COURT FILE NO.: FC-04-3316-1

DATE: 20190924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER KRISTEN GOUGH

Applicant

– and –

ALVIN VINCENT GOUGH

Respondent

Diana Aoun, for the Applicant

Self-represented

HEARD: September 10, 2019

REASONS FOR decision

Audet J.

[1] This is a motion by the applicant mother seeking to strike the respondent father’s pleadings. In the alternative, she seeks summary judgement on the only two outstanding issues in this case: parenting and child support.

Background and History of Proceedings

[2] The history of this lengthy litigation was described in prior decisions. In the context of the relief sought by the mother in this motion, it is important to repeat some of that history here.

[3] This matter started in 2012 and initially dealt with various issues arising from the parties’ June 2012 separation. The parties were married for four years and have three children together; Tamarr, Jaila and Amiyah. At the time of the parties’ separation, Tamarr was 9, Jaila was 4 and Amiyah was 8 months old. The children are currently 16, 11 and 7.

[4] After many court appearances, on January 19, 2016, the parties entered into final minutes of settlement by virtue of which they were to share joint custody of their children who were to spend an equal amount of time with each parent, on a week about basis. The minutes of settlement resolved the issues of division of property, spousal support, parenting, and child support. The order relating to child support was made on a without prejudice basis, as proper financial disclosure had not been provided by either party. Both parties were required to exchange a list of financial disclosure sought by June 2016, and child support was to be reviewed at that time based on the parties’ proper and full financial disclosure. At that time, the parties were sharing their time equally with the children and set-off child support was set at $263 per month payable by the mother based on her income of $37,200 and the father’s income of $22,000.

[5] It is important in the context of this motion to note that on two different occasions, the father sought to adjourn the trial originally scheduled to proceed in October 2014 and then in September 2015 on the basis that he was in the process of retaining legal counsel to assist him. The matter was resolved at the 11^th hour before the matter was to proceed to trial in January 2016, without proper financial disclosure from the parties.

[6] The Children’s Aid Society (“the Society”) became involved with this family shortly after they reached final minutes of settlement. After investigation, protection concerns arose with regards to the father’s care of the children based on disclosures made by the children to the Society workers about yelling and spanking happening at their father’s house, as well as with regards to their father’s “military style” and problematic parenting. The parents began working voluntarily with the Society, and by August 2016, the children were living primarily with their mother while the father’s access was significantly reduced and required supervision. Access between the father and Tamarr was to be at Tamarr’s discretion.

[7] Over time, as the father gradually addressed protection concerns, completed a parenting course and access visits became more positive, the need for supervision was removed. As of June 2017, the father’s overnight visits during weekends were gradually approved by the Society and were reinstated. However, conflict between the parents increased as a result of the father’s unilateral changes in the agreed upon schedule, which had only been agreed to verbally.

[8] Despite final minutes of settlement having been reached in January 2016, the parties continued to bring motions related to parenting and child support issues before the court. In the context of a settlement conference held before Justice Doyle on June 5, 2017, the parties consented to a without prejudice child support order requiring the father to pay $391 per month for the support of the three children. While the income upon which this support order was made is not confirmed in the order and based on the Table amounts in effect at that time, it would have been based on an income of $19,700.

[9] The parties were also required to share the children’s extraordinary expenses in proportion to their respective income (with the father being responsible for 30% of the net cost), which included orthodontic expenses for Tamarr (estimated at a total of $196 per month), counselling expenses for Jaila (estimated at $300 per month) and daycare for Jaila and Amiyah (estimated at $317.27 per month). Finally, the father was required to produce the following disclosure within 30 days:

• His 2016 income tax return and notice of assessment;

• his most recent three pay stubs from his employment with the Canadian Armed Forces;

• a profit and loss statement for his self-employment income for 2016 and 2017;

• a sworn statement confirming the number of classes the father teaches, the number of students the father teaches per class, and the rate the father charges per student (the father had a self-defense business on the side);

• medical documentation from the father confirming his alleged disability and his inability to work on a full-time basis;

• a copy of the father’s application for his car loan, and any other loan or credit card applications the father has applied for.

[10] A settlement conference was scheduled to proceed on August 17, 2018. The father did not attend that conference and made no attempt to participate by conference call. He did not file a brief. Instead, he sent a note to the court seeking an adjournment because of an alleged medical issue with his new child. Justice MacEachern was not satisfied with the father’s explanation and concluded that the father was not giving this serious matter the attention it deserved. She ordered costs in the amount of $500 against the father and allowed the mother to proceed with a motion.

