COURT FILE NO.: FC-11-2362-1
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.S.
Applicant
– and –
K.K.
Respondent
Odette Rwigamba, for the Applicant
Self-represented
HEARD: September 23, 24, 25 and 26, 2019
REASONS FOR decision
Audet J.
1This was a four-day trial in the context of which I was asked to determine the issues of parenting and child support.
2The Applicant mother is seeking sole custody of the parties’ two children, with access to the father to be reinstated on a gradual basis, to eventually reach a schedule whereby he sees the children every second weekend as well as one evening per week. She also seeks child support based on an imputed income of $24,000 per annum for the father, commencing on the day she filed her Application in this matter (being October 2011), and ongoing child support based on an imputed income of $30,000 per annum.
3The Respondent father is seeking sole custody of the children, with generous access to the mother. In the event that he is granted custody of the children, he also seeks child support. The father’s position is that he has no obligation to pay child support, despite the fact that the children have been in their mother’s primary care since the date of the parties’ separation, because he has only earned minimal income coupled with social assistance payments. He adds that since 2017, he is a full-time student at S[…] University.
Background and History of these Proceedings
4The parties were both born and raised in Africa. They met in a refuge camp in Tanzania where they married on […], 2008. While at the camp, the mother gave birth to the parties’ first child, B., who was born on […], 2009. Within two weeks from B.’s birth, the father left the refugee camp and immigrated to Canada where he settled in Ottawa. The mother and child remained in the refugee camp. Once a landed immigrant, the father was able to sponsor the mother and their son to Canada and they joined him in Ottawa in September 2010. Their daughter S. was born on […], 2011.
5On September 19, 2011, following a dispute between the parties, the mother moved out of the family apartment and moved into a shelter temporarily. The parties never reconciled. B. was two and a half years old at the time, and S. was only two months old.
6On October 4, 2011, the mother filed her Application seeking sole custody of the children, access to the father, child support as well as the annulment of her marriage. It took a Notice of Approaching Dismissal, a Case Conference (which the father did not attend although properly served) and seven months before the father filed his Answer, in which he sought sole custody of the children, access to the mother and child support. During that time, the father did not have access to the children, nor did he bring a motion seeking access.
7In the context of a settlement conference held before Justice Maranger on December 11, 2012, the parties consented to a temporary order granting the mother sole custody of the children, access to the father every Saturday from 10:00 a.m. to 5:00 p.m. and child support in the amount of $94 per month based on the father’s estimated income of $12,300. The mother was also granted the right to travel internationally with the children upon simple notice to the father (except if travelling to Congo, Rwanda, Uganda or Burundi). Both parties were represented by lawyers at the time.
8On March 18, 2013, the father brought a motion seeking an order forcing the mother to return home to him as his wife. That motion was dismissed with costs against the father.
9The matter was scheduled to proceed to trial in September 2014 by order of Justice Roger made on January 6, 2014. Many orders were also made at that time requiring the father to produce financial information, as well as evidence of his ongoing efforts to find employment. A settlement conference/trial management conference held before Justice Maranger on September 18, 2014 did not lead to settlement, so the matter proceeded to trial before Justice Labrosse later that month. In the midst of trial, during which both parties were legally represented, they were invited to attend a mid-trial settlement conference which took place before Justice Leroy on October 9, 2014.
10In the context of this settlement conference, the parties consented to a temporary order granting sole custody of the children to the mother, with access to the father every other weekend from Friday to Sunday, reviewable in six months at the request of either party to assess whether the father’s access should be increased or decreased. Both parents were required to attend the “Triple P” parenting course, and the mother was granted permission to travel internationally and to obtain official documents for the children without the father’s consent. As the father was not working at the time, the order provided that the father “shall pay child support in accordance with the Child Support Guidelines once he resumes employment”.
11Although he consented to this order, the father was reportedly not happy about it. Based on allegations that the father had threatened to kill the children and move back to Africa, the Children’s Aid Society (“the Society”) became involved with the family, and in November 2014, initiated child protection proceedings. The concerns of the Society were excessive disciplinary force being used by the father on the children and risk of emotional harm as a result of the father speaking negatively to the children about their mother and involving them in the parental dispute. On November 19, 2014, a temporary order was made placing the children in the care of their mother under a supervision order. Access to the father was to be at the discretion of the Society. On March 18, 2015, and on consent of the parties, the children were found to be in need of protection and placed under the care of their mother under a six-month supervision order. Access to the father was to be at the discretion of the Society.
12Despite a temporary order allowing for access between the father and the children, albeit at the discretion of the Society, the father ignored the Society’s efforts to contact him and did not take any steps to resume access with his children until March 16, 2015, two days before he consented to the final six-month supervision order. He began having supervised access with the children on that day, under the supervision of the Society. In its Status Review Application filed at some point in 2015, the Society sought a further supervision term of four months, with access between the children and their father to continue to be at the Society’s discretion.
