Giron v Giron, 2017 ONSC 3712

Court File and Parties

COURT FILE NO.: FC-10-961-1 DATE: 2017/06/21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Adonay Francisco Giron Applicant – and – Anna Marcela Giron (née Campos) Respondent

Counsel: The Applicant, self-represented Audra Bennett, for the respondent

HEARD: August 10, 11, 19–21, 24, and 26–27, 2015; and January 18, August 16–19, October 31, and November 1, 2016

Reasons for Judgment

Corthorn J.

Introduction

1Adonay Francisco Giron applies to this Court for an annulment of his marriage with the respondent, Anna Marcela Giron, née Campos, along with sole custody of and child support for the parties’ two daughters (the “Application”). For simplicity, I refer to the applicant as “the Father” and to the respondent as “the Mother”.

2The Mother opposes the request for an annulment and seeks, in response, a divorce order, sole custody of the two children, and retroactive and ongoing child support.

3The parties were married on December 16, 2000. They separated for a period of six months in 2009 and reconciled for a period of two years. On May 31, 2012, the parties separated on a final basis after a 13-year relationship.

4There are two children of the marriage: Tatiana (now age 14, born December 12, 2002); and Maria (now age 8, born December 30, 2008) (the “Children”).

Procedural History

5The Father issued his Application on January 23, 2013 and filed it on January 25, 2013.

6Around that same time, the Father refuted the Mother’s intention to take the Children on a trip to El Salvador for a month and the matter was brought before Justice Mackinnon. By endorsement dated February 7, 2013, Mackinnon J. denied the Mother’s request, concluding that the proposed trip was not conducive to resolving the parenting issues between the parties. Mackinnon J. requested the involvement of the Office of the Children’s Lawyer (the “OCL”) to provide such services, under sections 89(3.1) and 112 of the Courts of Justice Act, as were deemed appropriate.

7The Mother filed her Answer on February 25, 2013.

8The parties appeared before Justice Ray for a case conference on March 15, 2013. They filed minutes of settlement and an interim order was made in accordance with the minutes (the “2013 Order”). The 2013 Order addressed child support (based on the Father’s income of $41,500 for the year 2012). Pursuant to this order, the Mother retained the right to pursue retroactive child support from the date of separation up to and including February 2013. The 2013 Order also dealt with the primary residence of the Children (with the Mother) and permitted the Father to file an amended application.

9In addition, the 2013 Order provided, on a without prejudice basis, for the Children to have supervised access visits with their father. Alternative methods of supervision were permitted, including at the Supervised Access Centre (“SAC”) or with a third party mutually agreed upon by the parties.

10The Father issued his amended Application on April 12, 2013. The Mother’s amended Answer was filed May 8, 2013. The OCL provided its report on October 31, 2013.

11The parties appeared before Justice Polowin on March 3, 2014. At that appearance, an order was made on the consent of the parties (the “2014 Order”). The 2014 Order provided for child support as of March 1, 2014 to be based on the Father’s income of $29,903 ($436 per month). In addition, the matter was set to proceed to trial at the next available sittings subsequent to September 2014.

12I note that the 2013 Order is not identified as either a “Temporary” or “Final” order. The 2014 Order is identified as a “Final” order.

13The parties participated in trial management and settlement conferences, conducted in July 2014 and July 2015. None of the substantive issues raised by the parties’ respective pleadings were resolved. The matter proceeded to trial in August 2015, continued in 2016 after a number of adjournments, and was completed in the fall of 2016.

14I note that, in her Answer, the mother requested spousal support. However, the claim for spousal support was not advanced at trial. No evidence was led on behalf of the Mother with respect to spousal support. I therefore make no order at this time as to spousal support.

Issues

15The issues on this Application are as follows:

1. Is the marriage to be annulled or is a divorce order to issue?
2. What custodial arrangement is in the best interests of the Children?
3. What terms of access are in the best interests of the Children?
4. What amount of child support, if any, is to be paid by the non-custodial parent to the custodial parent?
5. Is the Father entitled to a restraining order against the Mother?

Issue No. 1 – Annulment or Divorce?

a) Positions of the Parties

i) The Father

16It is the Father’s position that the Mother was previously married at age 17 and that she remained legally married to her first husband as of the date of marriage between the Mother and the Father. The Father submits that, as a result, his marriage to the Mother must be annulled.

17Prior to the date of separation, the Father entered into a relationship with another woman. He has been living with this woman for a number of years. They have a son together. The Father requests an annulment of his marriage to the Mother because he wishes to marry the mother of his son, and to do so in the Roman Catholic Church. The Father’s understanding is that he will be precluded from being married in the Roman Catholic Church if he is divorced from the Mother.

ii) The Mother

18The Mother’s position is that the marriage ceremony in which she was involved at age 17 was not a valid, legally binding ceremony. As a result, her marriage to the Father is the only marriage into which she has entered.

19The Mother seeks a divorce order because she has very strong religious beliefs. She is Roman Catholic. She does not want the Children to be considered as having been born out of wedlock or to face any stigma associated with that status.

20The Mother also relies on the strong religious beliefs held by her daughter, Tatiana. The Mother includes as evidence that she is acting in the best interests of the Children her consideration of Tatiana’s religious beliefs.

b) The Evidence

21It was the Mother’s evidence that while she was in high school she began to date a boy (“Mr. Sheikh”) who attended the same school. She testified that after dating Mr. Sheikh for several months, and while still living with her mother, she participated in a form of religious ceremony with Mr. Sheikh.

22The Mother testified that she and Mr. Sheikh were not involved in any preparation for the ceremony. For example, they did not obtain any documents, such as a marriage license, prior to the ceremony.

23It was the Mother’s evidence that within days of the date of the religious ceremony she and Mr. Sheik encountered difficulties. The Mother testified that there were cultural differences between them. As a result of those differences the relationship ended approximately one week after the date of the religious ceremony. It was the Mother’s evidence that she (a) saw Mr. Sheikh briefly on one occasion after her marriage to the Father, and (b) has not seen Mr. Sheikh in more than 15 years.

24The evidence with respect to the ceremony and the circumstances surrounding it was provided by Pastor Salgado Valle, the individual who performed the ceremony, and Annie Bonilla-Campos, the Mother’s mother.

25Ms. Bonilla-Campos testified that (a) in 2006 she underwent eye surgery, (b) her memory has not been as good as it was before the surgery, and (c) she has travelled to Toronto to see a doctor for assistance with “her head”. Ms. Bonilla-Campos’ evidence in that regard followed her very general evidence as to the circumstances surrounding the religious ceremony.

26In summary, it was Ms. Bonilla-Campos’ evidence that:

• She was in the same building as the Mother and Mr. Sheikh on the date and at the time of the ceremony.
• She was not present for the ceremony. However, she does not believe that a valid marriage ceremony took place.
• She and the Mother’s father, Mr. Campos, did not consent to the Mother marrying Mr. Sheikh.
• The ceremony that took place was merely a “simulated ceremony”.

27Ms. Bonilla-Campos’ evidence as to why any form of ceremony took place is incomprehensible. She denies receiving any documents from the Pastor following the ceremony. She also denies that the Pastor asked her to register the marriage license.

28The Pastor was 81 years old when he testified. He acknowledged on cross-examination that his memory had declined with age. The ceremony about which he testified took place in August 1998, almost 20 years prior to when he gave his evidence.

29In summary, the Pastor’s evidence with respect to the ceremony was as follows. He initially described the type of ceremony performed as a “civil and religious wedding”. On cross-examination, he changed that description to a “civil ceremony”, meaning a ceremony recognized by the Province of Ontario.

30The Pastor signed the Particulars of Marriage form, in which he confirmed that he was authorized to perform marriage ceremonies. Following the ceremony, he gave documents to Ms. Bonilla-Campos to register. He relied on Ms. Bonilla-Campos to carry out that task.

31The Pastor testified that he was a neighbour of the Campos family in El Salvador and knew Mr. Campos. He was friendly with the Campos family in Ottawa as well.

32In cross-examination, the Pastor admitted that he did not have the consent in writing of the Mother’s parents to the marriage of the Mother to Mr. Sheikh. The only consent he had was verbal consent from Ms. Bonilla-Campos.

