COURT FILE NO.: 07-FL-2158-1
DATE: 2013/07/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.B.A.Y.
Applicant
– and –
J.Y.
Respondent
Lisa Sharp, for the Applicant
Respondent representing himself
HEARD: January 28, 29, 30 and May 21 and 22, 2013
REASONS FOR JUDGMENT
Minnema, j.
[1] This was a motion heard on oral evidence brought by the applicant M.B.A.Y. to change the order of McNamara J. dated May 10, 2010. She sought the following:
a) Custody of the four children: A.Y. born […], 2003, E.Y. and M.Y. (twins) born […], 2006, and N.Y. born […], 2009.
b) A restraining order.
c) A restriction on the respondent regarding on-line postings.
d) Police enforcement of the order.
e) A right to retain passports.
f) Child support, including support based on an imputed income going forward, pursuant to the Child Support Guidelines (Ontario), O.Reg. 391/97, as amended.
g) Termination of the respondent’s access or, in the alternative, supervised access. In both situations, she also sought a requirement that the respondent undergo a psychiatric assessment and that access be reviewed once the respondent has demonstrated that he has sought treatment.
[2] The respondent J.Y. had little disagreement with a number of the claims. He was not disputing custody. He appreciated that the access might need to be supervised and agreed to that in his pleadings. He said at trial that he wanted access twice a week, although he said he understood why the applicant would not want that right now. In the break between the January and May trial dates he voluntarily ceased his on-line postings and does not object to that also being ordered. He did not agree with an order requiring him to see a psychiatrist, but did agree with counseling or treatment to move toward normal access. Regarding the restraining order, the parties agreed to it with a qualification that there can be some communication about the children through a third person. The passports and police enforcement requests were not an issue.
[3] Along with the access, J.Y.’s biggest concern was the retroactive child support – namely the amount of his current child support arrears – and he disagreed with having income imputed to him at the level M.B.A.Y. suggested for child support calculations going forward.
Issues
[4] So in summary then, the main issues in this trial were (1) what the retroactive and ongoing child support should be, and (2) what the father’s access arrangements should be and whether a psychiatric assessment should be part of that order.
Background Facts
[5] The parties met on-line in 1998. M.B.A.Y. was 16 years old and J.Y. was 23. She was living in Moncton, New Brunswick, and he was living in Edmonton, Alberta. In 1999 they both moved separately to Campbellton, N.B., were J.Y. eventually obtained a good job at a pulp mill. Before marriage M.B.A.Y. moved to Ottawa to complete her high-school, and then she moved back to Campbellton and worked in a government job. They married on August 13, 2000, and began living together at that time. M.B.A.Y. was 18 years old and J.Y. was 25. They had A.Y. in 2003 and the twins E.Y. and M.Y. in 2006.
[6] The relationship between the parents was poor from the start. J.Y. said they argued all the time. M.B.A.Y. gave detailed accounts of demeaning and abusive behavior by J.Y. that he generally acknowledged and did not dispute. M.B.A.Y. was determined to work on the relationship and was committed to keeping the family together. Both parents indicated strong religious beliefs.
[7] The situation worsened and J.Y. became a problem drinker. He frequented clubs that had live entertainment by erotic dancers, and on one occasion had sex with a dancer. There were incidents of domestic violence in the home when the police were called. In May of 2007, following an incident where J.Y. punched the walls and smashed the baby’s chair, the police attended the home and he was removed. The parties saw this as their first separation.
[8] The parties agreed that M.B.A.Y. and the children should move away to Ottawa. J.Y. assisted with the move which took place in June of 2007. He was still drinking at that time and although separated they argued over the telephone. M.B.A.Y. and the children lived briefly with a family, and then moved into an apartment south of Ottawa where she still lives today.
[9] In August of 2007, M.B.A.Y. brought a custody and child support court application. Upon being served J.Y. told her he was fed up, taking a stress leave from work and coming to visit. He drove all night from N.B., arrived in Ottawa on a Thursday, slept most of the day in M.B.A.Y.’s apartment, and had access that evening in her home. He became angry when M.B.A.Y. told him he could not sleep over and she asked him to sleep in a hotel. The next day he had liberal access, and took A.Y. to the park twice. However, he then attempted to take the child back to N.B. with him, creating a prolonged and distressing incident involving the children and the police. J.Y. said he had gotten advice from an unnamed mediator who told him he could take the children to N.B. if he wanted to as there was no court order.
[10] M.B.A.Y. then obtained an interim order on October 2, 2007, granting her custody, generous and reasonable access to J.Y. as agreed to by M.B.A.Y., and a restraining order. This order was obtained on consent with the assistance of a mediator.
[11] Little was said about the property, although M.B.A.Y. indicated that at one point J.Y. emptied their bank accounts, stopped paying their mortgage and bills, bought a sound system, a laptop, and things for his ATV. She said that eventually they lost their house to foreclosure and both went bankrupt.
