Court File and Parties

KINGSTON COURT FILE NO.: 160/15 DATE: 20170320 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathleen Mary Brooks, Applicant AND Jordan Brooks, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Lulama M. Kotze, for the Applicant Stephen Zap, for the Respondent

HEARD: February 23, 2017

Endorsement

MINNEMA, J.

[1] This is the applicant wife’s motion for summary judgment on all the family law relief sought in her application except custody which was previously ordered.

Issues

Matters Resolved During the Hearing

[2] The parties agreed that the husband pay ongoing child support for two children set at $386 per month commencing January 1, 2017, based on his current expected annual income of $26,000.

[3] The parties settled the issue of equalization. The wife shall pay $42,933.36 to the respondent husband. That was predicated on the further agreement that the husband shall transfer his interest in the joint matrimonial home to the wife and be removed from the mortgage.

Issues Requiring Adjudication

[4] The most contentious issue was whether there was a genuine issue for trial regarding the husband’s access, and if so what directions and/or conditions if any should be imposed.

[5] The parties agreed that the remaining issue regarding financial matters was what the adjustments or credits would be applied to reduce the wife’s equalization payment to the husband by way of set off. These were (A) retroactive child support, (B) retroactive section 7 expenses, and (C) post-separation payments made by the wife on a joint line of credit. Determining the respective incomes of the parties was a sub-issue to the retroactive child support and special expenses adjustments. The parties further agreed that they have provided me with all the evidence required to fairly and justly adjudicate the financial disputes, and that I can weigh the evidence and draw inferences to make final orders by way of summary judgment.

[6] The last issue was the wife’s request for a monthly section 7 payment.

Law re Summary Judgment

[7] For the general approach on a motion for summary judgment, Rule 16 of the Family Court Rules, O. Reg. 114/99 (“Rules”) along with the principles from Hryniak v. Mauldin, 2014 SCC 7 at paragraphs 66 to 68 indicate the following:

(a) “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly” - Rule 16(6).

(b) If there appears to be a genuine issue requiring a trial, the court shall determine if the need for a trial can be avoided by using the new powers (which are now set out in Rules 16(6.1) and (6.2)). These involve weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided they do not run contrary to the interests of justice.

(c) There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure.

(d) If after the above analysis there is a genuine issue requiring a trial, the court still has discretionary powers to give directions, specify the issues, identify which facts are not in dispute, and to impose conditions (Rule 16(9)).

[8] Subrules 16(4), (4.1) and (5) address the evidence to be relied on for the motion.

Background Facts

[9] The parties separated in September of 2013 after eight years of marriage. They have two female children Kelsie age 8 and Stella age 6. Following the separation the wife began a relationship with the husband’s supervisor at his job in construction. Around that time the husband’s employment was terminated. He has had difficulty with steady employment since, and currently works for a pizza business. The husband has a history of cocaine use and was convicted for trafficking in that substance in 2015 and spent 60 days in jail. The wife remains in a relationship with the husband’s ex-supervisor and they reside with the children in the matrimonial home. The husband is also in a new relationship.

[10] Following separation the husband had access to the children and paid child support. However, he concedes that after about a year things went “downhill” for him. The wife brought this application in April of 2015. It is on dismissal/case-management timelines per Rule 39. More facts are set below in addressing the various issues.

First Issue - Access

[11] In her application the wife sought “[a]n Order that the children shall exercise reasonable access with the Respondent as agreed upon by the parties or as determined to be in the best interests by this Court”. She did not set out a separate detailed claim regarding access in her summary judgment motion, relying instead on a general recital that she was seeking “Summary Judgement (sic) of all the remaining claims in the application.” Her position at the hearing was somewhat different than her pleading, however, namely she is “not currently in support of access between the Respondent and the children.” The husband is still seeking “normalized” access, and therefore asks that this aspect of the wife’s summary judgment motion be dismissed.

Additional Facts

[12] The wife suggests that the husband was using cocaine during the marriage, however she is vague about her belief and he denies it. She makes a general statement that Kelsie was old enough to be affected the husband’s “erratic behaviour both before and immediately after separation”. There is no evidence of difficulty or confrontations prior to separation that affected the children.