13The father had seven supervised visits with the children between March and May 2015. Those visits were reported to have been positive for the children and no concerns were raised regarding the father’s ability to care for the children, who were excited and happy to see him. As will be discussed in more details below, the main remaining concern was the father’s continued involvement of the children in the parental dispute to validate his allegations about physical abuse by the mother, and to disprove the mother’s allegations of abuse against him. Despite those concerns, beginning in May 2015, the father’s access was gradually increased and no longer required supervision. The supervision order was terminated on consent of the parties in November 2015, and by January 2016, the father’s access to the children returned to the schedule set out in Justice Leroy’s 2014 temporary order.
14The father continued to have regular bi-weekly access to the children until January 2017 (approximately one year). By the fall of 2017, the children started to increasingly report to their mother that their father was hitting them and threatening to take them away from their mother, their school and other things. B. was 7 years old at the time and S. was 5. By December 2016, both children had become very resistant to visits with their father, and by January 2017, they were refusing to go.
15Ms. C.G.A., Vice-Principal at the children’s school at the time and currently a special aid teacher at that same school, and Mr. D., her Principal, testified at trial. Both indicated that by January 20171, B.’s behaviour at school had become alarming. He was aggressive, reacting defensively and in anger towards his peers for no apparent reason and was increasingly unmanageable in the classroom. The school sought a meeting with the mother to discuss the potential causes for this changed behavior and it became obvious to them that B. was dealing with difficult emotional issues related to his access with his father (based on his and the mother’s disclosures to them). They reported their concerns to the Society, who had also been alerted by the mother, and the Society got re-involved with the family. In addition, and at the recommendation of the school, B. immediately started seeing the school’s counsellor on a regular basis. Based on all the above, and while the Society conducted its investigation, the mother refused to allow the children to go on access visits with their father.
16In a letter dated March 24, 2017, Ms. Joanne Ryan, child protection worker with the Society, wrote to the father to confirm that, following their investigation, reports of excessive physical discipline of the children by him and risk of emotional harm were verified based on her interviews with the children. The father was reminded that the Society had had to intervene on several occasions in the past as a result of these concerns and advised the father to stop denigrating the mother in front of the children and to allow the children to have a healthy relationship with their mother. He was also strictly warned against using physical force to discipline the children failing which the Society would have to get re-involved with much more intrusive actions.
17On or about that time, the school counsellor who was seeing B. advised the mother that the issues with which B. was struggling were not academic in nature and exceeded her mandate. A recommendation was made for B. to start private therapy sessions with a therapist outside of the school, and B. began seeing that therapist immediately thereafter. On June 1, 2017, the mother’s counsel wrote to the father’s counsel to provide him with an update as to what was being done by the mother to address the children’s refusal to attend visits with their father. Among other things, she proposed to involve the Office of the Children’s Lawyer (“OCL”) to assist the parties in ascertaining the cause of the children’s resistance to visits with their father and benefit from recommendations about parenting arrangements and services that would be useful in their circumstances. Unfortunately, the father refused to consent to the appointment of the OCL.
18The children have not had access with their father since, except in the context of two family gatherings to which both parents and the children attended. The father never brought a motion to seek the re-instatement of his parenting time with the children or to otherwise force the mother to allow contact between them.
19The matter continued to linger before the court without much progress or activity until a combined conference was finally heard by Justice Shelston on October 22, 2018, who placed the matter on the May 2019 trial list. He granted leave to the mother to bring a motion for the appointment of the OCL (as the children had not seen their father since January 2017) and ordered the parties to attend a joint settlement conference/trial management conference with duly completed Trial Scheduling Endorsement Forms.
20The trial management conference proceeded on April 29, 2019. The father did not appear on that day, and according to the mother’s counsel’s representations, had not responded to her requests to have him complete his portion of the Trial Scheduling Endorsement Form. The court was advised that the father had refused to agree to the appointment of the OCL, and the mother had decided against bringing a motion requiring its involvement.
21I was the judge appointed to hear this trial back in May 2019. At that time, the father advised that he had not been made aware of the trial management conference scheduled for April 29, or of the April 2019 assignment court. For reasons unknown to me, he was aware of the trial beginning on that day. Given the need for translators (the father speaks French, the mother Swahili and the mother’s counsel English), and as the father was utterly unprepared to proceed with this trial, it was adjourned to the September 2019 trial sittings, and I took that opportunity to conduct a lengthy and comprehensive trial management conference.
22It is also important to note that, on December 23, 2014, the mother initiated a completely separate proceeding seeking only a divorce. The father filed an Answer to that claim in which he sought the same relief as claimed in his Answer to the main application. These two actions were joined by order of Shelston J. on October 22, 2018, the issue of the divorce was severed from the other issues in the claim by order of Parfett J. on April 29, 2019, and the divorce was granted on July 5, 2019, by Maranger J. The parties are, therefore, now divorced.
Parenting
Legal Framework
23Pursuant to section 16(8) of the Divorce Act, 1985, c. 3 (2nd Supp.), in making a custody order the court must take into consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child. The court must also give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of that child.
