Court File and Parties

Court File No.: 3263/14 Date: 2015-12-16 Ontario Superior Court of Justice

Between: Haley Scott, Applicant – and – Joseph Chenier, Respondent

Counsel: Self-represented, for the Applicant Self-represented, for the Respondent

Heard: October 16, 2015

Before: The Honourable Madam Justice Deborah L. Chappel

Reasons for Judgment

PART I: INTRODUCTION

[1] These are my Reasons for Judgment in connection with a trial that I heard on October 16, 2015. The Applicant Haley Scott (“the Applicant”) and the Respondent Scott Chenier (“the Respondent”) are the parents of three year old Avah Gina Julianna Scott, born September 29, 2012 (“Avah”). The parties were able to reach an agreement prior to trial respecting time-sharing for Avah. The trial was required to address the matters of custody and child support. The issues to be determined in this case are:

1. What custodial arrangement is in Avah’s best interests? and
2. Should the Respondent be required to pay the Applicant child support for Avah, and if so, what is the appropriate quantum of child support?

[2] The Applicant seeks an order for sole custody of Avah, and requiring the Respondent to pay her the Table amount of child support pursuant to the Child Support Guidelines (Ontario) (the “Guidelines”) (O. Reg. 391/97, as amended) commencing September 1, 2014. The Respondent requests an order for joint custody. He objects to an order requiring him to pay child support based on the amount of time that he has Avah in his care.

[3] For the reasons that follow, I have concluded that it is in Avah’s best interests that the Applicant be granted sole custody. In addition, I have ordered the Respondent to pay the Applicant the Table amount of child support for Avah commencing September 1, 2014.

PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[4] I make the findings of fact set out in this section respecting the family background and the history of the court proceedings in this matter based on the evidence adduced at trial.

[5] The parties became involved in a relationship during the summer of 2011. They began to cohabit in October 2011, and the Applicant became pregnant with Avah shortly thereafter. Their relationship was short-lived. They separated on or around January 1, 2012. Avah was born on September 29, 2012.

[6] Avah remained in the care of the Applicant following the parties’ separation. The parties did not have a formal agreement addressing the issues of custody, access and child support following the separation. The Respondent had visits with Avah as arranged between the parties. During Avah’s infancy, he had very little contact with the child, and visits occurred in the Applicant’s home.

[7] The Applicant commenced this Application on September 4, 2014, requesting sole custody and child support. The Respondent was served with the Application on September 4, 2014, but he had not responded to the proceeding by the time of the first appearance on October 23, 2014. On that date, the Applicant consented to late filing of the Respondent’s Answer and Claim, and the case was adjourned to a further first appearance date of November 13, 2014. On that date, the parties agreed to participate in mediation services, and the case was therefore adjourned once again to December 2, 2014.

[8] At some point in 2014, the parties reached an agreement that the Respondent would have Avah in his care according to a rotating two week schedule, as follows:

Week One: From Thursday at 5:00 p.m. until Sunday at 7:00 p.m.

Week Two: From Thursday at 5:00 p.m. until Friday at 7:00 p.m.

[9] The parties attended mediation on December 2, 2014, and reached an agreement respecting primary residence, consultation regarding Avah, time-sharing and benefits. The agreement also included a provision that the Respondent would arrange for DNA paternity testing prior to the next court date. The parties proposed to address the issues of custody and child support after receipt of the paternity testing results. The parties appeared before Pazaratz, J. on December 2, 2014, and requested a final order in accordance with the terms of the Mediation Report filed on that date. Pazaratz, J. declined to make the order requested, noting that it was inconsistent and illogical to make a final access order but defer the other issues pending determination of the paternity issue. The case was adjourned to February 18, 2015 to await the outcome of the paternity testing results. Pazaratz, J. raised the issue of child support on December 2, 2014, and specifically endorsed that since the Respondent was working and reported earning approximately $32,000.00 per year, “he should prepare himself for the likelihood that he will be facing a claim for retroactive child support.”

[10] Although the time-sharing arrangements set out in the Mediation Report dated December 2, 2014 were not incorporated into an order on that day, the parties have followed those arrangements since that time. The terms of the report included the following:

1. The Applicant was granted primary residence of Avah.
2. The Respondent was granted time with Avah according to the following rotating two week schedule: a. Week One: from Thursday at 5:00 p.m. until Sunday at 7:00 p.m. b. Week Two: from Wednesday at 5:00 p.m. until Friday at 7:00 p.m.
3. The Respondent was granted time with the child on holidays and special occasions, including the following: a) Every Father’s Day; b) Two non-consecutive weeks in the summer; c) From December 26th at 5:00 p.m. until December 28th at 7:00 p.m. in even numbered years, and from December 24th at 5:00 p.m. until December 26th at noon in odd numbered years; d) New Year’s Eve and Day in even numbered years; e) Such other holidays and special occasions as mutually agreed and arranged between the parties.

[11] The parties returned to court on February 18, 2015. The DNA paternity testing had still not been completed by that time. The Respondent’s explanation was that he had not been able to raise the funds required to obtain the testing. The case was adjourned to April 8, 2015, to be spoken to only.

