COURT FILE NO.: FC-10-1263-2
DATE: 2020/10/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angelique Blackmore
Applicant
– and –
Clifford Blackmore
Respondent
Odette Rwigamba, for the Applicant
Clifford Blackmore, for himself
HEARD: November 26, 27, and 29, 2019, December 2, 3, 4, 5, 6, 9, 10, 11, and 12, 2019, and January 20, 2020.
REASONS FOR DECISION
D. Summers J.
Nature of the Proceedings
[1] The parties have one child. He is the focus of this motion to change that proceeded as a trial under s. 17 of the Divorce Act.[^1] The applicant, Ms. Blackmore, moves to vary the consent order of Justice Labrosse dated November 17, 2014. She seeks an order for sole custody and primary residence, with access to the respondent father, Mr. Blackmore, in her discretion after taking into consideration the views, preferences and best interests of the child. She alleges that the child suffered physical and emotional abuse at the hand and word of his father. But for two brief meetings in the presence of a third party, Mr. Blackmore has not seen his son since September 2017.
[2] Ms. Blackmore also seeks orders for child support and s. 7 expenses effective October 1, 2017, arrears for unpaid daycare costs under Labrosse J.’s order, life insurance, permission to obtain a passport and travel with the child without Mr. Blackmore’s consent, and to impute annual income to Mr. Blackmore of $100,000.
[3] Mr. Blackmore opposes the mother’s claims. He seeks an order awarding him sole custody with access to her, one weekend per month for two years, thereafter increasing to alternating weekends. Mr. Blackmore alleges the breakdown in his relationship with the child is the result of the mother’s interference and determination to alienate them. If awarded custody, Mr. Blackmore also seeks an order for child support.
[4] At the outset of the trial, I ruled against Mr. Blackmore’s intention to call the child as a witness and requested the assistance of the Office of the Children’s Lawyer (OCL). A Voice of the Child Report was completed and available to the court when the trial resumed in January 2020.
Factual Context
[5] The parties married on October 7, 1999 and separated seven years later, on October 2, 2006. They divorced in 2011.
[6] Their only child, Timothy Adam Blackmore (Tim), was just one month old when they separated. He was born on September 2, 2006 and is now 14 years of age.
[7] Justice Labrosse’s order dated November 17, 2014 incorporates the detailed provisions of the parties’ Minutes of Settlement signed earlier that day. The order provides the parties with joint custody and equal time sharing on a 2/2/5/5-day schedule. Child support was based on Ms. Blackmore’s 2013 income of $71,333 and the parties’ agreement that Mr. Blackmore’s income was the same. No child support was payable and section 7 expenses were to be shared equally. Mr. Blackmore’s share of daycare costs was fixed at $240 per month and payable to Ms. Blackmore, in advance. Both parties were to maintain life insurance in the amount of $250,000 as security for support and Ms. Blackmore was to maintain health benefits for Tim through her employment.
[8] The Children’s Aid Society of Ottawa (CAS) and Ottawa Police Services (OPS) became involved with the family in 2015. There were further file openings in 2016 and 2017.
[9] In May 2018, Ms. Blackmore commenced this proceeding.
[10] Ms. Blackmore is now 46 years old. She is employed by CHEO as a nurse and program coordinator. Tim is her only child.
[11] Mr. Blackmore is 42 years old. He is self-employed as a renovator, designer, and home stager. He operates under the trade name Ideal Homes. Tim is his only child.
The Legal Test to Vary a Parenting Order
[12] Section l7 of the Divorce Act[^2] provides the court with jurisdiction to vary a custody order. The test under subsection (5) has two parts. The first part of the test requires the judge to be satisfied that: (1) there has been a change in the condition, means, needs or other circumstances of the child and/or the ability of the parents to meet the child’s needs; (2) the change materially affects the child; and (3) the change was either unforeseen or could not have been reasonably contemplated by the judge who made the initial order. If the first part of the test is met, the court moves on to the second. There the judge must consider the matter afresh and decide custody and access in accordance with the best interests of the child in the current circumstances.[^3]
[13] In this case, notwithstanding that both parties seek to vary Labrosse J.’s order, I must still be satisfied that a material change in circumstance has occurred. The court’s jurisdiction to make a variation order is dependent on an explicit finding of material change since the previous order was made, even where both parties request a variation.[^4]
Part I of the Test – Has There Been a Material Change Affecting the Child That Was Not Foreseen or Reasonably Contemplated
[14] The allegations of material change in circumstance made by the parties fall into two broad categories: abuse and alienation.
[15] It is Ms. Blackmore’s position that the material changes in Tim’s circumstances rests in the physical and emotional violence that he experienced in the care of his father. She says the result is fear. Tim is afraid of his father and has refused to see him since September 2017. Ms. Blackmore says she wanted Tim to have a relationship with his father and did her best to protect him by repeatedly asking Mr. Blackmore to not hit him. She submits that nothing changed, and Tim bears the scars. She says she witnessed his tears and heard his pleas not to return to his father’s house. Ms. Blackmore contends she still wants Tim to have a relationship with his father, but it must be safe, and Tim must be ready. She believes Mr. Blackmore loves Tim but cannot control his temper or show Tim, without condition, that he loves him. She says Tim needs to know his father loves and respects him enough not to hurt him.
[16] Mr. Blackmore admits his use of physical discipline and says it is not a crime in Canada. He also says that he apologized to Tim for those occasions where he may have overreacted. Mr. Blackmore blames Ms. Blackmore for most of what has happened over the years including the deterioration in his relationship with Tim. He says if Tim is afraid of him, it is because she poisoned his mind. Mr. Blackmore believes that Ms. Blackmore manipulates and uses Tim to punish him for leaving the marriage. He contends she has long been planning and scheming to have Tim to herself. He submits that she cannot get over him or move on with her life and that their ability to parent together is only difficult when he is romantically involved with someone else. It is Mr. Blackmore’s position that the only way to undo the harm caused to his relationship with Tim is for him to be in his sole custody and have limited time with his mother. This, Mr. Blackmore asserts, would be in Tim’s best interests.
[17] Ms. Blackmore denies the allegations of interference and alienation. She is adamant that she has no interest in resuming a relationship with Mr. Blackmore. She says but for Tim, she has no interest in talking to him.
[18] Several witnesses testified at trial including one of Tim’s teachers, a former principal, two vice-principals, three CAS workers, a bank employee, Mr. Blackmore’s former common-law partner, the 12-year-old son of his current common-law partner, Mr. Blackmore’s aunt, a friend of Mr. Blackmore’s, and three mental health counsellors.
Analysis
A Word About Tim
[19] By all accounts, Tim is a kind, caring, polite young man, who is well-liked by his teachers and classmates. He struggles somewhat in school but, according to Ms. Blackmore, he has improved since 2017 and is taking more responsibility for his homework. She says Tim excels in French, struggles in music, and finds math hard. He has been working with his English teacher and his assignments are getting to her desk rather than being left in his locker. Ms. Blackmore said Tim has learned to speak up for himself.
Hearsay
[20] To the extent the evidence consists of many statements made by Tim to others, I find the child hearsay to be necessary. It would have been inappropriate and potentially harmful to Tim to allow him to testify, as Mr. Blackmore intended. I also find the hearsay evidence to be reliable and consider it for the truth of the contents. Tim’s statements were repeated to the court not only by the parties but also by teachers, school administrators, CAS workers, and the Office of the Children’s Lawyer. Except for the parties, these witnesses are all third-party professionals whose job it is to work with children and keep accurate notes. In addition, I was struck by the consistency in Tim’s statements, over time and place.