[12] When M.B.A.Y. moved to Ottawa she was still on maternity leave following the birth of the twins. J.Y. eventually quit his job in N.B. and moved to Ottawa around March of 2008. He worked for a cleaning company then secured a good job at P[…]. To M.B.A.Y. it seemed like he wanted to change. She said they were getting along better and he had apologized to her and quit drinking. The parties then reconciled. M.B.A.Y. became pregnant with their fourth child.
[13] M.B.A.Y. indicated that after she became pregnant J.Y. started reverting back to his old ways. He began drinking heavily again, and was verbally abusive. There was an incident of domestic violence when she was eight months pregnant. She saw him viewing pictures of different women on the computer, confronted him, and he pulled her hair and pretended to punch her face. She said that he would threaten her, and at one point he told her that she was lucky she had the children to take care of or he would kill her. She said it would not take much to set him off and there would be an incident/argument every few days.
[14] J.Y. didn’t deny the conflict around this time. He explained that he was very unhappy at his work, didn’t like his job, and found that he was stressed. He dealt with it by drinking.
[15] N.Y. was born on […], 2009. J.Y. went on paternity leave, moved to a trailer that his mother owned near Prescott, Ontario, on the S[…] River, and stayed there for much of the summer. In August of that year M.B.A.Y. told him she wanted to separate again. J.Y.’s mother supplied him with a van and he then left Ontario for Alberta in September of 2009 while still on paternity leave. He found work in Alberta and he quit his job at P[…] around October 2009.
[16] J.Y. stayed in Alberta for a year in total. M.B.A.Y. encouraged access, and there were some inconsistent video chats and phone calls. She invited J.Y. to visit, and gave him information for Christmas 2009, but he did not come. J.Y. would send money from time to time but it was inconsistent. M.B.A.Y. and the children lived off the Child Tax Benefit and she also had access to their joint bank account.
[17] J.Y. indicated that he was coming to Ottawa in the spring of 2010. M.B.A.Y. spoke to her lawyer who was in email contact with J.Y. in hopes of negotiating a separation agreement. J.Y. was starting to air his feelings on Facebook at this time, and M.B.A.Y. for good reason was anxious about his upcoming visit. J.Y. would complain on Facebook about how unfair he felt the situation was for him, calling M.B.A.Y. a bitch, suggesting that in seeking the usual family law relief she intended to hurt him and was taking pleasure in that. A woman in his Facebook group was sympathetic, chiming in “want me to beat her up 4 ya? LOL.”
[18] J.Y. did come to Ottawa for a visit in March of 2010 for ten days, and had liberal access. While here they came to an agreement. The previous court action was revived and the consent terms are reflected in the final order dated May 10, 2010. J.Y. did not have counsel at the time, but indicated that there was no real problem with the order then, although it caused him problems afterwards.
[19] The May 10, 2010 final order gave J.Y. generous and reasonable access as agreed to by M.B.A.Y., which reflected the 2007 interim order. It provided that J.Y. shall not go to M.B.A.Y.’s home unless invited, and if asked to leave shall do so immediately. J.Y. was making good money in Alberta, and the parties agreed in that order to child support at $1,000 per month per the Child Support Guidelines. This was based on an income that was significantly less than what J.Y. was actually earning or expected to earn, and was done to reflect his anticipated increased travel costs for access. Although the agreement was reached in March, as noted the order was not issued until May. However, the order itself states that child support was to commence March 1, 2010.
[20] After J.Y. went back to Alberta he paid child support of $1,000 for each of March and April of 2010, then without explanation stopped. In May of 2010, M.B.A.Y. was forced to turn to public assistance to provide for her and the children.
[21] J.Y. said that the support order put him in a bind. He wanted to be with his kids, but he felt he could not pay that level of support if he moved to Ottawa. This is notwithstanding that he was earning about the same amount in Alberta as he made working at P[…] in Ottawa before he quit that job. He said he eventually decided to quit his job in Alberta in August of 2010 because he was feeling numb and felt that the children needed a father. He had been in Alberta for eleven months and had only exercised ten days of access.
[22] J.Y. seemed focussed throughout the trial on the unfairness of paying child support while almost in the same breath indicating a desire to be a good father and support his four children. To recap briefly up to this point, he had agreed to pay child support at a level of $1,000 per month based on earnings of $43,500 for 2010. However by August of 2010 when he quit his job in Alberta, per his Notice of Assessment he had already earned $51,900 from employment in over seven but fewer than eight months. For the rest of that year he earned $6,705 from Employment Insurance for an actual total yearly income of $58,605. Based on his total final income that year, his support payments were low by about $350 per month. He stopped paying while still gainfully employed in Alberta and in line to make close to $70,000 that year.
[23] Upon quitting his job J.Y. sent texts to M.B.A.Y. indicating he was coming to Ottawa and wanted to take the children to N.B. As he had not seen the children for some time M.B.A.Y. said no to this, indicating that he needed to show he could parent before he could take them that far on his own. His emails suggested he was angry. M.B.A.Y. decided to take the children out of town for a few days upon his arrival to allow him some time to calm down.
