COURT FILE NO.: 20-0089
DATE: 2021/04/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ravinder Kaur Obhan, Applicant
AND:
Kirpal Singh Chana, Respondent (in default)
BEFORE: Somji J
COUNSEL: Manraj Grewal, Counsel for the Applicant
Respondent, Self-Represented
HEARD: March 30, 2021
reasons for decision on uncontested trial
[1] This matter was scheduled for an uncontested trial on March 30, 2021. The Applicant mother (“mother”) and her counsel were present.
[2] The Respondent father (“father”) was not in attendance.
[3] The mother brought an application on January 20, 2020 for an order granting her:
a. A divorce;
b. Sole decision-making responsibility for the child of the parties, R.C., born February 24, 2013 (“child”);
c. Parenting time and contact with the father at the mother’s discretion;
d. Child support on the father’s imputed income of $50,000; and
e. Division of RRSPs.
[4] Counsel for the mother takes the position that by failing to answer, the father has effectively waived his right to put forward a position on any of these issues.
Legal framework for uncontested trials
[5] Rule 10(1) of the Family Law Rules, O. Reg. 114/99, provides for thirty days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.
[6] Rule 1(8.4) reads:
(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case.
[7] An “Uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
[8] Rule 23(22) confirms that affidavit evidence may be used at an uncontested trial unless the court directs that oral evidence must be given.
[9] It is important to note that the mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.
Analysis
Proper service made and no Answer filed
[10] The application materials were served on the father on January 22, 2020 by a process server who left the materials with an adult at the father’s residence. The address of the father’s residence is the same address on the father’s current court undertaking dated August 9, 2020, with respect to outstanding criminal charges. I am satisfied that the service conforms to the requirements of the Family Law Rules.
[11] The father did not provide an answer in the thirty days prescribed by the Family Law Rules. The father has neither retained counsel nor personally contacted counsel for the mother with respect to his position on any of the above-noted issues.
[12] In addition, the mother testified that she knows the father received the application materials because he attended her home in early February 2020 after the documents were served with the papers in hand. According to the mother’s testimony, the father shredded the documents in front of her and stated that he did not want to deal with a lawyer. The mother testified that she has not spoken to the father since May 2020.
[13] On January 26, 2020, upon the father’s failure to provide an Answer, counsel for the mother requested the application proceed by way of an uncontested trial. The motion proceeded initially as an in-chambers motion. However, on August 4, 2020, Shelston J. found that insufficient materials were filed and ordered that additional materials be filed to support the findings requested and the relief sought. Justice Shelston permitted the applicant to submit written materials to the court and to proceed by way of an uncontested trial.
[14] Based on the materials filed, the mother’s testimony, and counsel’s submissions, I find that this matter can proceed by way of an uncontested trial and that sufficient materials have now been filed to grant much of the relief sought.
[15] The mother relies on the following affidavits and accompanying exhibits:
➢ Affidavit of the mother dated June 29, 2020;
➢ Affidavit of the mother dated June 29, 2020 for uncontested trial; and
➢ Affidavit of the mother dated March 22, 2021.
Divorce
[16] The parties were married in Ontario on August 7, 2004. They separated in February 2017. The mother does not specify in the affidavit for divorce the specific day in February the parties separated, but asks for the valuation of property to be effective February 1, 2017. For the purposes of this application, I will rely on February 1, 2017, as the effective date of separation.
[17] The relevant documents in support of the application for divorce have been filed including a marriage certificate and clearance certificate.
[18] The request for a divorce is granted.
Decision making responsibility, primary residence, and parenting time
[19] The mother submits that she has been the child’s primary caregiver since birth. She has been responsible for day-to-day matters as well as matters related to the child’s daycare, education, extracurricular activities, medical and dental care. The mother submits that the father has never followed up on any medical appointments or attended a single parent teacher night.
[20] The father has not made any financial contributions for the support of the child. No child support or section 7 expenses have been paid since the separation of the parties except for a few sporadic payments listed below.
[21] The mother claims that there is a history of violence dating back to 2005. In her affidavits, the mother describes both physical and emotional abuse, threatening behaviour, and harassment by the father.
[22] The father is presently charged for assault, threats, and mischief in relation to both the mother and the child for incidents arising in April and May 2020. The trial for those criminal charges is pending.
[23] The father is presently on an undertaking dated August 9, 2020 with respect to those criminal charges. The recognizance states that the father shall not contact or communicate directly or indirectly with mother.
