Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROL MAY BAILEY MYSIOR Applicant
– and –
WILLIAM EDWARD MYSIOR Respondent
Self-Represented
Self-Represented
HEARD: February 25 & 26, 2016
REASONS FOR JUDGMENT
Trimble J.
1The parties began cohabiting in 1992. They married on May 6, 2006 and separated on November 26, 2012. They have one son, Brandon Mysior, born October 14, 2006. He is now 10 years old and lives with his mother.
Issues and Positions:
2Mr. and Mrs. Mysior both love their son. Both have nothing but the best of intentions with respect to the child, and have acted in what each believes is the child’s best interests. The problem arises from the child’s exposure to the high conflict separation of the parents.
3The parties have worked hard to resolve their dispute. Hence, the only issues left for the Court to decide following this two day trial (and the parties’ positions on those issues) are:
Custody – The Wife wants sole custody; the Husband joint.
Access – The Wife wants to maintain the current custody arrangements; the Husband wants 50/50 time on a two or three week-about arrangement.
Child Support – The Wife wants table support. The Husband is prepared to pay it. There is an issue as to his income since separation because of lack of production on his part.
Matrimonial Home – The Wife wants sole possession.
Existing Interim Orders:
1. Custody & Access
4On April 22, 2013, Justice Edwards ordered that the Husband have supervised access for two hours every Saturday, alternating between 5 to 7 p.m. and noon to 2 p.m. By order dated September 12, 2012, Barnes, J. amended the access arrangements based on a report by the Office of the Children’s lawyer. He maintained the day and times of access, but required that it be supervised at an access centre. The Wife was the primary decision maker. Counselling was suggested for the parents and the child.
5A restraining order governing Mr. Mysior’s contact with Mrs. Mysior was put in place by Skarica, J. on January 4, 2013, and modified by Richetti, J. on April 4, 2013. It remains in place.
2. Child Support
6By order of Bielby, J. dated January 20, 2015, the Husband was ordered to pay child support of $168/month based on imputed income of $21,000. Section 7 extraordinary expenses were to be shared equally. Support was to be enforced by FRO. No order was made as to past support. It appears child support has been paid.
Disposition:
7For the reasons that follow, I order as follows:
The Wife shall have sole custody of Brandon. The Husband shall have the right to obtain information concerning Brandon from his school and health & dental care providers.
The Husband shall continue to have access on Saturdays for two hours, alternating between noon to 2 p.m., and 5 to 7 p.m., beginning March 26, 2016. This access shall be supervised and occur at the supervised access centre, and is subject to the Husband complying with all of the access centre’s policies, procedures, rules and regulations, and any reasonable requests made by it. If the Husband complies with the rules imposed by the access centre, and if he obtains counselling recommended and improves his communication and parenting skills and controls his emotionally driven conduct as recommended by the OCL, both parties can expect that the Husband’s access should increase. Access shall be reviewed on or after April 1, 2017, by motion instigated by either party. The restraining order governing contact with Mrs. Mysior, put in place by Skarica, J. on January 4, 2013, as modified by Richetti, J. on April 4, 2013 will remain in place until further order, subject to modifications, above.
The Wife will have sole possession of the home, a rented apartment. She will pay all expenses and carrying costs associated with the apartment.
The Husband shall pay child support arrears and on an ongoing basis as outlined below.
Evidence Issues:
8Both parties introduced documents, written by others not brought before the Court. Unless one of the parties was involved in what was reported in these documents and accepted the contents of the document as true, I did not accept the documents’ contents as true. I only accepted those documents as received by the party (if the party received it), and only used the document to assess the credibility of the parties. The one exception to this rule is the OCL’s report.
9Mr. Mysior attempted to submit a large number of documents, almost none of which had been produced to Mrs. Mysior. He did not file an updated financial statement despite being ordered to do so. His failure to make production as required by the Family Law Rules and orders was chronic and unremitting. Accordingly, I did not receive any document from him which was not produced to Mrs. Mysior, unless Mrs. Mysior agreed that she had the document, or she consented to the document being admitted.
Agreed Facts:
10Mr. Mysior is 59 years old. After completing grade 12, he worked in construction. In 1992, he qualified as a tile setter. He was employed by Alpha tile for 2 years, and since then has been self-employed in his trade. Work ebbs and flows with the construction trade.
11Mr. Mysior lived in London Ontario most of his life. The Mysior family came to Mississauga in 2012 so that the Husband could look for work.