33The documentary evidence with respect to the 1998 ceremony is limited to the single-page “Particulars of Marriage” form.

c) Analysis

i) 1998 Marriage void ab initio

34Given that the ceremony involving the Mother and Mr. Sheikh occurred in 1998 – almost 20 years ago – it is not surprising that the individuals who testified about the event gave evidence that was inconsistent or conflicting. Even with that caveat, I find that Ms. Bonilla-Campos is not a credible witness. There were internal inconsistencies in her testimony. I highlight, for example, her denial that a ceremony took place coupled with her explanation that a ceremony was simulated for some purpose, which in any event remains unclear.

35Where there are inconsistencies between the evidence of Ms. Bonilla-Campos and the evidence of either her daughter or the Pastor, I rely on the evidence of the latter two individuals.

36Pastor Salgado Valle was frank in his admission that he did not have the written consent of the Mother’s parents when he performed the ceremony. I accept his evidence in that regard.

37Section 5(2) of the Marriage Act reads as follows:

No person shall issue a license to a minor, or solemnize the marriage of a minor under the authority of the publication of banns, except where the minor is of the age of sixteen years or more and has the consent in writing of both parents in the form prescribed by the regulations.

38As the Mother did not have the capacity to marry at age 17, her marriage to Mr. Sheikh is void ab initio. Thus, I find that the Mother was not legally married to Mr. Sheikh.

39Section 31 of the Marriage Act provides as follows:

If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

40Section 31 of the Marriage Act does not operate so as to “save” the marriage between the Mother and Mr. Sheikh and deem it valid. Even had the marriage been solemnized in good faith, and even had the parties intended to be in compliance with the Marriage Act and lived together and cohabited as a married couple, they were under a legal disqualification to marry due to the Mother’s status as a minor. See Chacon v. Canada (Citizenship and Immigration), 2014 IRB 86884, at para. 13.

41I agree with the submissions on behalf of the Mother that her marriage to the Father is not void by reason of the Mother having participated in a marriage ceremony with Mr. Sheikh. In that regard, the Mother relies on a decision of the British Columbia Superior Court, Hill v. McDowall, [1986] B.C.J. No. 2356.

42In Hill, the respondent wife married Sidney Morrisroe in September 1967. Several weeks later, in November 1967, the respondent married the applicant husband. The applicant learned of the respondent’s previous marriage when, in 1968, the latter received the decree absolute for her divorce from Mr. Morrisroe. It was not until 1986 that the applicant commenced a proceeding, seeking an annulment of his marriage to the respondent.

43In 1984, in the interim, a judge declared the marriage between the respondent and Mr. Morrisroe to be null and void. That declaration was based on Mr. Morrisroe’s lawful marriage with another woman existing as of September 1967. The 1984 interim order provided that the respondent was “to have been and to be free from all bond of marriage with [Mr.] Morrisroe.”

44In Hill, the applicant’s request for an annulment was dismissed. The judge concluded that because Mr. Morrisroe did not have the capacity to marry the respondent in 1967 that marriage was void ab initio. Therefore, the respondent had the capacity to marry the applicant in 1967, the marriage was valid, and the applicant was not entitled to an annulment.

45Returning to the matter before me, the Mother did not in 1998 have the capacity to enter into a marriage without the written consent of both her parents. I find that she did not have the written consent of both her parents to marry Mr. Sheikh. As a result, that marriage is void ab initio and the Mother was not under incapacity to marry the Father.

ii) Alleged Approbation of 1998 Marriage

46With respect to the marriage to Mr. Sheikh, the Mother advanced an alternative argument. It is her position that if there was a valid marriage to Mr. Sheikh, then the Father approbated that marriage and is now estopped from denying the validity of his marriage to the Mother. Given my finding that the Mother’s marriage to Mr. Sheikh is void ab initio, I do not need to determine the matter on the basis of this alternative argument. However, for the sake of completeness, I have considered the alternative argument and I would not find in favour of the Mother on the basis of it.

47In support of her alternative agreement, the Mother relies on the 1995 Ontario Court (General Division) decision in Knight v. Knight, 1995 ONSC 17910, 16 R.F.L. (4th) 48.

48In Knight, the husband had previously been married and had obtained a Mexican divorce. He commenced annulment proceedings against the wife, arguing that (a) the Mexican divorce was not valid in Ontario and (b) neither the divorce nor the subsequent marriage to the wife could be recognized in Ontario. Relying on the doctrines of preclusion and insincerity, Justice Hogg held that the husband was estopped from denying the validity of the marriage. At paragraphs 22 and 25, he discussed those doctrines and said:

I accept the argument of the defendant that the doctrine of insincerity applies and it is outlined by the Earl of Shelbourne L.C. in G. v. M. (1885), 10 App. Cas. 171 (H.L.) and was referred to and adopted by Roach J. in a decision in 1940 of J. v. J., 1940 ONSC 67, [1940] O.R. 284 and affirmed by the Court of Appeal [1940] 4 D.L.R. 807 (Ont. C.A.):

there may be conduct on the part of the person seeking this remedy, which ought to estop that person from having it; as, for instance any act from which the inference ought to be drawn that during the antecedent time the party has, with a knowledge of the facts and of the law, approbated the marriage which he or she seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her, after having received them, to treat as if no such relation had ever existed. Well now, that explanation can be referred to known principles of equitable, and, I may say, general jurisprudence. The circumstance which may justify it are various, and in cases of this kind many sorts of conduct might exist, taking pecuniary benefits, for example, living for a long time together in the same house or family with the status and character of husband and wife, after knowledge of everything which it is material to know . . .

49There is no evidence before this Court as to the extent of the Father’s knowledge, if any at all, of the 1998 ceremony in which the Mother and Mr. Sheikh participated. There is also no evidence before the Court as to how and when the Father learned that such a ceremony had taken place.

50It was the Father’s evidence that he has never met Mr. Sheikh. The Mother’s evidence was that if she had believed, prior to marrying the Father, that she was legally married to Mr. Sheikh she would have (a) told the Father so, and (b) taken the steps necessary to commence divorce proceedings. I infer from the Mother’s evidence and find that she did not disclose the 1998 ceremony to the Father.

51In summary, there is no evidence upon which to base a finding that the Father approbated the Mother’s previous marriage.

d) Summary

52The marriage between the Mother and the Father is a valid marriage. The Father’s request for an annulment of the marriage is dismissed.

53The evidence before the Court includes the particulars of marriage and the date of separation. Based on the evidence before the Court, I find that there is no chance of reconciliation between the Mother and the Father. An order for divorce is included in the Disposition at the end of these Reasons.

Issue No. 2 – Custody of the Children

a) Positions of the Parties

i) The Father

54The Father seeks sole custody or, in the alternative, joint custody of the Children. His wish is for the Children to live with him, his fiancée, their son (who is now approximately five years old), and the fiancée’s step-daughter (now in her late teens). If an award of joint custody is made, the Father would like the Children to alternate, one week on and one week off, between his home and the Mother’s home.

55The Father’s position is essentially that the Mother is not capable of meeting the needs of the Children in any way whatsoever, including financially, emotionally, psychologically, and in terms of having the support of an extended family.

ii) The Mother

56The Mother’s position is that it is in the best interests of the Children that she has sole custody of the Children. She submits that despite the financial restrictions with which she has been and continues to be faced, she is resourceful in meeting the needs of the Children.

57The Mother submits that the Children have historically had a troubled relationship with their father because the Father places his needs ahead of those of the Children. The Mother portrays herself as a source of stability for the Children and the only parent who puts the Children’s needs ahead of the parents’ needs.

58The Mother’s position is that she is aware of the importance of the Children having a relationship with the Father. She submits that she is prepared to do what is required to assist each of the Children in developing, at an appropriate pace, a more full and meaningful relationship with their Father than they currently enjoy. The details of the Mother’s position in that regard are set out below under “Issue No. 3 – Access”.

59The Mother’s position is that the nature of the relationship between her and the Father is such that joint custody is not feasible. The Mother points to difficulties, both historical and persisting, in the communication between the parties. The Mother submits that an example of those difficulties is that, even as of the trial, the Father is requesting a restraining order against the Mother.

b) The Evidence

60On the issue of custody (and access), the Court had the benefit of the evidence of Nadine Crawley (“Ms. Crawley”) from the Office of the Children’s Lawyer (“OCL”), and two individuals employed by the Children’s Aid Society (“CAS”), Messrs. Baker and Kearney. The CAS had an open file for the Giron family from time-to-time. As a result, Messrs. Baker and Kearney each had occasion, as child protection workers, to work with the Giron family.