[12] I was the presiding judge on April 8, 2015. On that date, the Respondent reported that he had recently lost his employment and that he could not afford the paternity testing. Despite having challenged the Applicant on the issue of paternity up until that point, he clearly acknowledged paternity in court on April 8, 2015. On that date, I made an order on consent finding the Respondent to be Avah’s biological father. The Respondent had still not served and filed an Answer and Claim, despite having been served with the Application on September 4, 2014. I extended the time for him to do so to May 8, 2015. I also ordered both parties to serve and file Financial Statements attaching copies of their Income Tax Returns, Notices of Assessment and Notices of Reassessment for 2012 to 2014, proof of total year to date 2015 income, a detailed summary of their income earning activities since January 2012, and a detailed summary of all efforts which they had made since January 2012 to seek employment and/or improve their income. I scheduled a case conference for June 16, 2015, and ordered that that court appearance could be converted into an uncontested hearing if the Respondent had failed to serve and file his Answer and Claim.

[13] Both parties appeared before me again on June 16, 2015. The parties indicated on that date that they consented to a final order in accordance with the terms of the Mediation Report, but that they could not resolve the issues of custody and child support. The Respondent had not served and filed his Answer and Claim or complied with my disclosure order dated April 8, 2015, and he did not have a reasonable explanation for failing to do so. Accordingly, I noted him in default on that date. However, given that he had attended the court appearances, I gave him the opportunity to set aside the default finding provided that he served and filed a motion returnable no later than July 23, 2015 seeking this relief and requesting a further extension of the time to serve and file an Answer and Claim. I made an order on consent in accordance with the terms of the Mediation Report, and I scheduled a half day uncontested hearing to deal with the custody and child support issues on July 23, 2015.

[14] The Respondent attended the hearing on July 23, 2015. He had not brought a motion to set aside the default finding or prepared an Answer and Claim. He consulted with Duty Counsel, who assisted him to prepare the necessary motion materials and his Answer and Claim on that day. I allowed the motion to proceed. The Respondent’s explanation for failing to prepare the motion materials and his Answer and Claim earlier was that he could not afford a lawyer to help him and he was overwhelmed with the paperwork. I made an order setting aside the default finding. I also granted the Respondent leave to file his Answer and Claim that day, and ordered him to comply with my disclosure order dated April 8, 2015 by July 31, 2015. In his Answer and Claim, the Respondent requested an order for joint custody, and an order that the Applicant not be permitted to move more than 20 kilometers outside of the Hamilton area without the Respondent’s consent. The trial was adjourned and eventually commenced on October 16, 2015.

[15] As of the commencement of trial, the Respondent had still not complied with most of the terms of my disclosure order dated April 8, 2015. He had filed copies of his 2012 and 2014 Notices of Assessment. However, he did not serve and file a Financial Statement or disclose the following items which I had ordered him to attach to the Financial Statement:

1. Copies of his complete Income Tax Returns for 2012 to 2014;
2. Copies of his Notices of Reassessment for 2012 to 2014;
3. Proof of total year to date income for 2015;
4. A detailed summary with any documentary proof within his possession or control of income earning activities since January 2012, including but not limited to positions held, names and contact information for employers, rate of pay, when the positions started and ended, why the positions ended, and details regarding any self-employment activities; and
5. A detailed summary of efforts made since January 2012 to seek employment and/or improve his income.

PART III: CUSTODY

I. THE LAW

A. Applicable Statutory Provisions and General Principles

[16] The applicable legislation in this case in regard to the issue of custody is the Children’s Law Reform Act (R.S.O. 1990, C. C-12, as amended) (“the Act”). Section 20 of the Act stipulates that except as otherwise provided for in Part III, 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 (Young v. Young (1993), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, [2005] O.J. No. 1374 (S.C.J.); Harsant v. Portnoi, [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.)).

[17] 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 (Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.)). 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 Act 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.” The entitlement to “access” is defined in section 20(5) of the Act 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.”

[18] Section 21 of the Act 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 sections 24(2) to (4) as follows:

Best interests of child

24(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

[19] The list of factors set out in sections 24(2) to (4) 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 criteria set out in section 24 of the Act, but rather must consider all of the factors that are relevant in the particular case that it is called upon to decide (Walsh v. Walsh, [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.)). 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 (Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 (S.C.C.); Young, Supra.).

[20] The court may as part of a custody order impose such terms, conditions and restrictions as it considers appropriate and necessary to foster the best interests of the child (Reeves v. Reeves, 2010 CarswellNS 265 (C.A.)).

B. Sole Custody vs. Joint Custody

[21] As I have noted, the Applicant seeks sole custody of Avah, and the Respondent seeks joint custody. The Act does not set out any specific criteria to assist in determining whether an order for sole or joint custody 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.

[22] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger, Supra., and Baker v. Baker (1979), 8 R.F.L. (2d) 236 (Ont. C.A.), 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 (Kaplanis v. Kaplanis, 2005 CarswellOnt 266 (C.A.); Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.)). 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.

[23] 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, [2006] O.J. No. 1514 (S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.” 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 (Kaplanis Supra.; Ladisa v. Ladisa, 2005 CarswellOnt 268 (C.A)). 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 the conflict is impacting or likely to impact on the well-being of the child. If the evidence indicates that the parties 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 (Ladisa, Ibid.). 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” (Warcop v. Warcop, 2009 CarswellOnt 782 (S.C.J.)).

[24] 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 (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.); Kaplanis, Supra.; Ladisa, Supra.). 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 (Kaplanis, Supra.).

[25] 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 (Lawson, Supra.; Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898).

[26] 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 (Garrow v. Woycheshen, 2008 ONCJ 686; Bromley v. Bromley, 2009 ONCA 355; R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (O.C.J.)).

