COURT FILE NO.: F 16-11

DATE: 2012/01/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Daniel-DeFreitas

Applicant

– and –

Sean Michael Patrick Francis

Respondent

HEARD: November 8, 17, and 21, 2011

The Honourable Madam Justice D.L. Chappel

JUDGMENT

I. INTRODUCTION

[1] The parties in this proceeding are the parents of the child Jayde Daniel-Defreitas, born December 13, 1996 (“Jayde”). These are my Reasons for Judgment in relation to an Application which the Applicant, Michelle Daniel-Defreitas (“the Applicant”) issued on January 6, 2011.

[2] The Applicant did not initially file a Trial Record, and therefore prior to the commencement of trial I reviewed the Application issued on January 6, 2011 which was filed at Tab 1 of the Continuing Record. The Application which the Applicant filed in the Trial Record is different from the one that was filed in the Continuing Record, and appears to be a copy of an earlier draft. I have relied on the version of the Application which was filed in the Continuing Record.

[3] In her Application and supporting documents, the Applicant requested the following relief:

a. An order for custody and primary residence of Jayde;

b. An order for child support for Jayde in the amount of approximately $200.00 per month; and

c. An order that the Respondent Sean Michael Patrick Francis (“the Respondent”) contribute towards Jayde’s dental expenses, soccer, dance lessons and steel pan lessons.

[4] The Application did not include a claim for retroactive child support.

[5] The Applicant is requesting that the court impute an income to the Respondent for the purposes of calculating child support and the Respondent’s proportionate contribution to section 7 expenses. She did not set out a proposed imputed income in her Application. However, as of the date when she commenced the Application, a child support payment of $200.00 per month as she requested was the amount of child support payable pursuant to the Tables under the Child Support Guidelines (Ontario) (“the Guidelines”)[^1] based on an annual income of approximately $24,600.00.

[6] As will be discussed in further depth below, I noted at the outset of this trial that the Respondent had not filed an Answer and Claim. The Applicant acknowledged on the original date scheduled for this trial on June 6, 2011 that the Respondent had served her with an Answer and Claim, and she showed me her copy on that date. I ordered the Respondent to file the Answer and Claim by the end of the day on June 6, 2011. However, the Answer and Claim had still not been filed by the time this trial commenced on November 8, 2011. The parties were eventually able to find the Answer and Claim, which was filed as part of the Trial Record. In the circumstances, the Applicant consented to the trial proceeding despite the fact that the Answer and Claim had not been filed earlier.

[7] On the issues of custody and access, the Respondent indicated at the outset of the trial that he consented to an order granting the Applicant sole custody of Jayde. His position on this issue became more ambivalent during the course of the trial. Upon further questioning on this issue, he stated that he wanted joint custody of the child. However, he later stated that his wish was essentially to obtain an order requiring the Applicant to consult with him on all significant issues relating to the child, to provide him with copies of all documentation relating to Jayde, and prohibiting the Applicant from travelling with Jayde outside of Canada without his written, notarized consent. The Respondent’s position on the issue of custody was very difficult to discern, to say the least. He was clear, however, that he wished to have reasonable contact with Jayde in accordance with Jayde’s wishes, and as arranged between him and Jayde.

[8] With respect to child support, Mr. Francis alleged that he has been unemployed throughout 2011, and that his sole source of income has been Ontario Works benefits totalling $574.00 per month, or $6,888.00 per year. He objected to the request that income be imputed to him, but advised that he would be willing to pay child support based on his stated annual Ontario Works benefits of $6,888.00.

[9] The issues to be determined in this case are therefore as follows:

a. Whether the Applicant should be granted sole custody of Jayde;

b. If the Applicant is granted sole custody, should there be terms in the order requiring the Applicant to consult with the Respondent on issues relating to Jayde, and requiring her to provide the Respondent with copies of any documentation relating to Jayde?

c. What access or time sharing arrangements are in Jayde’s best interests?

d. What are the incomes of the parties for the purposes of calculating child support and their respective contributions to section 7 expenses under the Guidelines?

e. In the event that Mr. Francis is ordered to pay child support, what is the appropriate amount which he should pay?

II. CREDIBILITY

[10] Both parties testified in this trial. There were numerous discrepancies in their evidence respecting the degree of involvement which the Respondent has had with Jayde, the extent to which the parties have communicated with each other since their separation, the details of the Respondent’s employment, and the extent to which the Respondent has contributed to Jayde’s financial needs. Credibility is therefore an important issue.

[11] With respect to the Applicant, I have concerns regarding her failure to comply with the original order for disclosure which Steinberg, J. made on March 30, 2011. In fact, neither of the parties complied with this order, resulting in an adjournment of the trial that was originally scheduled to commence before me on June 6, 2011. On that date, I extended the time for the parties to exchange the financial disclosure which had been ordered. The Applicant served and filed a Financial Statement on July 11, 2011, which was sworn on March 16, 2011. However, at trial, as noted above, she produced a Trial Record in which she attached a Financial Statement purportedly sworn on March 16, 2011 as well, but which contained different information. No explanation was provided for the discrepancies in the documents, and this gives rise to some concern regarding the Applicant’s credibility and reliability. For this reason, I have not relied on the contents of the two Financial Statements, but have based my findings respecting the Applicant’s income on the financial records attached to the Financial Statements.

[12] While I had concerns about the discrepancies in the two Financial Statements referenced above, I did not have any other concerns respecting the Applicant’s written materials or her testimony. Overall, I found the Applicant to be a much more credible and reliable witness than the Respondent. Although she did not comply with the original deadlines which Steinberg, J. set for financial disclosure, she served and filed an updated Financial Statement with much of the ordered disclosure on July 11, 2011 in response to a further order which I made on June 6, 2011. She also produced documentary proof of her 2011 income at trial.

[13] The Applicant presented as honest and forthright in giving her testimony. She was able to provide specifics about her employment history and the remuneration that she received which corresponded generally with the documentary evidence relating to these issues. She was cooperative and responsive in answering questions, even when being cross examined by the Respondent. She did not attempt to deflect attention from the issues being addressed, and did not become defensive or heightened during cross examination by the Respondent. I find that her evidence was not undermined in cross examination by the Respondent.