12Mrs. Mysior is almost 50. She was born in Jamaica, but has lived in Mississauga most of her life. She graduated from Humber College with a certificate in graphic design. She works for a law firm as a legal secretary. Before her current employer, she worked with the Attorney General’s office in Toronto and London. She was laid off in 2012, but eventually found her current job after a period of unemployment.
13The couple lived together in 1992, marrying on May 6, 2006, after Mrs. Mysior discovered that she was pregnant. They have one child, Brandon, born October 14, 2006.
Disputed Facts:
14The parties could agree on little about their marriage beyond the basic facts, above.
15Both parties said that the marriage, at first, was good. Both enjoyed being parents. Mrs. Mysior says, however, that shortly after their son was born Mr. Mysior became difficult, irritable and frustrated because of lack of work. They were unable to pay the mortgage and had to sell their house in London. They moved to Mississauga so the Husband could find work. They were evicted from their Mississauga apartment because they could not pay the rent. They relocated to Brampton shortly before the separation.
16Mr. Mysior said that even though his work was cyclical, he always provided for his family. They owned two houses (in series) that he paid for and renovated. The profit from the sale of the houses was used to live on. He denies that he was difficult, irritable and frustrated. He said nothing at trial about being evicted from the apartment in Mississauga for non-payment of rent, but admitted this to the OCL.
17Mrs. Mysior said that Mr. Mysior was increasingly violent in the marriage. This violence was never directed at the child, but was frequently displayed in front of the child. He has anger issues for which he will not seek assistance. The Husband denies this and points to the fact that he was never convicted of anything.
18Some of the examples the Wife gave of the Husband’s violence, and his response, are:
a) In 2008, the Husband came home from grocery shopping. He was carrying a bag in one hand and Brandon in the other. He kicked the door in, thrust Brandon at her, hit her several times and threw the groceries on the floor. The Wife went to a neighbour’s home and called police. Charges were laid, but not pursued because the Wife would not testify. The Husband denies this. He denied the event, generally, and denied that he was violent. Brandon was crying and acting up, so he handed the boy to the Wife. He merely put the groceries down. He was not violent.
b) In 1996, Mrs. Mysior says that Mr. Mysior hit her in the face. She called the police, charges were laid but no conviction entered as she refused to testify against him. Mr. Mysior denies that the assault occurred.
c) In 2010, Brandon’s grandparents gave Brandon a puppy. Mr. Mysior, she says, choked the puppy and threw it against the fence. The husband denies that he abused the dog. He said that the dog was on its leash and he over-corrected the dog by pulling on the leash. He admitted that he does not like dogs, but would do nothing to hurt his son’s dog.
d) Mrs. Mysior says that at some point, Mr. Mysior threw hot coffee at a neighbour’s dog. Mr. Mysior says he threw it at a neighbour’s dog who was barking through the fence at Brandon. The coffee was cold.
e) In 2012, while at a hotel in London so that they could attend the Husband’s mother’s funeral, there was another physical alteration in the hotel room in which Mrs. Mysior says that Mr. Mysior hit her during an argument. The assault occurred in front of the child. She took the child, went to the night manager, who called the police. She decided that she had to leave the marriage for her own safety, and so Brandon would not be exposed to any more violence. Mr. Mysior admitted that there was an argument but denies that it became physical. The Wife overreacted. Nevertheless, Mr. Mysior agreed with the police officer’s suggestion that he spend a night away. The next day he discovered that the wife had left with the son and obtained a restraining order keeping him out of his home. He said that the restraining order made him homeless.
19Mrs. Mysior says Mr. Mysior has anger issues, frequently displayed in front of the child, but aimed at many. Frequently, Mr. Mysior’s anger culminated in violence. As an example of anger directed at others, the Mrs. Mysior says that Mr. Mysior has been barred from the supervised access centre for the last 11 months because of his anger. She pointed to Exhibit 2 as proof of his unacceptable conduct.
20Mr. Mysior denies that he has any anger issues. He rejects Mrs. Mysior’s version of events as “pure rubbish” and “lies”. He denies violence. He denies he struck his wife, accept by accident. He denies any wrong-doing.
Office of the Children’s Lawyer Report:
21Exhibit 3 is the OCL Report dated September 5, 2013, prepared at the request of Skarica, J. It is attached to an affidavit by the author of the report sworn on September 5, 2013, in which the author avers as to its truth. Exhibit 7 is the updated report prepared at the request of Tzimas, J. The latter says that there is no update as the family circumstances have not changed since 2013.
