Court File and Parties

COURT FILE NO.: FC-20-421 DATE: 2021/11/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tuan Kyle Maloy, Applicant AND: Amber Pantalone, Respondent

BEFORE: Justice Mary A. Fraser

COUNSEL: Gonen Snir, Counsel for the Applicant Katherine Clouthier, agent for Diana Aoun, Counsel, for the Respondent

HEARD: November 17, 2021

ENDORSEMENT

[1] The Respondent mother, Amber Pantalone (the “Respondent”) brings a motion asking that the temporary consent Order of January 11, 2021 be varied as follows:

1. A temporary order that the Applicant father, Tuan Kyle Maloy (the “Applicant”) shall have supervised parenting time;

2. A temporary order that the Applicant’s parenting time shall be supervised by an agreed upon third-party or specialized supervision service, such as the Ottawa Family Services Supervised Access Program;

3. An order requiring the Applicant to produce his 2018-, 2019-, and 2020-income tax returns and notices of assessment to the Respondent within 30 days of this Order;

4. An order that should the Applicant not provide his income tax returns and notices of assessment to the Respondent mother within 30 days of this Order, the Applicant's pleadings shall be struck and the Respondent shall be permitted to proceed on an uncontested basis;

5. On a temporary without prejudice basis, an order that the Applicant pay child support in the amount of $254.29 per month based on an imputed minimal wage income of $29,848.00 (minimum wage income is $14.35 per hour X 40 hours per week).

[2] The Applicant was served with the Respondent’s motion materials through his counsel of record on October 19, 2021. The Respondent served a further affidavit on the Applicant’s counsel on November 10, 2021. The Applicant did not serve and file materials. He apparently served an unsworn affidavit upon the Respondent at 4:00 p.m. November 16, 2021. I did not allow the late filing of that material. It is clear that the issues in this proceeding were brought to the attention of Applicant’s counsel as early as July 2021 and no attempt was made to respond to address those issues in a timely way or at all. I consider it unfair to expect the Respondent to proceed and respond to the contents of an affidavit that was provided at the very last hour without a reasonable explanation for the delay. The Applicant did not request an adjournment.

Background:

[3] The parties commenced a relationship on or about June 2016 and separated on or about November 2019.

[4] They have one child of the relationship, Bentley James John Maloy born May 16, 2017 (“Bentley”). Bentley has been in the Respondent mother's primary care since his birth.

[5] The Respondent alleges that the Applicant has been very inconsistent throughout the Respondent mother's entire pregnancy and the first 6 months of the child's life due to the Applicant's serious drug addiction.

[6] According to the Respondent, when Bentley was approximately 6 months of age (on or about December 2017), the Applicant was convicted for an assault with a weapon and was incarcerated for one year. She states that the Applicant has also been previously incarcerated and that both convictions and incarcerations were related to violent charges of assault with a weapon or firearm.

[7] The Respondent maintains that the Applicant was physically and verbally abusive towards her during the entire relationship. She recounts several incidents of domestic abuse, including an incident of domestic abuse where a restraining order was put in place on the Applicant. On that occasion, the Respondent called the police, and the Children's Aid Society also became involved.

[8] The Respondent alleges that the Applicant’s abuse included, but were not limited to, the following:

1. During the Respondent's pregnancy, the Applicant slapped the Respondent across the face;
2. He also swore at her, punched holes in the wall;
3. Shortly after the child was born, the Applicant pulled out a knife on the Respondent; and
4. The Applicant came to the Respondent's residence with a machete and kicked down her door.

[9] After his release from prison, the Applicant moved in with his mother ("Brenda") and according to the Respondent worked performing lawn care services (outside maintenance, cutting grass, cleaning up leaves, spring and fall clean up, residential).

[10] The Respondent claims that since the Applicant’s release from jail, the Applicant has been on methadone to assist him with his drug addiction.

[11] The Respondent maintains that she has been supportive of the Applicant having parenting time with Bentley. She states, however, that his engagement with Bentley is inconsistent. At times he exercises access to Bentley every other weekend, while sometimes requesting every weekend, and other times requesting three weekends per month.

[12] The Applicant commenced an Application in November 2020. The Applicant sought access (now considered parenting time) with Bentley.

[13] The Respondent served and filed her Answer. She asks that Bentley remain in her primary care, and that the Applicant’s parenting time be supervised. She additionally made a claim for child support.