[14] By contrast, I had numerous concerns respecting the actions and evidence of the Respondent which cause me to seriously question his credibility. In general, the Respondent demonstrated a lack of respect for the court process. Like the Applicant, he failed to comply with the original disclosure order which Steinberg, J. made on March 30, 2011. However, unlike the Applicant, he failed to rectify his disclosure deficiencies following the subsequent disclosure order which I made on June 6, 2011. In fact, as discussed in further detail below I find that he resisted providing financial disclosure right up until the trial of this matter. Furthermore, an analysis of the financial disclosure which he provided, the information in his Financial Statement and his testimony respecting his financial situation revealed numerous inconsistencies. I elaborate upon these concerns in further depth in Part IV(B)(1) of these Reasons.

[15] By way of example to highlight the concerns regarding the Respondent’s credibility, his Financial Statement sworn February 16, 2011 did not list any assets whatsoever, and did not refer to any bank accounts in his name. When the Respondent was questioned about this at trial, he acknowledged that he had a bank account, but stated that he did not include his bank account information because he felt that the Applicant’s Financial Statement was “grossly misleading” to use his words. However, the Applicant’s Financial Statement was not sworn until March 16, 2011.

[16] The Respondent did not present as a credible witness during his testimony. He stated on a number of occasions that this case had nothing to do with Jayde, but rather was commenced out of spite after he reported concerns to police about an altercation between the Applicant and Jayde in early 2011. He did not acknowledge or demonstrate any appreciation of the challenges which the Applicant has experienced over the past several years since the parties separated in attempting to raise Jayde on the limited income which she has been able to earn. On a number of occasions, he attempted to deflect the focus from issues respecting his financial situation to complaints which he had about the Applicant.

[17] Furthermore, the Respondent presented as evasive and only minimally responsive when questioned about his acting income history, his job search efforts, and the reasons for his limited employment activity in 2011. By way of example, he did not have a satisfactory explanation for why he earned acting income of $16,548.77 in 2008, $20,954.08 in 2009, $17,103.14 in 2010, but suddenly only $100.00 in total in 2011, the year when these proceedings were commenced.

[18] The Respondent’s disregard for his financial disclosure obligations, the Rules of this Court and orders made in this proceeding, as well as his presentation and demeanour while testifying, caused me to have serious concerns regarding the veracity of his testimony. Based on these concerns, I was unable to place significant weight on the Respondent’s evidence, and preferred the Applicant’s evidence over his where their testimony conflicted.

III. CUSTODY, RESIDENCE AND ACCESS ISSUES

A. The Law

1. Legislative Framework and General Principles

[19] The applicable legislation in this case respecting the issues of custody, residence and access is the Children’s Law Reform Act[^2] (the “CLRA”). Section 20 of the CLRA stipulates that except as otherwise provided for in Part III of the Act, the father and mother of a child are equally entitled to custody of the child. Section 20(2) provides that the entitlement to “custody” encompasses the rights and responsibilities of a parent in respect of the person of the child. Custody has been described as a “bundle of rights and obligations,” referred to as “incidents of custody” in the Act, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities.[^3]

[20] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities.[^4] The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the CLRA provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”

[21] The entitlement to “access” is defined in section 20(5) of the CLRA as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

[22] Section 21 of the CLRA provides that a parent or any other person may apply for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child. Section 24(1) directs that the merits of an application dealing with these issues must be determined on the basis of the best interests of the child. The factors which the court is required to consider in carrying out the best interests analysis are set out in section 24(2).

[23] The list of factors set out in section 24(2) is not an exhaustive outline of the relevant considerations in carrying out the analysis of the best interests of the child. The best interests determination is based on a multiplicity of factors, and must be tailored to the unique facts and dynamics of each case. The court is not required to specifically enumerate and analyze the specific criteria set out in section 24(2) of the Act, but rather must consider all of the factors that are relevant to the analysis in the particular case that it is called upon to decide.[^5] The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.[^6]

2. Sole Custody vs. Joint Custody

[24] The CLRA does not set out any specific criteria to assist in determining whether an order for sole or joint custody order is appropriate, apart from the general “best interests” test. However, the case-law provides guidance regarding the factors to consider in deciding between the two options.

[25] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger v. Kruger[^7] and Baker v. Baker,[^8] the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other.[^9] The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[26] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.”[^10]

[27] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties.[^11] Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties are such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate.[^12] The question for the court to determine 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.”[^13]

[28] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order.[^14] In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody.[^15]

[29] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.[^16] There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order 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.[^17]

B. Evidence and Findings Relevant to the Issues of Custody, Residence and Access

[30] I find based on the evidence adduced at trial that the parties cohabited for approximately three years, and that they separated in approximately 2000. The parties agree that Jayde has remained in the primary care of the Applicant since the parties’ separation.

[31] Jayde is now fifteen years old. I find based on the Applicant’s evidence that she is a vibrant, outgoing teenager who is doing well at school and is involved in a number of activities, including soccer, steel pan, acting and dance.

[32] The Applicant described her relationship with Jayde as very loving and close. The Respondent indicated in his testimony that Jayde contacted him on or about January 2, 2011 and told him that she had had a fight with the Applicant during which the Applicant had struck her. He stated that he told Jayde at the time that she could live with him, but that Jayde declined this offer and chose instead to remain with her mother. The Respondent alleged that the Children’s Aid Society was involved with the Applicant and Jayde as a result of this incident, but he did not adduce any independent evidence of this involvement. In any event, it is apparent that any Children’s Aid Society involvement which may have occurred did not result in Jayde being removed from her mother’s care. There is no other evidence of current concerns in the relationship between Jayde and the Applicant. I find based on the evidence that while there may have been an incident between the Applicant and Jayde in early 2011, they nonetheless enjoy a strong and loving relationship.

[33] The Applicant resides with her mother, Rita Daniel. The Applicant described her mother as being a major source of support for her in caring for Jayde and assisting her financially. The Respondent did not dispute this evidence, and I therefore find that both the Applicant and Jayde benefit greatly from the support of Jayde’s maternal grandmother.