22No one called the author of the OCL report to cross examine her. I accept the report for its truth. The OCL did a thorough investigation. Its observations about the family are as follows:
The family is in a high conflict situation, stemming from a marriage that had elements of abuse. The marriage ended after a very emotionally charged and abusive event. Since that time, Brandon has gone from seeing his father daily to almost no contact. Mr. Mysior and Mrs. Mysior have a beautiful and engaging son, who loves both of his parents. It appears both Mr. Mysior and Mrs. Mysior love their son a great deal and they enjoy spending time with him. Both parents appear committed to their son. Brandon presents as a child who is very aware of his parents high conflict and who is on edge and anxious.
It is very concerning that Mr. Mysior has difficulty regulating his emotions and has been verbally and physically threatening and abusive to his ex-wife. He has a history of being threatening and making abusive comments to his family, as well as professionals when he is dissatisfied and things do not go his way. While at times Mr. Mysior can be a loving and fun father, he also exhibits intimidation and anger. This write experienced Mr. Mysior’s obsessive nature and verbal aggression and threats throughout the process and during the disclosure meeting. While Mr. Mysior feels he is passionate and justified in his actions, he does not appear to understand the impact his emotional dysregulation, and derogatory comments about Mrs. Mysior, have on Brandon and Brandon’s concerns for his own safety. Further concern remains that Mr. Mysior considers professionals that provide feedback on his conduct as out to get him, instead of assisting him in improving his relationship with his son.
Mr. Mysior presented as quite distraught about the separation from his son and obsessive in the assessment calling the assessor almost daily and repeating himself. He was clearly abusive in the marriage both verbally and physically. He has been charged with assault on two occasions but not convicted. It is concerning that he does not appear to see Brandon’s distress in his negative comments. Mr. Mysior appears unable to take responsibility for his actions in the family situation and minimizes his behaviours. While Mr. Mysior clearly loves his son and indulges him with fun gifts and treats, it is concerning that he requires constant reassurance from his son. Supervised access between Mr. Mysior and Brandon is recommended in order to assist Mr. Mysior in learning appropriate boundaries in his behaviours and in the impact his negative comments and obsessive behaviour.
Mrs. Mysior presents as very submissive and concerned regarding the abuse in her life. In an effort to protect Brandon, Mrs. Mysior and her family appear to have interfered in the relationship and visitation of Brandon and his father, with Mrs. Mysior determining the terms and conditions despite a court order of reasonable access to Mr. Mysior, and made access difficult for him. It appears that her anxiety and concerns regarding Mr. Mysior were placed upon Brandon, and at times unwarranted. It is concerning that Mrs. Mysior allowed Brandon to be on the phone with his father for up to two hours despite his reported distress and his developmental age of six years. Neither parent acted to assist Brandon in ending these situations that are far beyond his developmental abilities and skills. It is recommended that Mrs. Mysior continue with ongoing counselling to address her trauma, and to learn parenting skills in a separated family.
Mr. and Mrs. Mysior are unable to communicate or agree and Mr. Mysior can present as very confrontational and intimidating. Mrs. Mysior appears to have attempted to protect Brandon, engaged all recommended services for him and her own mental health, and has been cooperative and responsive to professional services involved. It appears that the high conflict and Mr. Mysior’s combative nature would likely interfere with the ability to obtain appropriate services and decision making pertaining to the needs of Brandon. A recommendation of sole decision-making to Mrs. Mysior is being made to ensure the Brandon’s needs are met. Mr. Mysior’s inability to regulate his emotions, it is recommended that Mrs. Mysior make all major decisions pertaining to Brandon.
Mr. Mysior should be given an opportunity to attempt to develop a positive relationship with his son. Mrs. Mysior is willing to promote a relationship between Brandon and his father and follow any recommendations necessary to assist the child. As a result, it is recommended that Brandon have therapeutic supervised access with his father in order to coach Mr. Mysior in learning to conduct himself in a safe and appropriate manner with Brandon and ensure parenting support to both Mr. Mysior throughout the process. It is hoped that we would see a more normalized relationship between the father and son.
Maternal family is not appropriate to supervise access. The Bailey family is very negative concerning Mr. Mysior and were unfair in their supervision, cutting his time short and demonstrating little respect for Brandon’s relationship with his father. Mr. Mysior does not adhere to their direction nor does he demonstrate an ability to contain himself. The resulting impact is that the Brandon does not feel safe in the supervision of his aunts and he is exposed to escalating conflict between the adults.
