Williams v. Curtis, 2015 ONSC 1520
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brittany Joan Williams, Applicant
AND
Mackenzie James Curtis, Respondent
BEFORE: Mr. Justice Timothy Minnema
HEARD: In Chambers (written materials)
ENDORSEMENT
MINNEMA, J.
Issues
1This is a written hearing pursuant to Part II of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”). The preliminary issue is parentage: ISOA s. 12. If found, then the second issue is the amount of child support.
Basic Facts
2The applicant claims that the respondent is the father of the child, Jaxon Jerry Williams, born on May 25, 2013. She maintains that she had sexual intercourse with the respondent from March 25, 2012 to March 25, 2013, and that she did not have sexual intercourse with another man 30 days before to 30 days after the child was conceived. The respondent in his responding affidavit simply says “I am uncertain of paternity.”
3The applicant seeks child support back to Jaxon’s date of birth. She is seeking to impute income to the respondent of $24,456 per year which is based on his working full-time where he worked last summer. The respondent’s materials indicate that he has only ever worked in the summers as well as part-time during school, and that he is still a full-time student living with his parents.
Analysis
4The applicant is clear about having an exclusive intimate relationship with the respondent at the time of conception. The respondent does not deny that. He gives no explanation or reason to put his being the father in doubt. I find that the applicant has established parentage on a balance of probabilities. However, as medical science can quickly establish paternity to a certainty, I make this order on an interim basis to give the respondent sixty days to do DNA testing, if he wishes, at his expense. I order the applicant to cooperate with any such request, including making the child available. She has already indicated her willingness in her materials.
5Regarding child support, I accept the respondent’s evidence, supported by his income tax information and the history of his student loans, that for the years 2013 and 2014 he was a student and did not earn enough income to trigger a Table child support obligation. As such, the request for retroactive support to the date of the Jaxon’s birth is dismissed.
6The real issue is ongoing support. While the respondent swears that he is still a full-time student, the Verification of Enrollment from St. Lawrence College dated November 24, 2014 indicates that he was enrolled in only one course for the current term when the full course load is six. However, the January 27, 2015 print out from the Ontario Student Assistance Program suggests he qualified for assistance based on a higher course load. I am going to allow the respondent an opportunity to provide some clarification. He needs to be aware that I am inclined to impute income to him, retroactive to January 1, 2015, if he is taking only one course and has chosen not to work.
Decision
7On an interim basis, Order to go that the respondent is the parent of Jaxon for the purposes of child support. Unless evidence from DNA testing is served on the applicant and filed with the court within sixty days which establishes that he is not the father, that Order shall be made final on the return date. The respondent shall provide a further affidavit within sixty days with direct information from the college about his course load and class schedule for this term, and his expected graduation date. This matter is adjourned to May 11, 2015 at 10 a.m. or as soon as possible after that date as it can be disposed of by way of a final determination in chambers.
Mr. Justice Timothy Minnema
Date: March 6, 2015
COURT FILE NO.: 633/14
DATE: 2015/03/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brittany Joan Williams
Applicant
- and -
Mackenzie James Curtis
Respondent
ENDORSEMENT
Mr. Justice Timothy Minnema
Released: March 6, 2015