[11] On October 30, 2018, the mother brought her motion seeking various orders rectifying procedural defects (one of which being that motions continued to be brought in this matter despite a final agreement having been reached) as well as an order confirming the parties’ de facto parenting arrangements. On that day, I made an order that any subsequent proceedings after January 19, 2016 be converted into a motion to change the final order made on January 19, 2016, and imposed the following timelines for the parties to serve and file their pleadings:

1- The mother was to serve and file her motion to change and related materials on or before December 1, 2018;

2- The father was to serve and file his response to motion to change and related materials on or before January 1, 2019;

3- Any reply was to be served and filed by the mother on or before January 20, 2019.

[12] I also imposed a temporary parenting order by virtue of which the children would remain in the mother’s primary care, and the father would have access to Amiyah and Jaila every Wednesday evening, from after school until 8:00 p.m., and every second weekend from Friday after school to Monday at school. If Jaila wanted to return to her mother’s home on Sundays, the father was to respect her wish and bring her back by 8:00 p.m. on Sunday. Access between Tamarr and his father was to continue to be in accordance with Tamarr’s wishes and preferences.

[13] In the context of that motion, the mother also sought an order striking the father’s pleadings (although they had not been filed at the time) and granting her leave to proceed to an uncontested trial based on the father’s continued refusal to provide proper financial disclosure, in breach of Justice Doyle’s June 5, 2017 order. The father had not produced any of the disclosure ordered by the court. At the time, the father advised that he had finally obtained professional assistance and was in the process of finalizing his 2016 and 2017 income tax returns and would be able to disclose within 30 days.

[14] On that basis, I declined the mother’s request and gave the father an additional 30 days to comply with the disclosure order of Justice Doyle. In the event he was unable to fully comply with that disclosure order, he was to provide a written explanation to the mother’s counsel as to why he had been unable to do so and the efforts he had made to comply fully. I ordered the parties to produce financial disclosure on a yearly basis, including proof of income and self-employment income in the form of tax returns, notices of assessment, current pay stubs and efforts to find employment if unemployed. The parties were required to exchange that disclosure by April 30 of each year or within 30 days of a change in either party’s employment status. Costs in the amount of $1500 were awarded to the mother.

[15] At my request, this case became case managed by Justice MacEachern. On June 4, 2019, she ordered the scheduling of a case conference before herself in order to review compliance with existing orders, ensure all relevant disclosure was provided and discuss how the matter was to move forward towards resolution. The parties were to ensure all relevant disclosure was provided at least seven days prior to the case management conference.

[16] The case management conference was scheduled for July 9, 2019. A few days before the conference, the father, again, requested an adjournment alleging a major medical appointment that could not be changed, as well as on the basis that he was trying to retain counsel. Justice MacEachern denied the adjournment request for the reasons set out in her written Endorsement dated July 8, 2019.

[17] Despite the clear timelines imposed in my Order of October 30, 2018, the mother did not file her motion to change until June 17, 2019. I am unaware of the reason for this significant delay. In the context of the case conference before Justice MacEachern on July 9, 2019, the father had not yet filed a Response to the mother’s motion to change, an affidavit in support of claim for custody or access (s. 35.1 affidavit) or a sworn financial statement. He was granted an extension of time until July 18, 2019 to do so. Justice McEachern noted that the father had also not complied with the June 5, 2017 disclosure order of Justice Doyle, which was reiterated in my order of October 30, 2018. She stated:

Ms. Gough is seeking to proceed to an uncontested trial. I have scheduled a date for this uncontested trial on September 10, 2019, at 10:00 a.m., for one hour, before another judge. If Mr. Gough does not file his Response to Motion to Change material before July 18, 2019, including all required forms such as his sworn financial statement, Ms. Gough may proceed to an uncontested trial on that date. This does not prevent Mr. Gough from attending on September 10, 2019, to argue why an uncontested trial should not proceed. If he does so, I have cautioned that if Mr. Gough has still, even by September 10, 2019, failed to provide his Response to Motion to Change material (be it late), his sworn and complete financial statement, and his outstanding disclosure, this will significantly weaken his position.

If Mr. Gough does file his Response to Motion to Change material before July 18, 2019, Ms. Gough may return a motion on the September 10, 2019 date seeking summary judgement on some or all of the issues or seeking to strike Mr. Gough’s pleadings. This may include a motion to strike due to a failure to comply with orders if Mr. Gough has still failed to comply with:

a. the disclosure orders (June 5, 2017, October 30, 2018, disclosure ordered herein);

b. The costs orders (October 30, 2018 order requiring him to pay $1500 forthwith, August 17, 2018 order requiring him to pay costs of $500 within 30 days).