[14] On January 11, 2021, a case conference was held and the following order was made, on consent of the parties, by Bell J.:

a. The Applicant shall have access to the child, Bentley James John Maloy (DOB: May 16 2017) every second weekend from after daycare on Friday evening until drop off on Monday morning at daycare and on Wednesday evenings after daycare until Thursday morning at daycare. Access visits to occur at the Applicant's mother's residence, while the Applicant's mother is present. The Order is made without prejudice to the Applicant's right to move to increase access.

b. The Applicant shall pay child support in the amount of $140.00 per month. The Order is made without prejudice to any motion by the Respondent to increase the amount of child support payable.

c. The Applicant shall produce his income tax returns and notices of assessment to the Respondent as soon as they are available.

[15] The Respondent advises that the Applicant has failed to abide by all terms of this Order.

Parenting time:

[16] The Respondent asserts that the Applicant has refused to have his parenting time supervised in the manner agreed upon and ordered on January 11, 2021. It came to the Respondent’s attention that visits between the Applicant and Bentley were not being supervised and were not always at Brenda's house.

[17] The Respondent claims that for months, the Applicant has been deceitful and made the Respondent believe that Brenda was present during the visits. Brenda has also been deceitful. According to the Respondent on one occasion Brenda feigned ignorance and claimed she was not aware that the Applicant’s parenting time was to be supervised. On another occasion, the Respondent states that Brenda informed the Respondent that she in fact had known about the requirement but that she did not agree with it and therefore chose not to supervise the visits.

[18] The Applicant does not dispute that he did not always exercise his parenting time with Bentley with his mother present. Instead he disputes the need for supervision.

[19] On July 21, 2021, the Respondent’s counsel wrote to the Applicant’s counsel, and informed him of the Respondent's concerns with respect to the Applicant's parenting time with Bentley. As the Applicant had demonstrated an unwillingness to abide by the terms of the January 11, 2021 order, the Respondent advised that she did not believe that the current parenting regime continued to be in Bentley's best interests, and she made an offer to amend the January 11, 2021 Order. It was proposed that the Applicant would have visits with Bentley while supervised by an agreed upon third-party or an organization that provides specialized supervision services.

[20] According to the Respondent, there has been no response to this communication. The Applicant has informed the Respondent that he is not interested in doing any of the programs suggested to him. The Applicant further informed the Respondent that he is against his visits with Bentley being supervised by any third party. As a result he has not had parenting time with Bentley since July, 2021 and there has been very limited contact between the Applicant and the Respondent or Bentley.

[21] The Respondent states that she continues to have concerns regarding the Applicant's sobriety and mental stability. The Respondent believes that the Applicant has a methadone addiction and she is concerned regarding that impacts the Applicant’s ability to parent. The Respondent maintains that she has witnessed the Applicant “nodding off” while driving on methadone.

[22] The Respondent asserts that she continues to be a victim of the Applicant's abuse. The Respondent states that the Applicant continues to act in an abusive and threatening manner. The Respondent states that she has seen the Applicant raise his voice at Bentley and be impatient with him.

[23] The Respondent states that she has concerns for Bentley's emotional and social well-being in his father's care even when Brenda is present. She understands that they have verbal altercations in front of Bentley. The Respondent asserts that the Applicant and Brenda have made inappropriate comments to Bentley, such as suggesting that the Respondent is not letting them see Bentley and that she doesn't want them to have a relationship.

[24] Although Bentley is fully potty trained, the Respondent states that he is coming home stressed and wetting himself.

[25] The Respondent is also concerned that the Applicant and his new girlfriend have been having unsupervised visits with Bentley. The Respondent maintains that Brenda informed her that the Applicant’s girlfriend has addiction issues as well and that she “lost custody” of her child. The Respondent is therefore uncomfortable with Bentley spending time alone with his father and his new girlfriend.

[26] The Applicant, in response, submits that the Respondent has failed to show a material change in circumstances on the issue of parenting time and that the Respondent is not therefore entitled to ask for a variation of the parenting order made on January 11, 2021.

[27] The Applicant takes the position that it is apparent, upon reading the Respondent’s affidavits, that she is simply motivated by jealousy given the fact that the Applicant has a girlfriend.