24The concept of best interests is not defined in the Divorce Act. However, s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 provides a list of factors which are relevant to the assessment of a child’s best interests, and those factors are frequently used as a helpful guide to assess best interests in the context of the Divorce Act. It states:
Best interests of child
24(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, 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.
Findings of credibility
25Before getting into the merits of each party’s position regarding the issues raised in this proceeding, I wish to make the following comments about the parties’ credibility.
26I found the mother’s testimony much more credible than that of the father, for many reasons. First, her version of events on key issues in this case was supported and corroborated by other witnesses whom I also found very credible. In particular, I found the testimonies of Mr. S.M. (an extended paternal family member) and of Ms. C.G.A. (once vice-principal and now special aid teacher at the children’s school) very helpful and credible. The evidence they provided to the court was clear, focussed, limited to relevant information, and devoid of exaggerations or accusations.
27Further, much of what the mother was saying about relevant events having taken place over the years was verified and corroborated by documentary evidence, including two affidavits sworn by Society workers filed in the child protection proceedings involving these parties, and upon which both parties relied in the context of this trial.
28The father, on the other hand, lacked credibility. He was very vague and evasive throughout his cross-examination, argumentative with opposing counsel, confrontational, and generally answered questions with long tirades about his views of the mother’s significant failings. In particular, when asked (on many occasions) to confirm what his plans were to return to the workforce and obtain gainful employment to support his children, the father’s response was to reiterate over and again that he had come to Canada to be with his children, not to waste time over child support issues, never really answering the questions asked. He constantly had to be redirected to the specific question at hand, but never really gave a clear or direct answer to most questions. Further, none of the witnesses who appeared before me supported or corroborated the father’s version of events on key issues, not even his own witnesses who frankly knew little about the father’s relationship with the children.
29Finally, even the father’s own evidence presented to me (in the form of documents, Society workers’ affidavits and audio recordings) generally supported the mother’s position and testimony, rather than his own.
30For all these reasons, whenever the mother’s version of events differed from the version provided by the father, I have accepted the mother’s version.
Parenting
31The uncontested evidence is that these children have been in the primary care of their mother since they were born. Whenever the father was in the children’s lives, his involvement in all areas of the children’s care was minimal. The mother has and continues to be responsible for all of their day-to-day needs including feeding, grooming, bathing and generally looking after them. She attended all of their doctor’s and dentist’s appointments, registered them in school and was responsible for obtaining all of the services that they needed, including counselling and programs designed to address their emotional, educational and recreational needs. The father provided no evidence to dispute this and offered no examples of when he would have attended to any of the children’s needs as set out above.
32The evidence also makes it clear that the father has only been marginally present in the children’s lives. He immigrated to Canada in April 2009 when B. was two weeks old and only resumed care of him when the mother and child arrived in Canada some 18 months later. It is the mother’s evidence that she suffered abuse at the hands of the father both before and after she arrived in Canada. While I have no evidence other than the mother’s own testimony that would allow me to confirm or infirm her allegations in that regard, what is clear is that the parties’ relationship was fraught with conflict and acrimony, particularly over financial matters.
33The parties separated in September 2011, only one year after the mother arrived in Canada, when S. was only two months old. It took almost one and a half year before the father resumed access with the children, in December 2012. That is because despite being served with the mother’s application personally in October 2011, one month after the parties’ separation, the father did not file an answer or take any steps in the litigation until May 2012, having missed the first Case Conference in April 2012. Until a Settlement Conference was held in December 2012, the father took no steps to secure access with his children, whom he did not see again until December 2012, almost 16 months later.
34From December 2012 to October 2014, the father only had access to the children on Saturdays from 10 a.m. to 5 p.m., not ever including an overnight visit. He took no steps to gain more access although he was represented by counsel at the time. It was only in the context of the settlement conference held before Leroy J. in the middle of the parties’ trial, on October 9, 2014, that the parties consented to the father having access to the children every second weekend, from Friday to Sunday. However, this was short lived.
35Within days of having consented to this temporary order, the father randomly contacted a member of the parties’ community, “Josephine”, to express his discontent about the order made by the court, and during that conversation allegedly shared thoughts about killing the children and returning to Africa. The father’s comments were sufficiently alarming for “Josephine” to report this to the mother, who contacted the police and the Society to express her concerns. After investigation, and in light of the Society’s prior involvement with this family following which concerns about the father had been verified, the Society initiated child protection proceedings in October 2014 before the father could even have one weekend visit. Pursuant to a temporary without prejudice order made on November 19, 2014, the children were placed with their mother under a supervision order with access to the father to be at the discretion of the Society.
36Again, despite being served with the Society’s application, it took several months before the father finally agreed to meet with the protection worker to discuss the conditions around his access to the children. His first supervised visit with the children occurred on March 16, 2015, five months after the protection was filed, and all the while having had no access to the children since October 2014. During the nine months that followed, the father had access to the children only once per week, for a few hours, with various degrees of supervision. The father finally began having access with the children every second weekend at the end of 2015, after the supervision order was terminated on November 12, 2015.
