the father still does not have appropriate accommodations and based on his evidence is not only living in one room.

[32] Despite the Minutes of Settlement submitted by the parties, I find that the children’s best interests are best met by them remaining in the primary residence of the mother.

[33] In their pleadings both parties requested joint decision-making responsibilities although the mother in her trial affidavit deposed that she could not communicate with the father and sought sole decision-making responsibilities. The mother outlined the disagreements and conflict between the parties.

[34] I find that the mother should continue to have sole decision-making responsibilities as since 2018 she has made the decisions for the children and both parties allege that the other is difficult to deal with. The mother should consult with the father but if they do not agree then she can continue to make the decision regarding the children.

[35] Given the lack of ability to communicate, the mother should be able to obtain any government documents for the children without the consent of the father. A copy of any such documents should be provided to the father.

[36] With respect to parenting time, the mother has always indicated a desire for the father to exercise regular parenting time. If the father is able to accommodate the children he should have parenting time every other week-end with the children from Friday at 6 pm to Sunday at 6 pm. Since the father had difficulty maintaining this schedule in the past, the father should notify the mother by the Thursday of his week-end if he intends to exercise his parenting time.

[37] Both parties agree with respect to requiring the consent of the other parent with respect to travel.

Child Support

[38] Child support is payable based on the income of the payor. Income is determined pursuant section 2 of the Child Support Guidelines by applying sections 16 to 20.

[39] In appropriate circumstances income can be imputed to a payor.

[40] Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity. See Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731.

[41] Income can also be imputed for a lack of financial disclosure. See Gray v. Rizzo, 2016 ONCA 152.

[42] The father testified that has a high school education and attended a vocational school. He trained and worked as an air flight controller.

[43] While living in Winnipeg, the father started a course as a truck driver but he did not complete the training.

[44] When the parties moved to Toronto, he worked part-time delivering pizza. He also worked as a taxi driver.

[45] The father is in receipt of ODSP and his current income is about $15,060.

[46] The father provided some but not all the disclosure ordered by the court. The father provided his Notices of Assessments. But he was ordered to produce his tax returns from 2018 but failed to do so except for his 2021 return. As a result, it is not clear what his expenses and deductions are from his income. His financial circumstances remain confusing.

[47] For example, in 2020, his Notices of Assessment indicates that he earned $17,316 but his employment expenses were $15,929 so his taxable income was only $1,387. It is unclear how the father could have supported himself and met his expenses The father testified that he had family support but there are no loans to family in his financial statement and no proof of any such loans.

[48] On the father’s financial statement sworn May 2, 2022, the father indicated that his income in 2021 was $29,829.96. His tax return for that year was filed that verified that income. The father’s gross income was $36,423.79 but his net was only $1,988.10. He claims expenses related to renting a taxi and other vehicle expenses that total $31,701.16. He also received ODSP of $13,841.86 and cashed in a $14,000 RRSP. On his stated income, there is no explanation as to how he was able to accumulate the RRSP.

[49] In the same financial statement, the father disclosed he had a Nissan that was purchased a 2018 Nissan. He testified that he was able to qualify for a loan based on his income and the income of the mother. But in 2018 his income was only $15,836 from social assistance and the mother’s income was $8,100.

[50] The father provided copies of his TD chequing account bank statements. However. those statements show he had a savings account and there were transfers to other accounts. Further, there is no pattern of any regular payments such as for rent. There are many deposits, in addition to his ODSP payments, that are not explained.

[51] The bank statements indicate that the father in 2021 the father received from the Federal government [Can Fed] a total of $9,900 and in February 2022 a further $1,890.

[52] Yet despite the father working and obtaining government assistance, in addition to his ODSP, the father did not pay any child support.

[53] The mother testified that the father stopped working in January 2022 that is, a month after the temporary order was made requiring him to pay child support of $645 based on minimum wage.

[54] Based on the lack of credible evidence from the father and his lack of complete disclosure, I find that he has sources in income that were not disclosed.