Brandon presents as anxious and conflicted in his feelings regarding his father. He reported concerning events and witnessing violence in the home and stated his father was mean. He also stated his father was nice, and was excited to see him. During the observations Brandon appeared to manage his father’s emotions in order to avoid a possible outburst and on one occasion reminded his father not to ask questions about Mrs. Mysior. It is recommended that Brandon receive support through counselling to assist him in his conflicted feelings, address his trauma of exposure to domestic violence, and to provide him with some skills to establish appropriate boundaries with his parent’s conflict.
23To the OCL Mr. Mysior denied being abusive, although admitted to arguing, and calling Mrs. Mysior “bitch and nigger, telling her to shut up and fuck off”.1 He denied saying anything to the child about his relationship with and feelings about Mrs. Mysior, but admitted saying to Brandon that if Mr. Mysior was denied his access, he would call the police to enforce it. In contradistinction to this, Mr. Mysior told the OCL that the child needed to know the “truth” about his mother and her family lying to him.
24Contrary to his assertions in his interview, in the two observed visits, Mr. Mysior was recorded as asking the child inappropriate questions such as “is your mother still in love with me?” and denying to the child that he had pulled Mrs. Mysior’s hair at some point. Mr. Mysior asked several in appropriate questions of the child and “began to rant” at the child about Mrs. Mysior’s manipulation. He had to be cautioned.2
25The OCL recommended that Mrs. Mysior receive sole custody with supervised access to the father of two hours, once a week. The goal of supervised access was to facilitate access in a secure environment and assist Mr. Mysior in improving his parenting skills, family communication, and emotion regulation and curbing his emotionally driven conduct. The OCL recommended that access should be reviewed in one year to determine how well the parties have come along in their behaviour. Brandon should have counselling, as should each parent. Mr. Mysior should have counselling to address anger, anxiety, grief, and to understand the effects of his unregulated expression of his emotions in front of his son.
26From the evidence, Mrs. Mysior and the child have been having counselling. Mr. M has refused. He cannot afford it, and says he does not need it.
Analysis:
a) Custody and Access
27In my analysis, I am guided by the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child (s. 16(8) Divorce Act). While joint custody would be the normal order in normal circumstances Kaplanis v. Kaplanis, [2005] O.J. No. 1872(C.A.), it is not here. I have considered the parties’ past conduct as it is relevant to the issue of custody (s. 16(9) Divorce Act).
28Mrs. Mysior shall have sole custody of the child.
29Based on all the evidence, even that of Mr. Mysior, Mrs. Mysior is a good mother (aside from trying to frustrate the child’s access to his father). While the OCL noted she was submissive to the child’s wishes, she has engaged in therapy to assist her in parenting skills. She has enrolled the child in recommended therapy as well.
30Mr. Mysior, as I said, loves his son and misses him greatly. In preparation for greater and unsupervised access, Mr. Mysior recently moved into a newly finished basement apartment. While it is a one bedroom apartment, there is enough room for a bed for the child. He wants to be a good father and to be given the chance to prove it. He interacts well with the child. On his access visits he brought food, treats and toys the child liked to play with. They have common interests such as in model trains. There is a bond between the two. Mr. Mysior says, and I accept, that there is a hole in his life since he as stopped having access to Brandon.
31Mr. Mysior’s evidence at trial, however, confirmed the observations and conclusions of the OCL. I agree with those observations and conclusions. I conclude that Mr. Mysior likely will not cooperate with Mrs. Mysior in any meaningful way with respect to any major decision involving the child. To date, he has largely abandoned custodial decisions to Mrs. Mysior. Communication between the two is non-existent, except through third parties. He accuses her of lying and making things up. His anger issues and lack of anger control in matters concerning his wife remain unaddressed. They agree on little. For example, he will not agree to anyone she suggests as an access supervisor. He objects to the woman who provides baby-sitting services (Mrs. O’Rourke), for example, because he disagrees with the fervency of her religious conviction and because she plays her religious music loudly while the child is in the car. There is no suggestion that his behaviour will change.
32Mr. Mysior’s access time with Brandon shall remain as it is currently: 2 hours a day, on Saturdays, alternating between noon and 2 p.m., and 5 and 7 p.m. Access shall be supervised at the current access centre. His access shall continue at this frequency, and shall continue to be supervised until Mr. Mysior establishes that he has had the counselling suggested by the OCL or that the reports from the access supervisors are such that it is clear that he can engage in appropriate discussion with the child, and not engage in emotionally driven or inappropriate discussions with the child.