37The father’s weekend access to the children lasted a little over one year. Throughout that year, and more especially from September 2016 to January 2017, B. began to show signs of emotional distress and both children became resistant to visits with their father. In that regard, I accept the mother’s testimony to the effect that the children began to report to her that their father punished them physically and harshly, and that he constantly spoke negatively about her to them. By January 2017, the school had requested an urgent meeting with the mother, following which they alerted the Society who became re-involved.
38I find as a fact based on the evidence before me that the father did use excessive physical force when disciplining the children during his parenting time, that he used threats as a means to discipline them, and that he significantly involved them in the parental dispute by speaking to the children negatively about their mother and by trying to extract information from them about their experience of their mother while in her care, for his own personal use in this litigation. This behaviour on the part of the father is well documented in Society records, and the children’s allegations to that effect were verified by Society workers on more than one occasion, including before the Society initiated child protection proceedings in the fall of 2014.
39Pursuant to the final order of Justice Smith dated March 18, 2015, made in the context of the child protection proceedings and to which the father consented, he was required to abide by the following conditions, among others:
To participate in a psychological evaluation to assess his intellectual and parental abilities;
To participate in the New Directions program;
To refrain from threatening the children or to cause them physical or any other harm.
40I am unaware as to whether the father met the first two conditions, as no evidence was provided to me in that regard. In any event, the evidence before me overwhelmingly suggests that the father did not, despite the Society’s involvement, gain any insight into how his behaviour was affecting the children, nor did he change his ways towards the children in a sustainable way after they ceased their involvement with the family in 2015. I find that the father gradually resumed using excessive force when disciplining the children in 2017, and that he continued to involve the children in the parental dispute in his quest to disprove the mother’s and the Society’s allegations about his parenting.
41This behavior on the part of the father could not have been made more obvious than by listening to the audio recordings that he adduced into evidence, on consent of the mother’s counsel. The first of these recordings, made by the father at some point in 2015 when he was only allowed to have access with the children in the community, begins with one of the children reporting that the mother hits her, and that she was taken to the police with handcuffs (which is obviously not true). You can hear the father questioning them about this and encouraging them to go on, engaging the children into a discussion around their allegations that he hits them, telling them that it is dangerous to say so, and also that they only have one father – him – and that if their mother loved them she would say so to them as well.
42In another recording, S. can be heard crying and the father can be heard telling her that it is late and that “she has to go”, that he understands that she does not want to go, and that one day she will be able to stay with him. When she starts crying again, you can hear the father come closer to the recording device and ask her why she is crying, to which she responds that she does not want to go to her mother’s, following which he asks her why, to which she answers that her mother “never buys anything for her”…
43In another recording, the father can be heard asking the children to repeat what they have just said, following which one of the children says that their mother hits them. When the father continues to question them about this, and as the children continue to reiterate that their mother hits them, the father can be heard laughing loudly in reaction to what the children have just told him. And this goes on…
44That the father would believe that these recordings, which were very obviously staged by the father for the purpose of using them in this litigation, would support his position in this trial is, in and of itself, quite disturbing. The two affidavits of Society workers involved with this family also overwhelmingly support a finding that the father lacks insight and understanding about the significant emotional harm that such behaviour can have on the children.
45I find as a fact that the father’s harsh physical discipline and inappropriate behaviour as described above was the main cause for B.’s mounting emotional distress and alarming behaviour both at home and at school at the end of 2016 and beginning of 2017. The father’s conduct also led the children to become resistant to visits with their father and to ultimately refusing to go on visits altogether.
46I find that it was reasonable for the mother, given the above, to make the decision to suspend access following her meeting with the school in January 2017. I also find, as stated above, that the father never took any steps to resume his parenting time with the children after he received the Society’s letter in March of 2017, other than to send the mother text messages every other month or so, asking for the children to be brought to him. He did not bring a motion and this trial finally proceeded because the mother pushed the matter by scheduling a settlement conference for December 2018.
47During his testimony, the father suggested that he was not given an equal chance to properly pursue his claims in this litigation because while the mother had been provided with the assistance of a lawyer, he had not. However, a review of the various orders made throughout the course of this matter reveals that the father was represented by at least four different counsel throughout the years, with the last one being removed as counsel for the father in January 2019 (by Notice of Change in Representation).
48Despite the father’s very peripheral role in the day-to-day care of the children, and despite having had no contact with them for almost three years, the father maintained his position throughout this trial that it would be in the children’s best interest for him to be granted sole custody of them, and for the mother to have access to them “including every second weekend”. This, in my view, shows how very poor the father’s insight into his children’s emotional well-being really is.
49Despite being invited to contact with the school’s counsellor to seek information about the cause of B.’s emotional distress, the father did not reach out. Despite the father’s knowledge of the name and location of the children’s school, both Ms. C.G.A. and Mr. D. confirmed in their testimony that they only met the father once since B. is in kindergarten. It was in March 2017, at the request of the father, who appeared to be more concerned about being named as the children’s father in the school’s records than in the children’s academic progress and overall well-being. The father never attended a parent-teacher meeting. I have no evidence that he was ever present during a doctor or dentist appointment with the children (the mother maintained that he never was).