61As part of the Father’s case, two lay witnesses gave evidence. Both witnesses were involved with the Day Spring Church (“DSC”) – the Church attended by the Giron family and eventually by the Mother and the Children. The Father called Lana Buchan-O’Brien (“Ms. O’Brien) as a witness. She held and continues to hold several positions with DSC. Ms. O’Brien is, at the Mother’s request, the godmother of both Children.

62The other lay witness called by the Father was Grisholm Caissy (“Mr. Caissy”). He was a volunteer at DSC from 1997 to 2006. In that capacity, he came to know the Giron family.

63The Father’s case involved approximately seven days of evidence. In closing argument, counsel for the Mother described the Father’s case with respect to the issue of custody as focussed on events that transpired from 1999 and 2012, the latter being the year of separation. I agree with that description.

64The Father chose to review, in minute detail, events which transpired or that he alleged transpired dating back to the birth of the parties’ oldest child, Tatiana. The Father referred to these events (real and alleged) in an effort to support his theory that the Mother is at a minimum, untrustworthy and, at a maximum, capable of fraud, conspiracy to harm the Father, and neglect of the Children.

65Examples of the Father’s theories with respect to the conduct of the Mother include the following:

• The Father testified that, in 2008, the Mother attempted to poison him by putting sleeping pills in the food she prepared for him.
• It was the Father’s evidence that, out of suspicion that he was having an affair (with his now fiancée), the Mother purchased a GPS device and placed it on the Father’s vehicle. The Father believes that a GPS device was used in that manner in 2009, 2010, and 2011.
• The Father testified as to his belief that individuals, including pastors at the DSC, are assisting the Mother in alienating the Children from their father.
• The Father testified that the Mother forged his signature and that of his brother on the Statement of Live Birth for Tatiana in 2003. It is his belief that the Mother “reported” that the Father was living in the United States, specifically so as to maintain her entitlement to social benefits.

66The Father also relied on the historical events in support of his theory that the Mother had, with the support of Ms. O’Brien and other individuals from DSC, engaged in parental alienation.

67The Father’s evidence as to the family circumstances leading up to the parties’ separation in 2010, subsequent reconciliation, and final separation in 2012 is replete with incidents of strain, strife, requests for assistance from the police to address domestic issues, and the continuing involvement of the CAS.

68The Father acknowledged that a contributing factor to his strained relationship with the Mother was his affair with his now fiancée, which commenced in 2010. The Father’s evidence was that in 2012, after separating from the Mother, he learned that the boy born to his fiancée in 2011 is his son.

69The Father acknowledged that he did not see the Children for over half a year after the separation. It was not until he issued the Application and the 2013 Order was made providing for supervised access visits that the Father saw the Children. The Children’s access visits with their father have, since they commenced, remained 1.5 hours long and occurred every second week. The visits have always taken place at the SAC.

70The Father acknowledged that he and the Mother did not agree as to where Tatiana would receive counselling to assist her in dealing with difficulties she was encountering as of 2014. Those difficulties included her parents’ separation and the Father’s relationship with his new family (fiancée, son, and step-daughter).

71It was the Mother’s evidence that on three occasions she attempted to secure counselling for Tatiana. The first two attempts were not successful in that Tatiana did not wish to attend at either location. The second location was at Family Services Ottawa (“FSO”). Exhibit 28 is a letter dated October 21, 2014 from FSO addressed to the Mother and the Father. The letter confirms that FSO would not proceed with counselling given that Tatiana had expressed to a worker at that location that she did want to continue with counselling.

72The Mother’s third attempt was to have Tatiana attend counselling through Christian Counselling Ottawa (“CCO”). The Mother testified that after Tatiana attended her first session at CCO she was content to continue attending counselling at that location.

73In his evidence, the Father acknowledged that upon learning of Tatiana attending counselling at CCO, he spoke with an individual at that location. It was the Mother’s evidence that after the Father spoke with the individual at CCO, Tatiana was not able to continue attending counselling sessions with them. The CCO required the consent of both parents for the counselling to continue.

74The Father’s clear preference was that Tatiana receive counselling from Christian Family Services (“CFS”). At his request, both Tatiana and Maria attended at least one session with the Father at CFS. It was the Mother’s evidence that following the initial appointment, Tatiana expressed that she (a) was not comfortable with counselling at CFS, and (b) did not want to continue attending sessions at CFS. Tatiana’s refusal to attend counselling at CFS is documented in Exhibit 65 to the trial, a letter dated October 14, 2014 from CFS addressed to the Father only.

75It was the Mother’s evidence that following the disruption in Tatiana’s counselling with the CCO it was not possible, without the Father’s consent, for Tatiana to resume counselling at that location. On cross-examination, the Father testified that he was not aware that following his contact with CCO they ceased to provide counselling to Tatiana.

76It is of significant concern that the Father was so inflexible with respect to counselling for Tatiana at a time when she was clearly in need of same and it would have been of great benefit to her relationship with her father for counselling to continue. I find that the Father’s intervention with and disruption of the counselling sessions with the CCO is an example of the Father placing his preferences and needs before those of one or both of the Children.

77A striking feature of the Father’s evidence is that it was not until he had completed re-examination, and only when asked questions by the Court, that he gave any evidence as to his Parenting Plan for the Children. Without prompting by the Court, there would have been no evidence from the Father in that regard.

78In essence, the Father’s plan, assuming he is given sole custody of the Children, is for them to live with him in the home he shares with his fiancée, son, and step-daughter. His plan includes arranging counselling for Tatiana, having the Children change to a school in the area in which the Father lives, involving the Children in his extended family in the Ottawa area, ensuring that the Children have a good relationship with their mother, and ensuring that the Children develop and mature in their religious education.

79The first witness called by the Father was Ms. O’Brien. In keeping with the Father’s focus on historical events, the majority of the evidence he elicited from Ms. O’Brien related to events which pre-dated the parties’ separation in 2012. Ms. O’Brien has known the parties since before they were married. It was her evidence that she was a bridesmaid at the parties’ wedding.

80It is clear from Ms. O’Brien’s evidence that she has, for a number of years, provided support to the family and predominantly to the Mother and the Children. Ms. O’Brien acknowledged on cross-examination that she is a “strong advocate” for the Mother and the Children as they move forward with their lives.

81The description given by Ms. O’Brien of the assistance she has provided to the Mother and the Children since the separation in 2012 is of driving them to various activities in the community when she is available to do so. The activities include going to the beach, going out for supper, and participating in choir practice, dance lessons, and swimming lessons. It was Ms. O’Brien’s evidence that she has on occasion bought supper for the Children.

82Mr. Caissy’s evidence was limited to events which pre-date the parties’ separation in 2012. Mr. Caissy testified as to the period during which he and the Mother were both volunteers at DSC. He described their relationship as one of “colleagues at work” and acquaintances. Mr. Caissy has not had any contact with the Mother since the parties separated in 2012.

83The two child protection workers with the CAS (Messrs. Baker and Kearney) gave evidence as to investigations of the Giron family in 2009 and 2010. In summary, it was Mr. Baker’s evidence that by November 2010, when he closed the file, any child protection concerns identified had been adequately addressed. It was his evidence that the parties each were working on their respective parenting skills.

84On cross-examination, it was Mr. Baker’s evidence that during his involvement with the family from February to November 2010:

a) The majority of his interaction and communication was with the Mother; b) The majority of the time that he observed the Children they were with the Mother; c) He was satisfied with the Mother’s care of the Children throughout. She appeared to be doing a good job as a mother to the Children; and d) As there would be for any parent, there were a number of things that the Mother needed to work on.

85Mr. Kearney testified that his involvement with the Giron family extended from April to June 2009, included August 2012, and included August, October, and November 2014.

86As to the Mother’s parenting ability, Mr. Kearney had concerns in 2009 about her ability to deal with the Children without resorting to physical discipline. Both parties appeared, at the time, to be educating themselves in that regard. Mr. Kearney also observed that stress in the home arising from infidelity appeared to be impeding home management.

87Mr. Kearney concluded his examination-in-chief by expressing the opinion that the Mother demonstrated the ability, over time, to care for the Children and to meet their respective needs.

88Mr. Kearney gave evidence with respect to the more recent involvement of the CAS (November 2014). A protection investigation was opened in October 2014 because the Father had in that same month reported to the Ottawa Police Service (“OPS”) that he was being harassed and stalked and that the Mother had committed polygamy and fraud.