[24] M.B.A.Y. was able to track J.Y.’s posting on Facebook. J.Y. had a following of ‘friends’ many of whom he did not know in the sense of having actually met them in person, who were sympathetic to him as a father without custody.
[25] J.Y. posted on August of 2010 that his wife had hidden the children and that he was frustrated. A Facebook exchange ensued where at least ten different people contributed, not counting those who indicated their ‘likes’ for what was said. The conversation became more aggressive as it went on, with M.B.A.Y. being called “crazy”, “a fucking nut”, and “selfish” by strangers. A commenter noted that J.Y.’s situation made them all angry.
[26] M.B.A.Y. made it clear that J.Y. could have access as long as he agreed on a time to return the children. He did agree, and he had access. On a longer visit, the access included a camping trip where he was expected to be back at 4 p.m. J.Y. returned the children early at 10 a.m., having difficulty managing their care. M.B.A.Y. fed the children, and then J.Y. took them out again for a few hours.
[27] The exchanges about the parties’ situation between J.Y. and his ‘friends’ continued on Facebook, and on August 30, 2010 just before M.B.A.Y. facilitated J.Y.’s camping trip with the children, the following exchange was posted:
J.Y.: “If someone could invente medication to make a bitch become normal, it would be nice.”
Shawn Hickey: “scientists will mske a fortune!! Lol”
J.Y.: “Yeah, I agree lol.”
Denis Mallet: “They do…its’s called duct tape….very cheap!”
J.Y.: “ahahahahaha well depend with who your are with cause for certain women, some guy would be in jail. just to bad its not legal tho, duct tape would work pretty good lol.”
Reno Turgeon: “yep that would be to good to be truth!!!lol.”
[28] The access became sporadic. J.Y. missed a couple of weeks and then had a visit where he said inappropriate things about the mother to the children in her presence. He was then gone for long periods and she heard that he was living back in N.B. He was on Employment Insurance.
[29] J.Y. continued to disparage M.B.A.Y. on Facebook and the list of ‘friends’ kept growing, eventually getting to be approximately six hundred. J.Y. started making an allegation that M.B.A.Y. had physically abused A.Y..
[30] After a long time of not seeing the children J.Y. indicated that he was coming in November of 2010 with someone to help him during access, and wanted to take the children overnight. By this point M.B.A.Y. was worried about the Facebook smear campaign, and in particular whether this other person J.Y. was bringing was the “duct tape person” or someone else who had said mean or threatening things in reference to her. J.Y. had exercised very little access since March, even though it had never been restricted. M.B.A.Y. said she told J.Y. that the access could only be with him and it would be day-time access only, not overnight. When she learned that for the visits he had a female friend with him, she cancelled the next day visit as she had no idea who this person was.
[31] This cancellation of one visit made J.Y. very upset. He said he had cleared bringing the friend with M.B.A.Y.’s lawyer. M.B.A.Y. was unaware of this. She noted that was the only time that she ever cancelled an arranged visit.
[32] Two weeks later J.Y. called the Children’s Aid Society on M.B.A.Y.. While he was clear throughout the trial and all the evidence confirmed that M.B.A.Y. was and is an excellent mother, and I find that as a fact, his complaint to the CAS was that his own mother told him that she had seen M.B.A.Y. pinch A.Y.’s ear when the family was still together. J.Y. said he asked the children about it and he claimed that they confirmed that M.B.A.Y. did this regularly. He presented himself as a parent who was concerned about the mother’s discipline of the children.
[33] This was investigated by the CAS. The children were interviewed, nothing was confirmed, and indeed A.Y. seemed surprised by the allegations. J.Y. never spoke to M.B.A.Y. about this; he just made the referral. By the end of the investigation the CAS records indicated that J.Y. had admitted that he made the referral because he was “pissed off” at M.B.A.Y. for not allowing him to see the children that one day, and he admitted that his mother only ever said she saw M.B.A.Y. pinch A.Y.’s ear once. J.Y. said he had never seen her pinch or hurt the children while they were together. He said M.B.A.Y. is a very good mother and would not hurt the children, however he believed his mother.
[34] I find that this alleged one-time pinching never happened and there is no evidence to support it. The alleged observation by the paternal grandmother who did not testify is unreliable second-hand hearsay. It is sadly ironic that while J.Y. was explaining his refusal to leave this issue alone he admitted that he once severely slapped A.Y. on her bottom for misbehaving. That incident was grossly more severe than the alleged but unproven ear pinch.
[35] With J.Y. on social assistance the support order was assigned to the Ministry of Community and Social Services, and was being enforced by the Family Responsibility Office. Collection and enforcement of the support order were therefore out of M.B.A.Y.’s hands. Around December 22, 2010, half of J.Y.’s E.I. cheque was garnished by FRO.