[34] Further, I find that there are no concerns respecting the Applicant’s ability to meet Jayde’s needs. Jayde has enjoyed a stable residence while in her mother’s care, and no concerns were raised respecting Ms. Daniel’s attention to Jayde’s health, educational or other basic needs.

[35] I accept the Applicant’s testimony that the Respondent’s relationship with Jayde has been “up and down over the years,” to use the Applicant’s words. The Applicant alleged that the Respondent’s contact with Jayde has been inconsistent, and that he has in the past failed to show up to see Jayde when he was supposed to. She testified that the Respondent has often disappointed Jayde by not giving her things that he promised he would give her. I accept the Applicant’s evidence on these issues. I also find that the Respondent’s contact with Jayde has been particularly minimal since January 2011. The Respondent acknowledged that he had only seen Jayde approximately twice since January 2011, and attributed this minimal contact to the Family Court proceedings. He alleged that Jayde was upset with him because he had tried to make a police report after she alleged in January 2011 that the Applicant had hit her.

[36] With respect to the relationship between the parties, the Respondent emphasized a number of times during his testimony that he had not spoken with the Applicant since the parties separated. He acknowledged that he and the Applicant are very estranged. He complained about the Applicant not consulting with him about issues relating to Jayde, and failing to obtain his consent to travel with Jayde to the United States. However, there is no evidence whatsoever that he has made efforts to contact either the Applicant or other professionals involved with Jayde to make inquiries about the child. I find based on his own evidence that he used Jayde as a messenger on the rare occasions when he wished to address issues about Jayde with the Applicant. By way of example, he testified that he asked Jayde many times to have the Applicant send copies of Jayde’s report cards. There is no evidence that he ever contacted the Applicant directly to make this request, and he acknowledged that he had never contacted Jayde’s schools to ask for copies of the child’s report cards.

C. Analysis and Rulings Respecting Custody, Residence and Access

[37] Based on my findings set out above, I conclude that this is not an appropriate case for joint custody, and that an order for sole custody to the Applicant is in Jayde’s best interests. The Applicant has been the sole decision-maker for Jayde since the parties separated, and has done an excellent job in carrying out this role. The Respondent has not through his actions demonstrated an interest in being involved in decision-making respecting Jayde. The level of estrangement between the parties is such that an order for joint custody would simply be unworkable.

[38] With respect to the Respondent’s request for at minimum an order that the Applicant consult with him on issues relating to Jayde, and provide him with copies of any documentation relating to the child, I conclude that such an order is not in Jayde’s best interests. I am satisfied based on the evidence of the parties’ relationship, and the level of mistrust and disdain which the Respondent demonstrated towards the Applicant during his testimony, that these types of terms would generate conflict between the parties that would ultimately undermine Jayde’s well-being. By way of examples of the Respondent’s disdain for the Applicant, he repeatedly alleged that these proceedings had absolutely nothing to do with Jayde, and were simply brought out of spite. Further, he stated that he never paid money directly to the Applicant because he did not trust her with his money. This statement was made despite the fact that the Applicant has been the primary source of financial support for the child since the parties’ separation.

[39] I also conclude that the provisions which the Respondent has requested are not necessary. As noted above, I find that the Respondent has taken a back seat with respect to Jayde’s upbringing. There is no evidence that the Respondent has made any significant attempts to engage the Applicant in conversations about Jayde, or that the Applicant would be unwilling to discuss issues about the child if the Respondent demonstrated a desire to play a meaningful day to day part in Jayde’s life and in decisions about the child. Furthermore, section 20(5) of the CLRA establishes that the right to access includes the right to make inquiries and to be given information as to the health, education and welfare of the child. This provision places a responsibility on the Applicant to provide the Respondent with information about the child upon request, and entitles the Respondent to obtain information and documentation from professionals involved with the child.

[40] In her opening submissions, the Applicant requested an order that she be permitted to travel with the child within North America without the Respondent’s consent. I decline to make such an order. This relief was not requested in the Application and was raised for the first time at trial. Furthermore, there is no evidence that the Respondent has failed to cooperate with respect to travel consents in the past. In fact, I find based on the evidence of the parties that the Applicant has taken Jayde to the United States on a number of occasions without the Respondent’s consent, despite the absence of a court order permitting her to do so. While I am not granting the order requested, I do emphasize that both parties should be cooperative in executing any travel consents requested, and should not unreasonably withhold consent. I am granting an order requiring both parties to keep each other apprised of their current addresses and telephone numbers at all times. This term will ensure that they know how to contact each other if they wish to discuss travel plans and obtain a travel consent.

[41] The Respondent requested during his testimony that I make an order prohibiting travel with the child outside of Canada without the written notarized consent of the non-travelling parent. The Respondent did not include this claim in his Answer and Claim, and in any event, consent of the non-travelling parent for travel outside of Canada is required pursuant to Citizenship and Immigration Canada policy. I decline to make this order for both of these reasons.

[42] The Respondent indicated at trial that he has never had difficulty seeing Jayde, and that he has arranged visits directly with the child. He stated that he was agreeable to an order providing for a continuation of these arrangements regarding his contact with Jayde. The Applicant confirmed that these arrangements have worked reasonably well.

IV. CHILD SUPPORT

A. The Law

1. Legislative Framework and General Principles

[43] The applicable legislation regarding the issue of child support in this case is the Family Law Act[^18] (the “FLA”). Section 33 of the FLA provides that a court may, on application, order a person to provide support for his or her dependants and determine the amount of support. “Dependant” is defined in section 29 of the FLA as a person to whom another has an obligation to provide support under the Act. Section 31 of the FLA establishes the obligation of a parent to support a child, as follows:

Obligation of Parent to Support Child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).

[44] The purposes of an order for child support, as described in section 33(7) of the FLA, are to recognize that each parent has an obligation to support the child, and to apportion the obligation according to the Guidelines.

[45] Section 33(11) of the FLA stipulates that a court making an order for child support shall do so in accordance with the Guidelines. There are two exceptions to this rule set out in section 33. First, section 33(12), allows for a deviation from the Guidelines where special provisions in an order or written agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception is outlined in section 33(14), in relation to consent orders, where the court is satisfied that the terms of the consent order set out reasonable arrangements for the support of the child.