[13] The husband started with regular access in the matrimonial home and it eventually moved to the paternal grandparents’ home where the husband resided. The wife indicated that there were frequent outbursts of anger by the husband in front of the children during five weeks in November and December 2013. The husband indicated that the bouts of anger were mutual and that his were in response to the wife’s outbursts, and further asserts without any particulars that she assaulted him in front of the children.

[14] The wife claims that in February of 2014 the paternal grandmother cautioned her about “abnormal behaviour” between the husband and the child Kelsie and indicated that the grandmother (not the wife) had seen a bruise on the child’s upper inner thigh. At the time Kelsie would have been five years old. The wife indicated that she took the child to see a child-psychiatrist and this person contacted the Children’s Aid Society. The husband claims to the contrary that it was the wife who contacted the Society. In any event it is agreed that the Society was contacted and it investigated. The wife said that abuse was “not substantiated”. The husband puts it stronger saying that everything, including the alleged report by the paternal grandmother, was “proven to be false”. I note that there is nothing in evidence from the psychiatrist, the grandmother, or the Society.

[15] The wife indicated that from March 2014 up to October 2014 the respondent was having access two evenings a week not overnight and weekends from Friday night until Saturday afternoon. She said that on many weekends he was either late or had to cancel, which he specifically denied. In October of 2014, the respondent was criminally charged with possession of cocaine for the purpose of trafficking. The wife indicated that around that time, in the fall of 2014, she was no longer comfortable with the access occurring in the house, and the access then took place at the husband’s parents.

[16] The husband was convicted of trafficking on February 26, 2015, and sentenced to 90 days in jail. He served 60 days. His criminal lawyer told the judge that the husband only got into the drug business after a marriage break-up and the loss of his job. The Crown attorney at the hearing noted that the police believe he was just “down on his luck”. The criminal court judge accepted that husband was “someone on the ropes, trying to make ends meet” but noted that this was not a valid excuse for dealing drugs.

[17] At some point the access to the husband was reduced and the wife indicates that “[a]s the my (sic) concerns increased, the Respondent did agree to have access every Tuesday for two hours at a time with the visits to take place at his parents’ house”.

[18] The wife indicates that Kelsie began refusing visits at the grandparents’ house “around Thanksgiving 2015”. She would have been 7 years old at the time. She said Stella continued to attend until the spring of 2016. She would have been 5 years old at the time. It is unclear why. The wife was concerned about the maternal grandmother instilling her religious beliefs on the children which she did not share -- the grandmother is a born again Christian and the children are Catholic. However, this did not appear to be the cause.

[19] The wife indicated that in an effort to rebuild the relationship while ensuring access was in a safe setting, it was agreed that the children would have supervised access at the Salvation Army Supervised Access Centre (“SASAC”). She said that Kelsie refused to participate altogether and Stella originally “agreed” but then asked to leave early during the fifth visit on May 12, 2016. There have been no further visits. The wife says she tried to get the children to go but they refused. The husband disagrees and believes the wife worked at changing the children’s opinion of him by informing them of her opinion. They both point to the records and reports from the SASAC. There are aspects of those records that support both positions.

Law

[20] As the parties were married, custody and access is governed by section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended. Subsection 16(8) indicates that in making an order I am to only take into account the best interests of the children as determined by reference to the conditions, means, needs and other circumstances of each child. Per subsection 16(10), I am to give effect to the principle that the children should have as much contact with each spouse as is consistent with their best interests. Factors for me to consider regarding best interests are set out in Gordon v. Goertz, [1996] 2 S.C.R. 27 at paragraph 49-7, the Children’s Law Reform Act, R.S.O. 1990, c.C.12 at subsection 24(2) (obviously relevant in a Divorce Act proceeding see MacIntosh v. MacIntosh, [2007] O.J. No. 5695 (S.C.J.) at paragraphs 64 to 67); and V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319 (Ont. S.C.J.), given that the wife is requesting no access. Not all the listed factors apply to the narrow focus here, namely whether there is a genuine issue for trial that the father have access to his children.