50Despite the father’s allegations to the contrary, I find that the mother has provided these children with very good day-to-day care throughout the years, and that she has met all of their needs. Ms. Adbullah testified that the mother always responded promptly and appropriately to the school’s requests, including when B.’s behavior became alarming in January 2017, and that she is an involved parent in the children’s academic lives. She also confirmed that, with the exception of B.’s grade 2 academic year (Fall 2016 to Spring 2017), B. has done very well and he is a happy and endearing child. She confirmed that since the fall of 2017, with the assistance of ongoing counselling, B. has returned to his old self and is doing very well. She reported no concern whatsoever about S. and confirmed that she is a healthy and well-adjusted child.
51Society records also confirm that throughout their involvement with this family, the Society has never had any concern about the mother’s parenting skills or her ability to meet the children’s physical and emotional needs, and to protect them. The evidence confirms that she does not engage the children in the parental dispute and that she continues to promote the children’s attachment and relationship with their father despite the lack of contact between them since January 2017.
52The mother has also kept a very close relationship with the man whom the father referred to as his “dad”, and who referred to the father as “his son”, Mr. S.M.. Mr. S.M. was born in Congo, in a village not far from the father’s, and immigrated to Canada in 1993 when the father was only 8 or 10 years old. Mr. S.M.’s father and the father’s own grandfather have the same ancestors. In the African culture that they share, this is very powerful and creates a “father-and-son” bond between them. Although they had not seen each other in some twenty years, Mr. S.M. was the first person that the father called when he immigrated to Canada in 2009. Mr. S.M. and his wife, who have four grown-up children together, immediately took the father under their wings and, when they finally arrived in September 2010, the mother and child as well. It was his role, as an experienced immigrant and as the father’s “father”, to act as a mentor and to assist the family get integrated in their new Canadian community.
53As stated before, I found Mr. S.M. to be a very credible witness. He spoke about how he and his wife welcomed the wife and the children in their home when they arrived in Canada, as the father did not have proper housing for them at the time. He explained how he and his wife tried to help the parties overcome their marital difficulties and how they were called upon by both the father and the mother to intervene and act as mediators when the parties were having fights over financial and other issues. He testified that to this day, the children refer to him and his wife as their grandfather and grandmother.
54Unfortunately, Mr. S.M. and the father had a falling out when Mr. S.M. decided to “withdraw” as a father, following an altercation between the parties and in the context of which he and his wife were asked to intervene. Mr. S.M. explained to me that in the parties’ culture, this meant that while he would continue to share a family bond and relationship with the father, he would no longer assist them in overcoming their difficulties and would no longer provide guidance and mentorship to the family.
55Mr. S.M. stated that he tried to reach out to the father, but that the father has completely severed his relationship with him and now refuses to speak to him. Despite this, following the parties’ separation the mother has continuously maintained a close and loving relationship with this only link the children have to their paternal family in Canada. The mother and the children continue to be invited by Mr. S.M. and his wife to family gatherings and important events, and they see each other frequently.
56It is in the context of two of those family events that the children were able to have some contact with their father since January 2017; one was a funeral and one was a pre-wedding celebration. Evidence of the mother’s efforts to preserve a positive image of the father to the children can be found by looking at the pictures of the children with their father during those family events. Despite the lack of contact and despite the events which led to the father’s access being denied by the mother, the children were very excited to see their father on those two occasions, they played with him for a long time and they asked for their picture to be taken with their father. Clearly, despite all that has transpired in their relationship with their father, they still love him and they seemed happy to spend time with him during these two events. If the mother had engaged in negative talk about the father to the children and attempted to alienate them from the father as is alleged by him, I doubt that the children would have behaved this way.
Decision-making authority (custody)
57Given the above, it is clearly in the best interest of the children for the mother to maintain sole custody of them. Not only is this the regime that has been in place since Maranger J.’s temporary order of December 2012, the mother has shown that she is willing and able to make decisions with regards to the children having only their best interests at heart, which interests she places above her own needs.
58The father has long ago consented to an order allowing the mother to travel internationally with the children, and to obtain official documents for them, without his consent, and I see no reason for this to change. There is no evidence before me to suggest that the mother has, in any way, misused this authority.
59As such, the following order shall issue as it relates to parenting:
The mother shall have sole custody of the children, who shall have their primary residence with her.
The mother shall inform the father of all major decisions being made in relation to the children.
The father shall have access to all information relating to the children’s educational, emotional and physical well-being including access to all professionals involved in the care of the children such as teachers, doctors, dentist and counsellors.
The mother is hereby authorized to travel with the children internationally upon providing written notice to the father, but without the need to obtain the father’s consent.
The father shall not travel with the children outside of the Ottawa/Gatineau region without the mother’s written consent. He shall not travel internationally with the children without the mother’s notarized consent.
The mother shall not relocate the children’s residence from Ottawa without the father’s consent or a court order allowing her to do so.
The mother is hereby authorized to obtain official documents for the children, including a passport, without the need to obtain the father’s consent or signature.