[18] The father did serve his Response to Motion to Change on July 19, 2019. He also paid the two outstanding cost orders made against him and provided a copy of his medical file. However, while he provided some financial disclosure, which will be detailed below, he did not provide any income tax returns or notices of assessment, any disclosure related to his two businesses, and no sworn financial statement or loan and credit card applications he might have applied for. He has also not provided a written explanation as to why he might have been unable to produce those documents.

[19] As allowed by Justice MacEachern on July 9, 2019, the mother filed her motion to strike pleadings or, in the alternative, to obtain summary judgement. Her materials were served on the father on August 30, 2019. The father has not filed any responding materials to this motion. However, he appeared before me today seeking an adjournment to allow him time to retain counsel. I denied that request. He also sought to file, with me on the day of the motion, a pile of documents purporting to explain the efforts he has made to produce the financial disclosure ordered two years ago. That pile of documents had not been provided to counsel for the mother until the day of the motion. In those circumstances, I refused to accept the pile of documents over the bench and proceeded with the motion based on the documents properly filed before me.

Motion to Strike Pleadings

[20] The mother’s motion to strike the father’s pleadings is rooted in his failure to abide by his disclosure obligations, including obligations incorporated in many court orders.

[21] Rules 1(8) and 1(8.1) of the Family Law Rules, O. Reg. 114/99 addresses the court’s powers in response to a party’s failure to obey court orders, or to follow the rules:

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

FAILURE TO FOLLOW RULES

(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in sub-rule (8), other than a contempt order under clause (8) (g).

[22] The consequences of an order striking a party’s pleadings are set out in rule 1(8.4):

CONSEQUENCES OF STRIKING OUT CERTAIN DOCUMENTS

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by sub-rule 25 (13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case.

[23] In Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, the Ontario Court of Appeal stated that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled.

[24] In Mullin v. Sherlock, 2018 ONCA 1063, the Court of Appeal set out the legal analysis to be followed the courts when considering a party’s request to strike the other party’s pleadings:

44 First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

45 Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

• the extensiveness of existing disclosure;

• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

• any other relevant factors.

46 Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

a. Child Support

[25] The father’s failure to produce the most basic and standard financial disclosure has been ongoing since this matter first started in 2012. For that reason, his child support obligations could never be determined on a final, with prejudice basis. Since the parties reached final minutes of settlement in January 2016, which required the parties to provide disclosure and review child support in June 2016, the father has utterly and miserably failed to provide any meaningful income disclosure. He was ordered to do so on many occasions in the context of this Motion to Change, by at least three clear court orders made over the course of two years. Despite the father’s assertion before me in October 2018 that he had finally retained professional help to assist him in doing so, the father has fallen short of meeting his disclosure obligations pursuant to the Rules and the various orders made by this Court. He did not even provide an updated sworn financial statement, as ordered, that would have assisted in determining his current ability (or inability, as alleged) to pay child support and his overall financial circumstances.

[26] This behavior on the part of the father is inexcusable and cannot possibly be condoned by this Court. The issue of child support in this case is not complex and the father was afforded many opportunities to explain his alleged inability to provide this most basic financial disclosure (including by providing a written explanation). He failed to do so. The evidence before me confirms that the father has not paid child support since the 2016 minutes of settlement were signed (with the exception of two small payments), nor did he ever contribute to the children’s special and extraordinary expenses, even though his child support obligation, since that date, was relatively small ($391 per month). For many reasons, including his failure to disclose, the father has successfully and entirely avoided his obligation to support his three children to date.

[27] I find that granting the father another extension of time within which to produce relevant financial disclosure will not result in him abiding by his disclosure obligations based on the history of this case. As a result, the part of his Response to Motion to Change dealing with child support is hereby struck, and the issue of child support will proceed today on an uncontested basis.

b. Parenting

[28] In Burke v. Poitras, 2018 ONCA 1025, the Ontario Court of Appeal reminded us that the power to strike a party’s pleadings, which would result in a parent being unable to participate in a proceeding dealing with custody of children, should be used with the utmost caution. The court stated:

18 Custody is to be decided based only on the best interests of the children. It follows that the utmost caution must be used before striking a party's pleading as it relates to custody and access. A full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children: D. (D.) v. D. (H.), 2015 ONCA 409, 335 O.A.C. 376 (Ont. C.A.), at para. 1.

19 In the present case, the representation of the children by the Office of the Children's Lawyer is not a complete answer to the only live question: whether the appellant's non-participation in the custody proceeding is in the children's best interests.

[29] In this case, the father has filed a relatively detailed Response to the Motion to Change, along with a s. 35.1 affidavit, and has provided an entire copy of his medical records. These documents, along with the mother’s evidence filed in the context of this motion, and the findings made by various judges over the course of the past two years in this litigation, provide the court with relevant information related to these children’s best interests. Striking the father’s pleadings would mean not referring to the father’s materials and disregarding his representations to the court during the motion hearing on parenting issues.