89The Mother highlights that the Father’s application was first scheduled to proceed to trial in November 2014. She submits that the Father’s contact with the OPS was part of what she believed was a strategy that would serve him well at the “pending” trial.

90It was Mr. Kearney’s evidence that in November 2014 there were no child protection concerns identified and that the CAS closed its file without carrying out an investigation. Based on his communication with the OPS, Mr. Kearney understood that the OPS was closing their file because none of the concerns raised by the Father having been substantiated.

91The Mother gave evidence with respect to the Father’s infidelity, how she learned of it, and the devastation she felt because of it. She also testified as to some historical events, including admitting that it was at her behest that a GPS device was placed on the Father’s vehicle. Her explanation was that she took that step after learning of the Father’s infidelity.

92The majority of the Mother’s evidence was with respect to how the needs of the Children are met and the care she provides for them. She described both Children as engaged in a number of activities with each of them flourishing in their own way.

93For example, Tatiana participates in the “Young Voice Choir” and in a number of sports. Maria enjoys dance lessons. The Children are also registered in various after school programs for assistance with their homework. They participate in programs, camps, and events available through the City of Ottawa. They have also been introduced to sports through the Jump-Start program. The Mother testified that because she is in receipt of social assistance, she is able to register the Children for certain programs at a reduced fee.

94The Mother reviewed a number of the report cards for the Children. The Mother explained that because of difficulties Maria had in 2016 with reading and pronunciation, she arranged for Maria to have a private tutor through the Kumon Learning Centre.

95The Mother’s evidence was that she has been aware for some time that Tatiana needs counselling to assist her in dealing with issues arising from the parties’ separation and the Father’s new family. As noted above, it was the Mother’s evidence that Tatiana was content with counselling at CCO. However, that counselling came to an end because the Father refused to consent to same, preferring that Tatiana return to OFS (his counselling centre of choice).

96The Mother’s evidence was that she now disciplines the Children when warranted by taking away things they value, rather than through physical discipline. For example, they might temporarily lose the use of Nintendo 3DS or be prevented from participating in an after school activity.

97The Mother testified that she had made and continues to make efforts to ensure that the Children have a positive relationship with their father. She admitted that her efforts in doing so are limited because it is a “touchy” subject for the Children.

98The Mother testified that she wants the access visits that the Children have with their father to increase from the current level of 1.5 hours, supervised, every second Saturday at the SAC to (a) unsupervised, (b) every second weekend, and (c) a few days during the week.

99In cross-examination, the Mother was asked about the extent to which she prepares the Children for their access visits with their father. The Mother’s evidence was that she assumes that the Children know they need to be well-behaved toward their father. As a result, her pre-visit discussion with the Children is brief. In summary, the Mother tells the Children that they are to behave and they are not to be rude to their father. She does not, however, have this discussion prior to every access visit.

100The Mother was also cross-examined with respect to her review of the notes made by the visit observers. The Mother acknowledged that she receives a copy of the observer’s notes made during the supervised visits. The Mother claimed that despite receiving the notes and having an opportunity to read them she does not know what actually transpires at the visits. Her explanation in that regard was that when she asks the Children about the contents of the notes, their response is that the notes do not accurately reflect what happens during the visits.

101The Mother acknowledged both during her examination-in-chief and cross-examination that she found communicating with the Father about the Children, either by e-mail or using a communication book, to be difficult. She identified the difficulty as the Father’s harassing and/or accusatory tone in the e-mails and book. She admitted that she ultimately stopped communicating at all with the Father about the Children.

102It was the Mother’s evidence that she will follow the Court order, when made, with respect to access visits for the Children with their father, including for holidays. She understands and is prepared to work towards the access visits being unsupervised.

103I conclude the summary of the evidence with respect to the issue of custody by turning to the evidence of Ms. Crawley of the OCL. Ms. Crawley gave evidence as part of the Father’s case. I found Ms. Crawley to be fair to both parties throughout her testimony. I am satisfied that the recommendations she made were based on an objective and impartial investigation.

104Ms. Crawley has over 17 years of experience with the OCL. I found her to be a knowledgeable, articulate, credible, and reliable witness. The only short-coming with respect to Ms. Crawley’s testimony arises from a matter entirely beyond her control – the passage of time between when she conducted and completed her investigation (2013) and when she gave her evidence (2015). The gap between those two events is almost two years.

105Regardless of the passage of almost two years from when Ms. Crawley’s investigation was completed, I am satisfied that Ms. Crawley’s evidence and report capture elements of the family dynamics both pre and post-separation that are relevant to the determination of the issue of custody of the children. Set out below are some of the key points from Ms. Crawley’s testimony:

• Tatiana harboured a significant amount of anger towards her father because in Tatiana’s eyes he abandoned the family in 2010, returned and promised that he would not do so again, then broke his promise by leaving the family permanently in 2012.
• Tatiana’s sense of abandonment is heightened because she believes that her father chose his son and new family over his daughters.
• At times Tatiana felt ignored by her mother, who spent a significant amount of time texting on a mobile phone.
• Otherwise, Tatiana described her mother as taking care of the children, attending school events, taking the children to church, taking the children to the park, and participating in her and her sister’s daily activities.
• It was difficult to garner much information directly from Maria because of her age (four years old) at the time of the interviews. However, with the observations made during the interviews and from review of relevant documents, Ms. Crawley was able to garner the information she required to understand the relationship between Maria and each of her parents.

106Ms. Crawley’s October 2013 report was made an exhibit at trial. In her report, Ms. Crawley highlights the volatile nature of the relationship between the Mother and the Father, both pre and post-separation. She identifies the negative impact the behaviour of the parties has had on the Children generally. It is clear that the Mother and the Father struggled in their relationship and that they each had, at least as of 2013, short-comings as parents. Some of those short-comings were addressed through the CAS, as noted above.

107Ms. Crawley outlines in her report the historical aggressive actions of the Father, both prior and subsequent to the date of separation. One such incident is described by Ms. Crawley based on information garnered during her interview with the Mother. Out of anger about the time spent by Ms. O’Brien with the Children, the Father took a knife to a couch and table that Ms. O’Brien had given the parties. At the same time, the Father broke toys given to the Children by Ms. O’Brien. The information provided to Ms. Crawley was that both of the Children were present during this incident and remained huddled and crying in the corner of the living room of the Giron family home.

108I note that the Father did not deny the occurrence of this incident nor did he cross-examine either Ms. Crawley or the Mother with respect to their report and information, respectively, in that regard.

109Ms. Crawley was also made aware through the interview process and from the review of the CAS file (by telephone with a representative of the CAS) of an incident of physical and verbal abuse by the Father towards Tatiana. This incident is alleged to have occurred in the context of a homework session in which Tatiana was struggling. Once again, the Father did not deny the occurrence of this incident.

110Despite the fact that she concluded that both the parents needed to work on their parenting skills, Ms. Crawley emphasized that, even as of 2013, the Father had not parented the children in years. With respect to the Father’s request for sole custody, Ms. Crawley expressed the following concerns:

It was evident to the clinician [that] Mr. Giron has not parented the children in years. He believes that he can step right in and take over as their parent without acknowledging the hurt and disappointment he has caused them. Further, Mr. Giron is able to acknowledge spending a lot of time outside of the home either working or with Ms. Burke during the final years of the relationship but is unable to see how his absence and lack of parenting role has had an impact on his relationship with the children.

111Ms. Crawley expressed concerns about the parents collectively:

Neither parent stands out as being better than the other at meeting the needs of their children, as these parents appear to be preoccupied with their own issues and their resentment of one another. These children deserve better and deserve to have their parents’ full attention. The parents appear to be working hard to fulfill their own needs and not giving enough to their children at this crucial time. These children need both parents and for these parents to have more of an emphasis on relationship building between the father and his daughte[rs]. Further, the parents need to ensure that the children’s academic needs are met.

The parents have not learned how to communicate with each other in the presence of the children. It was evident at the disclosure meeting that there remained a lot of tension and acrimony, hurt feelings and resentment between the parents. There is no evidence that these parents are able to work together as a unit to parent these children. These parents lack the co-parenting history in their relationship, as they were living separate lives and often in conflict for the majority of their relationship.

112Ultimately, Ms. Crawley recommended that the Mother have sole custody of the children. Ms. Crawley’s recommendations with respect to access, family counselling, and other matters are discussed in sections of these Reasons that follow.