[27] Although the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole and joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court. While both parents may be attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451 at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

II. ANALYSIS

[28] As I have indicated, the time-sharing issues in this case were resolved on a final basis on June 16, 2015. The issues to be decided are custody and whether a mobility term should be included in the final custody order. I conclude based on the evidence in this case that it is in Avah’s best interests that the Applicant be granted sole custody. In reaching this decision, I have considered all of the relevant statutory provisions and legal principles outlined above. I address the major considerations that informed my decision below.

[29] I have carefully considered the evidence adduced at trial respecting the parties’ ability to work cooperatively and effectively together in ensuring that Avah’s needs are met. There are some positives in this regard, the most significant of which is the parties’ ability to resolve the time-sharing issues after attending mediation. There is no evidence of any incidents of physical intimidation or aggression between the parties. In addition, there is no evidence that Avah has been directly exposed to any conflict between them.

[30] Notwithstanding these positives, I find that overall, the parties experience great difficulty trying to communicate and resolve issues relating to Avah in a mature and respectful manner. Although they eventually resolved the time-sharing issues, they were only able to do so after the Applicant commenced court proceedings and they accessed intensive on-site mediation services. I base my conclusions respecting the parties’ overall ability to work cooperatively on issues respecting Avah on the evidence of both parties and that of Ms. Charlene Schram, the Applicant’s friend. I found all of them to be credible in testifying about the parties’ relationship and their ability to work together with respect to Avah. The pertinent aspects of their evidence on this issue are as follows:

1. The Applicant testified that she sends messages to the Respondent on a regular basis about Avah and issues that have to be decided about the child. She indicated that the Respondent never replies to her messages, and regularly alleges that he did not receive the messages. She expressed frustration about the fact that she often tries to call the Respondent to speak about issues respecting Avah, or to speak with Avah when she is with the Respondent, but that the Respondent never answers his phone when she calls.
2. The Applicant described one incident that occurred recently that exemplified the problems which she states she experiences in trying to communicate with the Respondent. She relayed that she had enrolled Avah in daycare because she had begun to attend a Hair Styling program in September. Some concerns arose about how Avah was being treated at the daycare, and the Applicant therefore decided to remove Avah from the daycare program. The Applicant testified that she sent the Respondent a message telling him about her decision, but the Respondent insisted that he never received her message.
3. The Applicant stated that although she and the Respondent are able to communicate smoothly at times, their attempts to discuss issues about Avah usually result in arguments and problems reaching a decision. She summarized the nature of the parties’ relationship by stating “there is always an argument about something.”
4. The Applicant indicated that there will definitely be an argument between the parties about which school Avah should attend. The Applicant wishes to enrol her in a school in her neighbourhood, since the child is in the Applicant’s primary care during the week, whereas the Respondent wants to enrol her in a school that is mid-way between the parties’ respective residences. In addition, the Respondent is adamant that he wants Avah to be enrolled in a French Immersion program, whereas the Applicant is not certain that she wants Avah to attend French Immersion. The Respondent acknowledged at trial that he wants Avah to attend school in the neighbourhood where he lives with his grandparents.
5. The Applicant testified that the Respondent has a very bad temper, and that he can lose his cool very quickly and unpredictably. She was very credible in giving this evidence. She described how the Respondent often misunderstands what she is trying to say or talk about, and how these misunderstandings often lead to his temper flare-ups. For instance, she indicated that the Respondent often misperceives her efforts to talk about issues regarding Avah as criticisms of him, or as her nagging him. By way of example, she described a recent incident when the Respondent was pulled over by the police for speeding. She stated that she asked the Respondent if Avah was in the car at the time, and that the Respondent “went off” at her for questioning him about this.
6. The Respondent acknowledged that he and the Applicant become very “heated” when they attempt to talk about issues relating to Avah. He stated that he has allowed the Applicant to make decisions about Avah because the parties always end up arguing when they attempt to work through issues together. By way of example, he described having noticed recently that Avah had a black eye and a scratch on her back. He stated that he tried to communicate with the Applicant through text messaging about what had happened to Avah, but that they ended up having an argument about it. The Applicant testified that the Respondent told her about Avah having a black eye when the child was in the Respondent’s care, but that she did not see the black eye when Avah returned to her care. She explained that she spoke to staff at the child’s daycare about whether anything had happened, but that she had not received any explanation. The Applicant eventually took Avah out of that daycare because she quit her school program, and because Avah seemed to be distressed when she was left at the daycare.
7. The mother’s friend, Charlene Schram, also gave evidence about her impressions of the parties’ relationship. She was a very credible and reliable witness. She emphasized a number of times that she did not know the Respondent very well, and qualified her evidence at many points based on her limited knowledge of the Respondent’s character and circumstances. However, she stated that she had observed that the Applicant and Respondent often have difficulties communicating about issues regarding Avah. She talked about having witnessed some very emotional conversations between the parties, and noted that both parties are “very young and quick to react on emotion.” By way of example, she recalled an argument between the parties about the fact that the Respondent had stopped buying diapers for Avah. She stated that the Applicant became very upset about this because she needed help from the Respondent, and that the parties became embroiled in a “text war” during which they called each other “every name in the book.” She recalled another very heated discussion between the parties about the fact that the Respondent was denying paternity of the child.