[46] Turning to the relevant provisions of the Guidelines, the starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[47] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[48] The phrase “extraordinary expenses” is defined in section 7(1.1) of the Guidelines as follows;

Definition, “extraordinary expenses”

7(1.1) For the purposes of clauses (1) (d) and (f),

“extraordinary expenses” means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

[49] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

[50] The Guidelines circumscribe the circumstances in which the court may award a base amount of child support other than in accordance with the Tables under the Guidelines to five specific situations, as follows:

a. In cases where the child is over the age of majority and the court considers the amount determined under section 3 to be inappropriate.[^19]

b. Where the payor’s income is over $150,000 per year and the court determines that the amount determined under section 3 is inappropriate.[^20]

c. Where the payor stands in the place of a parent, the court may order such amount as it considers appropriate, having regard for the Guidelines and any other parent’s legal obligation support the child.[^21]

d. Situations of “shared custody,” where the payor parent has a right of access to, or has physical custody of, the child for not less than 40 percent of the time over the course of a year.[^22]

e. The court may award an amount that is different from the amount determined in accordance with sections 3 to 5, 8 or 9 of the Guidelines if it finds that a parent, spouse or child in respect of whom child support is sought would otherwise suffer undue hardship.[^23] The circumstances that may constitute undue hardship include, but are not limited to, those set out in section 10(2) of the Guidelines.

2. Determination of Income

[51] In order to decide the issue of child support, including the contribution if any which the Respondent should make to section 7 expenses relating to Jayde, it is necessary to make a determination of the parties’ respective incomes. Since the Application does not include a claim for retroactive child support prior to the date when the Application was issued, it is only necessary to determine the parties’ incomes from 2011 onward.

[52] Section 16 of the Guidelines provides that the starting point for the determination of annual income is the sources of income set out under the heading “total income” in the T1 General form issued by the Canada Revenue Agency. The total of these sources of income is then adjusted in accordance with Schedule III under the Guidelines. Section 16 does not mandate using the previous year’s total income as set out in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is to ascertain current income based on the sources set out in the T1 form.[^24]

[53] Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the court should determine the party’s Guidelines income for the upcoming twelve months from when child support will be paid.[^25]

[54] The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent’s or spouse’s property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. O. Reg. 391/97, s. 19 (1); O. Reg. 446/01, s. 6.

Reasonableness of expenses

(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). O. Reg. 391/97, s. 19 (2).

[55] The onus is on the party requesting the court to impute income to establish the grounds for this request.[^26] However, a distinction must be made between this onus and the obligation on the other party to disclose all relevant financial information. The party against whom an imputation of income is sought in a support case cannot simply make bald assertions regarding their financial circumstances without disclosing the evidence to support their position. They have an obligation to provide full and frank disclosure of the evidence within their possession, power or control that is relevant to the issue, so as to ensure that the information required to make a decision on the issue is before the court. This duty to provide disclosure arises at the outset of the litigation, and is not dependant on the other party making disclosure requests or initiating motions to obtain disclosure orders. The obligation flows from a number of sources. First, there is a general duty in all cases to disclose information that is relevant and material to the case, subject to any claims respecting privilege or other exclusionary rules of evidence.[^27] The general obligation to disclose information that is material and relevant to the case is reinforced by Rule 19 of the Family Law Rules,[^28] (the “Rules”) which requires a party, upon request by another party, to produce an Affidavit of Documents listing every document that is relevant to any issue in the case, and is in the party’s control or available to the party on request.

[56] The obligation on a party against whom an imputation of income is requested to provide full and frank financial disclosure respecting their position also flows from Rule 13, relating to Financial Statements. A party responding to a support claim is required by virtue of Rule 13 to serve and file a Financial Statement within the time allowed under the Rules to respond to the claim. Rule 13(4.2) contains similar provisions relating to Motions to Change Final Orders. Rule 13(6) requires parties who are obliged to serve Financial Statements to make “full and frank disclosure” of their financial situation.

[57] The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.[^29]

[58] In determining a party’s capacity to earn income, the principles which the court should consider which are relevant to this case include the following:

a. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.[^30]

b. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations.[^31]

c. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.[^32]

d. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.[^33]

e. If a party chooses to pursue self employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent’s child support obligations.[^34]

f. When a parent experiences a sudden change in their income, they may be given a “grace period” to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children.[^35]

g. The fact that a parent is receiving social assistance benefits is not determinative of the parent’s income. The court is not bound by the decision of social assistance professionals respecting the parent’s ability to earn income, but rather must consider all of the relevant evidence to determine whether an imputation of income to the parent is appropriate.[^36]

h. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.[^37]

i. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.[^38]

B. Analysis of Child Support Issues

1. Evidence and Findings Respecting the Respondent’s Income

[59] As noted above, the Applicant requests an order for monthly child support in the amount of approximately $200.00 per month. For the reasons set out below, I have determined it is appropriate in this case to impute an income of $26,000.00 to the Respondent for the purpose of calculating both the Table amount of child support under the Guidelines and the Respondent’s proportionate contribution to section 7 expenses respecting Jayde. This decision is based in part on section 19(1)(f) of the Guidelines, as a result of the Respondent’s failure to provide income information. It is also founded on section 19(a) of the Guidelines, as a result of my determination based on the evidence that the Respondent is intentionally unemployed or underemployed.

[60] I find based on the Respondent’s evidence that he attended Mohawk College for a brief period, undertaking studies in Psychology, but that he has not completed a post secondary degree or diploma. He has worked at various jobs over the years, including a position as an order picker at Walmart, work as an industrial steel labourer, auto-body work, cabinet making work, and odd jobs on house interiors. He began acting at the age of 15, and has earned income from various acting and voice-over roles since that time through ACTRA, which is a screen actors’ guild for Canadian performers.

[61] Despite the various different forms of employment which the Respondent has had over the years, the Respondent has alleged during these proceedings that he has not been able to secure work in 2011, and that his sole sources of income have been Ontario Works benefits in the amount of $574.00 per month and $100.00 from one minor voice-over job.