Physical Violence
[21] Ms. Blackmore testified to her growing concern over the years regarding the harsh way Mr. Blackmore treated their son. She knew he was hitting Tim and wanted it to stop. The evidence of physical abuse focused primarily on two situations in 2016 and a third in September 2017.
[22] In 2016, Karima Abdi was Mr. Blackmore’s common-law partner. She testified to Mr. Blackmore’s reaction when he learned that Tim broke a small bracelet that had been gifted to him. She said Mr. Blackmore put Tim to the ground and beat him in front of her and her young daughter. She said Tim was begging his father to stop and that this event still marks her today. Ms. Abdi admitted she did not tell Tim’s mother what happened. She said Mr. Blackmore had been violent with her and she was afraid of him. Ms. Abdi claimed she tried to convince Mr. Blackmore not to hit Tim and he would dismiss her saying, he is not your son, it is not your matter. Others attributed similar words to Mr. Blackmore on the issue of discipline.
[23] The other situation described by Ms. Abdi was the aftermath of Tim saying he did not like her and wanted his parents to be together. This comment angered Mr. Blackmore. He put Tim in his truck and left. According to Ms. Abdi, when they returned Tim was crying so hard that he was choking and said that his father beat him up. Tim also disclosed this incident to the OCL and described how his step-mother sat with him and reassured him.
[24] Ms. Abdi struck me as forthright and credible, however, I am mindful that her relationship with Mr. Blackmore ended badly and they are in the midst of their own litigation. I consider her testimony only to the extent it is corroborated by others.
[25] The first of Tim’s educators to testify was Michael Short. He spoke about the day in October 2016 that Tim talked to him after an anti-bullying discussion in class and disclosed that he had been hit by his dad: slapped in the face and on the shoulder. Tim said it had happened more than once. Mr. Short described Tim as distressed and not wanting to return to his father’s house that night. He reported the disclosure to the CAS.
[26] Jamie Paradis was the CAS worker assigned to investigate. He testified at trial. The CAS records were also before the court. The evidence regarding Tim’s disclosures to Mr. Paradis included him saying that his dad gets mad easily, he yells when he is angry, he swears at him sometimes, and will slap him on the face or the leg. Tim said that it hurt when his dad hit him, but he never left a mark or a bruise. Tim said he wanted his dad to be calmer and more patient with him.
[27] Ms. Blackmore asked Mr. Paradis if she could be the one to advise Mr. Blackmore that the CAS was involved. She was concerned that he would take out his anger on Tim. This concern was consistent with Tim’s disclosures to the OCL. He said if his dad learned that he told someone, he would hit him again.
[28] After his meeting with Mr. Blackmore, Mr. Paradis concluded that the incident was isolated and not indicative of a violent pattern. The concern was not verified, and the file was closed.
[29] At trial, Mr. Blackmore admitted to hitting Tim twice in 2016. With respect to the occasion in his truck, he said he slapped Tim’s leg but later added that he also slapped his mouth. Mr. Blackmore appeared to distinguish between slaps – those that are okay because they do not leave a mark and those that are not okay because they do.
[30] I find that Mr. Blackmore struck Tim on two different occasions in 2016. The strikes were painful for Tim, and he demonstrated fear.
[31] The events of September 20, 2017 led to further CAS involvement. Mr. Blackmore testified he was upset with Tim that night for leaving the dinner table without clearing it and slapped his bum to get his attention. He said Tim fell to the floor to avoid a spanking and then began to cry. He was holding his finger, saying it hurt. According to Mr. Blackmore, he immediately recognized the error of his ways, apologized to Tim, and got ice for his finger. He said he was stressed and worried that night about the devastating impact of Hurricane Maria on his country, the Caribbean island of Dominica, where many of his family members still live. He says he now knows he wrongly took it out on Tim, and it was unnecessary to slap him.
[32] Enroute to the clinic the next morning, Mr. Blackmore sent a text to Ms. Blackmore. He told her what happened and requested a photo of Tim’s health card. Ms. Blackmore replied by text saying, among other things, “I told you not to hit him. He drop [sic] to the floor in fear.” Mr. Blackmore replied that Tim was his son and he would discipline him as he saw fit. He said, “The point of discipline is fear.”
[33] Mr. Blackmore told the clinic staff that Tim fell and hurt his finger. The diagnosis was a sprain. Ms. Blackmore stayed behind to talk to the doctor and share what Mr. Blackmore said to her. By the time she got home, the doctor had reported the incident and the CAS were calling her.
[34] Mr. Blackmore’s parenting time was suspended while the CAS investigated. Kelly White was the child protection worker assigned to investigate. She testified at trial that the incident was reported to the police. They did not lay charges.
[35] It was clear from Kelly White’s evidence that in addition to the circumstances surrounding Tim’s injury, she heard many complaints from each party about the other. Ms. Blackmore shared her concern about Mr. Blackmore hitting Tim as well as her concern for the number of women and duplicitous circumstances that she believed Mr. Blackmore exposed him to. For his part, Mr. Blackmore shared his view that Ms. Blackmore was always finding ways to insert herself and interfere with his life because he refused to reconcile with her. He said involving the CAS was just her latest attempt.
[36] Ms. White was unequivocal in her view that both parties contributed to the conflict between them and Tim was suffering because of it. She agreed that Ms. Blackmore was receptive to her feedback in this regard and appeared to learn from it. Mr. Blackmore, less so. He continued to see Ms. Blackmore as the root of his problems with Tim and the CAS.
[37] Ms. White described her first interview with Tim and his disclosure that his dad slapped him when he did not pick up the dishes. According to Ms. White, Tim told her he also had clear memories of his dad hitting him when he was as young as 3 years old. She also reported Tim telling her how his dad used to spend time with him but not anymore and he does not know what changed. Ms. White said she believed Tim. The OCL reported similar disclosures from Tim regarding early memories of physical force at the hands of his father. To her, he added that his dad had been violent with his step-mother and the family dog.
[38] Over the course of her work with Tim, Ms. White recorded many other disclosures of physical and verbal abuse.
[39] Tim confided in Ms. White that he felt responsible for the conflict between his parents. Her notes report him saying that it was his fault that they fight. He said if he was not around, there would be nothing to fight about and they would still be together.
[40] According to Ms. White, Mr. Blackmore’s account of that September night mirrored Tim’s in many ways. For instance, she noted him saying that before he hit Tim, he yelled at him to get his attention. Mr. Blackmore added that after Tim fell to the floor, he tried to hit him a second time but missed. He said the second attempt was because Tim was moving around on the floor, making a big deal of the situation and being overly dramatic. Mr. Blackmore acknowledged to Ms. White that Tim was not being rude or disrespectful in any way and that generally he is a good child who does not need a lot of discipline. She observed that Mr. Blackmore was forthcoming about hitting Tim that night but showed no insight into the impact of his behaviour on Tim, the risk to Tim, or the Society’s safety concerns. Mr. Blackmore left the meeting early saying he had had enough.
[41] At trial, Mr. Blackmore did not mention that he tried to hit Tim a second time.