113A number of school report cards and the notes from observers in attendance during the supervised access visits offer some assistance in filling in the gaps from 2013, when Ms. Crawley completed her investigation, to 2015, when the trial commenced, and 2016, when the trial concluded.

114From those documents, it is clear that the Children are making progress academically. I find that their progress in that regard is attributable in part to the environment for learning and accomplishment that the Mother is attempting to create and provide for the Children.

115I also find that the relationship which the Children have with their father remains significantly compromised. I agree with Ms. Crawley that the Father’s lack of acknowledgement of his role in the damage caused to his family continues to be a factor in the family dynamics.

c) Analysis

116The Father was self-represented when the Application and amended Application were issued. In these documents, the Father seeks custody, access, and child support under both the Divorce Act and the Children’s Law Reform Act (“CLRA”). Given that the request for a divorce or an annulment is included in the relief sought by the parties, the issue of custody must be determined pursuant to the provisions of the Divorce Act.

117The factors to be considered in determining the issue of custody are prescribed by section 16(8) of the Divorce Act, which provides as follows: “In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.”

118It is widely accepted that in determining the “best interests of the child” within the meaning of the Divorce Act, the Court may refer to the definition of “best interests” of the child as appears in the relevant provincial legislation. See Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284. Section 24(2) of the Children’s Law Reform Act defines “best interests of the child”, identifying the factors to be considered as follows:

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.

119There is no obligation on a trial judge, when determining the issue of custody, to itemize each of the factors listed above or to provide a separate analysis with respect each of them. See Walsh v. Walsh (1998), 1998 ONCA 7134, 39 R.F.L. (4th) 416 (Ont. C.A.). I do not carry out such an analysis below. I have, however, considered these factors in reaching my decision with respect to custody.

120In addition, in determining the issue of custody, the maximum contact principle must be considered. Section 16(10) of the Divorce Act addresses that principle, providing as follows:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

121Lastly, and given the evidence with respect to levels of aggression and other conduct of the Father both prior and subsequent to the date of separation, I refer to sections 24(3) and (4) of the CLRA, which relate to “Past conduct” and “Violence and abuse”:

(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. (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.

122Against the backdrop of these statutory provisions, each parent’s request for sole custody and the Father’s alternative request for joint custody are considered. I turn first to the Father’s alternative request for joint custody.

i) Joint Custody

123This Court has the jurisdiction pursuant to section 16(4) of the Divorce Act to make an order for joint custody.

124For a finding to be made that an award of joint custody is in the best interests of the Children, “[t]here must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another.” See Kaplanis v. Kaplanis (2005), 2005 ONCA 1625, 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 11.

125It is clear that the parties in the matter before me were unable to communicate effectively with one another before they separated. I find that they remain unable to communicate effectively with one another, and that their respective inability to do so has increased since they separated. It is clear that the parties must, for the sake of the Children, make a significant effort to improve their respective communication with respect to the Children. Neither party is blameless as relates to poor communication.

126I find that an award of joint custody would not be in the best interests of the children.

ii) Sole Custody

127As I have already noted, the majority of the evidence relied on by the Father relates to historical events pre-dating the 2012 separation. The Father gave minimal evidence as to his Parenting Plan for the Children. The Mother gave more detailed evidence with respect to the Children’s education, activities, and general well-being in particular in the post-separation years.

128It was Ms. Crawley’s recommendation in 2013 that the Mother have sole custody of the Children. Ms. Crawley made that recommendation despite having concerns about the Mother’s parenting skills. I find that the Mother has, since 2013 when Ms. Crawley completed her investigation and report, made greater strides in her parenting skills than has the Father in his parenting skills. I also find that the Father continues to lack the insight required to improve his relationship with the Children.

129The Mother lives in a two-bedroom apartment with the Children. She facilitates a routine for the two girls: waking them up in the morning, preparing them for school or camp, and organizing after-school programs and other activities in the community, all while employing appropriate disciplinary strategies. I find that the Mother has demonstrated that she is capable of being attentive to the Children’s needs, while providing them the necessities of life and a stable and safe home environment.

130I question the late stage at which the Father expressed a desire to have the Children live with him, let alone that he have sole custody of the Children. For example, the Father waited until April 2010, four months after the parties’ initial separation, to seek access to the Children, despite his contention that the Mother had been withholding access during that time. In addition, the Father waited until January 2013, eight months after the parties’ separation, to commence his application for access; he did not bring an urgent motion to get access to the Children. His access to the Children did not commence until June of 2013, nearly a year after the parties separated.

131Taking into consideration all of the evidence, I find that it is in the best interests of the Children that the Mother have sole custody of the Children.

132It is clear from the evidence that the Mother and the Father continue to have difficulty communicating with one another, even as it relates to the Children. It is in the best interests of the Children that the Mother and the Father each make further efforts to improve their communication as relates to the Children. In her report, Ms. Crawley made recommendations intended to facilitate better communication between the parties. Those recommendations included the following:

• The Mother and the Father are to use a communication booklet, with guidelines for its use set by the counsellor (see the discussion with respect to a counsellor below under Issue No. 3) with the parties communicating in a child-focused and positive manner.
• The Mother is to keep the Father informed of (a) routine medical and dental appointments for the Children, including the outcome of same, and (b) major decisions for the Children with respect to medical care, dental care, and education. The information shall be provided in the communication booklet.

133I find that the nature and style of communication recommended by Ms. Crawley are in the best interests of the Children. The terms set out above are included in the Disposition below.

Issue No. 3 – Access

a) Positions of the Parties

134The parties are in agreement that over time the Children’s access visits which their father need to (a) evolve from supervised to unsupervised, (b) increase in duration, and (c) increase in frequency.

135The Father has not proposed a plan as to how the nature, duration, and frequency of the access visits are to change over time.

136In the form of a draft order provided as part of closing submissions, the Mother set out her plan for the gradual and incremental changes in access visits. In addition, the Mother’s plan includes counselling for Tatiana both individual and joint with her father. The Mother’s proposal includes that, in the long-term, the Children would have access visits with the Father on every second weekend from Friday after school until Sunday afternoon. The Mother’s position is that the rate at which access visits with their father evolve may be different for each of the Children. The Mother’s position takes into consideration that Tatiana’s relationship is more fractured than is Maria’s relationship with the Father.

137Other elements of the plan proposed by the Mother include that:

• Tatiana is to have input into the rate at which her access visits with the Father evolve.
• The increase in the duration and frequency of Tatiana’s access visits to her father is to be in conjunction with Tatiana attending counselling (and that the Father’s consent to the counselling is not required).
• The gradual increase in Maria’s access visits to a frequency of every second weekend is to occur over a four to six-month period.
• The Court is to determine the specific evolution of access visits.
• Once the access visits for one or both of the Children reach a duration in excess of four hours, and in the event the Father is unable to care for the Children for more than four hours, then the Mother is to have the first right of refusal to care for the children in his absence. The Mother emphasizes that the Father’s fiancée is not to be a substitute caregiver for the Father.

b) The Evidence

138The evidence set out above under Issue No. 2 is relevant to the issue of access. In addition, I have considered Ms. Crawley’s evidence at trial and the contents of her report with respect to the issue of access. In summary, the recommendations of Ms. Crawley were as follows:

• Access between the Children and their father shall, at least initially, continue on a supervised basis at the SAC.
• Both Children are to pursue counselling, including together with their father (the latter if recommended by the counselling professional).
• After a period of some counselling, access for the Children with their father is to be gradually increased and evolve to be unsupervised.
• The Mother, the Father, and the Children are to have the assistance of a third party to monitor the access and determine how the access visits are to evolve over time.

139It must be remembered that Ms. Crawley’s report is now more than three years old and that it has been almost two years since she gave evidence at trial. In principle, I find that her recommendations are in keeping with the best interests of the Children.

140However, Tatiana is now 14.5 years old. Tatiana is a mature young girl. Her views of her relationship with the Father have been consistent over time. Finally, her views of her family circumstances are informed. I find that Tatiana is of an age such that her voice must be heard and her wishes, as they relate to access visits with the Father, respected. The terms with respect to Tatiana’s access visits with the Father, as set out in the Disposition below, reflect my finding in that regard.

141It has been almost three years since Tatiana received counselling. The supervised access has continued for more than four years. In all of the circumstances, it is not possible for the Court to predict how Tatiana will fare with respect to increased frequency and/or duration in her access visits with the Father.

