ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-06-00003473-0001
DATE: 20120214

B E T W E E N:

LORI DENISE TURNER

Self-represented

Applicant

• and -

TODD BOY JAMES KNIGHT

Stephen J. Andari, for the Respondent

Respondent

HEARD: February 13 th , 2012

ADENDUM TO REASONS FOR JUDGMENT

Morissette J.

[ 1 ] The father seeks an order to change the order of Mr. Justice Donohue dated August 21 st , 2006 with respect to the amount of child support payable and asks for access to Sebastian Duncan James Knight, born April 10 th , 1999.

Access:

[ 2 ] Dealing first with the access issue, Sebastian who will be 13 years old very soon is a child with special needs. He suffers from autism, type 1 diabetes, and anxiety disorder.

[ 3 ] The 2006 order is silent as to access. The evidence which I accept as fact is that the respondent dad decided to stop seeing his son in June of 2006 (some two months prior to the aforesaid order, (hence why that order was silent as to access).

[ 4 ] Mom is resisting any order as to access as she fears how Sebastian will react to visiting with his father. She asks this Court not to order any access unless and until the father has had autism and diabetes training. The father asks that he be allowed initially to visit his son supervised by the Glengarda Supervision Access Centre for one hour per week and then review the access regime in a few months time to ascertain whether the access should be expanded.

[ 5 ] Unfortunately this Court did not receive any medical or expert testimony as to whether having Sebastian visit his father at this time would be in his best interest or not.

[ 6 ] Although I accept that the respondent father did surf the internet to educate himself on autism and diabetes, it became quite clear, during cross-examination, that his level of knowledge on both subject matter are primitive at best.

[ 7 ] In my view, given the medical issues that Sebastian faces together with the fact that he has had no relationship with his father for half of his short life (close to six years), I am not prepared to order access at this time. Instead, I ask the respondent to attend Sebastian’s pediatrician, Dr. Tithecott, whom by this Court order [1] , I authorize to discuss all of Sebastian’s medical issues with the respondent. In doing so, I trust that the respondent shall gain some insight into Sebastian’s condition, and how best to introduce any access, if any, with Sebastian.

[ 8 ] Should the respondent still want to exercise access with his son, following that meeting with Dr. Tithecott, then this Court would be prepared to revisit the access issue and would ask the parties to provide expert medical evidence as to why I should order or not order access to the respondent father. I shall remain seized of this access issue should this interim order require a final determination.

Child support:

[ 9 ] The evidence establishes that the respondent has been without work since January of 2008 (but for a very brief cash janitorial job). He received a severance package and then Employment Insurance until 2010 when he started to receive Ontario Works, and still does to this day.

[ 10 ] I accept the evidence that the respondent owes $1,655.84 to the Municipality of Chatham-Kent. I further accept the evidence that the respondent has theoretically overpaid $2,496.53 since 2008 to the applicant, if this Court does not impute any income to the respondent. The evidence which I accept suggests that the respondent, who is 38 years old, has failed to obtain his driver’s licence because he says that he has had alcohol abuse issues in the past. He testified that he believes the fact that he does not drive, has been a reason why he has been unable to obtain gainful employment. He is currently obtaining his G2 driver’s licence and will complete same by April of this year.

[ 11 ] Based on this evidence, I find that the respondent has been voluntarily unemployed for some time now and therefore I impute income to him so that the overpayment is not longer such, but rather should remain to the benefit of the applicant who has had to bear all of Sebastian’s needs which are extraordinary given all of the medication, such as insulin and the like, for his condition. I dismiss the claim by the respondent for a credit towards any future child support obligation.

[ 12 ] Accordingly, the respondent’s child support obligation at this time is suspended given his current income on Ontario works. As indicated below, his child support obligation shall be revived as soon as his employment status changes. [2]

Other remedies:

[ 13 ] The respondent shall advise the applicant immediately of any change in his employability status upon being hired or change of any employer. The respondent shall provide the applicant yearly his income tax return together with his notice of assessment by no later than May 15 th of each year commencing May 15 th , 2012.

[ 14 ] The applicant shall keep the respondent informed in writing at least thirty days in advance of the date, time and place of any intended change of residence of the child.

[ 15 ] I dismiss the claim for supervised access at this time, but am open to review that order at a later time, should it be necessary, given my reasons above.

[ 16 ] The respondent shall be at liberty to make independent inquiries regarding the ongoing health, education and general welfare of the child and to receive information directly from third parties arising out of those enquiries.

[ 17 ] As stated above, should the parties require a further hearing with respect to access, this hearing shall be set by the trial coordinator before me at a time that is appropriate for all.

[ 18 ] Should the parties be unable to agree on the issue of costs, in my view there is divided success and therefore there should be no costs, however, I have not heard any submissions on that issue and again am prepared to review brief written submissions by no later than thirty days from the date of this order.

“Signed J. Morissette”

Johanne N. Morissette
Justice

Released: February 14, 2012

[1] Paragraph 15 herein

[2] Paragraph 13 herein.