[55] The father claims that he is unable to work and should not be required to pay child support. He relies on the fact that he has been deemed to be disabled and is in receipt of ODSP.

[56] He further relies on a medical letter dated January 13, 2022 from his family doctor that states that the father suffers from childhood left hip dislocation osteoarthritis of left hip, chronic left hip pain, type 2 diabetes, hypertension and metabolic syndrome. The letter states the father is under the supervision of different specialists and is on strong pain control medications and narcotics. The letter concludes, “Obviously, his physical condition and pain reduces his ability from working with no limitations.”

[57] This would appear to be the same letter that was tendered before the case management judge and rejected as being inadequate. I come to the same conclusion.

[58] There is no information about the long term prognosis, any specific treatment that the father is undertaking or the specific limitations on his ability to work.

[59] As the evidence provided by the father confirms that he worked in 2021 as a taxi driver and earned a gross income of $36,423.79, this seems to contradict the medical report that suggests the father is unable to work.

[60] The father testified that he no longer drives his car as he can't afford the insurance or the upkeep. When asked how he transports the children, he claimed he did, he testified that that he knows guys who own taxis and let him use their cars when they aren’t using their cabs.

[61] Further, when asked how he would support the children if they were placed in his care, the father testified that he would be looking into doing some online training and obtaining a job where he can work sitting down.

[62] I find that despite being in receipt of ODSP, income should be imputed to the father. Based on the father’s educational background and past employment he is able to work as a driver or retrain to obtain other employment.

[63] I draw an adverse inference from the father’s lack of providing full financial disclosure. I also draw an adverse inference from the fact that the father has paid no child support despite having some funds and quitting his job within a month of being imputed at minimum wage. There is no evidence that his medical conditions suddenly deteriorated from 2021 when he was obviously working as a taxi driver.

[64] I find that minimum income should be imputed to the father as he is either currently working or is able to earn that income either as continuing to work as a driver or in other employment. I find that he has not yet taken any steps to retrain and that is able to retrain if he so desires.

[65] The Applicant was commenced on December 2020, I find that child support should commence on that date despite the father no having paid any child support since the separation in June 2018. There was little evidence to justify a retroactive order and it was not pleaded.

[66] The mother did request that the father pay his proportionate share of any special expenses. There was no evidence that at present there were any such expenses.

Order as follows:

1. The children Naod Mehari born […], 2011, Niat Nehari […], 2021 and Yosan Mehari born […], 2017 shall continue to reside in the primary care of the Applicant Selam Belay Tekle.

2. The Applicant shall have sole decision-making responsibilities. The Applicant shall consult with the Respondent Aman Ghebrezgiabber with respect to any major decisions regarding the children. But the Applicant shall have final decision-making responsibilities if they disagree.

3. The Applicant shall be permitted to obtain any government documents such as passports for the children without the prior written consent of the Respondent. The Applicant shall provide the Respondent with a copy of any such documents.

4. The Respondent shall have parenting time every second week-end from Friday at 6 pm to Sunday at 6 pm. The Respondent shall advise the Applicant by Thursday before his week-end parenting time if he is unable to have the children in his care.

5. Neither party shall travel outside of Canada with the children without the prior written consent of the other parent.

6. Neither parent shall speak negatively about the other parent in the presence of the children.

7. Based on an imputed income of $31,200, the Respondent shall pay child support of $645.00 per month in accordance with the Child Support Guidelines for 3 children as of January 1, 2021. The parties shall share any special expenses of the children in accordance with their respective incomes. For this calculation, the Respondent’s income shall be no less than $31,200.

8. This order is made based on the Respondent’s receipt of funds from the Ontario Disability Support Program and to permit the Director of the Family Responsibility Office to override section 7(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996.

9. Support Deduction Order to issue.

10. As both parties were self-represented at trial, costs may not be appropriate. But if desired the Applicant was clearly the successful party and is entitled to costs. Any claim for costs to be submitted to the trial coordinator office within 14 days and any response within 14 days thereafter.

Justice Roselyn Zisman

[^1]: I have paraphrased the wording.