33Mr. Mysior shall have telephone access to the child for 20 minutes each Wednesday and Friday, and on Christmas, New Year’s Day Father’s Day, the child’s birthday, Easter Sunday and Thanksgiving Day (assuming those days are not Saturdays).
34The restraining order governing contact with Mrs. Mysior, put in place by Skarica, J. on January 4, 2013, as modified by Richetti, J. on April 4, 2013 will remain in place until further order, subject to modifications, above.
35In making this order, I find that Mr. Mysior continues to be angry with Mrs. Mysior and that he cannot control his emotionally driven behaviour, especially when with his son. He continues to be hostile. I find he does not have any insight into his emotional and angry behaviour. Rather, he denies it and justifies it. In support of my conclusion, a few examples of Mr. Mysior’s conduct will suffice:
1) Banned from the Access Centre
36As indicated at the outset of these reasons, because of the concerns raised by the OCL, and on the OCL’s recommendation, Mr. Mysior’s access was limited and was to be supervised. Initially it was supervised by some of Mrs. Mysior’s family. Mrs. Mysior’s family disliked Mr. Mysior, made no secret of this, and interfered with his access. They could not or would not keep their opinions to themselves when the child was around. Therefore, access that they supervised was not successful. Access had to be moved to an access centre.
37On March 31, 2015 Social Enterprise for Canada (which runs the supervised access centre at which Mr. Mysior saw his son), wrote to Mr. Mysior with a copy to Mrs. Mysior (Exhibit 2). The Centre advised Mr. Mysior that on April 17, 2015 he breached several of the Supervised Access Program policies which he signed. It enclosed his signed copy of his agreement (although not attached to the Exhibit), and advised Mr. Mysior that because of his breaches of the policy, his access was suspended pending a file review. He was invited to provide a written explanation for his conduct on April 17, 2015 which would be considered before restoring his access at the Centre.
38The breaches Mr. Mysior is alleged to have committed are
a) Not following the direction of staff while at the access centre – Mr. M is reported to have said that he only has a problem with staff when they tell him what to do.
b) Mr. M raised concerns with the Centre and staff, at the Centre, and not with head office – he is reported to have argued with staff at the Centre, called a staff member a liar, said that “the centre is bullshit”, and dismissed a 19 year old staff member’s advice and efforts as she did not have parenting experience.
c) Had whispered conversations with the child – Mr. M is reported to be difficult to hear.
d) He disparaged his spouse in front of the child – Mr. M is reported to have said that his spouse has kidnapped his son and should be in jail.
39No one was called from the access centre to give evidence. Mrs. Mysior was not present to hear the comments noted by the access centre. Therefore, the only evidentiary value of Exhibit 2 is to test the credibility of a witness, or as true, but only to the extent that Mr. Mysior accepts it as true.
40I asked Mr. Mysior to comment on Exhibit 2 and provide me with his areas of disagreement.
41With respect to the first two allegations, he denied them, at first. He later said that he “politely” berated an employee of the access centre. His reason for berating the employee was not specific, although I asked him to provide it. He said that the employee was “digging at me” and berated him in front of his son. I asked him what the centre’s concern was and what the employee said to him. His answer was that she was asking him repeatedly if he was “OK” and saying “are you sure?” even after Mr. Mysior said he was “OK”. He gave no specifics of the employee’s concern. Mr. Mysior said that he “politely” berated the employee by asking her if she was a professional, and when she confirmed she was, saying to her “I doubt that”. He told her that she was a liar, and accused her (she was 19 years old at the time) of having “zero parenting skills”. This interaction occurred in front of the child.
42Mr. Mysior said that within a few moments of this discussion, he spoke to Ms. Lu, the author of Exhibit 2, raising his complaints with the individual worker. He admits that he probably called the access centre, or some aspect of it “bullshit.” This discussion was not in front of the child.
43With respect to the other two allegations, he denied those as well.
44The letter (Exhibit 2) from the Centre barred him from further access there until he responded to the letter. He has not done so. He does not feel that he did anything wrong. There is no reason for him to explain anything.
45Mr. Mysior’s version of events stretches credulity. The very nature of the discussion, the manner in which he described it in his testimony, and the absence of any clearly stated stimulus for his reaction suggests that he was breaking the rules, did not perceive this, and when questioned about his actions, responded aggressively. He did not respond to the concern raised; he attacked the messenger. He took his position to the employee’s superior when he was not satisfied with the responses from the employee. When the Centre suspended his access and asked him, in writing, to explain his conduct, he refused to do so. The only conclusion I can reach is that Mr. Mysior’s pride is more important than access to his son. He admitted this much in his closing argument.