[36] J.Y.’s response was outrage. He took to Facebook again painting himself as a victim owing $10,000 in child support arrears. He called M.B.A.Y. crazy, and at one point said in reference to her (translated from French on consent):
“If she could only die somehow, it would make the life of 5 people a lot better. It would be a good riddance, a good for nothing, only good to make shit, nothing else.”
[37] J.Y. had a female follower on Facebook who chimed in calling M.B.A.Y. a “bitch” and “heartless”.
[38] M.B.A.Y., who in every decision she made regarding the children that was reviewed in the trial always put her children’s needs first, still asked J.Y. about his plans for Christmas access and what times he wanted, despite his internet hate campaign against her. J.Y. had put himself in a position of not wanting to stay in a hotel in Ottawa claiming a lack of money. To accommodate his access M.B.A.Y. allowed access to take place in her home on December 24, 2010, and she left to go shopping. When she returned she learned from J.Y. that he had video-recorded A.Y. previously about the alleged ear-pinching and both he and his mother had taken it to the police who said they couldn’t use it.
[39] M.B.A.Y. rightly felt that convincing a child to make a false statement against a parent was a form of abuse, and she was upset. However, in response all she did was tell J.Y. that while he could still have his access on December 25, it would not be in her home. Even then she eventually relented in the children’s best interests, given that J.Y. had nowhere else to go.
[40] J.Y. was forty-five minutes late for the December 25, 2010 access. After he arrived M.B.A.Y. was preparing food for an afternoon occasion and tried to stay out of his way while he gave the children their presents and had his visit. However, J.Y. wanted her to play a movie on her computer that he had brought for the children. While she was setting it up he was sitting beside her. She said he was mad. He agreed that he was very frustrated. Along with the garnishment of his EI benefits he was having vehicle problems. M.B.A.Y. was trying not to talk to him, but J.Y. said he thought she was laughing at him. She said to him she was not scared. He grabbed her by the throat and pushed her against a wall and asked her if she was afraid of him now. She yelled at him and told him to leave. He held his hand over her mouth to silence her from yelling and pulled her into another room. The assaults took place in the presence of the children. A.Y. had to run to a neighbour’s house to get help.
[41] The parties gave similar accounts of this incident in their evidence. J.Y. said he took full responsibility, yet at the same time seemed to hold the view that M.B.A.Y. was at least partly to blame. Regarding the initial assault he said he interpreted her comment that she was not afraid of him as goading. He also said he felt some justification in covering her mouth as it was to stop her from yelling and he felt that she was scaring the children.
[42] The Children’s Aid Society became involved because of the domestic violence. M.B.A.Y. cooperated with them and took some counselling regarding partner violence that it recommended, and found it helpful.
[43] J.Y. was criminally charged. He indicated that he first pled guilty, then changed his plea (had it struck), however eventually he pled guilty again. On December 20, 2011, he was found guilty of forcible confinement and assault. His sentence was suspended and he was ordered to do two years of probation. As part of his conditions he was to have no direct or indirect contact with M.B.A.Y.
[44] Before the criminal matter was finally disposed of, M.B.A.Y. brought this motion to change dated March 4, 2011. The parties consented to an interim order on June 15, 2011 that J.Y. would have supervised access at the Supervised Access Centre for a minimum of two hours per week and that the access would be reviewed after three months. No review was ever undertaken prior to this trial. J.Y. indicated that the visits at the SAC started in July. Both parties indicated without comment or protest that the access occurred as two hours every two weeks. No explanation was given, such as a mistake in the wording of the consent order or their accepting the access centre’s availability. In any event, that has been the status quo for the past two years. The restraining order was made. Regarding child support, the May 10, 2010 order of $1,000 per month and the enforcement of it was stayed, and J.Y. was ordered to pay $547 per month based on his stated annual income at that time of $21,936. There was no evidence that he made any voluntary payments on that order.
[45] The supervised access generally went well. M.B.A.Y. had some small issues with J.Y. not paying any child support yet bringing gifts to the visits. M.B.A.Y. did not cancel any visits. Once the access centre cancelled because it did not have enough staff, and that visit was made up. Once J.Y. was late having slept in – he blamed his mother for not calling him and waking him – and the visit was cancelled. When he arrived M.B.A.Y. had already left. J.Y. was quite upset that M.B.A.Y. did not bring the children back despite being called. He felt that she was at fault for this missed visit by not accommodating him. J.Y. complained that the children did not have appropriate winter clothes and boots. My impression was that J.Y., while acknowledging that M.B.A.Y. was a good mother, was trying very hard to find some fault with her parenting and not having much success. Custody is not an issue, but again on the evidence I have no concerns with M.B.A.Y.’s parenting.
[46] Other than J.Y.’s spanking of A.Y. noted above, there was no evidence to suggest that he had ever physically harmed the children. M.B.A.Y. said if ever the children were misbehaving in the home, such as waking up J.Y. when he was working shift work, he would blame her and not the children. J.Y. had clearly harmed the children by exposing them to domestic violence. The need for supervised access was related to that harm, and his impulsive decisions such as trying to remove the children from the province and disparaging M.B.A.Y. to the children despite having some appreciation of the emotional harm it might cause. Also, J.Y. had not demonstrated any skills to manage the children for longer periods of access.
