COURT FILE NO.: FS-21-100346 DATE: 2022 01 10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RUPINDER KAUR GREWAL A. Rubin, for the Applicant Applicant

- and -

GURPINDER SINGH Self-Represented Respondent

HEARD January 4, 2022

REASONS FOR JUDGMENT

Dennison J.

[1] The parties were married on December 27, 2014 and separated in November 2019. They have one child together, H.K.S., who was born on January 5, 2019.

[2] The Applicant/Mother Rupinder Kaur Grewal filed for divorce on April 28, 2021. On October 1, 2021 the Respondent was noted in default and date was set for an uncontested trial.

Background Facts

[3] As noted above, the parties married in December 2014. In 2018, the Applicant sponsored the Respondent/Father, Gurpinder Singh, to come to Canada on a work permit.

[4] The parties have a child born on January 5, 2019.

[5] In November 2019, the Father was charged with sexual abuse of another woman, which led to the parties’ separation.

The Relationship

[6] The Mother submits she has been the primary caregiver of the child since the child’s birth, including bathing, feeding, and caring for the child, and including taking her to all medical appointments. The Father never participated in the care and upbringing of the child.

[7] The Mother states that since separating in November 2019, the Father has shown little interest in the child and has only seen the child 5 to 6 times for five to ten minutes each time.

[8] The Mother recently lost her job and is looking for new employment as well as a new day care for their child.

[9] The Mother states that she has emotional support from her two siblings, who often help her with the child. She resides with her siblings at a rental accommodation.

[10] The Mother seeks ongoing and retractive child support from the Father. The Father has not paid any child support despite requests. The Mother admits that she does not know the Father’s current income and therefore is seeking an order for financial disclosure to adequately determine the proper amount of support that should be provided.

[11] The Mother states that the Father has been verbally, physically, and emotionally abusive towards the Mother throughout their marriage. She states that during the marriage he would slap her and punch her causing bruising. She said that this occurred when he was under the influence of drugs and alcohol.

[12] The Mother states that recently the Father has been harassing and threatening the Mother and members of her family. The Respondent is alleged to have threatened to kill the Mother’s Brother in December 2021. This threat was reported to police.

[13] The Mother also testified that she and the Father jointly purchased a Toyota Camry in 2018. They financed the vehicle and had to make monthly payments of $650 per month. Since the time of separation, the Father has refused to pay any of the financing payments, yet he has sole use of the car.

[14] The Mother has continued to make the financing payments as she does not want her credit rating being adversely impacted. The Mother did not file any documentation to demonstrate she has made the payments.

Legal Proceedings

[15] On April 5, 2021, the Mother brought a Family Law Application seeking a divorce, child support and other issues. The Application was entered with the court on April 28, 2021.

[16] On May 5, 2021, the Father was personally served with the Application, the Form 35.1, as well as the Father’s Mandatory Information Program Notice and a Blank Answer. The Father has not filed an Answer.

[17] On July 29, 2021, the Father was served with the Mother’s Notice of Motion seeking to find the Father in default.

[18] On October 1, 2021, the Father was noted in default. An uncontested trial date was scheduled for December 21, 2021. The uncontested trial did not proceed on that date but rather was heard on January 4, 2021. The Father was not served with the material given the finding of default.

Issues

[19] The Mother seeks the following on the uncontested trial:

1. Sole decision-making authority and primary residence of their child;
2. The Father have supervised parenting time at the discretion of the Mother;
3. Child support retroactive to the date of separation;
4. A restraining order and a non-communication clause with an exception to arrange for parenting time;
5. That the Father take over the lease for the jointly purchased 2018 Toyota Camry and pay back the Mother the value of the monthly installments that she paid.

Parenting Plan

[20] Deciding the parenting plan for the child includes determining who will be responsible for making significant decisions about the child, where the child should primarily reside, and how much time each parent will have with the child. The court’s only concern is what is in the child’s best interests: Young v. Young, [1993] 4 S.C.R. 3 at pp. 62-63.