[31] The foregoing evidence leads me to conclude that the parties would not be able to work together in a mature and effective manner in addressing Avah’s needs. In deciding to grant sole custody to the Applicant rather than the Respondent, I have taken into consideration the history of decision-making respecting Avah. The Applicant has always had primary care of the child and has made all day-to-day and significant decisions about her. As I have already noted, the Respondent acknowledged that he has allowed the Applicant to assume this role. Although he states that he did so because the parties could not cooperate with each other, the Applicant testified that the Respondent never asked to be involved or to assume a decision-making role. I find that the Applicant has done an excellent job in her role as primary care-giver and decision-maker for Avah. She has a family doctor and has ensured that Avah has received appropriate medical care. She made an appropriate decision to remove Avah from daycare as soon as concerns arose regarding the care which Avah was receiving at the daycare facility. She has provided a stable and appropriate residence for the child, and there is no evidence of any concerns respecting her care of Avah. Although she has struggled financially at times, this has been in large part attributable to the Respondent’s failure to provide child support, an issue that I will discuss in further depth below. I find that she and Avah have a loving relationship and that she is appropriate in her interactions with the child.

[32] I have also considered the Respondent’s level of responsibility to date in relation to Avah and generally. With respect to Avah, I find that he is a loving father who has generous and meaningful time with the child. He and Avah have a very positive relationship, and his visits with her go well. However, I accept the Applicant’s evidence that the Respondent has not sought to be involved in decision-making respecting the child. My concerns regarding the Respondent’s level of maturity and sense of responsibility are based on the following:

1. Although Avah has been in the Applicant’s primary care since birth, the Respondent has never paid child support to the Applicant. I find that he assisted by providing diapers and occasional groceries for a period of time, but that he eventually stopped providing the Applicant with diapers. This was one of the factors that prompted the Applicant to proceed to court for assistance.
2. The Respondent justified his failure to pay child support from the time of Avah’s birth partly on the basis that he was uncertain about whether he was in fact Avah’s father. He continued to advance this position in the context of these proceedings, resulting in a number of court appearances that focussed on the issue of paternity testing and the status of the testing. He requested an order for DNA paternity testing, but then failed to secure the necessary funds and take the necessary steps to obtain the testing. He stated that he could not afford the testing, despite the fact that he earned $47,851.00 in 2014 and was living with his grandparents. Even if he legitimately could not afford the testing, he clearly lacked the foresight to recognize that funding the testing would be a problem when he requested the order for paternity testing. His position and approach to this issue resulted in unnecessary cost and delay in this matter.
3. As I will discuss in further detail below, although the Respondent has been able to earn an income since Avah’s birth, he has been unable to maintain steady employment. He has had numerous job changes, many of which have been attributable to conflicts which he has experienced in the workplace or tardiness.
4. Although the Respondent has been working for several years, he does not have his own residence and his financial situation is unstable. He is currently living with his grandparents, and he reports that his grandparents are covering most of his living expenses. He testified that he recently lost his licence due to numerous parking and speeding tickets that he has been unable to pay off.
5. The Respondent’s conduct in the context of this litigation raises concerns regarding his overall coping and level of responsibility. He did not prepare and file an Answer and Claim until he was noted in default, the noting of default was set aside, and he brought a last-minute motion on the day of the hearing to set aside the default and extend the time for him to file his pleading. He never filed a Financial Statement as he was required to do under the Family Law Rules and pursuant to my disclosure order dated April 8, 2015. He only complied minimally with that disclosure order. He never provided documentary proof of his total 2015 income for the purposes of the child support analysis. His explanation for failing to comply with his disclosure obligations and his delay in preparing his Answer and Claim were that he could not afford a lawyer and he was overwhelmed with the process and the paperwork. His lack of organization, focus and resourcefulness in handling the litigation raises serious questions about his capacity to identify Avah’s needs and take the necessary steps to ensure that they are satisfied.

[33] All of the foregoing considerations support an order for sole custody in favour of the Applicant. The Respondent has requested a clause in the order dealing with mobility. This is a reasonable request, given that the Respondent has significant amounts of time with Avah and a residential move by the Applicant could impact on his access. In my view, this concern can be addressed by means of an order precluding either party from moving a distance of more than 50 kilometers away from their current residence without a court order or the written consent of the other party obtained prior to the move.

PART IV: CHILD SUPPORT

I. THE LAW

A. Relevant Statutory Provisions and General Principles

[34] The applicable legislation in regard to the issue of child support in this case is the Family Law Act (R.S.O. 1990, c. F.3, as amended) (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:

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.

(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.

[35] 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 of the FLA. 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.

[36] 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.

B. General Principles Respecting Shared Custody Situations

[37] Sections 4 to 10 of the Guidelines address a number of circumstances in which the presumptive rules delineated in section 3 do not apply, and outline the applicable principles regarding the calculation of child support in those situations. Section 9 is relevant to this case, as it deals with shared parenting arrangements. As noted earlier in these Reasons, the Respondent’s position is that he should not be required to pay child support based on the amount of time that he has Avah in his care.

[38] The phrase “shared custody,” encompasses situations where a spouse 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. With respect to shared custody situations, section 9 provides as follows:

Shared custody

9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[39] The wording of section 9 is imperative. Accordingly, where the 40% threshold is met, the court must proceed under section 9 in calculating child support (L.L. v. M.C., 2013 ONSC 1801 (S.C.J.)). The Supreme Court of Canada addressed the issue of how child support calculations should be approached in shared custody situations in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 (S.C.C.). In that case, the court made the following significant comments regarding the interpretation of section 9 and the manner in which child support calculations should be approached in shared parenting scenarios:

1. In shared parenting arrangements, there is no presumption in favour of the parent who has less time with the child paying the Table amount of child support. Rather, the court must determine the quantum of child support in accordance with the three factors listed in section 9.
2. However, a finding that a shared parenting arrangement exists does not automatically dictate a deviation from the Table amount of child support. In some cases, a careful review of all of the factors set out in section 9 may lead the court to conclude that the Table amount remains the appropriate figure.
3. None of the three factors listed in section 9 prevail over the others. In reaching an appropriate child support figure, the court must consider the overall situation of shared custody, the costs to each parent of the arrangement and the overall needs, resources and situation of each parent. The weight to be accorded to each of the three factors set out in section 9 will vary according to the particular facts of each case.
4. The court emphasized that the purpose of section 9 is to ensure a fair and reasonable amount of child support. It concluded that in adopting section 9 of the Guidelines, Parliament made a clear choice to emphasize the need for fairness, flexibility and the actual condition, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency and efficiency.
5. The calculation of child support pursuant to section 9 involves a two-step process. First, the court must determine whether the 40% threshold has been met. Second, if the threshold has been crossed, the court must consider the factors outlined in section 9 to determine the appropriate quantum of support.
6. With respect to section 9(a), the amounts set out in the applicable Tables for each parent, the court stated that the simple set-off approach outlined in section 8 of the Guidelines may be a useful starting point as a means of bringing consistency and objectivity to the child support determination. This is particularly so in cases where the parties have provided limited information and the incomes of the parties are not widely different. However, the court emphasized that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach, noting that the set-off figure may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raises concerns about the fairness of a drastic reduction in child support to the recipient.
7. The court held that the judge has the discretion to modify the simple set-off amount where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend” (at paragraph 51). It emphasized that the court should insofar as possible strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.
8. The court highlighted that one consideration in carrying out the section 9 analysis is whether one parent is actually incurring a higher share of the child’s costs than the other, such as costs relating to clothing and activities.
9. With respect to subsection 9(b), the court emphasized that this section does not refer only to the increased expenses which the payor parent has assumed as compared to the expenses that they would be incurring if they had the child less than 40% of the time. This subsection recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than in a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to the shared child care arrangement may be important.
10. The court recognized that not every dollar spent by a parent who has the child over the 40% threshold is a dollar saved by the recipient parent. It stated that in the absence of evidence to the contrary, it is possible to presume that the recipient parent’s fixed costs have remained the same, and that their variable costs have only marginally decreased by the other parent’s increase in time with the child.
11. Financial statements and/or child expense budgets are necessary in order for the court to properly carry out the child support analysis pursuant to section 9. The judge should not make assumptions regarding additional costs attributable to a shared parenting arrangement in the absence of any evidence relating to this issue.
12. The court’s discretion under section 9 is sufficiently broad to bring a parent’s claim for section 7 expenses into the analysis under that section, taking into consideration all of the factors outlined in section 9.

[40] The onus is on the parent who is relying on section 9 of the Guidelines to establish that the 40% threshold has been met (Meloche v. Kales (1997), 35 R.F.L. (4th) 297 (Ont. Gen. Div.); Huntley v. Huntley, 2009 BCSC 1020 (S.C.); L.L. v. M.C., Supra.) The analysis should assume that the custodial parent starts with 100% of the time (Froom v. Froom, [2004] O.J. No. 5361 (S.C.J.), aff’d 2005 CarswellOnt 545 (C.A.)). As the court noted in L.L. v. M.C., Supra., the 40% threshold is the minimum period of time for triggering the operation of section 9, and therefore the court should not round up or round down the figure reached.

[41] In Contino, the Supreme Court of Canada was not required to address the issue of how the 40% threshold referred to in section 9 of the Guidelines should be calculated. In Froom, Supra., the Ontario Court of Appeal held that there is no universally accepted method of deciding the 40% time period, and that rigid calculations of time are not necessarily appropriate. The court endorsed the comments of the trial judge in that case that the court should focus on determining whether physical custody is truly shared by the parents. Cases decided since Froom, Supra., have highlighted that the method chosen for calculating the 40% threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.L. v. M.C., Supra., the court concluded that in light of the importance of this issue, it is desirable to be as precise as possible when carrying out the calculation. It noted that the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis. When calculating time in hours, the 40% threshold is met if the parent has the child in their care for 3504 hours over the course of the year (Claxton v. Jones, [1999] B.C.J. No. 306 (Prov. Ct.); L.L. v. M.C., Supra., at para. 37).

[42] The relevant period for the calculation of time under section 9 is the amount of time that the child is in the general care and control of the parent, and not the time that the parent is physically present with the child (L.L. v. M.C., Supra., at para 38). The time attributed to a parent includes all time during which the parent is the one who is responsible for their well-being (Sirdevan v. Sirdevan, [2009] O.J. No. 3796 (S.C.J.)). In Maultsaid v. Blair, 2009 BCCA 102 (C.A.), the British Columbia Court of Appeal provided guidance on how the issue of time calculation should be addressed in cases where the parent exercises mid-week overnight access. The court concluded that school time in these situations should not be credited to the parent relying on section 9 unless the parent has the child both before and after school on a particular day.

C. Income Determination

[43] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20 of the Guidelines. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable.

[44] Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Federal Child Tax Benefits and GST/HST Tax Credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). In addition, in calculating income for the purposes of determining the Table amount of child support, it is necessary to deduct any Universal Child Care Benefit amount that is included to determine the payor parent or spouse’s total income in their T1 General Income Tax form (Guidelines, Schedule III, section 3(b)).

[45] Section 16 of the Guidelines does not require the court to use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is generally to ascertain current income based on the sources set out in the T1 form (Coghill v. Coghill, [2006] O.J. No. 1489 (S.C.J.)). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the court generally determines the party’s Guidelines income for the upcoming twelve months from when child support will be paid (Nelson v. Nelson, 2005 CarswellNS 18 (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.)). The exception to this principle is where there is an agreement or order in effect that stipulates that income for the purposes of prospective child support should be based on the annual income for the previous year.