Parenting time (access)
60Despite the risks associated with the father’s behaviour during his parenting time with the children, I find that it would be beneficial for the children to maintain a healthy relationship with their father and to spend meaningful time with him. I come to this conclusion because the evidence before me suggests that, while the father’s behaviour towards B. has caused him significant emotional harm in the past, B. nonetheless enjoys seeing and spending time with his father and he misses his contact.
61Similarly, both the father and Mr. S.M. confirmed that S. was very excited to see her father again at the family gatherings, that she playfully engaged with him for a long time, sought his attention and insisted on having her pictures taken with him numerous times. It is clear that, despite the father’s lack of insight about the impact of his behavior on the children, they both love him, miss him and want to have a relationship with him. Despite his shortcomings, I do not doubt that the father loves his children dearly, and that he genuinely wants to play a more meaningful role in their lives.
62I find that it is in the children’s best interests to resume and rebuild their relationship with their father, so long as safeguards are put into place to ensure that they are safe, physically and emotionally, during those visits. Further, given that the father has had almost no contact with the children since the end of January 2017, any such access must resume gradually, beginning with a few hours only so as to allow the children to get re-acquainted with him slowly and safely, and to allow the mother to intervene should she feel that the children are showing signs of physical or emotional distress after their visits with their father.
63While I have no concern regarding the father’s ability to care for the children and to attend to their basic needs during parenting time (feeding, grooming, playing), the evidence before me confirms that, despite the Society’s involvement, he has not gained insight into the impact of his behavior on the children’s well-being. As a result, I make the following order as it relates to access:
The father shall register and successfully complete the “Parenting Through High Conflict Separation and Divorce” program offered by Ottawa Family Services, or another equivalent program on the impact of parental conflict (and involvement therein) on children.
The father shall register and successfully complete the “Discipline that doesn’t hurt… anyone” program offered by Ottawa Family Services, or another equivalent program on appropriate discipline for children of S. and B.’s age.
The father shall provide documentary confirmation of his having successfully completed both programs to the mother (or her counsel) once completed.
The parties shall immediately register at the Supervised Exchange Program at Family Services Ottawa. Access exchanges shall occur at that location until access as set out in para. 6 below begins, and thereafter, the father shall pick the children up and return them to their mother’s home (if not at school).
Until the father has successfully completed both courses described at para. 1 and 2 above, and as soon as the parties are accepted in the Supervised Exchange Program, the father shall have the following parenting time with the children:
a. For the first six weeks, from 1:00 p.m. to 4:00 p.m. every Saturday, to be exercised in a public place or in the community (park, shopping center, recreational center, family gathering, etc.);
b. After six weeks, access will no longer need to occur in a public place or in the community, and the father shall have parenting time with the children from after school to 6:30 p.m. every Tuesday (this is in addition to the Saturday access set out above).
- Once the father has successfully completed both courses described in paras. 1 and 2 above, and provided that at least twelve weeks have passed since he resumed access with the children, the father’s parenting time with the children will be progressively increased as follows:
a. For an initial period of eight weeks:
i. From 10 a.m. to 6:30 p.m. every Saturday;
ii. From after school to 6:30 p.m. every Tuesday;
b. For a period of eight weeks thereafter:
i. From after school on Friday to 6:30 p.m. on Saturday, every second weekend;
ii. From after school to 6:30 p.m. every Tuesday;
c. Thereafter:
i. From after school on Friday to 6:30 p.m. on Sunday, every second weekend;
ii. From after school to 6:30 p.m. on Tuesday.
- Beginning in 2020, and provided that the access set out in paragraph 6 c. above has begun, the father shall have the following parenting time during Christmas and summer holidays:
a. Christmas: Regardless of the regular parenting regime, the parties shall share equally the Christmas holidays with the children. The Christmas holidays start at the end of the children’s last day of school and end at 6:30 p.m. on the Sunday preceding the children’s first day of school in January. In odd numbered years, the father shall have the children in his care for the first half of the Christmas holidays and until noon on Christmas Day and the mother shall have the children in her care for the second half of the Christmas holidays from noon on Christmas Day. In even-numbered years, the mother shall have the first half of the Christmas holidays in the father shall have the second half.
b. Each party shall be entitled to spend one full week (from Friday at 4 PM until the next Friday at 4:00 p.m.) of summer vacation with the children, which summer vacation shall begin on a weekend that the parent is scheduled to have the children in his or her care. The parties shall exchange their preferred holiday week by no later than May 31 of each year, with the mother having priority in even-numbered years and the father having priority in odd numbered years.
Neither parent shall speak negatively of the other parent in the presence of the children.
Neither parent shall use physical punishment as a means of disciplining the children.
I shall remain seized of this matter for one year, and any issues with regards to the implementation of the parenting provisions of this order can be brought to my attention directly by way of motion.