[42] Ms. White said it was difficult to make progress with the file as Mr. Blackmore repeatedly changed his mind. He would agree with the CAS process one day and change his mind the next. He would say the situation was causing too much grief and he was walking away, then do an about-face and state his intention to resume access under Labrosse J.’s order. Ms. White also testified to her inability to set up a safety plan to facilitate access while she completed her investigation. Mr. Blackmore rejected the idea of community visits with Tim and proposed only one possible supervisor – his current common-law partner, Ms. Ibrahim. At trial, he said the Society did not bother to contact Ms. Ibrahim, however, Ms. White testified that she could not be approved due to her past involvement with the Society.
[43] The situation came to a head at the end of October 2017 when Mr. Blackmore again declared his intention to walk away. The CAS advised they would be closing their file. Mr. Blackmore was not cooperating with the Society and they were satisfied that Ms. Blackmore remained protective. Then Mr. Blackmore abruptly changed his mind, said he intended to resume his access under Labrosse J.’s order and would pick up Tim the next day at school. Tim became desperate when he learned of this. In tears, he begged his mother and Ms. White not to make him go with his father. These circumstances caused the Society to reconsider their decision. Rather than closing the file, it was transferred to ongoing services. This turn of events upset Mr. Blackmore greatly. He saw this not as a sign of Tim’s distress but as the latest demonstration of Ms. Blackmore’s ability to influence the child, co-opt the CAS and control the narrative.
[44] In November 2017, after the file was transferred to ongoing services, Ms. Barbara White was assigned as Tim’s child protection worker. She too testified at trial and confirmed his ongoing resistance to contact with his dad. Mr. Blackmore contends the CAS was wrong to transfer the file to Barbara White. He said that is not how the CAS works. According to Mr. Blackmore, the initial worker remains with the file and in this case, alleged the change was the result of Ms. Blackmore’s influence.
[45] Barbara White worked with Tim and encouraged him to write down what he wanted to say to his dad. She then arranged a meeting for the three of them at Tim Horton’s on December 6, 2017. She said Tim worked hard to prepare and although it was difficult for him, he was able to say many things to his dad. Ms. White thought the meeting had gone well until she proposed another meeting in the community. Tim responded that he wanted it to take place at the CAS offices. Mr. Blackmore got very angry and erupted saying this is “bullshit.” He was asked to leave. Ms. White testified that Tim was inconsolable, crying that he had “ruined things” with his dad. Ms. White recalled that even with Ms. Blackmore’s help, it took thirty to forty minutes before Tim was calm enough to leave the restaurant. Ms. Blackmore described Tim’s reaction as a panic attack. She had seen them before. She said he was so upset, he could hardly breath.
[46] Mr. Blackmore said he felt betrayed by the meeting. He insisted that Ms. White told him the meeting was about restoring access, that he was blindsided to find out to the contrary, and that is why he reacted the way he did. Mr. Blackmore called the question of another meeting in the community “artificial.” He alleged that it was scripted, and that Barbara White told Tim how to respond. He said his declaration of “bullshit” was directed at Barbara White – not Tim. He did not believe that Tim genuinely wanted Ms. White at the next meeting and said it was wrong of the CAS to put the responsibility on Tim to say he did not want access restored. Ms. White denied giving Mr. Blackmore reason to think that the meeting was about Tim returning to his care. I accept Ms. White’s testimony. Considering the circumstances to that point, it is not reasonable to think that Mr. Blackmore’s parenting time would resume after one meeting. It was, however, a brave first step for Tim. Mr. Blackmore failed to make the most of it. He blamed both Ms. Blackmore and Ms. White for influencing Tim before the meeting and struggled to take any responsibility for his actions. Ms. White said little was heard from Mr. Blackmore after that and neither he nor Tim asked for another meeting.
[47] Mr. Blackmore’s testimony added further context to the meeting at Tim Horton’s. He said Tim told him that he did not want to be yelled at or hit again. Mr. Blackmore said he was honest with Tim and told him he could not promise that he would not discipline him again if lines were crossed such as being disrespectful with his mom. He told the court he believes that he can discipline within the boundaries of Canadian law and does not want Tim to think that his hands are tied when discipline is needed. Mr. Blackmore also said he was not satisfied that Tim’s concerns justified another meeting in the presence of Ms. White. He saw no reason why he and Tim could not go alone to either MacDonald’s or the park. He believes that Barbara White aligned herself with Ms. Blackmore. The evidence underscores Mr. Blackmore’s continued inability to hear Tim and respect his feelings as well as what appears to be a well entrenched view that someone else is always to blame.
[48] Barbara White worked with Tim until May 2018 and closed the file. Mr. Blackmore was not asking to see Tim nor was he cooperating with the Society. Tim was still steadfast in his refusal to see his father and Ms. Blackmore remained protective.
Emotional Abuse
[49] The court also heard evidence of alleged emotional abuse.
[50] The first incident described by Ms. Blackmore occurred on September 8, 2015 on the first day of class at Tim’s school. Plans for Tim’s pick up at the end of the day had changed a couple of times. As a result, both parties attended and a struggle ensued. Although it was Ms. Blackmore’s parenting day, Mr. Blackmore insisted on picking up Tim as he had been asked earlier in the day. He put Tim in his truck, Ms. Blackmore took him out, and he put him back in again. Mr. Blackmore admitted to the police that he pushed Ms. Blackmore aside to put Tim in the truck for the last time before he drove away over the school lawn. The police were contacted as was the CAS. No charges were laid. The CAS cautioned both parties and closed their file. Tim talked to the OCL about this incident and said he regretted not telling the police what happened that day. He recalled the police talking to him with his dad present and said, “Looking back, I had a voice and never used it. So many opportunities.”
[51] Ms. Abdi described an incident that occurred in 2016, witnessing Mr. Blackmore take Tim’s wallet, remove his money, and throw it out of the truck window. She said Tim was crying and pleading with his father to get his money back. Ms. Abdi thought the incident occurred sometime around Tim’s 10th birthday.
[52] Mr. Blackmore did not deny throwing Tim’s money out the window. He said Tim gave him attitude, most of the money had come from him anyway, and he wanted to teach him a lesson. Mr. Blackmore said he eventually reimbursed Tim most of the money but criticized Ms. Blackmore for keeping Tim’s wallet at her house after that. Ms. Blackmore said her concern was Mr. Blackmore’s behaviour, not the money.
[53] Ms. Abdi further testified to the discipline Mr. Blackmore imposed around homework. She alleged that he would force Tim to sit at the kitchen table for hours on end until he completed his work to Mr. Blackmore’s satisfaction. She said Tim could be there until midnight or later. Ms. Abdi saw this as abusive. Mr. Blackmore submitted that she greatly exaggerated his homework methods and expectations. He said that he might leave Tim at the table until 9:00 p.m. or so, but never until midnight. Tim’s account of homework discipline accords more with Ms. Abdi than his father. He told the OCL that school was hard for him and he had been held back a couple of years. He said his dad would get mad at him and keep him up late at night to work on math and penmanship. Tim said this happened a lot and remembers his step-mother trying to intervene. He described her as “super nice.”