[46] 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).

[47] Income imputation provides a means by which the court can ensure that parents meet their joint and ongoing obligation to support their children (Drygala v. Pauli, [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (C.A.); Tillmans v. Tillmans, 2014 ONSC 6773 (S.C.J.); B. (G.T.) v. B. (Z.B.), 2014 ONCJ 382 (O.C.J.)). The list of circumstances set out in section 19 is not exhaustive and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income (Bak v. Dobell, 2007 ONCJ 170, [2007] O.J. No. 1498 (C.A.); Riel v. Holland, [2003] O.J. No. 3901, 67 O.R. (3d) 417 (C.A.)). Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party 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 (Korwin v. Potworowski 2007 CarswellOnt 6852 (C.A.)).

[48] The Ontario Court of Appeal addressed the issue of imputation of income pursuant to section 19(1)(a) of the Guidelines on the basis of intentional unemployment or under-employment in Drygala, Supra. The following general principles derive from that decision and other cases which have since considered section 19(1)(a):

1. Section 1 of the Guidelines stipulates that one of the objectives of the Guidelines is to establish a fair standard of support for children so as to ensure that they benefit from the financial means of both parents after separation. To this end, there is a duty on the part of the payor to actively seek out reasonable income earning opportunities that will maximize their earning potential so as to meet the needs of their children. If they fail to do so, this may provide grounds for the court to impute income to them Drygala, Supra.; L.(N). V. P. (B.), 2000 CarswellOnt 2487 (O.C.J.)); Thompson v. Thompson, 2013 ONSC 5500 (S.C.J.)).
2. A finding of deliberate under-employment or unemployment does not require evidence of bad faith on the part of the payor spouse or an attempt on their part to thwart support obligations. A parent is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. The parent is intentionally unemployed when they choose not to work when capable of earning an income (Drygala, Supra.; Smith v. Smith, 2012 ONSC 1116 (S.C.J.); Tillmans, Supra.).
3. In determining whether a party is intentionally under-employed or unemployed, the court should consider the party’s capacity to earn income in light of their age, education, health, work history and the availability of work that is within the scope of the party’s capabilities. (Marquez v. Zapiola, 2013 CarswellBC 3038 (B.C. C.A.)).
4. A self-induced lack of income or reduction of income with no realistic prospect of future financial advancement is not a basis upon which to avoid or reduce child support payments. Accordingly, the court may find the party to be deliberately under-employed and impute income where the party has persisted in un-remunerative employment or self-employment, or where they have pursued unrealistic or unproductive career aspirations (Hanson v. Hanson, 1999 CarswellBC 2545 (B.C.S.C.); L.(N). V. P. (B.), Supra.; Drygala, Supra.; Donovan v. Donovan (2000), 190 D.L.R. (4th) 696 (Man. C.A.); Lawson, Supra.; Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.); Tillmanns, Supra.).
5. A party may also be imputed income on the basis of deliberate under-employment or unemployment if they quit their employment for selfish or bad faith reasons (Ronan v. Douglas Walsh (1994), 5 R.F.L. (4th) 235 (Ont. Prov. Div.)), or if they engage in reckless behaviour which affects their income earning capacity (Rogers v. Rogers, 2013 CarswellOnt 4068 (S.C.J.), Costello v. Costello, 2012 ONCJ 399 (O.C.J.); Aboagye v. Sakyi, 2012 ONCJ 56 (O.C.J.); Tillmanns, Supra.).
6. When a party experiences an involuntary loss of employment, they may be given a “grace period” to investigate options and seek out employment in their field at a comparable remuneration before income will be imputed to them (Lavrinenko v. Lavrinenko, 2014 ONSC 4097 (S.C.J.); Tillmanns, Supra.) 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 or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children (Barta v. Barta, 2005 CarswellOnt 74 (S.C.J.); M. (S.D.) v. M. (K.F.), 2004 CarswellBC 70 (S.C.); Quintel v. Quintel, 1997 CarswellOnt 3213 (Ont. Ct. Gen. Div.); D. (P.) v. D. (C.), 2011 CarswellNB 442 (N.B.Q.B)).
7. Even if it is determined that the payor parent is deliberately under-employed or unemployed, the court has the discretion to decide whether or not income should be imputed to them. This decision will turn on the court’s overall assessment of the reasonableness of the payor’s decisions and actions in relation to their income. If an employment decision result in a significant reduction of income, it must be justified in a compelling way (Riel v. Holland, Supra.; B. (G.T.) v. B. (Z.B.), Supra.; Rilli v. Rilli, 2006 CarswellOnt 6335 (S.C.J.); Tillmanns, Supra.)
8. Finally, in determining the amount of income to impute on the basis of deliberate under-employment or unemployment, the court must consider what is reasonable in the circumstances of the particular case. The factors that the court is required to consider include the age, education, experience, skills and health of the payor, their past earning history and the amount of income that the payor could reasonably earn if they worked to capacity (Drygala, Supra.; Lawson Supra.; West v. West, [2001] O.J. No. 2149 (S.C.J.); Tillmanns, Supra.).

II. ANALYSIS

A. Issue #1: Has the 40% threshold been met?

[49] As previously noted, the Respondent is seeking the Table amount of child support commencing September, 2014, when she initiated her Application. She is not seeking any contribution from the Respondent for section 7 expenses. For the reasons that follow, I find that the Respondent must pay the Applicant the Table amount of child support commencing September 2014.