Child support:

[28] There is no dispute that the Applicant has failed to deliver to the Respondent his income tax returns and notices of assessment as ordered. The Applicant has apparently not filed those returns. His counsel advises that he is prepared to do so within 14 days.

[29] It is also not in dispute that the Applicant has been receiving some unemployment insurance.

[30] The Respondent has produced screenshots of social media entries by the Applicant which would suggest that he has been carrying on two businesses: selling designer clothing and providing driving services. It is very unclear whether either of these ventures have been profitable.

[31] The Respondent has produced an email communication passing between her and the Applicant in which the Applicant claimed he had a full-time job. The Applicant’s counsel has suggested this was just posturing and not to be taken seriously.

[32] The Respondent asks that a minimum wage income be imputed to the Applicant. She takes the position that he is capable of working a minimum wage job on a full-time basis and that income of $29,848.00 should be imputed to the Applicant.

Analysis:

Variation of an Interim Consent Parenting Order

[33] Section 29(1) of the Children's Law Reform Act (CLRA) provides:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[34] This section prohibits a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order. Section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary Orders (See: BRM v MAEM, 2021 ONSC 2791 at para 39).

[35] If the Court finds that a material change has occurred:

1. The Court should consider the matter afresh, without defaulting to the existing arrangement;
2. The Court must consider all factors relevant to the children's circumstances, in light of the new circumstances;
3. The Court must be guided by the statutory criteria set out in section 24 of the CLRA;
4. Both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and
5. The Court should limit itself to whatever variation is justified by the material change in circumstance.

(See: BRM v MAEM, 2021 ONSC 2791 at paras 41-42)

[36] A breach of supervision terms of an access order by a parent and grandparents can constitute a material change. In LW-A v. JC 2017 ONCJ 741 the Honourable Justice Sherr held that because the grandparents breached the supervision terms of the access order by failing to supervise the father's visits with the child, they were not reliable and trustworthy. The Court held that "the child's safety requires that his access with the father be fully supervised by an independent third party” (at paras 114-118).

[37] As per section 24 of the CLRA, the court is required to consider only what is in the best interests of the child in making a parenting order or a contact order. In determining the best interests of a child, I am to consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being including those factors set out in section 25(3) of the CLRA.

[38] Pursuant to section 34 of the CLRA, the court may give such directions as it considers appropriate for the supervision, by a person, a Children's Aid Society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. The person, society or body must consent to provide supervision.

[39] Supervision orders may be beneficial in attempting to protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children (See: VSJ v LJG, 2004 CanLII 17126 (ON SC), [2004] OJ No 2238).

[40] In BRM v MAEM 2021 ONSC 2791, Finlayson J. noted that the case law, in which supervised parenting time has been ordered, invariably includes a multitude of troubling features that are present. Those features may include harassing and harmful behaviours towards the other parent or the child, a history of violence, uncontrollable behaviour, substance misuse, other behaviour that presents a risk to the child, alienation, ongoing severe denigration of the other parent, a lack of a relationship between the parent having parenting time and the child, negligence or abuse, and sometimes when the child's views and preferences are in favour of supervision.

[41] I am satisfied on the evidence before me that the Applicant has refused to abide by the terms of supervision he agreed to in the Order of January 11, 2021. I also accept the Respondent’s evidence that Brenda has expressed an unwillingness to respect the terms of the Order. I conclude that this constitutes a material change in circumstances such that the Respondent is permitted to ask that the terms of the temporary order be varied.

[42] In my view, the Respondent has raised issues which present a reasonable concern that the Applicant’s parenting time should be supervised at this point in order to ensure that his parenting time with Bentley is secure, safe and free from conflict. This measure does not and should not, in my view, be a long-term arrangement. However, I consider it necessary in order to ensure that the relationship with the Applicant is preserved pending the court being in a better position to determine the necessity of supervision with the benefit of a full evidentiary record.

[43] To that end, I asked both parties whether they felt it appropriate to request the involvement of the Office of the Children’s Lawyer (“OCL”), ideally to conduct a section 112 assessment and prepare a report with their recommendations for the court. Both counsel agree that given the recent developments, a request for the involvement of the OCL should be made.