[54] Ms. Blackmore and Ms. Abdi both described further incidents that they regarded as emotionally harmful to Tim. Ms. Abdi said Mr. Blackmore forbid Tim from playing with her daughter if it involved Barbie dolls and also prevented him from having friends at the house. This was consistent with Ms. Blackmore’s evidence that Tim said he was not allowed to have friends to his dad’s house and was expected to play with his partner’s children. Ms. Blackmore further reported how Mr. Blackmore warned Tim not to exchange Valentine’s cards with the boys in his class and would go through his school bag on Valentine’s Day to be sure. She also alleged that Mr. Blackmore told Tim only gays wear pink shirts and called him a little girl for certain behaviours. This evidence is consistent with Tim’s disclosure to the OCL that his dad would call him a “weak little girl.”
[55] Mr. Blackmore did not deny these allegations except to say that there was only one occasion where he called Tim a derogatory name. He admitted that he had been frustrated with Tim for repeating information to his mother about his household and scolded him with “only little girls do that.” He says he now recognizes that he placed the responsibility on Tim to discern what he could and could not repeat to his mom. He did not comment on the name calling.
[56] According to Ms. Blackmore, Tim was aware that sometimes his dad had more than one girlfriend at a time and he was expected to keep it a secret. She said Tim often grew fond of his father’s partners and it confused and upset him to lie.
[57] Ms. Blackmore and the school administrators testified that it upset Tim when his dad showed up at school. Richard Latour, who was Tim’s principal during the 2017/2018 school year, said he took Tim under his wing that year and came to know him reasonably well. He described Tim as a generally happy kid except when it came to his father. Mr. Latour knew that Tim did not want to see his dad and did not want him coming to the school. Mr. Burns and Ms. Gauthier, who are vice-principals at Tim’s current school, gave similar testimony.
[58] According to Ms. Blackmore, Tim did not want his father to know he changed schools in September 2018. However, she said she felt she had no choice when Mr. Blackmore learned that Tim was no longer attending his former school. When she told Tim what happened, he promptly called his dad. The call was recorded, and Mr. Blackmore chose to play it at trial. It was unsettling to hear. Tim was sobbing, saying why is it always about you dad. Leave me alone. Give me time. Let me heal. Stop texting me all the time. Stop coming to my school and embarrassing me. I’m not ready for anything. I don’t want to live with you. Mr. Blackmore was calm on the phone but did not demonstrate any empathy for Tim or awareness of anything except his own hurt and frustration.
[59] Mr. Blackmore played more recordings of his messages and conversations with Tim in January 2019. Mr. Blackmore’s voicemails were by and large similar. He would say things like: I tried to call you; is there a reason you didn’t call me back; you know I’m only allowed to call you on Tuesday and Thursday; please call me back; and I just want to hear your voice. When they did speak, Mr. Blackmore would thank Tim for taking his call or returning his call and say how happy he was to hear his voice. On occasion, he would ask if Tim received his delivery. Invariably, Mr. Blackmore would sign off by saying, “Daddy loves you” and Tim would say “I love you too.” Overall, I found their exchanges encouraging until the day that Mr. Blackmore asked Tim if he could come by his school to drop something off. Tim immediately offered reasons why that should not happen. First, he said he had a big test that day. Then he said he thought it was a PD day so he would not be there anyway. When Mr. Blackmore replied that he did not need to see him, Tim relented and said he could come.
[60] Mr. Blackmore offered these recordings to demonstrate what he described as the two faces of Tim. Unlike Mr. Blackmore, I did not hear inconsistency. I heard a tentative adolescent trying to navigate his way through a difficult time and balance some contact and communication with his father against his fear and desire for distance. Mr. Blackmore has been asked by Ms. Blackmore, Tim’s teachers, the CAS, and Tim himself not to attend his school. Yet, to the detriment of his relationship with Tim, he persisted.
[61] Vice-principal Gauthier recalled interacting with Tim around detentions. It was not a settled time for him at school and following an incident on February 26, 2019, Tim told her he had a bad relationship with his dad, and he was stressed about it. Ms. Gauthier contacted the parties to suggest Tim meet with a school psychologist. She was unaware that Tim was already in counselling. Mr. Blackmore wanted Tim to get help through the school. Ms. Blackmore told him Tim had a counsellor and did not agree that he should have two. Within days of that conversation, Mr. Blackmore sent Tim’s counsellor, Ms. Clermont, a “cease and desist” letter forbidding her from working with Tim and pointed out that he had never given his consent to therapy.
[62] The night of February 26, 2019, Tim talked to his dad on the telephone. According to Mr. Blackmore, Tim used phrases like needing time to heal, just like a broken arm needs time to heal. This upset Mr. Blackmore. He said it was as if Tim was reading a script. He told him he would not listen to it and the call ended abruptly. Mr. Blackmore blamed Ms. Blackmore claiming she should have prepared him for such a call. She said she knew that Tim had been working with Ms. Clermont to give voice to his feelings but did not know he had chosen that time to talk to his dad.
[63] In March 2019, Ms. Blackmore tried to arrange a meeting between Tim and his dad at Tim Horton’s. Mr. Blackmore was annoyed by the short notice of only two hours but agreed to attend. Tim talked to the OCL about this meeting. He said it did not go well and that his dad blamed him. According to Ms. Blackmore, Mr. Blackmore walked out after a couple of minutes. She believes it was the last time that Tim saw his dad.
[64] I am satisfied that Tim has been subjected to considerable emotional abuse by his father.
Alienation
[65] Mr. Blackmore accuses Ms. Blackmore of alienation and interfering in his relationship with Tim and Tim’s relationship with his paternal family. For instance, he believes Tim told his mother that Mr. Blackmore hit him, and she then caused Tim to tell his teacher, Mr. Short. That, he says, was how Ms. Blackmore ensured that a report would be made to the CAS. Mr. Blackmore also believes that Ms. Blackmore coached Tim to tell Ms. Abdi he did not like her and that he wanted his parents back together. As Mr. Blackmore sees it, there is little that Ms. Blackmore will not do to insert herself into his life in the hope of getting back together. He further asserts that Ms. Blackmore persuaded the CAS to her side and convinced them that Tim should be permitted to decide whether he sees his father, or not.
[66] Mr. Blackmore focused a great deal on Kelly White’s suggestion that Ms. Blackmore consider counselling to address any unresolved issues from the marriage and pointed to her failure to do so. Ms. White clarified that counselling was not a requirement for Ms. Blackmore, rather is was a suggestion. It was my impression that Mr. Blackmore was trying to put counselling for Ms. Blackmore on the same level as the parenting and anger management programming recommended to him. He said he did everything asked of him and still his time with Tim was not restored. Ms. Blackmore, he said, did nothing and Tim was allowed to remain with her. I agree with Kelly White’s observation that completing a course is not the same as benefitting from it.
[67] With respect to Mr. Blackmore’s family, Ms. Blackmore says they did not reach out to Tim after the events of September 2017 nor have they made an effort to stay in contact with him. She said Mr. Blackmore’s mother called once but did not ask to speak to Tim. Similarly, she did not hear from Mr. Blackmore’s aunt, Marie Burns, until sometime in May 2018 after she started this court proceeding. She said even then, Aunt Maria did not ask to speak to Tim.
[68] Ms. Burns testified that she tried a few times to speak to Tim after September 2017 but did not succeed. Except for the reference to one weekend when she was passing through Ottawa and stopped to see Mr. Blackmore, she was not specific about her efforts to communicate with Tim. Mr. Blackmore alleged that Ms. Blackmore refused to facilitate a visit on that occasion, however, her evidence indicates that she relayed the message to Tim and encouraged him to see his aunt but Tim did not respond. Mr. Blackmore did not explain how Tim might have seen his aunt without also seeing him – something Tim was clear he did not want to do.