2) Mrs. Mysior ruined Mr. Mysior Financially
46Mr. Mysior took the position that Mrs. Mysior, in leaving the marriage and taking their child, ruined him financially. He explained that Mrs. Mysior ruined him and put him in a “bloody mudhole” out from which he has only recently climbed. Initially, Mr. Mysior said that because of Mrs. Mysior, by May or June, 2013 he could no longer afford to pay $763/month for his truck. He had to give it back to the person from whom he was buying it. Accordingly, without a truck, he could not look for work, nor haul his tools to the work place. On his second day of evidence, however, he said that he had to give the truck back because construction was slow and he could not afford the $763/month payments.
3) Issues with Mr. Mysior’s Evidence
47Mr. Mysior’s evidence was dismissive of Mrs. Mysior. He remains angry with his wife, and unable to avoid making emotionally laden statements. Most of his testimony consisted of broad, sweeping, conclusory generalizations, rather than specific evidence. He said that third parties including the Police, the child’s school principal, waitresses and waiters at restaurants, and witnesses to events for which others criticized him, support his version of facts, overwhelmingly. I refused to accept letters from these people as they had not been produced except at the beginning of trial. Mr. Mysior did not call any of these people as witnesses.
48Mr. Mysior dismisses others who disagree with him. He said of the OCL’s Report that 90% of it was “rubbish” and only 10% true. I have commented on his approach to those at the supervised access centre.
49Mr. Mysior also shows no understanding that his views are emotionally driven, largely unsupported by independent evidence. He shows no understanding of what impact his emotionally driven behaviour has had, or may have, on his son. He said in his closing argument, with contrition, that he is not perfect, but limited his admitted failing to not being a lawyer, not making production as required, and not conducting a trial as it should be conducted. He never acknowledged any responsibility for his current access issues, or that his conduct might be harmful to the child.
50I offer the following as examples of the foregoing:
a) Mr. M did not address most of the incidents of police involvement, and when he did, he dismissed them as the result of his wife’s lies or exaggerations. He has never hit his wife.
b) He said that evidence is being planted and manipulated.
c) He dismissed Mrs. Mysior’s evidence about the December 8, 2013 police incident as “just rubbish.”
d) He dismisses “98%” of what Mrs. Mysior says in this case as “a lie or an absurdity”.
e) He says that his current access troubles are the result of Mrs. Mysior’s efforts. He said that:
a. she has ‘manipulated court orders’ to deny him access,
b. she has withheld access by any means.
f) He says that his wife and her family conspired to defeat his access. He said that:
a. Mrs. Mysior and her family have refused to bring the child to see him.
b. She and her sister dropped off the restraining order at a local market where he was shopping, and laughed at him.
c. Mrs. Mysior’s sister works for Children’s Aid. She and Mrs. Mysior worked in “collusion” to deny access. It was this sister who called police on December 8, 2013, reporting harm to the child. The Police, he said, were “shocked” with the unfounded allegation.
d. Mrs. Mysior’s sister has accused Mr. Mysior of trying to kidnap the child.
g) The conspiracy extended to his wife’s lawyer, who kept him from seeing his son “by any means.”
h) The conspiracy extended to Justice Snowie, who, on August 20, 2013 “refused to read my evidence” about Mrs. Mysior’s contempt.
i) Mrs. Mysior was mentally unstable and jealous of his relationship with his son. She obsesses about the fact that he has a close relationship with their son.
j) That their son sees a psychiatrist has nothing to do with his conduct. It is required because the child has been without his father. His father “poof, just disappeared”.
k) His recurrent phrase was that this “nonsense” re access has been going on for “3 years and 3 months.”
l) Mrs. Mysior laughs at him in court. She is malicious and cruel. “She should look at herself in the mirror” when she criticizes him.
m) The child needs to be with his father, and Mrs. Mysior “doesn’t give a damn” about her son and how he feels.
b) Child Support
51Mrs. Mysior says that Mr. Mysior is currently paying $168 per month in child support. As she can afford to care for her son, she is content that Mr. Mysior continues to pay that amount. Child support, although paid to a parent, is the right of the child, and should be assessed based on the Child Support Guidelines.