[47] J.Y., seeing himself as the victim in all that had transpired, took to Facebook once again. After the access started he posted in August 2011 “their is no justice, the fathers have nothing to say”. In November of 2011, he commented on a ‘YouTube’ video that was titled “Father forced into poverty because of child support”, by saying “... its incredible, the only way to get out of it its had kids with a good women, that way she wont use all the power she as to destroy her ex.” In other words, if you have children with a bad woman she will use her power as the mother to destroy you. Still in November of 2011 he ranted against M.B.A.Y.’s church for supporting her, and against the government generally because of the one access visit that was cancelled even though it was made up. He clearly suggested in his postings that M.B.A.Y. was out for revenge, that she was being untruthful to get what she wanted, and that she had ruined the children. There was no evidence to support any of these allegations.
[48] People reading J.Y.’s one-sided and inaccurate narratives on-line accepted his version of events. One of his brothers sent a particularly mean email to M.B.A.Y. on February 6, 2012, calling her selfish, cruel, a mental problem, and suggesting that she did not love her children. Again, M.B.A.Y. had done absolutely nothing to warrant any such reaction.
[49] J.Y. sent M.B.A.Y. an email in July of 2012 in breach of this court’s restraining order, admitting to and sincerely apologizing for the hurt and harm he had caused her. It was not a public apology like a Facebook posting, but M.B.A.Y. wanted to believe it. J.Y. seemed to have shut down his Facebook account. In one of his last postings advising his ‘friends’ of this decision, he said he had regrets over the bad things he had said. However, he also said he felt betrayed that a Facebook ‘friend’ had allowed M.B.A.Y. access to the postings.
[50] By December of 2012, J.Y. was posting online again and M.B.A.Y. became aware of what she called a professionally produced ‘YouTube’ video titled “Broken – two men after divorce”. In it J.Y. as one of the subjects minimized the assault, commented on their private life, and suggested he had to live out of his van because of her. M.B.A.Y. was upset at the idea of this production inciting more people against her and making their family the subject of public scrutiny once again. She had been dealing with public ridicule for two years.
[51] M.B.A.Y. was advised by J.Y.’s probation officer to contact the police about the video, and the probation officer contacted the police as well. The video appeared to be a breach of J.Y.’s bail condition “No communication with or about M.B.A.Y. on Facebook or other social media”. However, the parties indicated that sometime between the January and May 2013 sittings of this trial J.Y. was as a result of this investigation charged instead with a breach relating to the apology letter sent in the face of the restraining order. That matter was still before the criminal courts.
[52] A brief comment here. J.Y. many times in his evidence and argument said he wanted to be treated like “normal fathers” with regular access. Despite having agreed to all the orders in this case, he felt both that fathers are generally treated unfairly in the court process and that specifically he was being treated unfairly in comparison to M.B.A.Y.. The facts do not support this. He had four children and he was not paying child support. He had assaulted the mother while she attempted to accommodate his access. This is not what normal fathers do.
[53] When J.Y. was cross-examining M.B.A.Y.’s father about how he could get things back to normal, Mr. Clement Bernard said to him that trashing and ruining M.B.A.Y.’s reputation was not the way. Rather J.Y. needed to see a psychiatrist and get counselling. As he pointed out to J.Y., “You put yourself in this situation … It is your actions.” This evidence and other very poignant statements from M.B.A.Y. and her father about the very real immediate and long-term impacts on her and the children of her being disparaged on the internet, had an effect on J.Y.. He finally seemed to understand that he was being a bully and harming his own family. Between the January and June sittings of this trial, he shut down his Facebook account. He has agreed to the order M.B.A.Y. is requesting about on-line postings.
[54] As a very brief summary of the evidence regarding the children, A.Y. is the child who has been exposed to the most domestic conflict and violence. She has had some delays in school with her reading and writing, but is doing better this year. She was in French Immersion up to Grade Two, but had to be taken out and is now in an English only program and doing better. She sees a psychologist and is on an Independent Education Program in school. She has had anxieties and panic attacks. She has Attention Deficit Hyperactivity Disorder, and is on medication. While still on social assistance M.B.A.Y. was able to hire a tutor for A.Y. to help her with her schooling. The other children are doing well for their ages, although E.Y. is a bit more anxious than M.Y.. All the children are involved in activities such as music and soccer, and various girls’ groups or in N.Y.’s case a play group. The children have regular medical and dental check-ups, and other than what has been noted they have no medical problems.
[55] Despite J.Y.’s feeling that his child support was unfair, it needs to be noted here that M.B.A.Y. is not seeking current or retroactive Guideline section 7 expenses, even though the above suggests a possible claim.
[56] M.B.A.Y. has returned to school and received government loans and funding. As of January 1, 2013, she is no longer on welfare, a considerable achievement for someone raising four young children.