142Although Tatiana’s views with respect to access visits with the Father are to be respected, that does not mean that there is no room for improvement in terms of the relationship between the two. I find that Tatiana would benefit from counselling, including, if recommended by the counselling professional, together with the Father. The subject of counselling is therefore also addressed in the Disposition section of these Reasons.

143It is clear from all of the evidence that Tatiana’s relationship with her father is more fractured and damaged than is Maria’s relationship with her father. On the basis of that finding, coupled with the difference in age between the girls (approximately six years), it must be recognized that the gradual and incremental changes for each of the Children may be different. It is important that the access visits occur in an environment which provides for flexibility in that regard.

144Maria is now eight years old and has a relatively positive relationship with the Father. It is important that Maria be given an opportunity to further develop her relationship with the Father uninfluenced, to the extent possible, by her older sister’s negative feelings towards him. I agree with the Mother that the gradual increase from the current access to every second weekend is to take place over a number of months.

145I find that a reasonable period of time over which to increase Maria’s access visits to every second weekend is from June 2017 through to the end of the calendar year – a period of seven months. The particulars of the schedule are set out in the Disposition at the conclusion of these reasons.

146The Mother’s evidence is that she is genuinely interested in facilitating a meaningful relationship for both Maria and Tatiana with their father. In my view, the Mother has to date fallen short in that regard by reason of her failure to take the time to review the notes made by the observers and discuss with either of Maria or Tatiana, as may be necessary, any concerns raised in or by the notes (see paragraph 100, above).

147The access provided for in the Disposition includes the continuation, at least for a number of months, of the supervised access at the SAC. I have therefore included a term in the Disposition requiring the Mother to review the observers’ notes and address with Maria or Tatiana, as may be necessary, any concerns raised in or by the notes.

Issue No. 4 – Child Support

a) Positions of the Parties

i) The Mother

148The Mother seeks retroactive child support from the date of separation – May 31, 2012. The Mother acknowledges that the Father is to be given credit for (a) $1,510 in child support paid by him in 2013, and (b) any child support payments already made through the Family Responsibility Office (“FRO”).

149The Mother is also seeking section 7 expenses from the date of the judgment forward. The Mother’s position is that, initially, the s. 7 expenses be shared on the basis of a two-thirds (payable by the Father) and one-third (payable by the Mother) split. The Mother proposes an annual review of the pro-rating of s. 7 expenses.

150With respect to the quantum of child support payable, the Mother relies on the income figures disclosed by the Father in his notice of assessment for the years 2012, 2013, and 2014.

151It is the Mother’s position that for the years 2015 and 2016, the Father underestimated or under-reported his income. The Mother requests that income of $37,275 be imputed to the Father for each of those years. That figure is said by the Mother to be the average of the Father’s annual income in 2012, 2013, and 2014.

152The Mother requests that the Father’s ongoing obligations with respect to child support be reviewed on an annual basis. I note that the Federal Child Support Guidelines (“CSGs”) require such an annual review. Terms reflecting an annual review are included in the Disposition set out below.

ii) The Father

153The Father’s position is that child support should be based exclusively on his notices of assessment. He denies that he has under-reported income or that he has at any time deliberately refrained from working.

b) The Evidence

154The notices of assessment for the Father included as part of the trial record indicate “Line 150” income as follows:

2011 $ 42,342 2012 $ 42,847 2013 $ 38,210 2014 $ 37,275 2015 $ 25,705

155The trial commenced in August 2015 and, after two adjournments, concluded in November 2016. As a result, there is no notice of assessment upon which to rely for 2016.

156A number of orders have been made with respect to child support. The 2013 Order made at the case conference in March 2013 was based on minutes of settlement filed by the parties. Both parties were represented at the time. The Mother has been represented by the same counsel throughout this matter.

157The 2013 Order provides for child support as of March 2013 on the basis of an annual income for the Father in the amount of $41,500. In addition, the 2013 Order provides that the Mother retains the right to pursue retroactive child support from the date of separation to and including February 2013. I therefore consider in these Reasons the Father’s child support obligations from the date of separation to the present date.

158Pursuant to the 2014 Order, made on the consent of the parties, the Father was to pay child support commencing March 1, 2014 in the amount of $437 based on income of $29,903.

159The Father acknowledged during cross-examination at trial that the 2014 Order was based on the fact that he was at the time receiving employment insurance. In 2014, he sought and obtained a reduction in his child support obligations. He also admitted that when he subsequently returned to work he did not notify the Mother or her counsel of same. In the end, he earned $7,000 more in 2014 than the figure upon which his child support obligations for that year were based.

160As noted above, the 2014 Order is described as a “Final” order. I find that (a) the description of that order as “Final” is in error, and (b) the wrong box on the form was checked. Therefore, I am not precluded by the terms of the March 2014 Order from considering the Mother’s claim for retroactive child support from February 2013 forward.

161No other orders with respect to child support have been made.

c) Analysis

i) 2012 to 2014

162The Mother argues, and I find, that the Father’s income for each of the years 2012 to 2014 is as disclosed in his financial statements included in the trial record: $42,847 in 2012, $38,210 in 2013, and $37,275 in 2014.

163I find that the Father is to pay the Mother $17,440 in retroactive child support for the years 2012 to 2014. That amount is subject to reduction by $1,510 for the support payments made in 2013 and by any child support payments already made through the FRO during this period.

164The total of $17,440 is based on the Table amounts in the CSGs, calculated as the sum of the following amounts:

a) $4,396 for 2012, being $628 per month for seven months (June 1 to December 31); b) $6,600 for 2013, being $550 per month for 12 months; and c) $6,444 for 2014, being $537 per month for 12 months.

ii) 2015 and 2016 (Imputation of Income)

165Section 19 of the CSGs provides that income may be imputed to a spouse for a number of different reasons. For the purpose of the Mother’s claim for retroactive child support, only section 19(1)(a) is relevant. That section provides as follows:

(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse[.]

166That section of the CSGs was considered by the Court of Appeal in Drygala v. Pauli (2002), 2002 ONCA 41868, 61 O.R. (3d) 711. The Court of Appeal established a three-part test to be applied in determining whether income should be imputed on the basis of intentional under-employment or unemployment. In summary, the three part test is as follows:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
3. If the answer to question no. 2 is “No”, what is the appropriate amount of income to impute to the spouse in the circumstances?

167In Pey v. Pey, 2016 ONSC 1909, 79 R.F.L. (7th) 107, Justice Shelston provided a detailed analysis of the factors or principles to be considered in applying the three-part test. In the paragraphs which follow immediately below, I apply a number of those factors or principles and considered the evidence as it relates to the circumstances of the Father.

Part 1 – Intentional Under-employment or Unemployment

168The Mother has the onus of proving, on a balance of probabilities, that the Father is intentionally under-employed or unemployed. See Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28.

169It was the Father’s evidence that as of August 2015 he had been working for Reid Heating and Cooling (“Reid”) for over five years. He was unable to recall whether he was laid off in 2010 or 2011. He testified that he was not laid off in 2012, but that he was laid on March 8, 2013 (i.e. when the minutes of settlement were signed and the 2013 Order was made).

170It was the Father’s evidence that he subsequently returned to work, was again laid off in late 2014, and returned to work thereafter. It was the Father’s evidence that as of August 2015, when the trial commenced, he had once again been laid off and expected to return to work in September 2015. I pause to note that the trial was originally expected to be completed in August 2015.

171One of the reasons why the trial was not completed within the timeframe originally estimated is because the Father, on the first day of trial and without notice to the Mother’s counsel or to the Court, requested translation services. The start of the trial was delayed while the interpreters were arranged. The estimated trial time doubled, at a minimum, because of the requirement for translation throughout the trial.

172The Father provided no explanation as to why, between August 2015 and the resumption of the trial in 2016, he had not returned to work of any kind. The Father testified that he did not register his name with a job bank, nor did he attend an employment agency to help him find work.

173The Mother submits that the Father is capable of working but, since being laid off in 2015, has not made any efforts to find suitable employment. The Mother also argues that there is some question as to the legitimacy of the Father’s continued layoff status, considering that he was supposed to return to work in September 2015, shortly after the trial was originally scheduled to have been completed.