[62] With respect to the issue of financial disclosure, I find that the Respondent has not satisfied his obligation to produce the disclosure that is required to properly determine his income, despite the fact that two court orders for disclosure were made during the course of these proceedings. An analysis of the financial disclosure which he did provide demonstrates significant inconsistencies in the Respondent’s evidence regarding his financial situation.

[63] After being served with the Application that is the subject of these proceedings in January 2011, the Respondent was required by virtue of section 21(2) of the Guidelines to produce copies of his full Income Tax Returns with all attachments, his Notices of Assessment and his Notices of Reassessment for the years 2007 to 2009, as well as proof of current income. The attachments to his Income Tax Returns should have included Statements of Business or Professional Activities, which should have set out full details regarding his self employment income earned and all expenses claimed as against that income. The financial obligations set out in section 21(2) of the Guidelines set out the minimum expectation regarding disclosure in child support cases. The Respondent was also required by the Rules to serve and file a Financial Statement and make full and frank disclosure of information relevant to the case, including all information relevant to the Applicant’s claim that income should be imputed to him.

[64] Upon being served with the Application, the Respondent filed a Financial Statement sworn February 16, 2011 which is noteworthy for its deficiencies. In this Financial Statement, he did not list any assets whatsoever, did not include any reference to a bank account and made no disclosure of any debts. He acknowledged in his testimony that he had a bank account and that he did not disclose this information. As noted above, he alleged that he excluded this information because the Applicant’s Financial Statement was “grossly misleading.” However, the Applicant’s Financial Statement was not sworn until March 16, 2011.

[65] The Respondent did not attach to his Financial Statement sworn February 16, 2011 any 2007 income information. For the year 2008, the only proof of income which he initially attached to his Financial Statement was a T5007 Statement of Benefits respecting social assistance benefits, which showed that he had received total benefits of $2,218.78. He provided 2008 and 2009 Income Tax Return Information forms which indicated that he had not filed an Income Tax Return for those years.

[66] The only income information which the Respondent initially produced for 2009 was a T5007 Statement of Benefits for social assistance benefits indicating that he had received benefits of $6,318.00. The Respondent did not initially provide any income information for the year 2010.

[67] On March 30, 2011, Steinberg, J. ordered the parties to disclose their respective Income Tax Returns and Notices of Assessment for 2008 to 2010, statements of year to date earnings for 2011 and up to date Financial Statements. The Application was scheduled for trial at that time, to commence on June 6, 2011. The parties had failed to comply with the disclosure ordered by June 6, 2011. I therefore adjourned the trial, and extended the deadline for production of the Income Tax Returns with all attachments for 2008, 2009 and 2010 and proof of current year to date income for 2011 until June 17, 2011. I also ordered that the parties produce their Notices of Assessment and Notices of Reassessment for 2008, 2009 and 2010 by September 30, 2011. Furthermore, I ordered the Respondent to provide the Applicant with a full and detailed summary of all efforts he has made to find employment, and any participation in employment programs since 2010. Finally, I ordered him to use his best efforts to produce to the Applicant a list from ACTRA of all acting jobs that he has been assigned to through that organization since 2008.

[68] The Respondent failed to meet the deadline for disclosure once again by June 17, 2011. He brought a motion returnable on July 8, 2011, requesting an order extending the timelines set for financial disclosure and for him to file his Answer and Claim, but failed to appear on that motion. The timelines were extended to July 15, 2011, as the Applicant appeared and also requested further time to comply with the disclosure order. However, the Respondent had still failed to produce the above referenced materials to the Applicant by the commencement of trial.

[69] With respect to the year 2007, the Respondent has never provided any proof of his income.

[70] With respect to the year 2008, the Respondent finally produced a Notice of Assessment indicating that his total income for that year was $18,366.00. The date of this Notice of Assessment was June 23, 2011, which indicates that he did not file his 2008 Income Tax Return until mid-way through these proceedings. It is significant to note that the Notice of Assessment indicates that the Respondent failed to report his social assistance benefits in the amount of $2,218.00, referred to above, in his Income Tax Return. The Respondent never produced his full 2008 Income Tax Return with all attachments, as ordered. By the commencement of trial, he had still not produced the summary from ACTRA, and he only disclosed this document part-way through the trial after being warned about the seriousness of not complying with the orders for financial disclosure. He acknowledged during his testimony that he had received the ACTRA document approximately one month prior to trial, yet he demonstrated considerable resistance to disclosing it. The ACTRA summary which he finally produced indicated that he had earned income from acting in 2008 of $16,548.77. This amount, coupled with the social assistance benefits which he received, appear to have been the sources of his income as reported to Canada Revenue Agency for 2008.

[71] Turning to the year 2009, the Respondent never produced a copy of his Income Tax Return with all attachments as ordered. He eventually produced a Notice of Assessment for 2009. The date of this Notice of Assessment is July 14, 2011, indicating that the Respondent did not file his 2009 Income Tax Return until part-way through this proceeding. It is significant that this Notice of Assessment also indicates that the Respondent failed to report having received the $6,318.00 in social assistance benefits referred to above in his Income Tax Return. The 2009 Notice of Assessment indicates that the Respondent’s total 2009 income was $14,581.00. The ACTRA summary which the Respondent eventually produced mid-way through the trial indicates that the Respondent had earned $20,954.08 from acting in 2009. In addition, the Respondent testified that he worked for approximately three months in late 2009 at Train Studios. There are obvious discrepancies between the income which was reported in the Respondent’s 2009 Income Tax Return and the evidence that was available at trial. The Respondent’s failure to disclose his 2009 Income Tax Return with all attachments rendered it impossible to ascertain the source of the discrepancies. The Respondent was questioned at trial as to whether he would have claimed any business expenses as against his acting income, and he stated that the only expense he would have had would have been the occasional haircut.

[72] In regard to the year 2010, the Respondent never produced his full Income Tax Return with all attachments as ordered so that details regarding his earnings could be reviewed. He finally produced a Notice of Assessment dated July 14, 2011, which indicated that he earned total income of only $5,562.00 in 2010. Again the Notice of Assessment indicates that the Respondent failed to report his social assistance payments in his Income Tax Return, in the amount of $585.00. The ACTRA summary which the Respondent eventually produced mid trial indicates that the Respondent actually earned $17,103.14 from acting through that agency in 2010. The discrepancy between this information and the figure in his 2010 Notice of Assessment is significant. The Respondent was given a full opportunity to explain this discrepancy during his testimony, but he had no explanation.