[50] A pivotal issue to the child support analysis is whether the time-sharing arrangements that have been in effect since September 2014 meet the 40% threshold that the Respondent must cross in order to bring the child support analysis within the ambit of section 9 of the Guidelines. I conclude that they do not. Since December, 2014, the Respondent has had Avah according to the regular access schedule for approximately 50 weeks of the year. For 25 of those weeks, he has her for 74 hours each week, or a total of 1,850 hours. For the remaining 25 weeks, he has her for 50 hours each week, or a total of 1,250 hours. For the full 50 weeks, he has a total of approximately 3,100 hours of access. In addition, he has two full weeks of access in the summer, or 336 hours in total. Based on these calculations, the Respondent would typically have Avah in his care for approximately 3,436 hours per year, or 39% of the time. Although the Respondent may have additional time in the year depending on when Father’s Day, Christmas and New Year’s fall in any given year, he would require at least two extra full days to meet the 40% threshold. Furthermore, he may have less time over the course of a year depending on when Mother’s Day and holiday periods granted to the Applicant pursuant to the existing order fall. I am not satisfied that the Respondent’s time with the child over the course of a year meets the 40% threshold. Even if the Respondent had satisfied me that he had met the threshold, he did not adduce any evidence whatsoever relating to the other important factors relevant to the section 9 analysis. Accordingly, I conclude that the standard Guidelines approach applies in this case.

B. Issue #2: Determination of the Respondent’s Income

[51] I turn to the issue of the Respondent’s income. The Respondent did not graduate from secondary school. However, he has acquired experience in many different trades, and occupations and has been trained to work with almost every type of major equipment. He has held numerous positions over the past several years, including Bobcat operator, loader operator, order picker, framer, dry-waller, cabinetmaker, environmental cleaning technician and automobile serviceman. I make the following findings respecting his income based on the evidence adduced at trial:

2012

[52] Based on the Respondent’s 2012 Notice of Assessment I find that he earned $20,896.00 in 2012. From April 25, 2012 until July 3, 2012, he worked for Hydrovac Industrial Marine Service as a labourer. His Record of Employment relating to this job indicated that this job ended due to shortage of work. From July 30 until the end of the year in 2012, he worked for Keystone Automotive as an order picker. In addition, during the period leading up to Avah’s birth, the Respondent worked for Hots, a company that carries out clean-ups for environmental spills. He initially earned $13.00 an hour, but his wage increased first to $16.00 per hour and later on to $19.00 per hour. He left Hots because he was only being offered part time hours after his probation ended. The Respondent began working for LKQ, where he was an order picker and truck sorter and cleaner. His wage was $16.00 per hour. The Respondent testified that he left LKQ because of conflicts with another employee. After leaving LKQ, the Respondent returned to Hots at a wage of $16.00 per hour, which again rose to $19.00 per hour. He remained at Hots from approximately the fall of 2012 until the fall of 2014. The Respondent lost his job at Hots due to problems with his timeliness for work.

2013

[53] I did not receive the Respondent’s Income Tax Return, Notice of Assessment, Notice of Reassessment or documentary proof of his total income for 2013. As noted above, the Respondent testified that he worked at Hots for the entire year at a wage of $19.00 per hour. Based on this information, I estimate that the Respondent’s total 2013 income was approximately $39,520.00.

2014

[54] As I have already noted, the Respondent continued to work at Hots until the fall of 2014, when he lost his job for being late a number of times. Based on his 2014 Notice of Assessment, I find that he earned $47,851.00 in 2014.

2015

[55] The Respondent’s evidence respecting his employment in 2015 was unclear and imprecise in terms of the timing of his various positions. Furthermore, he did not provide any documentary proof of his year to date income for 2015. I find based on his testimony at trial that he worked for a few weeks as a roofer for MGM Roofing. He quit that employment in the summer of 2015 due to a dispute with his employer regarding his remuneration. He states that the employer had agreed to pay him $15.00 per hour but only paid him an hourly wage of $13.00. The Respondent was unemployed for a period of time after leaving MGM Roofing, and then began to work for a cabinetry company making cabinets. This position only lasted until approximately early October, 2015 because the Respondent had an argument with the employer about having to work on the day that he had scheduled a birthday party for Avah. He earned $12.00 per hour in this position and worked at least 42 hours each week.

[56] The Respondent testified that he was unemployed as of the time of the trial. He stated that his plan was to apply for a position at Hots again. He testified that his father, uncle and cousin work there, and that he had an excellent chance of getting another position there. He stated that the only hold-up in pursuing this plan was that he did not have a valid driver’s licence, which is required in order to work for Hots. He explained that he had lost his licence due to a number of unpaid parking and speeding tickets, totalling approximately $600.00, and that he would need to pay those tickets off before applying for a job.

[57] I conclude that it is appropriate in this case to impute income to the Respondent for 2015 and on an ongoing basis for the purposes of the child support analysis. I base this decision in part on the Respondent’s failure to provide full and frank disclosure of his 2015 income, his failure to comply with most of the terms of my April 8, 2015 disclosure order and his unclear oral evidence regarding his income this year. I have also been influenced by the evidence indicating that the Respondent has engaged in conduct that has impacted on his employment status and his income earning potential. The summary of his employment history outlined above reveals that he has lost a number of jobs over the past several years due to conflict with co-workers, disputes with his bosses, and tardiness for work. He held a position with Hots for over a year, earning an hourly wage of $19.00, but lost that job because he arrived late a number of times. The only apparent bar to him being able to resume employment at Hots is his lack of a driver’s licence. Again, this state of affairs has arisen as a result of the Respondent’s irresponsible conduct. The Respondent should not be permitted to reduce his child support obligation on the basis that his ability to earn income has been impaired by his pattern of poor decision-making and imprudent conduct.