52Mr. Mysior expects that he made $30,000 in 2015. He expects that he will make $50,000 to $60,000 in 2016. His financial statement from 2012 indicates that between 2009 and 2011 inclusive, he earned less than $2,550 per year. He says that this was due to the recession.
53Mr. Mysior has not made financial production as required, other than providing his 2009 to 2011 tax returns, notwithstanding orders to do so of October 16, 2013, March 2, 2015 and June 26, 2015. The trial was adjourned twice to facilitate Mr. Mysior’s production. It was still not made until the morning of the trial.
54Mr. Mysior paid no support from November 26, 2012 until February 1, 2015, at which point Bielby, J. ordered him to pay child support for one child of $168/month based on imputed income of $21,000 per year, or minimum wage. Bielby, J. left past support to the trial judge. He ordered s. 7 expenses to be paid equally.
55Mr. Mysior led no evidence to indicate why he could not work from 2009 to 2015 and what he did to find work. His own evidence is conflicting: at one point he said that Mrs. Mysior ‘ruined’ him and at another that the economy kept him out of work. He has neither called nor filed information with respect to his income since his 2011 tax return. The question is what income should be imputed to him?
56The main case on imputation of income in a family matter is Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), which addressed under what circumstances under s. 19 (1)(a) of the Federal Child Support Guidelines a person may be found to be intentionally underemployed or unemployed. In that case, the father was a tool and die maker. He did not like the trade, and did not do well at it. He decided to become a school teacher and entered university to pursue his certification in teaching. The result was a drop in his income. The Trial Judge found that he could and should have pursued part time work while studying. He attributed to the father income of $30,000 for support purposes.
57The Court of Appeal looked at the meaning of “intentionally underemployed” as used in the Child Support Guidelines (“CSG”). It held that while the statue required a voluntary act in order to be “intentional” there was no requirement that the voluntary act have a bad faith component or the specific intention to defeat support. The CSG imposes on every parent the obligation to earn what s/he is capable of earning. There is intentional unemployment when a party chooses not to work when capable of earning an income. Section 19 of the CSG does not apply to situations in which the payor, through no fault of his own, cannot work (lay off, termination, or employer reduced hours). The CSG, however, provides flexibility between the obligation to support children, and the need to have “meaningful work” (para. 35). A parent is not excused from support obligations when he wants to pursue unrealistic or unproductive career aspirations (para. 39). The spouse seeking to reduce support must show that the educational pursuits are reasonable, and are reasonably pursued in light of the support obligation.
58There is a clear line of authority which stands for the proposition that even if the payor has a reduced ability to pay support (normally a condition that qualifies as a change in circumstances under section 17(4) of the Divorce Act or s. 37 of the Family Law Act) a payor cannot reduce support where the reduced income arises from the events over which the payor had some control.
59French v. Williams, 2016 ONCJ 105 set out the following principles:
a) A parent’s obligation to support his or her children takes precedence over the parent’s own interests and choices.
b) A parent cannot knowingly avoid or diminish, and may not ignore, his or her obligation to support his or her children.
c) A parent must act responsibly when making decisions that may affect his/her ability to pay child support.
d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests, nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
60The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed, and must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).
61If the party can establish that the other is under-employed, the onus shifts to the payor to prove that he acted reasonably and must show this in a compelling way: See: Riel v. Holland, 2003 3433 (ON CA), 2003 3433 (Ont. C.A.), at paragraph 23. The trial judge must determine whether the educational needs claimed by the payor are reasonable. See: Drygala, supra, paragraph 39. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, paragraph 39.
62The court in Drygala expands on what is required to determine if the educational needs of a payor are reasonable in paragraphs 40 and 41 as follows:
40But, s. 19 (1) (a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of a spouse.
41The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He [page721] or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.
63If there is no reasonable excuse for the payor’s under-employment, in imputing income the court must have regard to the payor’s employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship to determine what income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 26573 (ON CA), 2006 26573 (Ont. C.A.).
64The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, 2008 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.).
65Justice Pazaratz said in Jackson v. Mayerle, 2016 ONSC 72, added that the court cannot arbitrarily allocate an imputed income. There must be a rational basis for the amount selected and it must be grounded in the evidence. The absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano, 2008 3962 (ON SC), 2008 3962 [2008] O.J. No. 417, (SCJ); Gonzalez v. Garcia (supra).