[73] For 2011, as noted above, the Respondent’s Financial Statement sworn February 16, 2011 was extremely deficient. Of further concern is that the Respondent indicated in the Financial Statement that he was not self employed, and had been unemployed since 2009. The impression given was that he had not earned any income since 2009, which was clearly not the case. The Respondent never served and filed the updated Financial Statement that was ordered on both March 30, 2011 and June 6, 2011. Further, he has not provided any satisfactory explanation as to why he was able to earn income from acting from 2008 until 2010, but this source of income suddenly dried up in 2011.

[74] The Respondent never complied with the terms of the June 6, 2011 order requiring him to provide a summary of his efforts to find employment since September 2010. At trial, he was questioned about whether he had made any job search efforts, and he made a vague reference to having looked for “restaurant jobs” but did not provide any further details or documentary proof of these alleged efforts. He stated that he wished to get a restaurant job so that he could have his days open for acting auditions, despite the fact that he alleged that he had not had any acting work in 2011 apart from one voice-over job.

[75] The Respondent was asked at trial about whether he had participated in any retraining or job search programs, and he did provide confirmation that he had enrolled in a job search program through St. Stephens’ Community House in March, 2011. He has not participated in any other job search or retraining programs.

[76] When the Respondent was questioned as to why he had not made any income other than $100.00 from the voice over job in 2011, his only explanation was that he had recently been involved in a car accident in November 2011, which made it difficult for him to look for work. A Collision Reporting Centres Supplementary Information Form dated November 3, 2011 indicates that the Respondent was involved in an accident on November 3, 2011, as a result of which he had suffered an injury to his left knee, pain to his left side and ribs and shortness of breath. The Respondent produced a report dated November 17, 2011 from Dr. Bukczynski indicating that he had attended at the doctor’s office on that date, to explain his failure to appear in court for the trial in the morning. He has not produced any medical evidence indicating that his capacity to work has been impaired as a result of either the November 3, 2011 accident or for any other reason. Furthermore, the accident does not explain his failure to make any additional income from January to November, 2011.

[77] The Respondent was questioned as to how much time he typically spent on acting jobs or in other training or preparatory work relating to his acting activities. He was unable to give a clear response to this question. He acknowledged, however, that he is not in high demand as an actor, that he only did acting jobs “here and there,” that his jobs do not involve any significant preparatory work and that his acting is not a regular source of work for him.

[78] The Respondent has throughout these proceedings displayed extreme resistance to making full and frank disclosure. This resistance continued throughout the trial, as demonstrated by his unwillingness even up until that time to release the ACTRA income summary and by the vagueness of many of his answers to questions relating to his financial situation. This extreme resistance, coupled with the inconsistencies described above in the evidence respecting his income have led me to conclude that the Respondent’s evidence respecting his financial situation cannot be relied upon. These considerations justify an order imputing income to the Respondent.

[79] Furthermore, I find based on the totality of the evidence that the Respondent has been either intentionally unemployed or underemployed. He has limited the scope of his job search to positions which would allow him to pursue his acting aspirations, despite the fact that this area of work has not been very remunerative for him. If his evidence is to be believed, his acting has only taken a minimal amount of his time, and he has therefore had considerable amounts of time to search for work, upgrade and retrain. There is no evidence that the Respondent has been or is currently unable to work for any medical or other reasons, that he has engaged in any meaningful and consistent job search efforts, or that he has made attempts to upgrade his skills or retrain to improve his employment prospects.

[80] I find that an imputed income for the Respondent of $26,000.00 is fair and reasonable based on all of the foregoing considerations. If the Respondent were able to obtain even part time work at minimum wage, he should be able to earn at least $10,000.00 per year. In 2008, 2009 and 2010, he was able to earn on average $18,202.00 per year from acting. Based on the numerous concerns regarding the Respondent’s credibility, his allegation that he has only had one acting job in 2011 cannot be relied upon. Between part time work at a minimum wage rate and acting income, or alternatively full time work at minimum wage, an income of $26,000.00 is in my view achievable.

2. Evidence and Findings Respecting the Applicant’s Income

[81] A determination of the Applicant’s income is necessary to ascertain the parties’ proportionate contributions to Jayde’s section 7 expenses. The Applicant’s Notices of Assessment for 2008 and 2009 indicate that her 2008 income was $11,501.00, and that her 2009 income was $11,900.00. Her 2010 Income Notice of Assessment shows income of $13,937 that year. The other financial records which the Applicant adduced as evidence indicate that she was working at many jobs in 2010. Specifically, she was a part time dance instructor at STEPS Centre for Performing Arts (“STEPS”), was a part time door staff at the restaurant Tailgate Charlie’s, worked at Customs Orthotics Design Group and the Niagara District School Board, and was also employed by the Family Day Care Services.

[82] The Applicant testified that she has worked at three different jobs in 2011. She has continued working part time as a dance teacher at STEPS. Her pay statement from STEPS for the period ending November 11, 2011 indicates that she had earned a total of $1,957.61 in 2011 as of that date from STEPS. I estimate that she would have earned approximately $2,100.00 from STEPS by the end of December, 2011. She worked at Tailgate Charlie’s as a door person from January 2011 until August 6, 2011, and earned a total of $1,996.01 from this position. The Applicant testified that she could not continue with this job because the employer required her as a new prerequisite for the job to obtain a security licence, which she did not have the money to pay for. In addition, the Applicant had a contract position as a supply teacher and cook for Family Day Care Services from March, 2011 until June 30, 2011, earning approximately $13.35 per hour, for thirty hours per week. This salary would result in an annual income of $20,826.00. In 2011, she earned a total of $5,440.00 from Family Day Care Services. The Applicant indicated that she decided not to continue her employment with that agency because it was too far to drive to, and the cost of gasoline was so high that the position was not yielding her a meaningful net amount after travel costs. As of the time of trial, the Applicant was only working part time at STEPS, but stated that she was actively pursuing employment closer to home. On the basis of the foregoing findings, I conclude that the Applicant’s actual earnings for 2011 were approximately $9,536.00.