[57] Through his probation J.Y. has taken an anger management course and has seen two psychologists. He changed psychologists because he believed one did not share his religious beliefs. He had options for further appointments and counselling but does not like losing money by taking time off work.
Other Facts Regarding Support
[58] As noted above J.Y. earned good money at the pulp mill before the parties first separated in 2007. He quit the pulp mill in early 2008, and eventually obtained another good paying job at P[…] in Ottawa later that year.
[59] In 2009, the year the parties finally separated, and J.Y. per his Income Tax Return received $58,605. Of that $6,705 was Employment Insurance benefits after he quit his job at P[…].
[60] In 2010, J.Y. received $59,429. Per his Income Tax Return, $50,916 of that was employment income from working in Alberta, $6,795 was Employment Insurance, and $1,718 was RRSP income.
[61] J.Y. claims that he will never again earn income at those levels because he now has a criminal record.
[62] In 2011, J.Y. received $18,100 per his Income Tax Return, namely $3,452 from employment, and $14,668 from Employment Insurance. He noted in evidence that he also received $1,000 in cash that he did not declare. In May of 2011, when he obtained the interim variation order, he had projected his own income to be $21,936.
[63] There was no written financial information from J.Y. beyond 2011. I did not see an up-to date Financial Statement as required pursuant to the Family Court Rules. There was an order from this court dated December 10, 2012 requiring him to provide a letter from his employers for 2012 stating his income earned in that year. No such letters were in evidence.
[64] For 2012, J.Y. claimed he made $21,000 but he said he was going to see an accountant as he felt he had $6,000 in expenses to deduct from this income. However, there was no evidence that he was self-employed or entitled to any deductions. To the contrary J.Y. indicated and his probation officer confirmed that he was employed throughout much of last year.
[65] For 2013, J.Y. said he was on track to earn $20,000 this year although he was not sure about winter work. He said he made $2,400 month when he was working, which is in keeping with a $15 an hour rate for a 40 hour week. He said he made $15 an hour as a junior framer and once he became good he could make up to $20 an hour. However, he let slip in his closing submissions that he is currently making $17 per hour. He lamented the fact that this court proceeding and the criminal court proceedings were keeping him from his work. He said he is expecting some jail time, up to three months, before the end of the year for his pending criminal charge and would not be able to work.
[66] As far as his expenses in Ottawa, J.Y. said he lives in a trailer and pays $200 per month rent to someone he did not name. Sometime before that he lived with his uncle and paid $400 a month rent. Right now he claims to have zero money. He claimed that he plays hockey once a week but said his boss pays for that, and that he is a regular at a gym where he spends all his free time although nothing was said about how that was paid. J.Y. claims he has no money to buy alcohol, and only drinks once in a while. He says that he has one or two drinks on Fridays but that his boss always buys a round. When he had a lawyer he claimed an unnamed friend paid as he did not qualify for Legal Aid, but he also said that he owes Legal Aid Ontario $1,000.
[67] J.Y. provided no evidence about why he needed a break from paying normal child support. Again, other than what might have been collected by garnishment he has paid nothing since April of 2010, not even a reduced amount based on his actual earnings. This is notwithstanding that his living expenses were less than the average person, with cheap rent, and a boss who paid some of his expenses.
[68] J.Y. had a lot to say relating to child support. He agreed that at one point he made an offer to M.B.A.Y. of never seeing the children and paying no support. He said that if he had to pay Child Support Guidelines support, he would live in N.B. and earn nothing. He felt at the prescribed levels he could not afford to live in Ottawa and support the children. He said he thought about moving to Alberta to make good money, but he wouldn’t do that because then he would not be able to be a father to his children. This last assertion had a particularly hollow ring. In 2009/2010 he lived in Alberta and was given a reduced support level to accommodate his increased travel costs for access but he neither took advantage of the liberal access nor paid the support. J.Y. also said, somewhat at odds with an earlier comment, that he considered living in N.B. where he could live cheaply but would likely only make $10 per hour. He said he did not want to do that as it would not provide sufficient income for child support and again he would be away from his children. He also said he seriously considered moving to Mexico where he could live cheaply and avoid FRO, and that he considered just becoming a ‘bum’ and not working. He even mentioned suicide in his postings, but in evidence said he was not serious, he would become a bum first.
[69] J.Y. gave an example of why he felt the Guidelines are unfair “to fathers”. He said the difference in the amount of table support for four children if he earns $17,000 versus $20,000 is approximately $1,500 over a year (it is actually $1,440). He could not see the sense of working to earn $3,000 in additional income if half of that would be taken for child support.
[70] In cross-examination of his probation officer, J.Y. asked her whether she thought if he was doing better financially he would be less angry and agitated with “the system.” She confirmed that he had communicated to her that he was always stressed over money. However, she added that she had twice tried to refer him to credit counselling, giving him the address and phone number, but he did not go.
Analysis – Child Support
[71] Support and arrears are to be determined in accordance with the Child Support Guidelines.