66In this case, Mrs. Mysior as met her burden. Mr. Mysior is healthy and able. Setting aside the cyclical nature of his trade, he is capable of working. Mr. Mysior has the burden to show why he earned no or little income. After separation he argued that his ‘ruin’ was caused by the Plaintiff, but later admitted it too was the result of the recession.
67In the absence of any evidence to support his lack of earnings, and in light of his failure to make any reasonable disclosure, I impute income to him from 2012 to the end of 2014 of $25,000, or slightly above minimum wage. He led no evidence of any efforts to find work in this time period, either in his trade as a tile setter, or in another line of work. In 2015, Mr. Mysior earned $30,000 (July to December) and expects to make $50,000 to $60,000 in 2016 and onward. In light of his significant non-disclosure of his financial information, I impute income to him in 2015 of $50,000 and in 2016 of $60,000.
68Accordingly, Mr. Mysior owes table support for one child, from December 1, 2012 to December 31, 2014 at $200/month based on imputed income of $25,000; monthly table support for one child from January 1, 2015 to December 31, 2015 at $450/month based on imputed income of $50,000; and monthly table child support for one child from January 1, 2016 to April 1, 2016 of $546 based on imputed income of $60,000.
69Past support owing is as follows:
| Year | Monthly | Annual Owing | Paid3 | Net |
|---|---|---|---|---|
| 2012 | $2004 | $2,400 | 0 | $2,400 |
| 2013 | $200 | $2,400 | 0 | $2,400 |
| 2014 | $200 | $2,400 | 0 | $2,400 |
| 2015 | $4505 | $5,410 | $1,848 | $3,562 |
| 20166 | $5467 | $2,184 | $672 | $1,512 |
| Total Net Child Support Arrears Owing: | $12,274 |
70Future child support shall be paid on the first of every month. Monthly child support beginning 1 May, 2016 to and including June 1, 2017 shall be at $546 for one child at Mr. Mysior’s imputed income of $60,000.
71Section 7 expenses since separation and up to and including June 1, 2017 shall be shared equally since Mrs. Mysior is now employed full time as a legal secretary at a salary of $45,000 to $50,000 p.a. Mr. Mysior’s maximum annual contribution to extraordinary expenses is $1,500 p.a. Mrs. Mysior does not require Mr. Mysior’s permission to enrol the child in any activities that generate extraordinary expenses until Mr. Mysior’s annual contribution exceeds $1,500. If he is to contribute to section 7 expenses beyond his total annual maximum contribution, he must consent to it. Otherwise, Mrs. Mysior must pay for the expense.
72This $1,500 limit on s. 7 expenses does not include that portion of any medical, healthcare and dental expenses the child may require which are not paid or reimbursed by either party’s medical, healthcare and dental plans.
73Each year beginning in 2017, the parties shall exchange CRA assessments by May 31, and support for the 12 months beginning July 1 of that year child support shall be based on Mr. Mysior’s assessed line 150 income, and section 7 expenses for the 12 months beginning July 1 of that year, both those falling within the $1,500 cap and those not, shall be pro-rated to income.
74Support shall be collected by FRO. Support Deduction Order is to be issued.
c) Matrimonial Home
75No evidence was provided with respect to the matrimonial home. It appears that Mrs. Mysior lives in a rented apartment in Brampton. It is not clear who is on the lease, whether Mr. Mysior ever lived in it, or whether he has a key. Hence, it is impossible to determine whether it is a matrimonial home. Accordingly, if Mr. Mysior remains on the lease, lived at the apartment for any period of time or still has a key to the apartment, exclusive possession is awarded to Mrs. Mysior.
d) Divorce
76Both parties seek a Divorce. Either may move for one, over the counter.
e) Costs
77Unless the parties agree on costs, I am pleased to receive written submission as to who should pay costs to whom and in what amount. Submissions are limited to 3 pages, excluding bills of costs or receipts for disbursements. Mrs. Mysior shall have hers served and filed by 4 p.m. Friday April 14. 2016 and Mr. Mysior shall have his served and filed by 4 p.m. Friday April 29, 2016.
f) Final Order
78The Court staff are directed to prepare the final order pursuant to these reasons, for my review.
Trimble J.
Released: April 5, 2016
CITATION: Mysior v. Mysior, 2016 ONSC 2327 COURT FILE NO.: FS-12-4872-00 DATE: 2016 04 05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROL MAY BAILEY MYSIOR Applicant
– and –
WILLIAM EDWARD MYSIOR Respondent
REASONS FOR JUDGMENT
Trimble J.
Released: April 5, 2016