[83] I have determined that despite the Applicant’s actual earnings in 2011, she should be imputed an income of $20,000.00. As noted above, if she had stayed at Family Day Care Services, she could have earned close to $20,000.00 from that agency in 2011. While the cost of transportation was high, the reality is that most income earners have transportation costs associated with getting to and from work. The most prudent course of action for her to have taken would have been to remain with this employer if possible until she secured other employment closer to home. The Applicant testified that her mother assists her greatly in supervising Jayde and meeting the child’s needs, and therefore I find that her child care responsibilities respecting Jayde do not impact significantly on her earning capacity.

3. Evidence and Findings Respecting Section 7 Expenses

[84] In her testimony, the Applicant requested that the Respondent contribute to a number of section 7 expenses relating to Jayde which she incurred in years prior to 2011. She did not issue this Application until January 6, 2011, and the Application did not include a claim for retroactive child support. Accordingly, I decline to order the Respondent to contribute to section 7 expenses which the Applicant incurred prior to 2011.

[85] The Applicant made a claim in her Application for contribution to the costs of Jayde’s soccer, dance, steel pan and dental expenses. She did not provide any proof of dance or dental expenses for the year 2011, and she confirmed that there was no plan in place at this time to obtain braces for Jayde. The evidence from Rita Daniel was that she paid for steel pan as a gift to Jayde. This is therefore not an expense for which the Applicant is entitled to receive contribution from the Respondent.

[86] The Applicant provided receipts confirming that she had incurred $752.00 on account of Jayde’s soccer for 2011. The Applicant also stated that she had incurred $140.00 for Jayde’s uniform, but she did not provide 2011 receipts to substantiate this expense. Therefore, the only expense which the Applicant incurred in 2011 which she could substantiate through receipts was the soccer expense of $752.00.

[87] I find based on the testimony of both parties that Jayde has been playing soccer for many years and that this sport is important to her. I conclude that this activity is necessary in relation to Jayde’s best interests, that the cost of this activity is reasonable in relation to the parties’ means, and that the cost exceeds what the Applicant can reasonably cover even with the income that I have imputed to her. I therefore find that it is an extraordinary expense within the meaning of section 7(1)(d) of the Guidelines, and that the Respondent should contribute to this expense.

[88] Section 7(3) of the Guidelines provides that in determining amount of a section 7 expense, the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense. There is a fitness tax credit available in relation to Jayde’s soccer expense, however I find that based on the Applicant’s imputed income of $20,000.00, this tax credit would not have any impact on the taxes payable by the Applicant.

[89] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of a section 7 expense is that the expense is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. There are no considerations in this case that cause me to conclude that a different approach would be appropriate. Based on the parties’ respective incomes, I find that the Applicant’s contribution to section 7 expenses should be 43% and the Respondent’s contribution should be 57%.

4. Rulings on Child Support Issues

[90] Based on my finding that the Respondent should be imputed an income of $26,000.00 for 2011, he should have paid $222.00 per month from January 1, 2011 until December 31, 2011, which was the Table amount under the Guidelines for one child during that time period. Therefore, the total Table amount of child support which the Respondent owes to the Applicant for the year 2011 is $2,664.00.

[91] Effective December 31, 2011, the Federal Child Support Guidelines[^39] were amended to update the Federal Child Support Tables used to determine child support amounts. Ontario Regulation 463/11, which also came into effect on December 31, 2011, incorporated the updated federal amounts for the purposes of the Ontario Guidelines. These new Table amounts apply for child support owing after December 31, 2011. The new Table amount for one child, based on an income of $26,000.00 is $210.00 per month. The Respondent’s child support obligation to the Applicant is therefore $210.00 per month commencing January 1, 2012.

[92] The Respondent’s 57% share of Jayde’s 2011 soccer expense is $428.64.

[93] I note that the Respondent alleged that he has contributed to a number of expenses for Jayde over the years. The Applicant acknowledged that the Respondent has made some contributions to Jayde’s needs, including paying approximately $80.00 towards an orthodontics assessment, purchasing her a keyboard, a computer and cell phones, some contributions to Jayde’s soccer expenses when she was much younger, and school supplies. However, she stated that with the exception of Jayde’s cell phone, the Respondent did not make any financial contributions to Jayde’s expenses in 2011. I accept the Applicant’s evidence on this point.

[94] Having regard for the Respondent’s limited income, I find that he will be unable to pay the entire amount of the child support that he will immediately owe as a result of this order in one lump sum. A reasonable and realistic payment schedule is required. The Respondent reported in his Financial Statement sworn February 16, 2011 that his total monthly expenses are only $650.00. Based on this information, I find that a reasonable amount for the Respondent to pay on account of child support owed to date is $100.00 per month.

V. TERMS OF ORDER TO ISSUE

[95] Based on the foregoing, a final order shall issue upon the following terms and conditions:

1. The Applicant Michelle Daniel-Defreitas (“the Applicant”) shall have sole custody and primary residence of the child Jayde Daniel-Defreitas, born December 13, 1996 (“the child”).

2. The Respondent Sean Francis (“the Respondent”) shall have reasonable access with the child, in accordance with the child’s wishes, as arranged between the Respondent and the child.

3. The parties shall keep each other apprised at all times of their current addresses and telephone numbers.

4. Based on the Respondent’s annual imputed income of $26,000.00 for the year 2011, child support owed by the Respondent to the Applicant for the child in accordance with the Tables under the Child Support Guidelines (Ontario) for the period from January 1, 2011 until December 31, 2011 is fixed in the amount of $2,664.00.

5. The Respondent’s obligation to contribute to section 7 expenses relating to the child for the year 2011 is fixed in the amount $428.64, which is his proportionate contribution to the child’s soccer expenses for that year.

6. The Respondent shall pay ongoing child support to the Applicant for the child in the amount of $210.00 per month, in accordance with the Tables under the Child Support Guidelines (Ontario), based on an annual imputed income of $26,000.00 commencing on January 1, 2012 and continuing on the first day of each month that follows.