Analysis

[21] In assessing the children’s views and preferences, we only have the wife’s evidence and some observational comments from the SASAC. Children’s statements about their wishes can be admissible under the hearsay exception relating to mental or emotional state, but only when they are not made under circumstances of suspicion. To be otherwise admissible under the principled approach to hearsay, the evidence must meet the reliability test. In my view neither exception applies. The central argument for the wife, as noted in the SASAC notes, is that the reason the children are not seeing their father is that it is their “choice” and she is not going to push them. I find it inconsistent if not suspicious that she accepts such choices as conclusive, particularly coming from children when they were ages 5 and 7.

[22] I have considered the plans of the parties. The wife argues that the husband has no plan given that he proposes to restart contact through the SASAC which has already been tried. In my view she is being disingenuous. The husband wants to see the children under any circumstances or conditions and his proposal is simply the least controversial entry-level option available to him. The wife herself has no plan. As the custodial parent she has a positive obligation to explore ways to support and maintain the children’s relationship with their father. There is no suggestion from her of counselling or other professional help specifically directed at reunification. To the contrary, she supports no access.

[23] The wife maintains that with this legal proceeding on the dismissal/case-management timelines it needs to end now. However, it is unlikely there will be any access to the husband without a court order. Dismissing all access claims and therefore requiring him to start a new court process before he can address his relationship with the children, as the wife is suggesting, would be a perverse application of the Family Law Rules in my view. The wife argues access can be considered at a later date when both the husband and children are ready. It is not clear to me how the husband could ever know when the children would be ready. He does not see them and direct lines of communication between the parents appear to be strained if not broken. His evidence is that he is ready for access now. In looking at his ability to act as an access parent, he has a job, is in a new and steady relationship, and has not used illicit or illegal drugs since July of 2016. Indeed, when access was happening at the SASAC, albeit for Stella only, the records show that he was always on-time and appropriate. There is no evidence of long term harassment or denigration of the wife causing her or the children stress or fear. There are no safety concerns identified with access in that setting.

[24] The wife’s request for no access has not been properly pled. Regardless, I find that there is an obvious issue for trial as to whether it would be in the children’s best interests. The request for summary judgment of the access claims is therefore dismissed. The husband sought the appointment of the Office of the Children’s Lawyer (“OCL”) in his submissions. Rule 4(7) of the Family Court Rules and section 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), along with summary judgment rule itself, empower me to give directions and that would include dealing with his request without a formal motion. I invited and heard argument as to whether such an order would be appropriate in this case. The wife indicated that she was opposed as she felt it would be too intrusive. That concern is noted, but in my opinion the OCL could be of great assistance to these children. I therefore request its involvement and further request that it consider an investigation and report under section 112(2) of the CJA.

Second Issue – Amounts Owing by the Husband to the Wife

[25] As noted the parties agreed that I determine the amounts of (A) retroactive child support, (B) retroactive section 7 expenses if any, and (C) line of credit amounts owing by the husband to the wife.

A. Child Support

[26] The husband contributed to the support of the children without a court order after the separation. Except for a few minor payments he stopped paying after October 14, 2014. The wife therefore claims retroactive support back to that date. There was no dispute about her entitlement or my authority to make the order applying the Federal Child Support Guidelines, SOR/97-175, as amended (“Guidelines” or “CSG”). Support is to be based on most current information (Guideline s. 3(3) and Coghill v. Coghill, [2006] O.J. No. 2602 (S.C.J.)), with adjustments once the income for the year is known: L.(R.E.) v. L.(S.M.) (2007), 2007 ABCA 169, 40 R.F.L. (6th) 239 (Alta. C.A.).

Husband’s Actual Income

[27] There is agreement that the husband earned $43,748 in 2013 and a further agreement to use that income to determine the child support for 2014 being $643 per month for the last two and a half months for a total of $1,607.50. He was employed at McFarland Construction, although there is no evidence what he did there. The husband lost that job at the end of 2013. He was subsequently employed at Grayler Construction. He lost that job in October of 2014. It appears that he subsequently received Employment Insurance benefits (“EI”). His Line 150 income for 2014 was $34,614 broken down as $23,241 from employment, $3,712 from EI, and $7,661.54 from a Registered Retirement Savings Plan (“RRSP”).

