Court File and Parties
COURT FILE NO.: FC-19-1988 DATE: 20200226 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ROSANNA BHAGWANDIN Applicant – and – MALI JEAN PAUL Respondent
Counsel: Self-represented (Applicant) Self-represented (Respondent)
HEARD: in chambers
REASONS FOR DECISION
AUDET J.
[1]
Background
This is a confirmation hearing pursuant to s. 44 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).
2On August 26, 2019, Justice Phillips of the Ontario Court of Justice in Windsor made a provisional order varying the Final Order of Justice Sherr dated June 6, 2012, as it relates to the respondent’s child support obligations towards the parties’ son, Aiden (8).
3The 2012 Order, made on consent, provided for the payment of $170 per month by the respondent father to the applicant mother for the support of Aiden, based on the father’s minimum wage income of $21,320 per annum. Based on the evidence provided by the mother, Justice Phillips increased the father’s child support obligation to $370 per month, commencing on July 1, 2017, based on the father’s annual income of $41,000 (2018 income).
4As provided for in s. 44 of the FLA, the father was served with the mother’s motion materials and Justice Phillips’ decision, and was afforded an opportunity to show cause why the provisional order should not be confirmed.
[5]
The Parties' Positions and Evidence
The father filed a Response to motion to change, sworn financial statement and an affidavit supporting his request that his child support obligation be set at $179.99 per month based on his alleged 2019 income of $22,512.00 (he did not state his position as it related to his child support obligations for the years 2017 and 2018). In his affidavit sworn January 20, 2020, the father confirms that his yearly income has gradually increased from 2016 on, as he secured employment as a Customer Care Specialist with ATB financial. His notices of assessment filed and attached to his sworn financial statement confirm that he earned a total yearly income of $32,502.00 in 2016, of $40,266 in 2017 and of $41,036 in 2018.
6The father alleges that in June 2016, he started to cohabit with his then fiancée with whom he got married on August 18, 2018. He confirms that his wife gave birth to a baby girl at some point in 2019 (the exact date was not provided), and that she has remained at home on a full-time basis to care for their daughter. The father states that he is currently on parental leave to care for his daughter, that he suffered health issues in 2019 and that he has not been at work since May 22, 2019.
7To support his alleged inability to work, the father submitted into evidence a one-paragraph letter from Dr. P. Dutta dated October 17, 2019, which states:
Patient is involve in my care since Jan. 29,2019. Due to work related, stress with low sleep and interest on different occasion, patient was complaining of migraine- like headache but not responded with anti-migraine medication. For his headache he is also visited ER recently.
At present, patient is not able to work with headset because of his headache.
8In her affidavit in support of her request for an increase in child support, the mother confirms that since the father was served with her motion to change on July 6, 2019, he stopped paying child support for Aiden. She further confirms that the father has sent her several text messages asking her to consent to his parental rights being “signed over” to the mother’s new partner so as to allow him to stop paying child support for Aiden permanently.
[9]
Analysis and Findings
In the circumstances of this case, I find that the father’s evidence with regards to his alleged inability to work and to continue to earn the level of income that he earned in 2017 and 2018 is not credible. Since his wife is home on a full-time basis to care for their newborn daughter, there is nothing requiring him to also be at home on a full-time basis to care for his newborn, particularly since he has a positive obligation to support another child. Further, the medical evidence adduced by the father to support his alleged inability to work due to medical reason is scarce, at best. It certainly does not convince me that his current medical issues (headaches) preclude him from working on a full-time basis. The extent of this untested evidence is that the father cannot currently work with headsets.
[10]
Conclusion
Based on all the evidence before me, the provisional order of Justice Phillips is hereby confirmed in its entirety.
Madam Justice Julie Audet Released: February 26, 2020