174With respect to the Father’s employment since being laid off in 2015, I find as follows:

• He has simply been waiting to be called back to work by Reid and made little, if any, genuine effort to return to work. The Father did not carry out a reasonable job search. He has exceeded a reasonable grace period in terms of a search for alternative employment following the involuntary loss of employment by reason of the layoff he experienced in late 2014. See Filippetto v. Timpano, 2008 ONSC 3962, at para. 12.
• The Father did not actively seek out reasonable employment – with Reid or another employer – and, as a result, has not maximized his income potential with a view to meeting the needs of the Children. See Thompson v. Thompson, 2013 ONSC 5500, at para. 99.
• It was a choice on the Father’s part to earn less than he is capable of earning having regard to all of the circumstances. See Drygala, at para. 28. The self-imposed reduction in income does not entitle the Father to avoid his child support obligations. See Le Page v. Porter (2002), 2000 ONSC 22516, 7 R.F.L. (5th) 335 (Ont. S.C.), at para. 27.
• There is no evidence to support that the Father’s failure to find employment subsequent to being laid off in late 2014 was the result of bad faith conduct on his part or based on an intention to avoid child support obligations. However, the absence of bad faith and/or the lack of intention in that regard is not a requirement for a finding of intentional under-employment or unemployment. See Drygala, at paras. 29–36.

175According to the Father’s evidence, there is also the unusual circumstance that, since being laid off by Reid in December 2014, he has been driving one of their vans as his personal vehicle. The Father testified that it is because of the generosity of his employer that he was given and continues to have the use of the vehicle. The Father’s evidence in that regard was not corroborated, for example by a representative from Reid.

176Based on the Father’s continued use of the Reid vehicle and the lack of corroboration of his explanation for same, I draw an inference and find that the Father was capable of working or has been working (and under-reporting his income) since being laid off by his employer in 2014.

177In summary, I find that the Father was, in 2015 and 2016, intentionally under-employed or unemployed.

Part 2 - Intentional under-employment or unemployment reasonable?

178With the finding having been made that the Father was intentionally under-employed or unemployed in 2015 and 2016, the onus shifts to the Father, as the payor spouse, to demonstrate that his under-employment or unemployment was reasonable. This second part of the three-part test in Drygala is generally treated as “an overall test of reasonableness”. See Pey, at para. 88.

179To satisfy the burden of proof on this element of the three-part test, the Father must establish that his career decisions since being laid off were justified in a compelling way. See Riel v. Holland (2003), 2003 ONCA 3433, 67 O.R. (3d) 417 (C.A.), at para. 23. He must demonstrate that his decisions in the past several years were “reasoned, thoughtful and highly practical”. See Thompson v. Gilchrist, 2012 ONSC 4137, 27 R.F.L. (7th) 83, at para. 35.

180The Father led no evidence to support a finding that his career decisions in 2015 and 2016 were based on compelling reasons or that he was thoughtful and highly practical in his approach to employment in those years. I find that the Father’s under-employment or unemployment was not reasonable within the meaning of the three-part test as set out in Drygala.

Part 3 – Imputing Income

181For the years 2015 and 2016, the Mother asks the Court to impute income to the Father as follows:

a) For 2015, $37,275 or, in the alternative, $25,705. b) For 2016, $37,275 or, in the alternative, $28,213.

182It was submitted on behalf of the Mother that $37,275 is the average of the Father’s income in 2012, 2013, and 2014. I note that $37,325 is the Father’s Line 150 income for 2014. By my calculation, the Father’s average income for the years 2012, 2013, and 2014 is $39,444.

183In determining the income to be imputed to the Father, this Court has a wide discretion to impute an income on a rational basis. See D.D. v. H.D., 2015 ONCA 409, 62 R.F.L. (7th) 261, at para. 101. A factor to be considered is evidence of the Father’s historical income. See Lawson v. Lawson (2006), 2006 ONCA 26573, 81 O.R. (3d) 321 (C.A.), at para. 38. In addition, the Court may consider the age, education, skills, health of the Father, potential hours of work when balanced against competing obligations, and a reasonable potential wage. See Drygala, at para. 45.

184The Father gave evidence with respect to his son having special needs. I find that having a special needs child would contribute to the Father’s absence from work from time to time. I draw an inference and find that those absences have the potential to result in a reduction in the Father’s income over time.

185Balanced against that negative contingency is the fact that in each year from 2012 through 2014 the Father’s income has increased. I also consider that in 2015, before being laid off, the Father earned slightly in excess of $25,000. I draw an inference and find that there existed a positive contingency because of the potential for the Father’s income to continue to increase from 2014 forward, had he been working.

186In all of the circumstances, including balancing the negative contingency and positive contingency, each described above, I impute to the Father an annual income of $37,325 for each of 2015 and 2016.

187Based on the Table amounts in the CSGs, and the imputed income of $37,325 the Father’s child support obligation in 2015 and 2015 is $537 per month. The retroactive child support for the 22 month-period in those years, and prior to the conclusion of the trial (January 1, 2015 to October 31, 2016), is $11,814. That amount is subject to reduction for any child support payments already made through the FRO during this period.

iii) Section 7 Expenses

188The Mother seeks relief with respect to section 7 expenses from the date of the Reasons forward. She is not seeking any relief with respect to retroactive section 7 expenses.

189The Mother’s proposal is that section 7 expenses be shared on a one-third/two-thirds basis, with the Mother paying the former and the Father paying the latter. The Mother premises her request on her having an income consistently less than $15,000 and the Father having an income consistently in excess of $30,000 (the latter when imputed income for 2015 and 2016 is considered).

190The evidence as to the Mother’s income is from her income tax returns. That evidence is uncontradicted. I find that the Mother’s annual income $14,659 in 2012, $6,422 in 2013, $8,047 in 2014, and $5,703 for 2015. There is no income figure available for the Mother for 2016.

191Taking into consideration the findings made with respect to the income of each of the Mother and the Father, the Mother’s proposal, although generous based on the most recent years, is reasonable. The Disposition includes a term reflecting the Mother’s proposal with respect to section 7 expenses.

d) Summary

192In total, the Father is required to pay to the Mother $29,254 in child support for the years 2012 to 2016. That amount is subject to reduction for the $1,510 paid by the Father in 2013 and for any child support payments already made through the FRO during this period. The retroactive child support owing and the credits are addressed in the Disposition.

193Section 7 expenses shall be shared between the Mother and the Father based on a one-third/two-thirds split, respectively.

Issue No. 5 − Restraining Order

194The Father’s request for a restraining order is set out in both the Application and the amended Application. Those documents were prepared in 2013. At trial the Father confirmed that he is still seeking relief in that regard.

195As noted in paragraph 89 above, the most recent involvement of the CAS and of the Ottawa Police Service was in 2014. The Father had reported to the OPS that he was being harassed and stalked by the Mother. That report led in turn to a file being opened by the CAS. No child protection concerns were identified. The CAS file was closed without an investigation. The evidence is that the OPS file was also closed because none of the Father’s concerns were substantiated.

196There is no evidence of any concerns having been expressed, let alone substantiated, since the fall of 2014 that would support a restraining order being issued against the Mother. The Father’s request for a restraining order is dismissed.

Disposition

197For the reasons set out above, I order as follows:

Custody and Decision Making

1. The children, Tatiana Marcela Giron-Campos (d.o.b. December 12, 2002, “Tatiana”) and Maria Francisca Giron (d.o.b. December 30, 2008, “Maria”), shall be placed in the custody of Anna Marcela Campos (“Ms. Campos”). Tatiana and Maria are hereinafter referred to collectively as the “Children”.
2. Ms. Campos shall have the right to make all major decisions related to the Children and engage services for them without the consent of Adonay Giron (“Mr. Giron”).
3. Mr. Giron shall continue to have the ability to obtain information about Maria and Tatiana, from third party service providers without the written consent of Ms. Campos. Mr. Giron shall not, without the consent of Ms. Campos, have access from any of these sources to any information related to Ms. Campos.
4. Ms. Campos shall notify Mr. Giron in writing of any third party collateral involved with the Children and the contact information for that individual within twenty four (24) hours of engaging the third party collateral.
5. The Mother and the Father shall use a communication booklet, with guidelines for its use set by the counsellor whom Tatiana sees, and with the parties communicating in a child-focused and positive manner.
6. The Mother shall keep the Father informed of (a) routine medical and dental appointments for the Children, including the outcome of same, and (b) major decisions for the Children with respect to medical care, dental care, and education. The information shall be provided in the communication booklet.