[28] The husband’s Line 150 income for 2015 was $14,814. He was incarcerated for the bulk of March and April 2015 (60 days commencing February 26, 2015). He started to receive EI in May at $1,644 per month (per his Answer) and collected $10,208 over about 6 months (per his Income Tax Return). By October 1, 2015, per his Financial Statement, he was working at Dustica Carpentry and earning $878.80 per month. It appears he also worked in the first two months of that year as employment income per his Income Tax Return totalled $4,606.

[29] For 2016, the husband provided three documents: a T5007 Statement of Benefits showing he received social assistance of $3,183.50; a Record of Employment (“ROE”) from MJD Custom Homes showing earnings of $5,653.45 in May, June and July; and a T-4 Statement of Remuneration from Capri Pizza showing that he made $7,624. At a settlement conference on September 19, 2016, interim child support was ordered based on an expected annual income of $21,000 suggesting that he was working at Capri Pizza at the time. He is now making $500 per week there, which is the basis for the agreement regarding the ongoing order.

Request to Impute Income to the Husband

[30] The wife does not accept the husband’s Line 150 income for 2015 and 2016 for child support purposes, and is asking that I impute income pursuant to subsection 19(1)(a) of the Guidelines on the basis that he was intentionally under-employed or unemployed. She is asking that I average his Line 150 earnings in 2013, 2014, and 2015, and use an income of approximately $31,000. It needs to be noted that she has in this submission included the husband’s RRSP income in 2014. Leading up to the loss of his job at McFarland, the husband had good earning years in construction namely $33,228 in 2011 and $40,145 in 2012.

[31] The leading case is Drygala v. Pauli. A good recent summary of factors to be considered and the steps in the analysis is set out in Pey v. Pey, [2016] O.J. No. 1909 (S.C.J.) at paragraphs 85 to 94. I point out from those cases that while the husband must earn what he is capable of earning (Drygala at paragraph 32), the onus is on the wife to establish an evidentiary basis that he is under-employed or unemployed (Pey at paragraph 86), and the exercise of the court’s discretion must be grounded in the evidence.

[32] The wife specifically relies on Hutchison v. Gretzinger, an appeal from an order made in the Ontario Court of Justice, for the proposition that it would be wrong at law and contrary to public policy that the husband be exempted from his child support obligation because of drug addiction. She referred me to the following paragraph.

[23] The respondent acted “intentionally,” within the meaning of clause 19(1)(a) of the Child Support Guidelines, when he first began using drugs. He was engaged in voluntary (and criminal) conduct. Such conduct may be equated with self-induced under-employment or unemployment. It is my respectful view that it was a reversible error not to impute minimum-wage income to the respondent. [Emphasis added.]

[33] Regarding the italicized portion from that passage, I would only add that there must still be some evidence and not just speculation that the drug use was the cause of the under-employment or unemployment.

[34] There is no dispute here that the husband was a cocaine user. The wife believed that he used during the relationship. However, he was gainfully employed both before and after separation.

[35] The husband claims he lost his job at McFarland because the wife’s new partner Mr. Carlos was his supervisor and had him fired. The wife denies that, and claims the husband was simply laid off. There is no evidence from Mr. Carlos or the principals of McFarland Construction. All that can be ascertained is that the husband did not quit or leave voluntarily. Despite the allegations and admissions about cocaine use there is no evidence that he was let go for cause.

[36] There is an assumption on the part of the wife that the husband lost the Grayler job in October 2014 as a result of drug use and criminal activity. Indeed, the timing coincides with his criminal charges. However, without some evidence about the nature of the work or the employer’s knowledge of the situation, that alone does not prove causation. Many construction jobs suffer seasonal or other lay-offs, and the wife herself made that argument regarding the husband’s loss of his job at McFarland. Along the same lines, there is no evidence as to the circumstances of the husband’s subsequent employment at Dustica Carpentry. The ROE from MJD Custom Homes states the reason that employment ended was “Shortage of work/End of contract or season”. Under-employment is often measured against what is reasonable in light of the payor’s background, education, training, and experience (for example see West v. West, [2001] O.J. No. 2149 (S.C.J.) at paragraph 38). There is simply no evidence here. Although the names of the businesses suggest the construction field, I have no way of knowing whether the husband pushed a broom or did skilled work. The wife seems to accept that he is not under-employed at the present time working in the pizza business.