[30] I find that the best interests of these children require that the father be allowed to participate in this proceeding on the issue of the parenting arrangements that are in the children’s best interests. As a result, I refuse to strike his pleadings as it relates to parenting issues, despite his breaches of several court orders requiring that he produce financial disclosure and pay child support.

Summary Judgment Motion - Parenting

[31] Summary judgment motions are governed by Rule 16 of the Family Law Rules.

[32] The burden of proof is on the party moving for summary judgment. Pursuant to sub-rule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[33] Pursuant to sub-rule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence they would be able to adduce at trial (Children’s Aid Society of Toronto v. K.T. 2000 CanLII 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200).

[34] Although sub-rule 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, No. 2 of para. 80).

[35] Sub-rule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

[36] Sub-rule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[37] Pursuant to sub-rule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in sub-rule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[38] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

[39] Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in sub-rule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[40] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak – para. 49). As the Supreme Court stated at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, para. 63).

Analysis

[41] The father has not filed an affidavit in response to this motion. However, for the purpose of assessing his position in the context of this summary judgement motion, I have accepted all the allegations he made in his response to motion to change as evidence before me. The father has also filed a detailed s. 35.1 affidavit which is properly before me, and which I have also considered.

[42] Based on the record before me, I find that there is no genuine issue requiring a trial on the issue of parenting. I find that I can determine what parenting arrangements are in the best interests of the children based on the evidence before me without even using the new fact-finding powers afforded to me by sub-rule 16(6.1).

[43] The uncontested evidence before me is that these children have been in their mother’s primary care since August 2016. Tamarr’s access to his father has been left to his discretion since well before the parties’ final minutes of settlement were reached in January 2016. Tamarr has chosen to have very little access to his father since he was about 13 years old. While Jaila has continued to have access to her father on Wednesday evenings and every second weekend, and given her serious mental health issues, which will be explored in more details below, access has also been left at her discretion for some time. Amiyah has attended access with her father as set out in my October 2018 temporary order more consistently, although the parties have also taken her wishes into account in cancelling or shortening some of her visits with her father. She generally continues to have access to her father in accordance with my October 2018 order.

[44] The father’s aggressive tendencies and difficult behaviour towards the children has been the subject of significant investigation and documentation since 2016. This behaviour has negatively affected all three children to date, and specifically Jaila. Jaila has had increased anxiety and sadness that have been linked to the way her father treats the children. Her anxiety and sadness has significantly increased over the years and has affected her academic success. She has self-harmed by digging pencils into her hands as a way to help her cope with her feelings. She has expressed suicidal thoughts and indicated that she was thinking about killing herself to her school counsellor. She is being followed very closely by the Society and by the school counsellor during the school year.

[45] Since on or about March 2017, Jaila started seeing a psychologist, Dr. Stacy Segal, from the approved referral list provided by her family doctor, Dr. Dubarsky. Although the father advised that he wanted to make recommendations for a psychologist and to be part of the process of choosing a psychologist for Jaila, he did not do so. Jaila has been visiting Dr. Segal since March 2017 for an hour every two weeks.

[46] Dr. Segal and Jennifer Gropp, the child protection worker responsible for Jaila, have both provided letters in support of the mother’s motion for summary judgement on parenting matters. Both recommend that Jaila be afforded flexibility in the visitation schedule in order to allow for her to build a trusting relationship with her father, and to abstain from visits when she is struggling with her mood and affect. Ms. Gropp’s report, in particular, provides a very alarming picture with regards to Jaila’s mental health, and the father’s relationship with the children. She stated:

In brief, the Society’s most significant worry for your children has been that they risked being emotionally harmed as a result of their exposure to ongoing post separation caregiver conflict together with Mr. Gough’s rigidity and his approach to parenting. Our current assessment would support that the children have in fact been impacted and emotionally harmed as we are now seeing the result of the stress and discord in the family’s interactions which have interfered with the children’s sense of safety and security over such a significant period of time. This is most significantly observed in Jaila’s severely limited emotional adjustment as she struggles to perform in one or more areas of functioning due to chronic/severe mental health symptoms such as self-harming and suicidal behaviours, running away from home, somatic complaints, strained coping skills and emotional responses that interfere with school and family functioning, alongside withdrawal symptoms.