[72] J.Y. wanted me to forgive all support arrears so that he can “get back on his feet.” The arrears exist because he did not pay when he clearly had the obligation and the ability to pay. Unlike the “normal fathers” he claimed throughout the trial he wanted to be like, he has shown no commitment to provide for his children, instead choosing to put his own financial needs first. When recently earning $2,400 per month and only paying $200 per month for rent, he made no payments of any amount towards child support.
[73] J.Y. also wanted his ongoing child support to be less than what others pay on similar income for several years, again to allow him to “get back on his feet.” His threats of killing himself, leaving the country, and becoming a bum, were all made with a view to avoid paying child support and contrary to his statement that he wants to support his family.
[74] The child support arrears create a dilemma for M.B.A.Y.. She is now off social assistance so ongoing support will go to the direct benefit of her children while the arrears will go to repay the Ministry. She would like the arrears to not overwhelm J.Y. so that he can make his ongoing payments.
[75] In view of the above, I make the following orders and findings regarding support. I do not disturb the May 10, 2010 order of $1000 per month. From January 1, 2011 to December 31, 2011, J.Y.’s support obligation shall be reduced to $436 per month based on earnings of $18,100 and the Guidelines for that year. From January 1, 2012 to December 31, 2012, J.Y.’s support obligation shall be increased to $474 per month based on earnings of $21,000. This is what he said he earned without deductions, and close to what he projected his earnings to be in his 2011 court materials.
[76] I have only been asked to impute income to J.Y. on an ongoing basis commencing January of 2013. His employment history shows that he has the ability to earn income, some skills, and no health concerns. He has already had a considerable amount of time without paying child support to get his financial affairs in order.
[77] Interestingly, as if this trial were a negotiation, J.Y. said that if he decides to go back to Alberta and work he was “willing to” pay $1,000 per month for child support. He said he cannot seem to get ahead, but added that right now he is “willing to” start giving M.B.A.Y. some money. He said that if I were to eliminate the arrears so that he could start fresh, then if he stayed in Ottawa he was “willing to” pay $500 per month for the next two years.
[78] J.Y. has an obligation to financially support his children now. There has been a lack of financial disclosure and consistency in J.Y.’s evidence about his earnings. This allows me to impute income pursuant to section 19(1)(f) of the Child Support Guidelines. However, I do not accept the suggestion that I impute an income based on what he earned while working in Alberta or at P[…]. That is not realistic given that J.Y. has been working in construction locally for over a year. The evidence seems to support that when he works it is 40 hours a week. At $17 an hour, he would earn approximately $35,000 per year. There might be overtime, and he said there are seasonal slow times. I impute an income of $31,000 to J.Y. for 2013. As a result he shall pay monthly child support $745 per the Guidelines.
[79] The bulk of J.Y.’s support arrears are owed to the Ministry, and will likely be adjusted slightly given the above orders. J.Y. estimates these to be between $17,000 and $20,000. The actual number was not in evidence, but looking at his lack of payment and the little evidence of successful garnishments and enforcements by FRO, he is likely not far off.
[80] The arrears are to be calculated by FRO as set out above and with the credits for monies received. With J.Y. working and having no assets, I order that the arrears as of June 30, 2013 be collected at the rate of $75 per month.
[81] J.Y. needs to understand that as long as he pays the ongoing support and the arrears as set out, FRO will not garnish his wages or government cheques, and it will not take more drastic actions such as seeking to suspend his driver’s license or seeking incarceration. While he put himself in this situation, this order will provide him with a manageable route to get out of it. He can pay down his debt over the long-term on a very favourable schedule. However, he needs to be aware that should he default in the face of this accommodation, then the full amount of arrears will immediately become due and payable.
Analysis - Access
[82] I have been referred to V.S.J. v. L.J.G., (2004), 2004 17126 (ON SC), 5 R.F.L. (6th) 319, where Blishen J. at page 133 listed the factors most commonly considered by the court in terminating access in the children’s best interests. A number of those factors are clearly established in this case, namely:
Long term harassment and harmful behaviours towards the custodial parent causing the parent and the children stress or fear.
A history of violence, unpredictable and uncontrollable behaviours, alcohol abuse, that present a risk to the children’s safety or well-being.
Ongoing severe denigration of the other parent.
Neglect or abuse to a child on the access visit.
[83] While the first three are self-explanatory on the evidence summarized above, the fourth factor is found in J.Y.’s attempting to have A.Y. make a false allegation against her mother regarding the ear-pinching allegation, and the children witnessing the two traumatic access incidents in August of 2007 and December of 2010.
[84] Despite raising termination of access as an issue, M.B.A.Y. was not pressing it at trial. She conceded that there is a bond between the children and their father. She has continued to support the children having a relationship with their father as long as it does not harm them.
[85] I am not prepared to terminate access. It is the children’s right, and to deny it is a remedy of last resort. J.Y. has consistently exercised his supervised access and has recently made some progress in addressing his issues. He has completed the anger management course through his probation. He has realized that his actions on-line have been harmful to the mother and children and has ceased this activity. He has seen psychologists through his probation and seen a Christian counselor on his own.