[37] In my view the wife has not met the onus on her to establish the evidentiary basis for me to find that the husband was under-employed or unemployed because of his drug use.

[38] There is still, however, the question of whether he was under-employed or unemployed as a result of his criminal activity and conviction. The period he was in jail and not earning income it is clearly self-induced unemployment attracting imputation per the quote from Hutchison above also per also Billingsley v. Billingsley, 2010 ONSC 3381 at paragraph 52. I would impute an income to him based on his current earnings ($500 per week) totalling $4,000 for those two months.

[39] It is well established that if a parent engages in reckless criminal behaviour resulting in a reduction of his earning capacity, income may be imputed: see S.A.C. v. S.E.C., 2015 MBQB 61 (admitted causal connection between the payor’s criminal conduct and his loss of employment), Rogers v. Rogers, [2013] O.J. No. 1616 (S.C.J.) (finding of employment loss because of reckless criminal behaviour), and Pey at para. 87(c). However, there is no admission here, and there is no evidence to the effect that the husband’s employment struggles were caused by his criminal record. To the contrary, he had two construction type jobs after serving his sentence.

Summary – Retroactive Child Support

[40] I summarize the findings above in the following chart:

Year	Husband’s Income	Monthly Child Support Payable per the Guidelines	Child Support Owed	Payments Made	Yearly Totals Owing
2014			$1,607.50 (as agreed)
2015	$10,208 (EI) $4,606 (Employment) $4,000 imputed	$288 for two children on an income of $18,814	12 x $288 = $3,456	$320	$3,136
2016	$3,183.50 (O.W.) $5,653.45 (MJD) $7,624 (Capri)	$137 for two children on an income of $13,277 (O.W. is not included per CSG Sch. III section 4)	12 x $137 = $1,644	$100	$1,544
Total					$6,287.50

[41] The husband therefore owes $6,287.50 to the wife for retroactive child support.

B. Retroactive Section 7 Expenses

[42] The husband took no issue with the wife’s claim of $943 for his share of the 2014 section 7 expenses. Further, he did not dispute the actual expenses in the years 2015 and 2016, namely $6,804.90 and $2,384.66 respectively. However, he disagreed with the wife’s calculations of his proportional share for those years, including the level of income she asserted for herself. Lastly, he took the position that regardless of his share, he should not be ordered to pay because he could not afford to make the payments even though he wanted to.

[43] The wife’s 2015 income tax return indicates that she made $11,902.50 from St. Lawrence College and a net income from her home-based hair salon of $18,274 on a gross income of $27,805. She also received a $2,640 Universal Child Care Benefit (“UCCB”), and $4,444 from an RRSP withdrawal. Her position is that the RRSP and the UCCB should be excluded from income, which would put her close to the $30,000 to $31,000 she was asking the court to impute to the husband.

[44] The wife acknowledges that certain Canadian Revenue Agency allowable deductions from the salon income are routinely imputed back in for child support purposes, in particular the Capital Cost Allowance (“CCA”) and the vehicle expenses. There was no request by the husband to impute other expenses per Guideline subsection 19(1)(g). The husband’s main issue was his assertion that the wife was diverting income by receiving undeclared cash for numerous hair styling transactions. He maintained that significant income should be imputed per Guideline subsection 19(1)(d). The only evidence he relied on was an exhibit which he described as “a copy of Katie’s client bookings for the period January, 2013 through to the end of October, 2013.” I note that her 2013 earnings were not an issue in this case. In any event, there was no further evidence or submissions to help me understand what those appointments were for, whether they were kept, what was charged, and whether or not any related income was already included in her declared income for that year. I find that there is insufficient evidence before me to impute income to the wife.