This review period would attest that Jaila has continued to present as an emotionally sensitive child who lacks confidence in the relationship between her parents (due to significant exposure to adult conflict), has difficulty trusting her father as a result of his behaviours towards her (his rigidity in his approach to parenting, her struggles with communicating to him given his personal barriers) and resulting in fear and apprehension of her father, as well as doubts about having a relationship with him. Jaila’s difficulty coping and regulating her emotions has led to consistent need for crisis intervention relating to threats and thoughts of self-harm […]

With respect to Amiyah, while at times she had demonstrated a desire to not attend access with her father, for the most part, she participated. This review period has reinforced that she continued to vacillate about her desire to exercise access with her father. According to Amiyah, she feels that her father can get very angry and yell at her, and that he struggles to hear what she has to say, or to allow her to express herself.

[47] The father did not dispute the assertions contained in the Society’s reports, and he readily admitted that various factors led to his relationship with the children deteriorating over the years. Despite the Society’s recommendation that Jaila continue to be engaged in counselling with Dr. Segal, with whom she already has an established clinical rapport, and that her parents participate in clinical sessions with Jaila with the goal of rebuilding the relationship between her and her father, the father has remained adamant that he would prefer to seek alternative counselling options for him and Jaila because he felt that Dr. Siegel was one-sided. On that basis, he has refused to participate. The Society also reported that the father has refused to cooperate with its interventions.

[48] The record before me is replete with evidence of how difficult and conflictual the parties’ relationship has been since they separated in 2012. They have been unable to communicate in order to exchange and agree on anything related to the children’s care. The father’s difficult and uncooperative behaviour has led to his unilaterally imposing access which required a motion before the court to alleviate the emotional harm caused to the children by his behaviour. The evidence before me makes it clear that the parties’ inability to cooperate and communicate has been the cause of significant emotional harm to the children, and in particular to Jaila. The father admits and recognizes the highly conflictual relationship between him and the mother. In those circumstances, it is clear that a joint custody arrangement is not in the children’s best interest.

[49] The evidence before me overwhelmingly supports a finding that the mother has been and continues to be the parent responsible for making decisions for these children. I am satisfied, based on the evidence before me, that the mother responds appropriately to the children’s needs and has taken the necessary steps to provide Jaila with much needed mental health support services. Despite the very strained relationship between the children and their father, she has continued to promote contact and access between them, and she has followed the Society’s recommendations in terms of intervention.

[50] In my view, the outcome as to the parenting arrangements that are in these children’s best interests is a foregone conclusion. The mother seeks an order granting her sole custody of the children, with Tamarr’s access to his father to be in accordance with Tamarr’s wishes, and with the girls’ access to their father to continue to be every Wednesday evening as well as every second weekend from Friday after school to Monday at school. The mother also seeks an order that if Jaila and Amiyah wish not to attend an access visit or have their access finish early, that their wishes be respected by their father.

[51] Not only is this access recommended by the Society, in light of the difficult relationship between the girls and their father, this outcome is not even disputed by the father at this time. In his response to the Motion to Change, and in his oral submissions before me during the motion hearing, the father confirmed that he is not seeking a change in the current access arrangements for the children, which accords to what the mother is seeking on a final basis. However, he is seeking an order allowing for a reunification process to be put into place for him and Jaila “that involves addressing the root causes of her unhappiness”, and a treatment plan “that includes me in the participation in encouraging her and assisting her with addressing her mental health concerns”. His desire is for the parents to work together towards a detailed plan of care that would allow for Jaila and Amiyah to return to an equal parenting arrangement upon the children “providing the applicant and the Society with positive reports of our interaction”. In other words, he is seeking an order allowing for an equal parenting arrangement to resume once approved by the Society.

[52] I find, based on the uncontested evidence before me, that there is already a reunification process that has been put into place to allow the father to rebuild his relationship with Jaila, but that the father has refused to participate in that process up until now. The father’s request to engage Jaila in another reunification process with another therapist of the father’s choice when she has an established therapeutic relationship with Dr. Segal, who is willing and able to provide the reunification counselling, is unreasonable in light of Jaila’s serious mental health issues. If the father changes his mind in the future, and if his relationship with the girls significantly improves, it will be open to the father to bring a motion to change the parenting arrangements at that time. But for now, I find that there is no genuine issue that requires a trial on the parenting issues, and that the outcome of any trial is a foregone conclusion.

[53] As a result, the following final order shall issue with regards to parenting:

1. The mother shall have sole custody of all three children.

2. The children shall have their primary residence with their mother.

3. The father shall have access to Tamarr in accordance with Tamarr’s wishes and preferences.

4. The father shall have access to Jaila and Amiyah as follows:

a. every Wednesday, or any other weekday that is agreed to by the parties, from 5:00 p.m. to 8:00 p.m.;

b. every second weekend from Friday after school to Monday at school;

c. if Jaila and/or Amiyah express the wish to not attend an access visit or to end their access early, their wishes shall be respected by the father.