[69] Ms. Burns said the parties had been fighting for a long time and the situation always got a bit worse whenever Mr. Blackmore started a new relationship. She said Ms. Blackmore worried that he would put his new relationship ahead of Tim but could not be sure that was the only reason for her upset. Ms. Burns acknowledged that although she and Mr. Blackmore speak frequently, she did not know that he had hit Tim. She said she was not troubled by spankings but agreed it was excessive to hit a child in the face. Ms. Burns also agreed that her knowledge of this situation was based only on what Mr. Blackmore told her. I did not find her testimony helpful.
[70] I am not persuaded that Ms. Blackmore engaged in alienating behaviour or tried to interfere in Tim’s relationship with his father. Neither child protection worker said they had reason to believe Tim was influenced by his mother. Nor did they believe that Ms. Blackmore was purposefully interfering in Tim’s relationship with his dad. Apart from her contribution to past conflict, neither worker had any concerns about Ms. Blackmore’s parenting. As Kelly White saw it, both parents contributed to the conflict and both were at fault.
[71] I believed Ms. Blackmore when she said she has no interest in having any kind of relationship with Mr. Blackmore beyond a parental rapport. I also believed her when she said she wants Tim to have a relationship with his dad as long as it is safe. Several times during the trial she said she did what she could to convince Mr. Blackmore to stop hitting Tim. The last time she said this, there was a tremor and considerable emotion in her voice. Moreover, Ms. Blackmore facilitated Tim’s parenting time with his father for many years in the face of growing concern for his safety and well-being in his father’s care before she returned to court. Her decision to bring this proceeding was not at all precipitous. I find that the events of September 20, 2017 were simply the last straw for her, and for Tim. Mr. Blackmore is the author of Tim’s fear and refusal to see him. It cannot be blamed on Ms. Blackmore.
[72] Nor am I persuaded that Ms. Blackmore undermined Tim’s relationship with his paternal relatives. I sense that initially, she was disappointed and perhaps sad for Tim that his paternal grandmother, aunt, and other family members did not reach out to him after September 2017 and the breakdown in the relationship with his father. And since then, it does not appear that any of them have made much effort to stay in touch, even by phone, when they might easily have obtained Tim’s number from Mr. Blackmore in order to call or text him directly. To the extent that Mr. Blackmore attempted to arrange a visit between Tim and his Aunt Maria Burns when she passed through town, I accept that Ms. Blackmore gave Tim the message and encouraged a visit. I find it likely that Tim did not respond to a proposed visit with his aunt because to see her would also mean seeing his dad. In addition, I find that there is more that Mr. Blackmore can do to encourage a relationship between Tim and his paternal relatives. With permission, he can readily provide Tim and his family members with the other’s telephone number and they can contact one another directly. At 14 years of age, Tim is old enough to decide if he wishes to communicate or not.
[73] Mr. Blackmore called his friend, Stephen Alie, as a witness. He testified to what he described as Mr. Blackmore’s stress, his vulnerability when it comes to Tim, and how Ms. Blackmore has used Tim to get to him. Mr. Alie said he was aware that the CAS had investigated Mr. Blackmore for his use of physical discipline, and he is aware that Mr. Blackmore sees Ms. Blackmore as the instigator behind the report to the Society. He also knows Mr. Blackmore’s parental rights were suspended and believes that he has been putting a lot of energy into fixing his relationship with Tim. He said he knew that Mr. Blackmore had disciplined Tim but did not know that he hit him. Mr. Alie recalled Mr. Blackmore telling him about the conflict between he and Ms. Blackmore and saying that Tim was her “proxy” in that conflict. Much of Mr. Alie’s testimony was based on what Mr. Blackmore told him. I did not find his evidence of assistance.
Voice of the Child Report
[74] The OCL met twice with Tim. She described him as conversational, friendly, engaged, and thoughtful in his answers. Tim portrayed his mom as super funny, someone who does not get mad easily and he knows when she is upset because “she has a look in her eye that you know you screwed up.” He said he used to play volleyball and nerfs with his dad in the basement. According to the OCL, Tim otherwise had difficulty recalling positive experiences with his father and recounted mostly upsetting memories. The situations and concerns that Tim described to the OCL included:
• how his dad would get mad at him about homework and his decision to only take his homework to his mom’s house and not his dad’s. He said when his dad realized this, he hit him;
• his fear of his father. Tim recounted several incidents of abuse, not all of which have been described above;
• that his father regularly called him a “weak little girl;”
• how his father would blame him for the abuse, tell him that he was whining for no reason, that he was making a big deal out of things, called him “a little girl” and other derogatory names. These were Tim’s reasons for saying he did not think counselling with his father would help;
• that his father blamed him to the point where he started to blame himself, thinking that he was useless and maybe it would just be better if he was gone. The OCL reported Tim’s belief that his father will continue to blame him; and
• when asked if he had any worries, Tim responded, “that I am going to live with him. I don’t want to see him.”
[75] The OCL was satisfied that Tim had not been coached for their meetings. He said his mother only told him that the meeting was to give him a chance to be heard by the court. The OCL observed Tim to have been consistent throughout both interviews in his comments, memories, and presentation. She said his affect and responses appeared genuine.
Analysis
[76] I find there has been material change in Tim’s circumstances since Justice Labrosse’s order. Mr. Blackmore mistreated Tim, both physically and emotionally and the impact on Tim has been significant. He suffered harm, he fears his father and does not trust that he will not hurt him again. For more than two years, Tim has been consistent in his overall account of his father’s actions and words. He made similar reports to his mother, his teachers, three child protection workers, and the OCL. Tim has been clear that he wants to live with his mother and does not wish to see his father. Tim even told him directly. His reasons remain the same.
[77] I can think of few changes in a child’s circumstances more significant than those experienced by Tim – maltreatment by a parent – someone whose hands and words should offer comfort and protection, not harm. I am equally satisfied that a change of this nature was not foreseen or contemplated by Justice Labrosse. Tim did not have a voice in that proceeding nor was I provided with any indication that Labrosse J. had evidence of abuse before him.
Part II of the Test – The Best Interest of the Child
[78] I must now undertake a fresh inquiry to determine Tim’s best interests in light of the current circumstances before making a custody and access order. In that endeavor, I must consider a number of factors including Tim’s views and preferences and give effect to the principle that Tim should have as much contact with each parent as is consistent with his best interests.[^5]
[79] Ms. Blackmore argues that it is in Tim’s best interests to be in her sole custody, that his primary residence be with her and that time with his father be in her discretion in accordance with Tim’s wishes. She says only with such an order can she protect Tim from further risk of harm, respect his needs and make timely decisions without conflict or interference from Mr. Blackmore. In particular, she points to Tim’s need for counselling.
[80] Mr. Blackmore submits that it is in Tim’s best interest to be in his sole custody and to have limited access with his mother. He says only with Tim in his custody and primary care can he work to undue the harm done to their relationship by Ms. Blackmore. He says that although Ms. Blackmore is a lovely person and meets Tim’s physical needs for food, clothing, and housing very well, she uses Tim to punish him because she still cannot get over him. Mr. Blackmore also says that Ms. Blackmore does not make decisions in Tim’s best interests. He points to the counsellor, Ms. Clermont, that she hired without his consent, and her unilateral and secretive decision to change Tim’s school. Moreover, Mr. Blackmore submits that he has changed. He says he has taken the courses, done the work and now understands how to do things differently. He asserts there is no risk to Tim in his care.