[21] The best interests of the child provisions are incorporated to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). The best interests of the child framework require primary consideration of the child’s physical, emotional, and psychological safety, and security and well being: S. 16(2) Divorce Act and s. 24(1) & (2) of the Children Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). Section 16(3) of the Divorce Act and s. 24(3) of the CLRA set out additional factors that may be considered. Section 16(3) of the Divorce Act states,

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.

[22] After considering the relevant factors set out in the Divorce Act, I am satisfied that it is in the best interest of the child that the Mother have sole decision-making authority. The parties separated when the child was approximately 10 months old. The Mother has been the primary caregiver since that time. In contrast, the Father has seen the child approximately five to six times for no more than ten minutes a visit. The Mother has taken care of this young child since that time and made all relevant decisions for the child for more than two years without any input from the Father. The child’s bond with the mother is very strong and almost non-existent with the Father, given the very limited time he has spent with the child.

[23] The Mother also has the emotional support of her siblings who are involved in the child’s life.

[24] The Mother plans to return to work and is currently looking for suitable daycares for their child. The child was previously in daycare before the Mother lost her job as a result of the Pandemic.

[25] The Father appears to have little interest in spending time with the child. There is no basis to find that the Father would be able to care for and meet the needs of the child.

[26] There is also history of family violence. The Mother states that the Father has been abusive and threatening both during and after the marriage, which also weighs against any sort of joint decision making.

[27] For the above reasons, I am also of the view that the child should reside primarily with the Mother.

[28] With respect to the parenting time with the Father, the Mother is not opposed to the Father having parenting time with the child but feels it should be supervised and at her discretion. She states that she has encouraged parenting time, but the Father does not seem interested.

[29] I agree with the Mother that parenting time should be supervised and at her discretion. The child is now four years old. The child has little to no connection with the Father since November 2019, when the child was ten months old. In the circumstances, it would not be in the best interests of the child to have the child spend unsupervised parenting time with the Father, particularly as there is no evidence that the Father is capable of meeting the needs for the child.

Child Support

[30] The Father has paid no child support since the date of separation. The Mother seeks child support from the Father going forward and retroactively to the date of separation.

[31] The difficulty the Mother has is that she has no documentation to demonstrate the Father’s current income because the Father has failed to file an Answer or a Financial Statement.

[32] At trial, the Mother testified about what she knew about the Father’s income. She stated that when he first came to Canada, he worked for a company earing $15 per hour. He then did not work for three months and obtained his trucking licence in 2018 and commenced his own business. She stated that he was gone from the residence from 7 p.m. until 7 a.m., five days a week. She testified that while they were married, he worked 40 to 50 hours a week. She believes he earned between $5,000 to $6,000 per month because she saw a picture of his bank statement. The Mother did not have any access to the Father’s bank accounts.

[33] The Mother admits that she does not know what the Father is currently earning or what he is doing because he has failed to disclosure any financial information.

[34] The amount to be paid for child support is based on the payor’s income. Where a person works for another company, income is usually based on the total income that appears on the payor’s line 150 of their tax return. Income is more difficult to determine where a person is self employed and additional documents may be necessary to determine the payors true income.

[35] Section 19(1)(f) of the Federal Child Support Guidelines allow the court to impute income to a parent where the parent has failed to provide income information when under a legal obligation to do so.

[36] Given, the limited information the court currently has, I am of the view that it is not appropriate to impute an income to the Father on a final basis. Rather, the court orders the Father to provide financial disclosure within 30 days of this order so that the court may make an informed decision as to what income should be attributed to the Father to determine what child support he should be paying going forward and retroactively.

[37] In the interim, it is not appropriate that the Father pay no child support. Child support is the right of the child. The Father has a financial obligation towards the child regardless of whether he is involved in the child’s life. The Father cannot avoid his financial responsibility by simply ignoring the court process.

[38] I accept the Mother’s evidence that she believed the father earned approximately $60,000 to $72,000 per year as a truck driver while they were together. Based on this evidence, I am prepared to impute an income of $65,000 to the husband on an interim basis pursuant to s. 19 Federal Child Support Guidelines. The Father has provided no financial disclosure, I am prepared to infer that he is able to earn the income that the Mother believes he earned during the marriage. The Father is therefore required to pay Child support in the amount of $605 based on an income of $65,000 pursuant to the Federal Child Support Guidelines on a temporary and without prejudice basis pending the final determination of the court.