[54] The mother is also seeking a police enforcement clause. This relief was not claimed by her in her Motion to Change, nor was the police services served with her motion materials. As a result, this claim is dismissed.

Uncontested Trial - Child Support

[55] To date, two without prejudice orders were made with regards to the parties’ child support obligations:

− Pursuant to the parties’ minutes of settlement reached on January 19, 2016 (and later incorporated into a final consent order), the mother was required to pay temporary set-off child support in the amount of $263 per month based on the mother’s annual income of $37,200 and the father’s income of $22,000, commencing on November 1, 2015. The parties at that time were sharing their time equally with the children;

− Pursuant to the temporary order of Justice Doyle made on June 5, 2017, the father was required to pay monthly child support in the amount of $391 per month, commencing on June 1, 2017. This amount was based on an income of $19,700 per annum. The children were residing primarily with their mother at the time.

[56] In relation to child support, the mother seeks an order that the father pay child support in the amount of $391 per month from August 2016 to and including December 2017, based on his annual income of $19,700. From January 1, 2018 and ongoing, she seeks an order imputing an income of $59,514 on the father and requiring him to pay child support in the amount of $1134 per month. She also seeks an order that all prior child support arrears (prior to August 2016) be rescinded.

[57] The mother is employed on a full-time basis and her income tax returns and notices of assessment confirm that she has earned the following annual income for the years 2016, 2017 and 2018:

− 2016: $52,890

− 2017: $60,000

− 2018: $65,674

[58] I have no evidence confirming the mother’s estimated income for 2019.

[59] As stated earlier, the father has not provided any income tax return or notice of assessment which would allow me to confirm his annual income for those same years. However, he has provided his 2016, 2017 and 2018 T4s which reveal that he is earned the following employment income from the Canadian Armed Forces/DND during those years:

− 2016: $2483

− 2017: $5690

− 2018: $28,504

[60] The father has also produced his entire medical file which was adduced into evidence before me. This lengthy medical file reveals the following. During the parties’ relationship, the father was employed as part of the military police with the Canadian Armed Forces. In 2008, he had a back injury following a motor vehicle accident which occurred while he was on duty. He was severely injured enough that there was talk of release from the Canadian Armed Forces, but the father continued throughout his rehabilitation and improved to the point of even being part of GTF2.

[61] The father also sustained at least eight concussions over the course of his lifetime, 3 to 4 of which were severe. In 2014, he was the victim of an assault by two men while in the mother’s home. I have been provided with no information about the circumstances of this assault, however, its existence and the repercussions on the father’s health are well documented in his medical records. The father suffered serious injuries including an infra-orbital fracture, which required surgical facial reconstruction. He was diagnosed with PTSD following this assault which resulted in another concussion. He suffered from a range of medical issues including severe headaches, eye strain, memory and focus issues, tingling in both arms and lack of balance and coordination.

[62] In a consultation report produced by Dr. Besemann, a physician employed by the Canadian Armed Forces Health Services Centre in Ottawa, in September 2018, it was reported that the father had done remarkably well through primarily his own initiative and some excellent care that he received through the rehabilitation centre and his primary care team. However, while I have no specifics as to what he was doing from 2014 to and including 2017, it is clear that this assault made it impossible for the father to return to work within the military police.

[63] Attached to his last sworn financial statement dated April 10, 2017, the father provided a copy of his notices of assessment for the years 2012 to and including 2015. According to these documents, the father earned employment income of $35,634 in 2012, $41,661 in 2013, and as of 2014 his income started to decline. In 2014, he earned $31,196, and in 2015 his income went down to $24,176. As indicated above, his employment income in 2016 and 2017 appears to have been minimal. This certainly confirms the dramatic effect that the 2014 assault had on the father’s health and ability to work within the military, although no evidence was provided by the father as to whether he was in receipt of employment insurance or disability benefits during those years (and which I presume he should have been entitled to).

[64] The September 2018 consultation with Dr. Besemann was, in part, to outline what the father’s medical employment limitations should be given his previous history of concussions in his profession within the military police, particularly since he wanted to become a self-defence instructor which involved risks of further head injury. At that time, Dr. Besemann noted that overall, the father had reintegrated practically all his day-to-day tasks including work-related, leisure and sports. He noted that the father was generally stable and that he was “happy to be back at work” on a Class B contract, working as a driver for the Provost Marshall (which involved diminished responsibilities as compared to his previous employment within the military police).