Analysis
[81] Ms. Blackmore wants to secure counselling for Tim and, if possible, have him return to his former counsellor, Ms. Clermont. She said Tim liked her a lot. She was the second counsellor he had. Initially, Ms. Blackmore sought counselling through her Employee Assistance Program (EAP). The therapist, Ms. Dudley, testified briefly and confirmed that she saw Tim on a couple of occasions. According to Ms. Blackmore, she had difficulty securing Mr. Blackmore’s consent to the EAP program. In this regard, Mr. Blackmore told the CAS that he did not trust any counselling service available through Ms. Blackmore’s work. He did not believe it would be neutral.
[82] Ms. Blackmore said she thought Tim needed help beyond what EAP provided. She contacted Brown Counselling and Tim was paired with Ms. Brown’s intern, Ms. Clermont. When Ms. Brown testified, she confirmed she did not tell Ms. Blackmore that Ms. Clermont was an intern. She said that responsibility fell to Ms. Clermont, who did not tell her either.
[83] At Ms. Blackmore’s request, Ms. Clermont prepared a report in December 2018 for a motion that did not proceed. Ms. Clermont’s letter included a statement that in her professional opinion, reintegrating Mr. Blackmore into Tim’s life at that time was contraindicated. She also said she “highly recommended” that Tim remain in his mother’s sole custody. Nowhere in the letter did Ms. Clermont state she was an intern. Ms. Blackmore did not rely on the report at trial. It was Mr. Blackmore who called Ms. Clermont to testify. Notwithstanding her admission that she was not trained in custody and access issues nor was she trained to deliver the trauma counselling that she purported to provide to Tim, she defended her actions and her report. Ms. Brown testified that custody and access opinions were beyond the scope of even licensed psychotherapists.
[84] I accept Mr. Blackmore’s submission that Ms. Clermont’s retainer in the absence of his consent was contrary to Justice Labrosse’s joint custody order. Ms. Blackmore knew Mr. Blackmore’s consent was required. She should not have engaged Tim in counselling without it or, in the alternative, a court order. Nevertheless, I am satisfied that Tim was in need, she had previously encountered difficulty securing Mr. Blackmore’s consent, and she believed she was acting in Tim’s best interests. The CAS had recommended counselling and she wanted him to have it. However, the decision to hire Ms. Clermont was unfortunate. By omission, she misled Mr. Blackmore about her qualifications and then over-stepped those she did have. I accept Mr. Blackmore’s submission that hiring Ms. Clermont to be Tim’s counsellor was not in Tim’s best interests, but I am also confident that if Ms. Blackmore had to make the decision again, she would take all reasonable steps to ensure Tim’s mental health is entrusted to a professional with the necessary qualifications and expertise. Now that Ms. Blackmore has heard Ms. Clermont’s and Ms. Brown’s testimony, I am confident that Ms. Blackmore will take all reasonable steps to ensure Tim gets help from a professional with the necessary qualifications and expertise.
Tim’s School
[85] Mr. Blackmore also took issue with Ms. Blackmore’s decision to change Tim’s school. Not only because she acted unilaterally, but also because the school had been the pick-up and drop off point for access. He regards the change as another attempt to interfere in his relationship with Tim.
[86] Ms. Blackmore testified that she tried to discuss with Mr. Blackmore why she sought to change Tim’s school. Her reasons included the end of before and after school daycare once Tim was out of grade 6, the distance between home and school that he would have to travel on his own, and the lack of appropriate public transit. She said Mr. Blackmore did not get back to her and she had to decide between Tim attending a different middle school for two years or starting grade 7 at a school where he could continue through to high school. She said Tim preferred the latter and added that he is happy at his current school, has friends, still gets the extra help he needs, has not been held back as he was at his previous school, and his grades have improved.
[87] The court does not condone Ms. Blackmore’s decision to act unilaterally contrary to the joint custody order but also considers that she tried to talk to Mr. Blackmore, and he failed to get back to her. He did not dispute this. I was not told how much time passed between their conversation and the deadline to register Tim for school, but I am satisfied that at some point, a decision was required. It would have been difficult, if not impossible, for Tim to remain at a school that did not meet either daycare or transportation needs. I find that Ms. Blackmore acted with Tim’s best interests as her central focus and not before trying to engage Mr. Blackmore. I also note that Mr. Blackmore learned of Tim’s new school early in September 2018 and did not challenge or seek to reverse Ms. Blackmore’s decision.
[88] There is no evidence to support Mr. Blackmore’s allegation the change in Tim’s school interfered in his relationship with Tim or is likely to impact it in the future. When Tim is ready to resume access, there is no suggestion that his current school would not be an appropriate and neutral location for pick up and drop off to occur.
Parenting and Anger Management Programs
[89] Mr. Blackmore produced evidence that he completed parenting programs such as Parenting with Confidence and Parenting through High Conflict and Divorce in the fall of 2018 and January 2019. He also provided evidence that he attended an anger management program, however, that appears to have been only a one-day program. I question the adequacy of such a short program considering the concerns in this case.
[90] Mr. Blackmore says he found the courses helpful and now realizes his focus was often on Ms. Blackmore rather than Tim and that his responses fed the problem and heightened the conflict. He also produced receipts for four personal counselling sessions between August 2018 and August 2019. Mr. Blackmore submits that he has changed, that he has done everything possible to “appease” Ms. Blackmore and that he has not responded in a negative manner to either Tim or Ms. Blackmore since completing these programs. Regrettably, I find the evidence does not support that conclusion. Mr. Blackmore also says he has decided to be a different father and adopt other means of discipline. He contends that he now fears the court’s authority and knows he must keep himself in line. Nevertheless, he acknowledged that if Tim crosses the line – especially if it involves any disrespect to his mother – he may still resort to physical discipline.
[91] Mr. Blackmore called his current partner’s 12-year-old son, Omar, essentially as a character witness. The child described Mr. Blackmore as caring, extremely respectful and said he tells him and his older brother that they must always respect their mother. Omar said Mr. Blackmore cares about his homework and shows this by making him do it again if it does not meet his standards. According to the child, if he acts in a way that calls for discipline, Mr. Blackmore just talks to him. Omar did not present as nervous about testifying in court. He was well spoken, confident and fluid – so much so, I was left with the impression that his evidence was rehearsed. I give it no weight.
[92] I have little doubt that Mr. Blackmore loves Tim very much and I believe him when he says he is passionate about being his father. However, Mr. Blackmore’s actions have seriously damaged his relationship with Tim. He needs to take responsibility for that and stop blaming others. Tim does not want to see him right now and has consistently asked for time, and for peace. He has not said that he never wants to see his dad again. In my view, this indicates that Tim remains open to the possibility of spending time with his father in the future and note his comments with respect to his athletic interests and how he is getting bigger and stronger. As I see it, there may come a time when Tim will believe he is big enough and strong enough to defend himself and regain the confidence he needs to see his dad. In the meantime, Mr. Blackmore should respect Tim’s wishes, continue to convey his love, and not lay blame or put pressure on Tim to do what he is not ready to do.