[24] The undertaking does not preclude contact with the child. The undertaking states that the father is not to have direct or indirect contact with the child unless it is in accordance with a family court order or upon approval of the Children’s Aid Society and the police. The father has not sought a family court order to permit contact with the child. The mother testified that the child has not had any contact with the father since May 2020.
[25] Between January 2020 and May 2020, the father had contact with the child every other weekend. However, following the school break in March 2020, things escalated, resulting in the present criminal charges.
[26] The mother has continued to facilitate contact between the child and the paternal grandparents and paternal family including cousins. She takes no issue with the child’s relationship with the paternal family and is agreeable to facilitating that relationship in the future.
[27] Based on the affidavit evidence filed, I am satisfied that it is in the best interests of the child for the mother to have sole decision-making responsibility for the child and that the child’s primary residence be with her.
[28] The mother seeks that the father has parenting time with the child at her discretion. However, I find that it would be in the best interests of the child to have a continued relationship with his father provided it is safe for him to do so. Given the alleged threats of violence against the child for which criminal charges are still pending, the father’s parenting time will be limited at present to supervised virtual contact for a period of twenty minutes once a month. There will be an order allowing the father to have virtual supervised contact once a month should the father choose to initiate it and on the terms and conditions set out in the final Order.
[29] The mother claims that the father speaks poorly of her and her family. He constantly swears and uses racist and derogatory terms. The child would previously return from visits with the father repeating many hurtful comments. The mother filed various text messages received from the father. The messages are highly offensive. They corroborate the mother’s claim. The child should not be exposed to such language and offensive commentary. There will be a term on the final Order that the father shall refrain from making disparaging remarks about the Applicant or her family to the child. There will also be a term that the father will not discuss the circumstances of the events leading to the criminal charges or the pending criminal trial. Both these terms should be strictly enforced during any virtual supervised contact between the child and the father.
Restraining order
[30] The mother describes a history of physical and emotional abuse dating back to 2005, shortly after the marriage began. The mother also alleges threats of violence and abusive voicemails since separation. She has resorted to blocking the father from her mobile communications. The mother alleges that the father left her a voicemail on June 20, 2020, threatening to kill her and the child, which she provided to the police.
[31] The father has been previously charged for assault and battery against the mother and has been charged again recently with criminal offences.
[32] Based on the affidavit materials filed, I am satisfied that there should be a restraining order directing the father not to attend the mother’s home and workplace.
[33] There will also be a condition that the father does not have any direct or indirect contact with the mother except through an approved third party and only for the purposes of arranging contact with the child.
Equalization payment
[34] The mother has filed a Net Family Property Statement (“NFP”) dated March 22, 2021.
[35] The mother claims that upon the separation of the parties, the parties sold the matrimonial home and divided the proceeds. All that remained to be divided was the RRSPs presently held in an RBC account in the form of GICs and savings deposit in the name of the father.
[36] According to the mother’s NFP dated March 22, 2021, the value of the RRSP at the time of separation on February 1, 2017, was approximately $63,970, of which each parent’s share is $31,985. I note the mother’s Affidavit refers to a smaller share of $31,883.
[37] For the purposes of this calculation, I will use the NFP figure given it appears to be taken from the statement of the RBC account where the RRSP is held. That statement indicates that the value of the RRSP as of December 31, 2012, to be at $63,970. While this statement is dated a little over four years before the separation, the father has not filed an Answer to suggest the valuation of the RRSPs had decreased to a lesser amount on the date of separation and valuation.
[38] The mother acknowledges that on November 2019, the father signed over $9,000 from the RRSP to her as part of the division of property. As a result, her share of the RRSP owed to her as part of the division of property is approximately $22,985.
[39] Based on the NFP evidence filed, there will be an order that the father shall transfer the sum of $22,985 to the Applicant for an equalization payment.
Child Support
[40] According to the mother, prior to the separation the father was working as a security guard at the Ottawa Airport. His income was estimated at $50,000. The mother did not provide any other documentary evidence in support of this claim in the form of previous joint tax returns, a copy of the father’s previous tax return, or copies of pay stubs or employment contracts.
[41] The mother claims that the father has not paid any child support or s. 7 expenses since their separation. She acknowledges that he did make some payments for the benefit of the child as follows:
➢ In 2017, the Applicant paid $68 for the child's swimming course;
➢ In 2018, the Applicant paid $270 for the child's swimming and skating course; and
➢ In 2019, the Applicant paid $596.75 for the child's swimming, basketball, skating and soccer.
[42] The mother’s Notice of Application dated January 23, 2020 (“NOA”), states that prior to the parties separating in 2017, the father worked as a security guard at the Ottawa Airport making roughly $50,000 per year. However, the NOA goes on to state that the father is no longer working and “spends most of his time drinking.”