7. The child support which the Respondent owes to the Applicant pursuant to paragraphs 4, 5 and 6 herein shall be paid at the rate of $100.00 per month, commencing February 1, 2012 and continuing on the first day of each month that follows until the amount is paid in full.

8. Commencing January 1, 2012 the Applicant and Respondent shall share the child’s ongoing section 7 special and extraordinary expenses in proportion to their respective incomes. These expenses shall include, but not be limited to, Jayde’s school uniform expenses and the costs associated with her participation in soccer. For the purposes of this section, the Applicant’s imputed income is $20,000.00 and the Respondent’s imputed income is $26,000.00. The Applicant’s proportionate share of section 7 expenses is therefore 47% and the Respondent’s proportionate share is 53%.

9. The party requesting contribution to a section 7 expense shall provide the other party with proof of the total expense being claimed along with proof that they have paid their share. The other party shall then pay the requesting party their share of the expense within thirty days of receiving said proof.

10. The parties shall advise each other forthwith, and in any event within thirty days, of any significant change in their income.

11. Without limiting the generality of paragraph 10, the parties shall by June 30th every year exchange the income information referred to in section 21(1) of the Child Support Guidelines (Ontario) for the preceding year and copies of their three most recent pay statements showing year to date income for that year.

12. A Support Deduction Order shall issue in the usual form.

13. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by February 13, 2012. Responding submissions shall be served and filed by February 27, 2012.

The Honourable Madam Justice Chappel

Released: January 30, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Daniel-DeFreitas

Applicant

– and –

Sean Michael Patrick Francis

Respondent

REASONS FOR JUDGMENT

Chappel, J.

Released: January 30, 2012

[^1]: Child Support Guidelines (Ontario), O.Reg. 391/97 as amended.

[^2]: Children’s Law Reform Act, R.S.O. 1990, C. C-12, as amended.

[^3]: Young v. Young (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, 2005 CanLII 11195 (ON SC), [2005] O.J. No. 1374 (Ont. S.C.J.); Harsant v. Portnoi, 1990 CanLII 6703 (ON SC), [1990] O.J. No. 1144, 74 O.E. (2d) 33 (Ont. H.C.J.).

[^4]: Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.).

[^5]: Walsh v. Walsh, 1998 CanLII 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (Ont. C.A.).

[^6]: Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Young v. Young (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.).

[^7]: Kruger v. Kruger, Supra.

[^8]: Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.).

[^9]: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (Ont. C.A.); Lawson v. Lawson, 2006 CarswellOnt 4736 (Ont. C.A.).

[^10]: Brook v. Brook, 2006 CanLII 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.).

[^11]: Kaplanis v. Kaplanis, Supra.; Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A).

[^12]: Ladisa v. Ladisa, Ibid.

[^13]: Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.).

[^14]: Hildinger v. Carroll, 2004 CarswellOnt 444 (Ont. C.A.); Kaplanis v. Kaplanis, Supra.; Ladisa v.Ladisa, Supra.

[^15]: Kaplanis v. Kaplanis, Supra.

[^16]: Lawson v. Lawson, Supra.; Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.); aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (Ont. C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.); aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (Ont. C.A.).

[^17]: Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (Ont. C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (Ont. C.A.); R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (Yuk. S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (Ont. C.J.).

[^18]: Family Law Act, R.S.O. 1990, c. F.3, as amended.

[^19]: Guidelines, Ibid., section 3(2).

[^20]: Guidelines, Ibid., section 4.

[^21]: Guidelines, Ibid., section 5.

[^22]: Guidelines, Ibid., section 9.

[^23]: Guidelines, Ibid., section 10.

[^24]: Coghill v. Coghill, 2006 CanLII 21778 (ON SC), [2006] O.J. No. 1489 (Ont. S.C.J.).

[^25]: Nelson v. Nelson, 2005 CarswellNS 18 (N.S.S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.).

[^26]: Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (Ont. C.A.), additional reasons 2009 Carswell Ont 3112 (Ont. C.A.); Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (Ont. C.A.), additional reasons 2003 CanLII 48241 (ON CA), 2003 CarswellOnt17 (Ont. C.A.).

[^27]: R. v. Candir (2009), 2005 C.C.C. (3d) 139 (Ont. C.A.); R. v. J.(J.L.), [2000] S.C.R. 600 (S.C.C.).

[^28]: Family Law Rules, O. Reg. 114/99.

[^29]: Drygala v. Pauli, Supra.; Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.).

[^30]: Drygala v. Pauli, Ibid.; L.(N). V. P. (B.), 2000 CanLII 22516 (ON SC), 2000 CarswellOnt 2487 (Ont. C.J.).

[^31]: Hanson v. Hanson, 1999 CanLII 6307 (BC SC), 1999 CarswellBC 2545 (B.C.S.C.); L.(N). V. P. (B.), Supra.; Donovan v. Donovan, 1999 CanLII 14299 (MB KB), [1999] M.J. No. 451 (Man. Q.B), aff’d 2000 MBCA 80, [2000] M.J. No. 407 (Man. C.A.).

[^32]: Hanson v. Hanson, Ibid.; L.(N). V. P. (B.) Supra.

[^33]: West v. West, 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 (Ont. S.C.J.).

[^34]: Lawson v. Lawson, Supra.; Blake v. Blake, 2000 CarswellOnt 2477 (Ont. S.C.J.).

[^35]: Barta v.Barta, 2005 CarswellOnt 74 (Ont. S.C.J.); M.(S.D.) v. M.(K.F.), 2004 CarswellBC 70 (B.C.S.C.); Quintel v. Quintel, 1997 CarswellOnt 3213 (Ont. Ct. Gen. Div.).

[^36]: Pontius v. Murray, 2011 CarswellSask 679 (Sask. C.A.); Poursadeghian v. Hashemi-Dahaj, 2010 CarswellBC 2740 (B.C.C.A.).

[^37]: Daulby v. Daulby, 2007 CarswellOnt 7842 (Ont. S.C.J.).

[^38]: Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.).

[^39]: Federal Child Support Guidelines, SOR/97-175, as amended.