[39] Any potential prejudice that the Father may face as a result of overpaying child support based on this interim order is outweighed by the fact that for over the past two years, he has paid no child support.

[40] If the Father continues to refuse to provide the disclosure ordered within after 60 days, the Mother may file a s. 14B motion for a final order with respect to child support going forward and for an order for retroactive support.

Restraining Order

[41] Pursuant to s. 46 of the Family Law Act, R.S.O. 1990 c. F.3, the court may grant a final restraining order where the applicant has reasonable grounds to fear for their safety or the safety of any child in their lawful custody: see also s. 35 of the CLRA.

[42] Initially the Mother only sought a non-communication clause. However, as outlined in the Mother’s evidence, the violence towards her and her family has recently increased. The Father attended at the Mother’s residence on December 20, 2021 and threatened the Mother and her Brother. The police were called.

[43] The Mother’s fear that the Father will commit further acts of violence against her, or her family members is reasonable. The Mother stated that the Father was physically, and emotionally abusive during the marriage. The Father has subsequently been charged with a sexual violent offence and continues to threaten the Mother and her family: See McCall v. Res, 2013 ONCJ 254 at para. 31.

[44] As such, a final restraining order will be issued with the exception for there to be communication for the purpose of facilitating any parenting time or to deal with legal issues through counsel.

Car Loan

[45] The parties jointly purchased a 2018 Toyota Camry using financing. Since the date of separation, the Mother has paid the monthly financing payments for the car, as the Father has claimed a lack of funds and the Mother does not want her credit rating destroyed. Despite the fact that the Mother has made all of the payments, the Father has been the sole user of the car since separation and refuses to contribute to the monthly car payments.

[46] In essence this an argument about unjust enrichment. The heart of this doctrine rests on the notion of restoring a benefit which justice does not permit one to retain: Kerry v. Baranow, 2011 SCC 10 at paras. 31 and 32.

[47] There are three elements; an enrichment, a corresponding deprivation, and the absence of a juristic reason for the enrichment.

[48] The Father has had the enrichment or benefit of the car since the date of separation without making any financing payments.

[49] The Mother has suffered a corresponding deprivation because she has been paying the financing expenses and not had any benefit in using the car.

[50] There is no juristic reason why the Father should have the benefit of the car without making the financing payments. The Father is not paying the Mother any money to offset the payments she has made to the car. The car was not a gift to the Father, and it does not form any party of any equalization payment.

[51] In the circumstances, I order that within 30 days the Respondent/Father comply with a lease/financial payment takeover for the jointly purchased 2018 Toyota Camry. The Father is further ordered to pay back the Mother the value of the monthly installments she has contributed since separation within 60 days of receipt of proof of the payments she made between December 1, 2019 to January 1, 2022.

[52] In the event that the Father does not take over the lease/financial payments within 30 days, the ownership of the vehicle shall be transferred to the Applicant/Mother.

Conclusion

[53] I therefore make the following final orders:

1. The Applicant/Mother shall have sole decision-making responsibility of the child, Harjin Kaur Sidhu, born January 5, 2019 (“the child”).
2. The child shall reside primarily with the Applicant/Mother.
3. The Respondent/Father shall have liberal and generous supervised parenting time with the child as determined solely by the Applicant/Mother.
4. The Applicant/Mother may travel with the child without the written consent of the Respondent/Father.
5. The Applicant/Mother may obtain, maintain, and renew the child’s passport and other government-issued documentation without the written consent of the Respondent/Father.
6. The Respondent/Father is to provide the following documents within 30 days to the Applicant/Mother’s counsel: (a) a copy of every personal income tax return filed for each of the three most recent taxation years; (b) a copy of every Notice of Assessment and Reassessment issued for each of the three most recent taxation years; (c) If the Respondent/Father was or is an employee since 2019, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration; (d) if the Respondent/Father has been or is self-employed, for the three most recent taxation years; (i) the financial statements of the Father’s business or professional practice, other than a partnership, and (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the Father does not deal at arm’s length; (iii) Any Corporate Tax returns prepared in the last three years. (e) If the Father has been a partner in a partnership, confirmation of the Father’s income and draw from, and capital in, the partnership for its three most recent taxation years; (f) if the Father controls a corporation, for its three most recent taxation years; (i) the financial statements of the corporation and its subsidiaries, and (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length; (g) If the Father is the is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and (h) in addition to any income information that must be included under paragraphs (c) to (g), if the Father receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, including CERB, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information. (i) Copies of the Father’s bank statements for the past three years.
7. A copy of this endorsement and order is to be personally served on the Respondent/Father.
8. The Respondent/Father is prohibited from coming within 500 metres of the Applicant/Mother’s and child’s home, school, daycare, or any other place that the Respondent/Father has reason to believe they may be present at without the prior written consent of the Applicant/Mother.
9. The Respondent/Father is restrained from directly or indirectly contacting or communicating with the Applicant/Mother or the child except for the purpose of arranging parenting time between the Respondent/Father and the child or through counsel in relation to this Order. All communications are to be in writing.
10. Within 30 days, the Respondent/Father is to comply with a lease/financial payment takeover for the jointly purchased 2018 Toyota Camry.
11. The Respondent/Father is to pay back the Applicant/Mother the value of the monthly installments she has contributed since separation within 30 days of receipt of proof of the payments she made between December 1, 2019 to January 1, 2022.
12. In the event that the Respondent/Father does not take over the lease/financial payments within 30 days of receipt of the endorsement, the ownership of the vehicle shall be transferred to the Applicant/Mother.

[54] With respect to child support, I make the following orders:

1. on a temporary and interim basis, the Respondent/Father is required to pay child support in the amount of $605 per month to be paid commencing January 1, 2022 based on an imputed income of $65,000 in accordance with the Federal Child Support Guidelines.
2. The clerk is to issue a support deduction order under section 11 of the Family Responsibility and Support Arrears Enforcement Act for the periodic support.
3. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
4. If the Respondent/Father has provided the necessary financial The Applicant/ Mother may contact the trial coordinator and seek a further date before me to make further submissions regarding child support moving forward and retroactive child support. All documents provided by the Respondent/Father must be filed on the motion. The court will then make a final order with respect to the child support arrears and child support going forward.
5. If, after 60 days, the Respondent/Father has not provided the financial disclosure as ordered, the Applicant/Mother may bring a s. 14B written motion to obtain a final order with respect to child support going forward and retroactive child support.
6. Pre-judgment and post-judgment interest on any amounts owing from the Respondent/Father for child support are to be paid to the Applicant/Mother pursuant to s. 128 and s. 129 of the Courts of Justice Act.

Costs

[55] The Mother’s total costs are $9,320.24, inclusive of HST. The Mother seeks costs on a substantial indemnity basis.

[56] The Court of Appeal in Serra v. Serra, 2009 ONCA 395 explained that the purpose of modern-day cost rules is to partially indemnify the successful litigant for the costs of litigation, to encourage settlement, and discourage and sanction inappropriate behaviour by litigants.

[57] The Mother was the successful party on the uncontested trial and is therefore presumptively entitled to her costs: Rule 24(1) of the Family Law Rules.

[58] In considering the issue of costs, Rule 24(11) sets out several factors the court should considering including,

(a) the importance, complexity, or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[59] In this case, the issues were not unduly complex or difficult.

[60] The Father acted unreasonably by failing to provide an Answer to the Application and failing to engage in any meaningful discussion to try and resolve the issues. In considering the scale of recovery in untested trials, Rule 24 still applies along with the other relevant principles involving costs: Benson v. Crawford, 2012 ONSC 5932.

[61] I am satisfied that the lawyers’ and law clerks’ rates are reasonable given their years of call.

[62] I am also satisfied that the time spent is reasonable, preparing for the uncontested trial, which including bringing a motion for default judgment.

[63] Finally, in considering the issues of costs, the court must consider the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). That case discusses that the overall objective is to fix costs in an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances,

[64] rather than an amount fixed by actual costs incurred by the successful litigant.

[65] I am satisfied in all of the circumstances that it is appropriate that the Father pay costs in the amount of $8,300.00 within 60 days of receipt of this endorsement.

Dennison J. Released: January 10, 2022