COURT FILE NO.: FS-20-15031
DATE: 20221026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kasheka Ophelia Wallace-Hall
Applicant
– and –
Clive Roy Hall
Respondent
Jennifer Ryan, for the Applicant
No one appearing, for the Respondent
HEARD: In Writing
PINTO J.
REASONS FOR JUDGMENT (UNCONTESTED TRIAL)
[1] This is an uncontested trial. The respondent's pleadings were struck and this matter was directed to an uncontested trial by Order of Kimmel J. dated January 5, 2022.
[2] The parties were married on April 3, 2016, at which time the respondent father sponsored the applicant mother to live in Canada. She landed on February 17, 2017.
[3] The parties' child O was born on May 17, 2019.
[4] The applicant deposes that, after the first month of her arrival, the respondent became very possessive and accused her of cheating. She experienced incidents of family violence in 2017 and 2018.
[5] On November 17, 2018, the parties' separation date, the applicant claims that the respondent hit and punched her, and scratched her shoulder while trying to prevent her from leaving. She called the police at which time the respondent was arrested and removed from the matrimonial home. He was later charged with assault and a restraining order remains in place.
[6] The within application was commenced on January 23, 2020.
[7] The respondent was convicted of assault and received a conditional sentence as per the Order of Chamberlain J. of the Ontario Court of Justice dated February 4, 2021.
[8] In December 2020, the respondent had some video access with O, calling the child on Tuesdays and Thursdays. However, the contact was infrequent and irregular. The respondent's contact with the child ended on June 4, 2021.
[9] The respondent did not make contact again with the applicant until May of 2022, at which time the respondent reached out to the applicant's mother as he wanted to speak with O for her birthday. The applicant arranged for this, but since that time the respondent has not been in contact again with O.
[10] From time to time, the applicant updates the respondent with updates about O via email. The longest response the applicant has received from the respondent is "okay". The applicant states that she is prepared to continue to update the respondent about any serious issues concerning O.
[11] The respondent's two adult daughters have had some video and personal contact with O.
[12] The applicant is seeking Table child support on the basis of the respondent's annual income of $43,740 retroactive to June 1, 2019. The corresponding monthly child support amount is $403.30 per month.
[13] The respondent has a corporation with a truck. Notwithstanding several requests from applicant's counsel, the respondent's financial disclosure remains substantially incomplete. The respondent has not responded to the disclosure Order of Kimmel J. of September 24, 2021.
[14] The applicant calculates that the respondent's income for child-support purposes is $43,740 based on the following assumptions. She deposes that the respondent earns about $2,500 every two weeks net from his trucking company, or $62,500 annually if vacation is not paid. She states that the respondent advised her of his income and she saw some of his payments from his corporation. She assumes a 30% deduction ($18,750) for a net income of $43,750. She also points to the median income for employed truckers in Toronto being $21.67 per hour or $45,073.60 annually based on Canadian Job Bank data.
[15] The applicant reports that the respondent has paid child support as of August 31, 2022 in the amount of $7,550. She calculates that arrears would be in the amount of $6,968.80 since 36 months of payments @ $403.30 per month are owed, so $14,518.80 less $7,550 = $6,968.80.
[16] The applicant states that she did not delay in making her application. The respondent was served in January 2020, and he was clearly aware of his obligation to pay support and did so initially on a voluntary basis.
[17] The applicant also submits that an order of retroactive child support would not be a windfall for her. O is 3 years old and the applicant and child live a modest lifestyle.
[18] The applicant is not seeking section 7 expenses at this time. Nor is she seeking spousal support.
[19] The applicant is seeking orders related to dispensing with the consent of the respondent if she travels with the child outside of Canada, and dispensing with the respondent's signature if she wishes to obtain and renew government issued documentation for O, including a passport. The applicant has family in Jamaica and states that she would like to travel in the future. She is prepared to provide advance notice of travel with O to the respondent.
Decision-making, Parenting Time and Travel
[20] Under section 16.1(1) of the Divorce Act, the court has jurisdiction to make an order for decision making responsibility in respect of any child of the marriage on application by either or both spouses.
[21] As was stated by Steele J. in Andino v. Mazzone, 2022 ONSC 5641:
[9] In making an order for decision making, the Court shall take into consideration only the best interests of the child of the marriage: section 16(1), Divorce Act. Section 16(3) of the Divorce Act provides that the Court must consider all factors related to the circumstances of the child and sets out a non-exclusive list of factors, including the history of care of the child, the child's needs and the nature and strength of the child's relationship with each spouse.
[22] Based on the material before me, I find that the respondent has not been involved in O's life and that the applicant has been the de facto sole caregiver to the child. I am satisfied that it is in the best interests of O that the applicant have sole decision-making responsibility for O and that she be permitted to travel outside Canada with O without the consent of the respondent. Moreover, the respondent's consent or signature is dispensed with for the applicant to obtain or renew government documentation for O including passports.
[23] The applicant is consenting to reasonable parenting time on reasonable advance written notice, with the frequency, location, duration, nature and supervision type and parties and level of parenting time to be at the applicant's sole discretion, and to at all time reflect O's best interests. I consider this proposal to be in the best interests of O and a final order will issue to that effect.
Child Support
[24] The applicant seeks an order for ongoing child support. I am satisfied that under section 15.1 of the Divorce Act, it is appropriate for the court to make an order requiring the respondent to pay child support for O based on the respondent's imputed annual income of $43,750, which results in a monthly child support payment of $403.30. The applicant's submissions about the respondent's income were evidence based and the calculation of arrears appears correct and reasonable.
Disposition
[25] Order to go as follows:
(a) The applicant shall have sole decision-making authority for the child O.
(b) The respondent's parenting time with O shall be reasonable parenting time on reasonable advance written notice, with the frequency, location, duration, nature and supervision type and parties and level of parenting time to be at the applicant's sole discretion, and to at all times reflect O's best interests.
(c) Commencing September 1, 2022, and on the first of every month thereafter, the respondent shall pay child support to the applicant for the child O in the amount of $403.30 per month in accordance with the Child Support Guidelines based on an annual income of $43,750.
(d) Commencing September 1, 2022, the respondent shall pay child support arrears of $6,968.80 at the rate of $195.56 per month.
(e) Unless this order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under this Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
(f) For as long as child support is to be paid, the payor and the recipient, if applicable, shall provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.
(g) A Support Deduction Order (SDO) shall be issued.
(h) The applicant shall be permitted to dispense with the respondent's consent for travel outside of Canada with O, and this order shall be sufficient authority for so doing.
(i) The applicant shall be permitted to dispense with the respondent's signature for the following:
• Obtaining and renewing a passport for O;
• A travel consent for O; and
• Any official document for O requiring the respondent's signature.
(j) There shall be no costs.
Pinto J.
Released: October 26, 2022
COURT FILE NO.: FS-20-15031
DATE: 20221026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kasheka Ophelia Wallace-Hall
Applicant
– and –
Clive Roy Hall
Respondent
REASONS FOR JUDGMENT
Pinto J.
Released: October 26, 2022