[58] I am imputing an income to the Respondent for the year 2015 in the amount of $31,500.00. This is based on the Respondent being fully capable of earning a wage of at least $15.00 per hour on a full time basis from January until October, 2015, and on him earning $16.00 commencing in November 2015. These wages are in my view reasonable when one considers the history of the Respondent’s hourly wages. I have used the rate of $16.00 commencing November 1, 2015 based on the Respondent’s evidence at trial that he would likely be securing employment with Hots once he paid off his parking and speeding fines. The child and the Applicant should not be required to suffer financially because the Respondent accumulated those fines. Even if the Respondent did not secure employment with Hots as of November 2015, I am satisfied based on his broad and eclectic skill set, his history of employment and the wages that he has earned in the past that he should be able to earn a wage of at least $16.00 per hour, on a full time basis.

[59] Commencing January 1, 2016, I am imputing an income of $40,000.00 to the Respondent. This is based on an hourly rate of $19.00, which the Respondent could be earning from Hots following his probationary period. I note that this figure is lower than the Respondent’s 2014 income from employment at Hots. It is possible that the Respondent’s total income for 2016 may be higher than $40,000. However, the order that I am making provides for annual adjustments to the amount of child support payable in the event of increases in the Respondent’s income. Again, even if the Respondent is not working for Hots as of January 2016, I am satisfied based on his work and wage history that he would not have any significant difficulty finding employment at this wage level.

C. Calculation of Child Support Payable by the Respondent

[60] I turn to the calculation of child support payable by the Respondent. As previously noted, the Applicant does not seek retroactive child support for the period preceding the issuance of her application. She seeks support commencing September, 2014, which is when she filed her application with the court. The Table amount of child support for one child based on the Respondent’s 2014 income of $47,851.00 is $432.00 per month.

[61] The Table amount payable by the Respondent for the year 2015 based on his imputed income of $31,500.00 is $263.00 per month. The Table amount payable commencing January 1, 2016 will be $360.00 per month based on his imputed income of $40,000.00.

[62] The terms of this order will result in the Respondent having significant arrears of child support. Given his relatively modest income, I am ordering that arrears of child support shall be paid at the rate of $75.00 per month commencing January 1, 2016.

[63] I have not given the Respondent any credit for voluntary payments of child support. I accept the Applicant’s evidence that the Respondent has not paid her regular child support to date, and that his financial assistance to her has been limited to occasionally purchasing diapers and a few other necessities for Avah.

PART V: TERMS OF ORDER TO ISSUE

[64] On the basis of the foregoing, a final order shall issue as follows:

1. The Applicant shall have sole custody of the child Avah Gina Julianna Scott, born September 29, 2012 (“the child”).
2. Neither the Applicant nor the Respondent shall move a distance of more than 50 kilometers away from their current residence without a court order or the written consent of the other party obtained prior to the proposed move.
3. Commencing September 1, 2014 and continuing on the first day of each month that follows until December 31, 2014, the Respondent shall pay the Applicant child support for the child in the amount of $432.00 per month based on the Respondent’s 2014 income of $47,851.00.
4. Commencing January 1, 2015 and continuing on the first day of each month that follows until December 31, 2015, the Respondent shall pay the Applicant child support for the child in the amount of $263.00 per month based on an imputed income of $31,500.00 for 2015.
5. Commencing January 1, 2016 and continuing on the first day of each month that follows, the Respondent shall pay the Applicant child support for the child in the amount of $360.00 per month based on an imputed income of $40,000.00 for 2016.
6. The Respondent shall pay the Applicant arrears of child support owing as a result of this order at the rate of $75.00 per month commencing January 1, 2016 and continuing on the first day of each month that follows until the arrears are paid in full.
7. For so long as child support is payable, the Respondent shall by July 1st each year deliver to the Applicant updated income disclosure, consisting of the income documentation referred to in section 21 of the of the Child Support Guidelines (Ontario) for the previous year and documentary proof of total year to date income for the current year.
8. The Respondent shall advise the Family Responsibility Office in writing of any change in his employment and/or income earning activities within seven days of securing new employment or other income sources, and he shall also within this time frame provide the office with all of the details regarding his new employment or income earning activities which the office requires for the purposes of enforcing the child support terms of this order.
9. The Table amount of child support shall be adjusted upward forthwith in the event of any increase in the Respondent’s income. If it becomes apparent when annual income disclosure is made by July 1st each year that the Respondent’s income increased during the previous calendar year and/or during the current calendar year, and that the Respondent accordingly underpaid the Table amount of child support for the previous calendar year and/or the period from January 1st to June 30th of the current year, the Respondent shall pay the Applicant the full amount of the underpayment up to and including June 30th by July 31st of the current calendar year. Furthermore, the Respondent shall begin to pay the increased Table amount based on his current estimated annual income on a monthly basis commencing July 1st of the current calendar year.
10. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
11. A Support Deduction Order shall issue.
12. This order bears post-judgment interest at the rate of 3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
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 December 28, 2015. Any responding submissions shall be served and filed by December 31, 2015. Reply submissions shall be served and filed by January 5, 2016. There shall be no extensions to these deadlines. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party.

The Honourable Madam Justice Deborah L. Chappel

Released: December 16, 2015