[93] Considering Tim’s age, his views and preferences are entitled to considerable weight. He continues to express his wish to live with his mom and not see his dad. He is clear in his choice and why. In the circumstances of this case, I find it would be contrary to Tim’s best interests to ignore his wishes. I also find that the conflict and acrimony between the parties has been harmful to Tim to the point where he takes responsibility for it. Going forward, the potential for further conflict must be contained and eliminated from Tim’s life, to the extent possible. This includes the decision-making process. I therefore award Ms. Blackmore sole custody and vary Justice Labrosse’s order of November 17, 2014 accordingly. Tim shall live with his mother and Mr. Blackmore’s access shall be in Ms. Blackmore’s discretion, in accordance with Tim’s wishes. Mr. Blackmore shall continue to have telephone access on Tuesdays and Thursdays at 7:00 p.m. unless the parties agree, in writing, to a different time that is better suited to Tim’s needs and schedule. Ms. Blackmore shall continue to encourage Tim to accept and/or return his father’s calls. To this I add my hope that one day Tim will also be open to FaceTime or other video contact with his father.
[94] Very little of Tim’s life has been free of conflict. He deserves to have that now.
Travel
[95] In the past, Ms. Blackmore encountered resistance from Mr. Blackmore when she sought permission to travel with Tim. The most recent instance occurred just prior to trial when she wanted to travel to Antigua with Tim for Christmas and a court order was required. There is no evidence that Tim’s ability to travel freely with his mother would be contrary to his best interests. There is no evidence to indicate that Ms. Blackmore is a flight risk or that she is likely to take him to dangerous destinations. She says she has lived in Canada longer than she lived in Antigua where she was born. She trained to be a nurse here. She works here. Canada is her home and Tim’s home. Ms. Blackmore should have the ability to obtain and renew Tim’s passport and to travel with him without Mr. Blackmore’s consent. I make that order.
Imputing Income
[96] Ms. Blackmore seeks to impute annual income to Mr. Blackmore of $100,000. Although she did not formally plead this relief, she did state that disclosure was an ongoing issue and clearly indicated her position that Mr. Blackmore earned in excess of this sum annually. The Trial Scheduling Endorsement Form also revealed Mr. Blackmore’s income as an issue for trial. I am satisfied that he had notice of this claim and, indeed, addressed it in his evidence. Accordingly, I make the pleadings amendment now.
[97] Mr. Blackmore opposes the claim and relies on his Income Tax Returns that disclose line 150 annual income from self-employment of $29,512, $27,576, and $34,088 for 2016, 2017 and 2018, respectively.
[98] Section 19(1) of the Child Support Guidelines[^6] provides the court with discretion to impute income to a spouse in an amount considered appropriate in the circumstances. The circumstances listed are not exhaustive. They include:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[99] Ms. Blackmore did not make submissions under any specific subsection or refer the court to case law. Based on the evidence, I consider that (a), (d) and (f) are the relevant and take guidance from the Ontario Court of Appeal decision in Drygala v. Pauli[^7]. There, the court said imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what they are capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed. A three-part test was established to impute income under s. 19(1)(a):
Is the spouse intentionally underemployed or unemployed. Here, the onus of proof rests with the party requesting the imputation of income.
If the underemployment or unemployment is found to be intentional, the evidentiary onus shifts to the unemployed or underemployed spouse to prove that it is justified by virtue of reasonable educational needs, the needs of the child of the marriage, or reasonable health needs.
If the spouse’s unemployment or underemployment is not justified under these exceptions, the court must then decide whether it should exercise its discretion, and if so, what income is properly imputed in the circumstances.
[100] I also have regard to the decision in Thompson v. Thompson[^8] where the court said that a spouse has a duty to actively seek out reasonable employment opportunities to maximize their potential income in order to meet their child’s needs.
[101] I consider the following evidence:
• Mr. Blackmore has worked as a renovator, home stager, and designer under the trade name, Ideal Homes, since 2004. Mr. Blackmore filed for bankruptcy in January 2018. His business had been incorporated a month earlier. The bankruptcy documentation indicates substantial debt to Canada Revenue Agency in excess of $299,000. His documents also confirm a prior bankruptcy in 2013;
• In 2014, Mr. Blackmore agreed that his income was $71,333.00 for purpose of child support under the consent order of Labrosse J.;
• Ms. Blackmore’s testimony that she did not receive income disclosure from Mr. Blackmore prior to the consent order of Labrosse J. Mr. Blackmore did not challenge this evidence;
• Mr. Blackmore testimony that he is very good at his job. His Aunt Maria also described his work as beautiful. The evidence before the court also included promotional materials for Ideal Homes and personal photos submitted by Mr. Blackmore revealing the esthetics of his work;
• According to Ms. Blackmore, he continues to enjoy a comfortable lifestyle that includes travel to the Caribbean. Mr. Blackmore also mentioned a recent trip to Paris;
• Mr. Blackmore testified that there are years when he does not make any money and years where, with his best effort, he is sure he could make $500,000;
• In 2008, Mr. Blackmore established a bank account in Tim’s name. He said the account was to save for Tim’s education and other needs. He confirmed that all transactions prior to July 8, 2019 were his. The account statements show significant deposits as high as $6,000, $9,000, and $10,000, large withdrawals from time to time and multiple debits to third parties. Some payments were of a personal nature such as Netflix, however, most appeared business related and were made to companies like Home Depot, Rona, and Best Buy. There was little about the transactions that were inconsistent with a savings account or the needs of a child Tim’s age;
• On December 20, 2018, Justice Doyle made an extensive and detailed order for the production of Mr. Blackmore’s business records. Much of the disclosure was never provided. When pressed about this at trial, Mr. Blackmore kept saying it was all there in the bank statements. No analysis or explanation was provided by either party aside from Ms. Blackmore’s calculation totaling deposits in the business account for 2016, 2017 and 2018. Her totals largely correspond with the gross sales indicated on Mr. Blackmore’s income tax returns, however, they do not include deposits made to the account in Tim’s name;
• Except for one or two small contracts, Mr. Blackmore’s work since 2016 has consisted of ventures with his common-law partners to buy, renovate and sell properties. He said the projects were undertaken to give him work and the purchases were always made and financed by his spouse. Title was taken in her name only. His role was to renovate, improve and prepare the property for resale. The first venture he described was in 2016 with Ms. Abdi. Their relationship ended before the property was sold. Mr. Blackmore testified that the work he did on that property would have given him $100,000 in his pocket. He has a lawsuit pending against Ms. Abdi for unjust enrichment. Mr. Blackmore described his first project with Ms. Ibrahim in 2017 as extensive. He did not say how much he was paid for that project, whether there was a profit or if he shared in it. In 2018, Ms. Ibrahim purchased another property. It was ready for sale later that year. Mr. Blackmore said she paid him for his time. He did not say how much, just that everything appeared on his income tax return. Nothing was said about profit, if any;
• Mr. Blackmore testified that his income had been impacted in the last few years by other matters that took up his time such as this litigation, his civil case with Ms. Abdi, and criminal charges for an alleged assault against her. He says he hopes to get his company “up to speed” again once this is over. Mr. Blackmore did not say what that meant in terms of income.