Reunification therapy
64The mother sought an order that the father be required to attend reunification therapy with the children before being re-introduced to the children after such a long absence. I have decided against reunification therapy for the following reasons. First, I was provided with no evidence of the kind of reunification therapy the mother wishes the father and children to engage in, nor have I been provided with the name of a counsellor including his or her credentials, availability, number of sessions required, costs, etc. It is not sufficient to ask for reunification therapy generally; proper evidence about the specific process that is contemplated must be led.
65Secondly, the evidence before me suggests that although the children were refusing to see their father by the end of 2016, beginning of 2017, when the children reunited with their father for a few hours in the context of the family events discussed earlier, they both quickly warmed up to their father and readily spent time playing with him. I have no reason to believe that it will be any other way when access resumes.
66Also, the children are older now and they know who their father is. This situation is quite different than the situation of a child who last saw his parent when he was a very young infant, and who has no recollection of that parent at the time access is to resume. While it will undoubtedly take some time for these children to get reacquainted with their father, he is no stranger to them.
67Finally, the evidence before me confirms that the children have learned to safety plan in relation with their time with their father following the Society’s involvement with this family. In June 2018, they have also participated in a child and youth support group for children who witnessed violence, where they also learned to safety plan.
Child Support
68The mother seeks child support from the date she filed her application, in October 2011. She seeks an order imputing minimum-wage income to the father throughout those years. She claims that since 2011, the father is intentionally under-employed or unemployed and that he is capable of earning at least minimum wages working on a full-time basis.
69The father disputes that he has an obligation to pay child support. His evidence during this trial was that the emotional distress caused to him by this litigation and his periodical loss of contact with his children has made it impossible for him to work. The father is currently registered as a full-time student at S[…] University, in the Social Communication program. He lives on OSAP loans. Before that, he earned minimal yearly income and was in receipt of social assistance benefits.
Legal Framework
70Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as amended. [“Guidelines”] provides:
- Imputing income. — (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
71The Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at para. 23, set out a three-part test for determining whether income should be imputed based on intentional under-employment or unemployment as follows:
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
72A spouse is intentionally under-employed if he or she chooses to earn less than he or she is capable of earning having regard to all the circumstances (at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (at paras. 29-36).
73Based on all the evidence before me, I come to the conclusion that the father, since 2011, is intentionally unemployed and/or underemployed. Although it is not necessary for the purpose of imputing an income on the father, I come to the conclusion that the father is intentionally unemployed or underemployed for the main purpose of avoiding his child support obligations.
74The father’s income from the year of the parties’ separation to present, as found in line 150 of his income tax returns and/or notices of assessment, is as follows:
2011: $8702 (employment income) and $3576 (social assistance payments)
2012: $8768 (employment income)
2013: $10,637 (employment income)
2014: unknown
2015: $7091 (employment income and social assistance payments)
2016: $4088 (social assistance payments)
2017: $2732 (social assistance payments) and unquantified loans from the Ontario Student Assistance Program
2018: $0 income and unquantified loans from the Ontario Student Assistance Program
75As earlier stated, the father is a full-time student at S[…] University since 2017. He stated that his program will be completed in the spring 2020, although no evidence was led to confirm this other than his own testimony in that regard. I am unaware as to whether the father will successfully complete this program, as no report cards were provided either.
76When questioned about his intentions to look for employment after he completes his education, the father stated that he intends to register in a Master’s program in Conflict Resolution. When asked what his plans were if he was not accepted, his response was that he would look into and apply for any available Master’s programs until he was accepted in one. When questioned as to what his plans were to find employment after his Master’s degree was completed, the father confirmed that he intended to apply in a doctorate program. When asked what kind of employment he wanted to secure with all these degrees, he was unable to answer.
77In summary, it is clear that the father has no intention to ever be gainfully employed so long as he may be required to pay child support. It is equally clear that he has no specific plan about how his education might serve the goal of securing better employment. In fact, the father made it clear in his testimony that he believes, based on Justice Leroy’s temporary order of 2014, that as long as he does not work, he will never have to pay child support.
78As stated before, on December 11, 2012 the parties consented to an order that the father was to pay monthly child support in the amount of $94 per month, based on his declared income of $12,300 per year. When the parties attended the settlement conference before Justice Leroy in 2014, they consented to the following with regards to child support:
- The Respondent father shall pay child support in accordance with Child Support Guidelines once he resumes employment.
79Throughout his testimony, the father maintained the position that it was the parties’ agreement, as reflected in that order, that as long as he remained outside of the workforce (whatever the reason), he would not be required to pay child support. When it was suggested to him that the court could impute an income upon him and require that he pay child support if it found that he was intentionally unemployed, the father expressed the view that this would be unconscionable, that even criminals cannot be forced to work, and that this would be comparable to “modern slavery”. He repeated this on several occasions. In fact, the father’s main answer to any question related to his obligation to pay child support was that he had come to Canada to be with his children, not to waste time fighting over child support issues.
80I do not accept the father’s evidence that he was too psychologically and emotionally distressed following his separation to work or hold a full-time job. The father has provided no medical evidence that would support such a conclusion. Additionally, the father confirmed that his university studies require a significant investment of time far exceeding full-time employment hours. Obviously, his mental health has not impeded on his ability to study on a full-time basis.