[45] The wife assumed that her RRSP income would not be included in her income for section 7 expenses. However, as noted above, she included the husband’s RRSP income when taking a position related to what he received in 2014. In my view both withdrawals are income for child support purposes per Fraser v. Fraser, [2013] O.J. No. 5307 (Ont. C.A.) para. 103. I did not receive evidence or hear argument that this result would be unfair.

[46] Pursuant to section 3.1(b) of Schedule III of the Guidelines, the UCCB the wife received in 2015 is to be included in her income for the purposes of section 7 calculations.

[47] Without allowing the deductions sought by the wife for the UCCB and the RRSP, her income for 2015 is the Line 150 amount indicated on her Return of $37,262, plus the imputed amount for business expenses (CCA and vehicle) of $1,970 for a total of $39,232. Income tax returns for 2016 were not due to be filed when this motion was heard. The wife was expecting her income to be the same as or similar to 2015 which, less the $4,444 RRSP deduction, would be $34,788.

[48] I would therefore summarize the above findings as follows:

Year	Husband’s Income (per the above chart)	Wife’s Income	Husband’s Proportionate Share	Actual Expenses	Yearly Totals Owing by the Husband
2014					$943 (as agreed)
2015	$18,714	$37,262	33.5 percent	$6,804.90	$2280
2016	$13,277	$34,788	27.5 percent	$2,384.66	$656
Total					$3,879

[49] I do not accept the husband’s argument that he should not have to contribute anything towards the section 7 expenses because he did not have the ability to pay at the time. I appreciate that these expenses are discretionary under section 7(1), and I am aware of the decision in Rayes v. Dominguez-Cortes, 2015 ONSC 3693 where the court found that a mother earning $10,000 did not have the means to contribute anything towards a child’s section 7 expenses thereby leaving the father who earned $65,000 per year to bear the entire financial burden. However, in the years under consideration the husband here made more than the mother in that case, and the wife here made considerably less than the father in that case. Furthermore, the husband here has the means to pay, as the amounts will be a set off against an equalization payment owing to him.

[50] The husband therefore owes $3,879 to the wife for retroactive section 7 expenses.

C. Line of Credit Adjustments

[51] The parties agreed I could determine the adjustment that the wife should receive for servicing and ultimately paying out the joint Line of Credit. She calculated the amounts attributed solely to the husband and the associated interest costs as $7,053.28. The husband did not take issue with that figure or how it was calculated except to assert that some transactions attributed to him were in fact hers. However, not only did he fail to provide any evidence to support that allegation, it was counter-intuitive. Both parties had their own separate credit cards for this account with separate numbers. Only the amounts from the husband’s card were included. I find that the husband owes the wife the full amount of $7,053.28 plus any additional interest payments made by her until the account is closed.

Third Issue - On-Going Section 7 Expenses

[52] The wife has requested that I order that the father to pay $50 a month towards ongoing section 7 expenses. She took this position notwithstanding that it would result in the husband paying less than his proportionate share. She indicated that she wanted a set monthly payment so that it could be enforced by the Family Responsibility Office, and was willing to take a lesser amount to that end. She anticipates enforcement might become an issue given that the husband made minimal voluntary payments after October 2014. With similar expected special expenses for 2017 and the respective incomes as noted above, this is a very favourable result for the husband. I did not hear any opposition to it. Order to go as requested commencing January 1, 2017.

Decision

[53] Final orders to go as set out above. The interim order related to child support and section 7 expenses is vacated. Counsel were confident that they would now be able to complete the home transfer and finalize the property issues including retiring the line of credit.

[54] This matter is not ready for a Trial Scheduling Conference on the only remaining issue of the father’s access. The application is therefore adjourned to a Case Conference before me to be held within two months. I will want to know the status of the OCL involvement and the specific plans of both parties for reinstating access.

[55] The results here are somewhat mixed. However, if the parties wish to address me on costs I will accept brief written submissions within twenty days. They are also permitted to make a two page reply within five days after receiving the other party’s submissions.

Mr. Justice Timothy Minnema Date: March 20, 2017