[44] I note that the Respondent asks for any parenting time to be supervised by an agreed upon third-party or specialized supervision service, such as the Ottawa Family Services Supervised Access Program. I agree. However in stating this, I am of the view that Brenda should be provided a further opportunity to supervise the parenting time, provided that she is prepared to undertake in writing that she will abide by the requirement that she be present throughout the parenting time. In the event any third party supervisor, including Brenda, fails to adhere to the requirement that they be present during the Applicant’s parenting time, then that third party shall forfeit, absent an agreement between the parties, any further right to supervise the parenting time of the Applicant with Bentley pending further Order of this court. A copy of the terms of my Order shall be provided to any third party supervisor prior to parenting time under that person’s supervision taking place.

Child Support:

[45] There has been no reasonable explanation for the Applicant’s failure to produce his income tax returns and notices of assessment as ordered. While he has clearly been receiving employment insurance benefits, it appears he has earned additional income through driving services and possibly through selling designer fashions online. The Applicant has failed to file any income information to date, despite it being his obligation to do so and despite the Order of Bell J. dated January 11, 2021.

[46] An Order requiring him to file his income tax returns for 2018, 2019 and 2020 within 14 days is appropriate and copies of same must be served on the Respondent within 20 days. All Notices of Assessment are to be served upon the Respondent within 10 days of their receipt from the Canada Revenue Agency.

[47] If the Applicant fails to produce his income information, I am not prepared at this stage to strike his pleading. However, in the event the Applicant does not comply with my Order, then the Respondent may bring a further motion which among other things asks the court to strike his pleading but may alternatively ask that an order be made that an adverse inference be drawn respecting his income level.

[48] Section 19(1) of the Ontario Child Support Guidelines provides that the court may impute income to a parent in circumstances where "the parent or spouse has failed to provide income information when under a legal obligation to do so."

[49] In the circumstances I am prepared to impute income to the Applicant based upon a full-time minimum wage job, I conclude it would be reasonable for the Court to impute income of $29,848.00 to the Applicant. Child support should therefore be payable by the Applicant to the Respondent in the monthly amount of $254.29 commencing December 1, 2021 and payable on the 1st day of each month thereafter. This temporary Order will be without prejudice to either party seeking to vary the quantum of support payable once the Applicant’s income information is in hand.

Disposition:

[50] The following temporary order shall issue:

[1] A temporary order that the Applicant father, Tuan Kyle Maloy (the “Applicant”) shall have supervised parenting time with the child, Bentley James John Maloy born May 16, 2017 (“Bentley”);

[2] The Applicant’s parenting time shall take place every second weekend (from after daycare on Friday p.m. until drop off on Monday a.m. at daycare) and on Wednesday evenings (after daycare until Thursday a.m. at daycare) unless this duration is not possible due to the third party supervisor not being available to commit to this period of time in which instance the parenting time shall be based upon what duration of time can be arranged with the third party supervisor;

[3] The Applicant’s parenting time shall be supervised by the Applicant’s mother or any other agreed upon third-party or specialized supervision service, such as the Ottawa Family Services Supervised Access Program. Any third party supervisor shall be provided with a copy of my Order so that that supervisor is aware of the terms of the Applicant’s parenting time. Any third party supervisor (with the exception of the Ottawa Family Services Supervised Access Program) shall provide their written undertaking to abide by the terms of supervision and the failure to provide such a written undertaking or to abide by the terms of my Order shall immediately result in that third party forfeiting their right to act as a supervisor for the Applicant’s parenting time pending further Order;

[4] The parties shall refrain from speaking negatively about the other parent to Bentley or in his presence and shall prevent others from doing so;

[5] An Order shall issue requesting the Office of the Children’s Lawyer to conduct an assessment and prepare a section 112 report. Both parties shall remit their intake forms within the requisite time;

[6] The Applicant shall file his 2018-, 2019-, and 2020-income tax returns within 14 days time and to serve copies of these returns upon the Respondent within 20 days. The Applicant shall also thereafter serve copies of his notices of assessment for those years upon the Respondent within 10 days of receipt of same from the Canada Revenue Agency; and

[7] On a without prejudice basis, the Applicant shall pay child support to the Respondent in the amount of $254.29 per month based on an imputed minimal wage income of $29,848.00.

[51] If the parties are unable to agree on the issue of costs for this motion, the Respondent may file submissions concerning costs on or before November 30, 2021. The Applicant may file submissions concerning costs on or before December 7, 2021. In that event, cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by December 7, 2021, then there shall be no order as to costs.

M. Fraser J.

Date: November 23, 2021