[43] The mother testified on March 30, 2021, that she does not know if the father is presently employed. The mother does not appear to have made any inquiries with the father’s family even though she is still in contact with them.
[44] In one of the father’s text messages filed as an exhibit and dated Thursday November 21 (year not specified but possibly 2019) the father states to the mother in the text that the mother has “managed to brand me as homeless, jobless and penniless man and a criminal.” In another message dated December 30, 2018, the father asks to borrow $50 from the mother. The father also makes references to leaving the country.
[45] The father has not provided an Answer that permits the mother or this Court to establish his precise current income.
[46] Child support may be ordered on the basis of imputed income: s. 19(1) of the Federal Child Support Guidelines, SOR/97-175. However, there must be some evidentiary basis for the imputation as well as a rational basis for the amount chosen: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44. Given the limited evidence available with respect to the father’s income and the gap in time since his last known employment being February 2017, over four years ago, I am not satisfied that the father continues to earn an income of $50,000 as a security guard or an income equivalent to that level. To impute anything more than a minimum wage income the court needs to have at least some evidentiary basis upon which to make such a finding: Dassin v. Perpignan, 2021 ONSC 1066 at para 8.
[47] The mother claims that the father is physically fit and employable for manual labour. The father has not provided an Answer to refute the claim or that he is no longer working or unable to work at even a potentially minimum wage level. Therefore, there will be an order for child support based on an imputed minimum wage income. The present minimum wage in Ontario has increased to $14.25 per hour effective October 1, 2020. A person working 40 hours per week would earn an annual wage of $29,640. Based on that income, the father will pay Table Child Support in the amount of $252 per month effective the date of this Order.
[48] There will also be an order for retroactive child support calculated from the date of separation to the present final Order based on the previous lower minimum wage of $14 per hour and an annual wage of $29,120. Based on this amount, the father will pay child support of $248.03 per month from the period of February 1, 2017 to the date of the final Order.
[49] These orders for retroactive and ongoing child support are made without prejudice to the mother’s right to seek a retroactive variation to February 1, 2017, if evidence is later discovered that establishes the father earned a higher income in those years and continues to do so.
[50] There will be a term on the final Order that child support shall be enforced by the Family Responsibility Office.
Costs
[51] The mother is the successful party on this application. The mother seeks costs of $2,500. While the amount appears reasonable, costs of this case shall be paid by the Respondent to the Applicant in an amount to be fixed by the court after receipt of a very brief written submission and a Bill of Costs from the applicant, to be filed within 30 days.
Order
[52] There will be a final Order that:
The application for divorce is granted.
The Applicant mother will have sole decision-making responsibility for the child R.C. born February 24, 2013 (“child”).
The primary residence of the child will be with the Applicant mother.
The Respondent father shall have parenting time with the child in the form of supervised virtual contact with the child for a minimum of 20 minutes once per month upon reasonable notice to the Applicant on the following terms and conditions:
A. The start time and end time of each virtual visit shall be at the discretion of the child.
B. The Respondent shall refrain from making disparaging remarks about the Applicant or her family to the child during the virtual visit.
C. The Respondent will not discuss the facts or circumstances of the events leading to the criminal charges or anything related to the pending criminal charges or trial during the virtual visit.
D. Should the Respondent breach either term 4C or 4D, the contact supervisor may terminate the virtual visit.
The father’s parenting time with the child can be expanded at the discretion of the Applicant mother upon further recommendations of the child’s therapist and counsellor if they deem the child is ready for further contact.
The father shall pay Table Child Support on the basis of an imputed income of $29,640 in the amount of $252 per month effective the date of this Order.
The Respondent father shall pay child support retroactive from the date of separation of February 1, 2017, to the present Order based on an imputed annual income of $29,120 and Table Child Support amount of $248 per month.
The Respondent father shall transfer the sum of $22,985 to the Applicant mother for an equalization payment for RRSPs held with RBC.
The Respondent father will not attend the mother’s home and workplace.
The Respondent father will have no direct or indirect contact with the Applicant mother except through a third party approved by both the Applicant and the Respondent and only for the purposes of arranging contact with the child.
Somji J.
Date: April 19, 2021
COURT FILE NO.: 20-0089
DATE: 2021/04/19
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ravinder Kaur Obhan, Applicant
AND:
Kirpal Singh Chana, Respondent (in default)
BEFORE: Somji J
COUNSEL: Manraj Grewal, Counsel for the Applicant
Respondent, Self-Represented
reasons for decision on uncontested trial
Somji J.
Released: April 19, 2021