[65] Despite his past history of assault, multiple concussions and PTSD, Dr. Besemann was of the view that he was doing exceptionally well and that he should not be restricted from doing activities which provided him with meaning and purpose, including teaching close combat and self-defense. While Dr. Besemann realized that this was a risk being taken, he was of the view that the risk of not allowing the father to do these activities were likely more detrimental to his mental health then engaging in these activities in a controlled and reasonable fashion.

[66] Despite what appears to have been clear progress, as of the beginning of 2019 things began to decline again for the father. As a result of the stress of this ongoing litigation, medical complications following the birth of his two-month-old baby, Jaila’s declining mental health and self-harming, as well as self-reported financial strains, the father’s mental and physical health quickly deteriorated. Several clinical notes written in February and March 2019 reveal that the father was seen on many occasions in follow-up with regards to his chronic post concussive symptoms and headaches. Dr. Besemann noted that recent major stressors (as described above, and as reported by the father to him) had increased his headaches significantly, that he had been required to take eleven days off for mental health reasons and that he had been outsourced to a mental health provider by his treating physician.

[67] On March 31, 2019, the father was released from his employment as a reservist with DND. His Record of Employment confirms that he was terminated “at the employee’s request” (code “K” on the ROE). According to his last pay stub dated March 31, 2019, he had earned a total of $13,186 in 2019 during the first three months of the year.

[68] The mother wishes to impute a $59,514 income on the father based on the following assertions. The father earned employment income of $13,186 in the first three months in 2019 and, if annualized, it confirms that he is capable of earning an annual income of $52,744. In addition, pursuant to his last sworn financial statement the father is self-employed as Krav 9 Combatives through which he gives close combat and self-defense training. According to the father’s June 2019 monthly sales report for Krav 9 Combatives, he earned a total income of $564 during that month. If annualized, the father’s total yearly sales would be $6,769. As a result, the mother takes the position that the father is able to earn annual income of $59,514, an income that she wishes to have imputed to him for the years 2018 and 2019.

[69] I am of the view that the mother’s argument completely fails to recognize the father’s significant physical and mental health issues as clearly documented in the father’s medical file. The reality is that the father was never able to earn employment income in the range of $52,000 per year in the past. During the first two years after he was assaulted in 2014, his employment income was minimal (although I acknowledge that I do not have any other information regarding self-employment income or employment/disability benefits he might have earned due to his failure to disclose). While he appeared to be doing much better in 2018 and as his employment income increased to $28,504 during that year, his medical records confirm without a doubt that his mental health has considerably deteriorated in 2019 and that his post-concussion symptoms appear to flare significantly when he is under stress. His medical records make it apparent that these symptoms can be very severe at times and impeded his ability to continue to work after March 2019.

[70] While the father’s Record of Employment appears to suggest that the father’s employment was terminated “at the employee’s request”, the significant medical evidence that he has produced, and which covers many years dating back to March 2014 (following the assault) cannot be ignored. The father’s demeanor when he appeared before me in court at the time of the motion also suggests that he is presently under significant stress, and that this has an important impact on his mental health.

[71] Based on the above, I am not prepared to impute to the father and income of $59,514 as requested by the mother. However, the father did earn employment income of $28,000 in 2018, and a very good level of income for the first three months in 2019, in addition to earning some self-employment income. The medical evidence before me confirms that, as of September 2018, he was doing “remarkably well” and allowed to engage in close combat and self-defense training. While I have evidence that many stressors have had a negative impact on his health and may have been the cause for his being released from his most recent employment, I have no evidence that would suggest that the father is not presently able to generate at least minimum wage income through a combination of employment income, employment insurance/disability benefits and self-employment income. The burden was on the father to establish that he is unable to work at this time, and given his lack of financial and other disclosure, he has failed to do so.

[72] In all the circumstances I find that it is reasonable to impute the following income to the father for the years 2017 to and including 2019:

− 2017: $19,700 (the income upon which he agreed to base his child support obligation before Doyle J. in June 2017)

− 2018: $30,000

− 2019: $30,000.

[73] I see no reason to rescind arrears which may have accrued pursuant to the minutes of settlement reached by the parties in January 2016 (later incorporated into a final consent order) and which confirmed the mother’s obligation to pay set-off child support in the amount of $263 per month to the father from November 1, 2015. As the children continued to share their time equally between their parents until on or about the end of July 2016, there is no reason why the mother should be relieved of her obligation to pay child support during those months. Her obligation, however, ended as of August 1, 2016.