[86] The more difficult question is how to move forward. Both parties seem to agree that long-term supervised access is not an optimal permanent solution. J.Y. needs to show progress so that he can move away from supervised access, failing which the benefits to the children of this continued arrangement will need to be reassessed. The supervised access has already been ongoing for two years.
[87] M.B.A.Y. has proposed that J.Y. be ordered to complete a psychiatric assessment and follow the treatment recommendations of the assessor before a relaxation of the supervision or an expansion of the access is considered either by way of consent or on a motion to change access. I find I have the authority to make such an order: see V.S.J. v. L.J.G., supra and Merkand v. Merkand, 2006 O.J. 528 (Ont.C.A.).
[88] I also find that there is a need for such an approach in this case. J.Y.’s probation officer noted that in an email to her from a psychologist J.Y. was described as having a “fixed negative perspective given his life situation.” In the course of this trial I have made the same observation. Whether this has a psychiatric component and can be addressed by treatment needs to be explored. It affects J.Y.’s ability to be appropriate with his children’s caregiver M.B.A.Y.. J.Y.’s references to suicidal ideations, his seriously considering withdrawing from the children and the workforce, and his past decision to live in his van when he was not destitute, all raise concerns about his mental health. J.Y. admitted to having a history of resorting to alcohol abuse and domestic conflict when stressed, and has been on anxiety medication in the past, raising further mental health red flags. As in V.S.J. v. L.J.G., a psychiatric evaluation would assist in assessing the need for individual counseling or therapy to address his past and in order to fulfill his parenting role and meet the children’s long term needs as an access parent. The request by the mother has been modeled after the V.S.J. v. L.J.G. decision.
[89] J.Y. was resistant to seeing a psychiatrist, but not to counseling. He was certainly concerned about costs, although M.B.A.Y.’s lawyer advised that on a referral from his doctor there will be no fee for the psychiatric assessment. Throughout the trial J.Y. often stated that he would do anything to be able to be like a ‘normal father’ in these situations. I find that such an assessment is the first step in addressing the current impediments to his ability to be an active access parent.
Decision
[90] In summary then, the order of May 10, 2010 shall be varied and replaced in full as follows:
M.B.A.Y. shall have custody of the children. This includes the right to obtain passports and travel outside of Canada without the consent of J.Y.
J.Y. shall not communicate with M.B.A.Y. directly or indirectly. J.Y. shall not attend within 500 metres of M.B.A.Y.’s home, her school, her place of work, and the children’s schools and daycare.
The parties may communicate about the children indirectly through Mr. Phillip Derkhatch or such other person as agreed to in writing by M.B.A.Y. through her legal counsel. Such communication, including communication through legal counsel, shall not be a breach of the above paragraph and are the only exceptions to it.
J.Y. shall not post any online comments or material about M.B.A.Y. or the children on any social media directly or indirectly. This shall include written comments, videos or photos which are of or about M.B.A.Y. or the children on Facebook, YouTube, or any other internet sites or social media.
The Ottawa Police Service or police service of local jurisdiction shall investigate and take appropriate action where there is evidence of a breach of the above paragraphs of this order.
J.Y. shall continue to have supervised access at the Supervised Access Centre of Ottawa Family Services for two hours every two weeks until further order of the court.
J.Y. shall participate in a psychiatric assessment and provide a report to M.B.A.Y.’s counsel. He shall follow any recommended treatment. His obtaining the report and seeking treatment as recommended shall be a material change of circumstances allowing for a review of the access order.
For the purpose of calculating arrears, past child support is fixed at:
(a) $1,000 per month from May 1, 2010 to December 31, 2010.
(b) $436 per month from January 1, 2011 to December 31, 2012.
(c) $474 per month from January 1, 2012 to December 31, 2012.
(d) $745 per month from January 1, 2013 to June 30, 2013.
The total child support arrears less the payments received by FRO as of June 30, 2013 shall be paid by J.Y. at a rate of $75 per month.
Commencing July 1, 2013, J.Y. shall pay child support in the amount of $745 per month for four children based on an imputed gross annual income of $31,000 per year.
For clarity, the total monthly payment commencing July 1, 2013 per paragraphs 9 and 10 above shall be $820 per month. Should J.Y. default on these payments the balance of arrears owing shall be immediately due and payable.
The interim order of June 15, 2011 is vacated.
J.Y. shall provide M.B.A.Y.’s counsel with a copy of the previous year’s income tax return and notice of assessment each year by June 1.
[91] If the parties are not able to agree on costs then brief written submissions can be filed within 30 days from the date of this decision.
Mr. Justice Timothy Minnema
Released: July 9, 2013
COURT FILE NO.: 07-FL-2158-1
DATE: 2013/07/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.B.A.Y.
Applicant
– and –
J.Y.
Respondent
REASONS FOR JUDGMENT
Mr. Justice Timothy Minnema
Released: July 9, 2013