[102] Based on this evidence, particularly, Mr. Blackmore’s recent collaborations with his domestic partners, the transactions in the account under Tim’s name between 2016 and 2019, Mr. Blackmore’s admissions with respect to his earning capacity, and the absence of evidence indicating a lack of opportunity for work with arms-length clients or failed contract bids, I find he is intentionally underemployed. I also find it unreasonable for him to rely on the demands of litigation for his failure to work to capacity. To say that he hopes to get “up to speed” again once it is over is an acknowledgement that he can do better.
[103] I also consider the Ontario Court of Appeal decision in Graham v. Bruto[^9] where the court inferred the payor’s failure to make proper disclosure mitigated the support recipient’s obligation to provide an evidentiary basis to impute income. And, if satisfied that the recipient presents the evidentiary basis for a prima facie case, that shifts the onus to the payor to defend the income sought.[^10] In this case, in addition to Mr. Blackmore’s failure to provide the disclosure ordered by Doyle J., I am of the view that the transactions in the account bearing Tim’s name indicate the diversion of income that would affect the amount of support payable under the Child Support Guidelines.[^11]
[104] Considering the evidence and circumstances in this case, I find it justified and reasonable to impute income to Mr. Blackmore. I must now decide how much income is appropriate to impute. A factor to be taken into consideration is evidence of previous income.[^12] Here, I find the most reliable evidence of prior income is Justice Labrosse’s consent order dated November 17, 2014 and find it appropriate to impute annual income to Mr. Blackmore in the amount of $71,333 effective October 1, 2017.
Child Support
[105] There is no dispute that Tim has lived solely with his mother since late September 2017. Therefore, based on imputed annual income of $71,333, Mr. Blackmore shall pay child support in the amount of $650.00 per month commencing October 1, 2017 in accordance with the Ontario tables for one child. Effective December 1, 2017, the monthly support payment shall increase to $666.00 per month in accordance with the updated tables that took effect November 22, 2017.
[106] Ms. Blackmore also seeks an order that Mr. Blackmore pay his proportionate share for Tim’s s. 7 expenses effective October 1, 2017. She did not lead evidence in this regard aside from the amount payable for daycare costs under Labrosse J.’s order and that is the subject of her arrears claim. As a result, I am unable to determine any additional amount that may be owed. However, effective immediately, I order that Mr. Blackmore shall share Tim’s ongoing section 7 expenses equally with Ms. Blackmore provided his consent to the expense is obtained, in writing, in advance. Mr. Blackmore shall not withhold his consent unreasonably. For purpose of s. 7 expenses, I find Ms. Blackmore’s income is $72,618. Her financial statement filed at trial indicated annual income of $67,000, however, her pay stubs, although variable, indicated the higher amount.
Arrears
[107] Ms. Blackmore’s pleadings seek an order for payment of arrears in the amount of $7,976 as of April 30, 2018 for unpaid daycare costs under Labrosse J.’s order that required Mr. Blackmore to pay $240.00 per month. Mr. Blackmore stopped paying in August 2015. Ms. Blackmore did not say when her daycare costs came to an end, however, her testimony with respect to the change in Tim’s school in September 2018 indicates that before and after school care was no longer needed. Accordingly, I find that Mr. Blackmore’s obligation to contribute to Tim’s daycare costs terminated August 31, 2018 and he owes arrears for 36 months in the amount of 8,640.00.
[108] Mr. Blackmore began making paying child support payments again in May 2018 of $500 per month. The evidence indicates that payment was inconsistent. Ms. Blackmore confirms receipt of $6,000 before July 2019 when Mr. Mr. Blackmore reduced his payment to $245.00 per month. Mr. Blackmore is entitled to credit for amounts paid.
[109] Mr. Blackmore submits that the arrears owing have been paid in full and claims that Ms. Blackmore owes him money to account for the funds that Tim removed from the account set up in his name on July 8, 2019. On that day, Tim attended the bank with his mother, obtained his own account debit card and removed his father’s signing authority. Ms. Levesque from the bank testified that she assisted Tim and that bank rules give individuals 12 years of age and older authority over accounts in their name. This left Tim with access to $6,179.00, most of which he had spent by November playing Xbox.
[110] I find this was Mr. Blackmore’s account. It was Tim’s in name only. Ms. Blackmore was aware that Tim had access to this money and allowed him to spend it in the manner that he did. In my view, Mr. Blackmore is entitled to further credit against his support obligation in the amount of $6,179.00.
My Order
[111] Justice Labrosse’s order dated November 17, 2014 is varied as follows:
Ms. Blackmore shall have sole custody of the child, Timothy Adam Blackmore, born on September 2, 2006 and he shall reside with her. She shall advise Mr. Blackmore promptly of all major decisions made for Tim in relation to his education, health, religious upbringing and general well-being.
Mr. Blackmore’s access shall be in Ms. Blackmore’s discretion taking into consideration Tim’s wishes, preferences and best interests.
Mr. Blackmore shall continue to have telephone access with Tim on Tuesdays and Thursdays at 7:00 p.m. or such other time as the parties may agree after considering Tim’s schedule and needs. Ms. Blackmore shall continue to encourage Tim to answer his father’s call and respond to his messages.
Ms. Blackmore may apply to obtain or renew Tim’s passport and travel with him without need of Mr. Blackmore’s consent. She shall provide him with a copy of their travel itinerary and contact information at least seven days prior to departure.
Commencing October 1, 2017, Mr. Blackmore shall pay child support of $650.00 per month to Ms. Blackmore for Timothy Adam Blackmore based on imputed income in the amount of $71,333 and the Child Support Guidelines. The amount payable shall increase to $666.00 per month effective December 1, 2017.
Each party shall obtain or continue to maintain life insurance on their respective lives in the amount of $250,000.00 in accordance with Justice Labrosse’s order dated November 17, 2014.
Mr. Blackmore shall pay $8,640 for arrears subject to credit for amounts paid of $12,179.00.
I encourage the parties to resolve the issue of costs. If they are unable to do so, Ms. Blackmore shall have until November 2, 2020 to serve and file her costs submissions and Mr. Blackmore shall have until November 19, 2020 to serve and file his submissions. Neither party’s submissions shall exceed 5 pages, double spaced using 12-point font, exclusive of Offers to Settle and Bills of Costs. Ms. Blackmore shall have a 5 day right of reply, if necessary. Reply submissions shall not exceed 2 pages. Any reference to the Family Law Rules or case law shall be made by hyperlink only.
Madam Justice D. Summers
Released: October 16, 2020
COURT FILE NO.: FC-10-1263-2
DATE: 2020/10/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angelique Blackmore
Applicant
– and –
Clifford Blackmore
Respondent
REASONS FOR DECISION
D. Summers J.
Released: October 16, 2020
[^1]: R.S.C. 1985, c. 3 (2nd Supp.). [^2]: Supra, note 1. [^3]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. [^4]: Persaud v. Garcia-Persaud, 2009 ONCA 782. [^5]: Supra, note 1; and s. 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). [^6]: SOR/97-175. [^7]: [2002] 41868 (ON CA), [2002] O.J. No. 3731 (OCA). [^8]: 2013 ONSC 5500, at para. 99. [^9]: 2008 ONCA 260. [^10]: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719. [^11]: Supra, note 6. [^12]: Lawson v. Lawson, [2006] 26573 (ON CA), [2006] O.J. No. 3179 (C.A.) at para 38.