Access

7. Maria's access visits with Mr. Giron shall proceed from supervised to unsupervised in an incremental and gradual way in her best interests and based on her reactions to being introduced to Mr. Giron and his new family.
8. The increase in Maria’s access visits with Mr. Giron shall occur on the following terms: a) Until Friday, June 30, 2017, supervised, at the Supervised Access Centre on a weekly basis, and for a period of 1.5 hours; b) Thereafter and until Friday, July 28, 2017, unsupervised, at Mr. Giron’s home on a weekly basis, and for a period of 1.5 hours; c) Thereafter and until Friday, September 1, 2017, unsupervised, at Mr. Giron’s home on a weekly basis, and for a period of 2.5 hours; d) Thereafter and until Friday, October 27, 2017, unsupervised at Mr. Giron’s home: i) Bi-weekly from 9:30 a.m. until 4:30 p.m. on either Saturday or Sunday, to be agreed upon by Mr. Giron and Ms. Campos (the “Parents); and ii) On another day each week for a period of 2.5 hours during the late afternoon and into the early evening, with the day of the week and the start and end times to be agreed upon by the Parents; e) Thereafter and until Friday, November 24, 2017, unsupervised, at Mr. Giron’s home: i) Bi-weekly from 5:30 p.m. on Friday until 5:00 p.m. on Saturday; and ii) On another day each week for a period of 2.5 hours during the late afternoon and into the early evening, with day of the week and the start and end times to be agreed upon by the Parents; f) Thereafter and effective Friday, December 1, 2016, unsupervised, at Mr. Giron’s home: i) Bi-weekly from 5:30 p.m. on Friday until 5:00 p.m. on Sunday; and ii) During the intervening two-weeks on another day, to be agreed upon by the Parents, and for a period of 2.5 hours.
9. Maria shall be entitled to exercise her right and ability to attend any other access, supervised or unsupervised, as she wishes in addition to the above.
10. The increase in Tatiana’s access visits with Mr. Giron shall be subject to her consent and may include, but not be limited to, supervised access visits with Mr. Giron at the Supervised Access Centre bi-weekly for a period of 1.5 hours.
11. For all of the Children’s access visits with Mr. Giron, whether on a weekday or on the weekend, the pick-up and return shall each be at a mutually agreed upon location and, in the event an agreement in that regard is not reached, at the Supervised Access Centre.
12. For all of the Children’s access visits which take place at the Supervised Access Centre, Ms. Campos shall: a) Review the notes made by the observers of the visits; and b) Discuss with Maria or Tatiana, as may be necessary, any concerns raised in or by the notes, in particular so as to encourage the Children to develop and maintain a meaningful relationship with Mr. Giron.
13. In the event Mr. Giron is not able to care for either one or both of the Children for more than four (4) hours of his access time with the Children, he shall notify Ms. Campos and she shall have the first right of refusal to care for the children in his absence. Mr. Giron's partner shall not be a substitute caregiver for Mr. Giron during his access time.
14. The access provided for herein shall be subject to variation based on a material change in circumstances.

Counselling

15. Tatiana shall pursue individual counselling on the following terms: a) The counselling shall deal with Tatiana’s personal challenges including issues related to her strained relationship with Mr. Giron; b) Ms. Campos shall be responsible for securing such counselling; c) Mr. Giron shall not be entitled to secure or terminate counselling services for Tatiana; d) Tatiana shall commence family counselling with Mr. Giron and any other family members as directed by the counsellor whom Tatiana is seeing; and e) Neither of the Parents shall be entitled to obtain any notes or information related to Tatiana’s counselling, with the exception that they shall each be entitled to confirmation that Tatiana is attending and participating in counselling.

Residency and Travel

16. If either of Mr. Giron or Ms. Campos (hereinafter referred to as “parent” singularly) changes their respective residence, they shall notify the other no less than thirty (30) days prior to the change taking place.
17. Ms. Campos shall not change the children’s primary residence from the Ottawa/Gatineau region without the consent of Mr. Giron or a court order.
18. Neither parent shall travel with the Children nationally without notifying the other parent of their respective travel plans including method of travel, time of departure, where they are staying, and contact information of where the Children can be reached.
19. Neither parent shall travel internationally with the Children without the written notarized consent of the other parent or a court order. The travelling parent shall notify the other parent of their travel plans including method of travel, time of departure, where they are staying, and contact information of where the Children can be reached. Consent shall not be unreasonably withheld.
20. No travel shall be booked where it will interfere with the access of the Children with one of the Parents without the consent, in writing, of the other parent.

Child Support

21. Child support shall be paid by Mr. Giron to Ms. Campos pursuant to the Federal Child Support Guidelines from date of separation as follows: a) The amount of $628.00 per month from June 1, 2012 up to and including December 31, 2012, based on Mr. Giron's income of $42,847 for 2012; b) The amount of $550.00 per month from January 1, 2013 up to and including December 31, 2013, based on Mr. Giron's income of $38,210 for 2013; c) The amount of $537.00 per month from January 1, 2014 up to and including December 31, 2014, based on Mr. Giron's income of $37,275 for 2014; d) The amount of $537.00 per month from January 1, 2015 up to and including December 31, 2015, based on an imputed income for Mr. Giron of $37,275 for 2015; and e) The amount of $537.00 per month from January 1, 2016 to October 31, 2016, based on an imputed income for Mr. Giron of $37,275 for 2016.
22. Mr. Giron shall be credited: a) A total of $1,510.00 for child support paid in 2013; and b) For any funds the Family Responsibility Office has collected on behalf of Ms. Campos or Ontario Works.
23. Subject to the annual review process provided in paragraph 25 below, from November 1, 2016 forward, child support shall be paid by Mr. Giron to Ms. Campos pursuant to the Federal Child Support Guidelines in the amount of $537.00 per month based on an imputed income for Mr. Giron of $37,275 for 2016.
24. The parties shall pay section 7 extraordinary expenses, whereby Ms. Campos pays 33 percent and Mr. Giron contributes 67 percent (based on Ms. Campos having an income of less than $15,000 and Mr. Giron having a consistent income of in excess of $30,000).
25. Commencing June 1, 2016 and on the first day of June in each year thereafter, Mr. Giron and Ms. Campos shall provide each other their respective Notices of Assessment for the purposes of reviewing and adjusting the Table amount for child support and their respective proportionate share of section 7 expenses. Any such adjustment shall occur on July 1 of each year.
26. Ms. Campos and Mr. Giron shall ensure that Tatiana and Maria are each listed as a beneficiary for any medical, dental, and health benefits provided to him/her and to sign any documentation required to facilitate the coordination of any such benefits.
27. Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Divorce

28. Adonay Francisco Giron and Anna Marcela Giron, who were married in Ottawa, Ontario on December 16, 2000, shall be divorced.
29. The parties shall finalize any documentation necessary to have the divorce order issued within the two (2) months of the date of these Reasons.

Other

30. The Parents shall continue to refrain from speaking negatively about the other and shall ensure that no one shall speak negatively about the other parent while the children are in their care.
31. Except in cases of emergency, all correspondence between the Parents shall take place in writing.
32. If either parent changes their e-mail address, telephone number or cell phone number, they shall notify the other parent within 12 hours of such a change taking place.
33. Ms. Campos shall have an independent right to apply for and receive documentation, including but not limited to passports, health cards, and all other government identification, without the need for Mr. Giron's consent.
34. Requests by the parties for all other forms of relief sought are dismissed.

Interest

35. This order bears interest at the post-judgment interest rate, effective from the date of this order.
36. A payment in default shall bear interest only from the date of default.

Costs

198In the event the parties are unable to agree upon costs of the trial, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of five pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure including that they shall be double-spaced and in the requisite font size; c) Hard copies of any case law or other authorities shall be provided with the submissions and shall be in the requisite font size; d) Submissions, bills of costs, and case law or other authorities shall be single-sided; e) Written submissions shall be delivered by 5:00 p.m. on the 20th business day following the date on which this decision is released; and f) If either party determines that it is necessary to deliver submissions in reply, then the reply submissions shall be limited to three pages, conform to paragraphs (b), (c), and (d) above, and be delivered by 5:00 p.m. on the 30th business day following the date on which this decision is released.

Madam Justice Sylvia Corthorn

Released: June 21, 2017

COURT FILE NO.: FC-10-961-1 DATE: 2017/06/21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: Adonay Francisco Giron Applicant – and – Anna Campos (Giron) Respondent

REASONS FOR JUDGMENT