[74] The father has never paid child support or contributed to the children’s special and extraordinary expenses in any meaningful way, despite having consented to do so. It would be considerably unfair if the Family Responsibility Office was collecting arrears owing by the mother to the father for the period of January 2016 to July 2016 while potentially being unable to collect significant arrears owing by the father to the mother for the period of August 2016 to present. As a result, I hereby order that any amount owing by the mother on account of arrears shall be deducted from arrears owing by the father. In other words, the Family Responsibility Office shall not enforce arrears owing by the mother other than by setting them off against arrears owing by the father.

Arrears calculations and ongoing support

[75] The evidence before me confirms that the mother earned $52,890 in 2016 as opposed to the $37,200 upon which the consent order was made, and the father has not provided the evidence which would allow me to confirm the income he actually earned in 2016. For that reason, I hold the parties to the bargain that they had reached at the time of the January 2016 minutes of settlement (although that bargain was reached on a without prejudice basis at the time). From January 1, 2016 to and including July 1, 2016, the mother shall pay the father child support in the amount of $263 per month, based on the mother’s deemed income of $37,200 and the father’s deemed income of $22,000, and the shared parenting arrangement in place at the time.

[76] From August 1, 2016 to and including December 1, 2016, the father shall pay the mother child support in the amount of $459 per month, based on a deemed income of $22,000 (2011 Tables) and in light of the fact that the children had their primary residence with their mother.

[77] From January 1, 2017 to and including December 1, 2017, the father shall pay child support in the amount of $391 per month based on a deemed income of $19,700 per annum.

[78] From January 1, 2018 and on a monthly basis until further varied by the court, the father shall pay child support in the amount of $621 per month for the parties’ three children, based on a deemed income of $30,000.

[79] It is my understanding that arrears have accrued under an order or agreement that was made prior to 2016, and by virtue of which the father was to pay child support in the amount of $823 per month. Although the mother’s counsel only touched upon this very briefly, she acknowledged that no arrears ought to have accrued pursuant to that order and as a result, I hereby confirm that arrears of child support owing by either party prior to November 1, 2015 are hereby rescinded.

Special and extraordinary expenses

[80] The mother has also assumed on her own many special and extraordinary expenses for the children. She has submitted evidence which confirms payment by her of the following expenses during the years 2015 to present, and for which the father had agreed to contribute by minutes of settlement later confirmed by consent court orders:

− Tamarr’s orthodontic expenses in the total amount of $6791 from June 2015 to and including August 2017;

− Jaila’s psychological expenses, in the amount of $300 per month from February 2017 to December 2018, and in the amount of $320 per month from January 2019 to present, and on an ongoing basis;

− Jaila and Amiyah’s daycare expenses in the gross yearly amount of $3390.36 for 2017, $2538.16 for 2018 and $420 per month (for Amiyah only) from January 1, 2019 and on an ongoing basis.

[81] In addition to the above expenses that had been agreed upon by the parties, the mother has also incurred orthodontic expenses in the amount of $400 (diagnostic only) for Jaila, as well as a total of $1769.80 in dental expenses for all three children. Finally, the mother has incurred $350 for summer camps for Jaila in 2018 as well as $700 for both girls in 2019.

[82] I find that all these expenses were necessary and reasonable, and I see no reason for the mother having to assume these expenses on her own without proper contribution from the father.

[83] The father’s yearly proportionate share of those expenses from January 2016 to present is the following:

− 2016: 37%

− 2017: 25%

− 2018: 31%

− 2019: 31%

[84] However, s. 7 of the Guidelines provides that a parent is required to contribute his or her proportional share to the net cost of special and extraordinary expenses. The mother was entitled to a tax deduction for daycare and summer camp expenses. Also, she appears to be contributing to a health insurance plan though her employment with TA Morrison and Co. Inc., as suggested by her most recent paystubs. If she was entitled to any reimbursement from her insurer for any of the above expenses, then those amounts must be deducted from the total owing on account of the children’s expenses before the father’s contribution to these expenses is calculated.

[85] Therefore, the mother shall provide me with a supplementary affidavit confirming the net cost to her of daycare and summer camp expenses incurred for Jaila and Mia in 2017, 2018 and 2019, as well as the details of her health and dental plan and confirmation of the amount, if any, of her insurer’s reimbursement towards orthodontic, psychological and dental expenses paid by her for the children. As the father’s proportionate share of s. 7 expenses changes every year, a detailed table outlining expenses paid and reimbursements/tax deductions received on a year-to-year basis is required.

[86] Once received, I will confirm the amounts owing by the father towards those expenses over the years, and on an ongoing basis.

Madam Justice Julie Audet

Released: September 24, 2019

COURT FILE NO.: FC-04-3316-1

DATE: 20190924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER KRISTEN GOUGH

Applicant

– and –

ALVIN VINCENT GOUGH

Respondent

REASONS FOR decision

Audet J.

Released: September 24, 2019