81In his cross-examination, the father also stated that the only reason why he worked consistently from the date of his arrival in Canada to 2011 was because he was required to have full-time employment to sponsor his wife and child to immigrate to Canada. As he stated himself, once they were here, he was no longer required to work.
82Having found that the father is and has been intentionally unemployed or under-employed since 2011, I must now determine how much income should reasonably be imputed to him for the purpose of child support. The father does not appear to have any formal training. He completed a high school diploma in Tanzania and, while he was a refugee, a cooking course. After he arrived in Ottawa in 2009, he completed a job search certificate with Lasi Worldskills, his First Aid and CPR training as well as various courses through Institut de Formation Professionnelle. While he was a refugee, he worked as a sewing teacher for W[…].
83In Canada, he was employed in various capacities from 2009 to 2014. In 2009, he worked as a Healthcare Assistant in a retirement home and as a Grill Cook for a local restaurant. For the first half of 2010, he worked as a dishwasher at J[…]’s, and for the last half of 2010, he worked as a sorter for C[…]. For half of 2011, he worked as a dishwasher for P[…]. From February 2012 until March 2014, he was employed 20 hours a week as a cleaner for A[…].
84According to the father’s testimony, in March 2014, he was laid off by A[…] as a result of a shortage of work. However, his Record of Employment makes it clear that he was laid off at his own request. Further, it is unclear whether the father continued to work for this company after March 2014, as pay stubs submitted into evidence suggest that he continued to receive income from that company for at least two months after he was purportedly laid off. What is clear is that when the trial began in September 2014, the father was conveniently unemployed, which explains why no order was at the time requiring him to pay child support, as set out in paragraph 9 of Justice Leroy’s order.
85It is clear to me that the father is capable of working full-time hours earning minimum wages, and that he chooses not to work for the purpose of avoiding his child support obligations. While the father’s attempt to better his education and employment opportunities by pursuing postsecondary education are laudable, his testimony made it clear that he has no intention to use such heightened education for the purpose of supporting his family, but rather to avoid ever having to do so while his children are dependents.
86Since the parties’ separation in 2011, the mother has borne the burden of supporting these two children on her own, without any contribution whatsoever from the father. She has relied on social assistance payments to support herself and her children. There was an ongoing duty, past and present, on the father to actively seek out reasonable employment opportunities to maximize his income and to contribute to the support of his children. The father has not met that onus and he has not satisfied me of any justifiable reason for his failure to do so. I find that imputing an income on the father which is commensurate with full-time minimum wage employment for the purpose of establishing his child support obligations is reasonable in the circumstances.
87During the relevant years, minimum hourly wages in Ontario varied from $10.25 (2011) to $11.60 (2017), and then were set at $14.00 beginning in 2018 to present). For that reason, I have used an average hourly rate of $11 for the years 2011 to and including 2017, and thereafter, used the current hourly rate of $14.
88As a result, I make the following order:
An income of $20,000 per annum (representing roughly 37 hours per week, at the hourly rate of $11) is imputed on the father for the purpose of determining his child support obligation for the two children for the period of October 1, 2011 to and including December 31, 2017. From January 2018 on, an income of $26,000 per annum (representing roughly 37 hours per week at the current minimum wage rate of $14 an hour) is imputed on the father.
For the months of October to December 2011, the monthly table amount owing by the father to the mother for the two children was $308 based on the May 1, 2006 Tables.
From January 2012 to and including December 2017, the monthly table amount owing by the father to the mother for the two children was $306 based on the December 31, 2011 Tables.
From January 2018 to present, and on an ongoing basis, the monthly table amount owing by the father to the mother for the two children is set at $391 based on the November 22, 2017 Tables.
Any support paid by the father and/or garnished by the Family Responsibility Office, as shown in its records, since October 1, 2011 shall be credited against arrears owing by the father.
Costs
89The mother is clearly the successful party in this case. If the parties cannot agree on costs, I will accept written submissions from the parties not exceeding four pages (exclusive of Bills of Costs and Offers to Settle). The mother will have 20 days from the date of this Decision to provide her submissions and the father will have 20 days thereafter to do the same. The mother will be allowed a brief reply if deemed necessary, not exceeding two pages, which shall be provided within 10 days from receipt of the father’s submissions.
Madam Justice Julie Audet
Released: November 22, 2019
COURT FILE NO.: FC-11-2362-1
DATE: 2019/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.S.
Applicant
– and –
K.K.
Respondent
REASONS FOR Decision
Audet J.
Released: November 22, 2019
Footnotes
- During their testimony both Ms. C.G.A. and Mr. D. indicated that these events took place in January 2018. However, they were both adamant that these transpired when B. was in grade 2. If that is the case, then B.’s behavior became alarming to the school in January 2017, not in January 2018 (since B. is now in grade 5). Further, a letter from the mother’s counsel to the father’s counsel dated June 2017, filed in evidence, confirms that those events indeed took place in the Winter of 2017. For that reason, I find that these events actually took place in January 2017. The significance of this fact will be made clear later in my reasons.