Court File and Parties

Court File No.: FC-23-0014 Date: 2023/06/14 Ontario Superior Court of Justice

Between:

Kelsey Raven Anne Berry, Applicant – and – Phillip Patterson, Respondent

Counsel: Kate C. Anderson, for the Applicant Respondent, Self-Represented

Heard: June 5, 2023 – Brockville

Reasons for Decision on Uncontested Trial

Somji J.

[1] This decision addresses the Applicant mother’s request for a parenting and child support order for the parties’ almost two-year-old child C.G.P. The issues to be decided are: one, have the grounds been met for an uncontested trial? and; two, is it in the child’s best interests to issue a parenting and child support order on the terms requested by the mother?

Issue 1: Have the grounds for an uncontested trial been established?

[2] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 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.

[3] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”

[4] The applicant mother brought an Application on January 10, 2023. The father was served on January 29, 2023, and provided a certificate of acknowledgement indicating that he had received the materials. The father failed to file an Answer in the requisite 30 days: r. 10(1) FLR.

[5] On March 14, 2023, counsel for the mother obtained a date from the Registrar to proceed to an uncontested trial. That date was scheduled for June 5, 2023. Counsel believed she informed the father of the hearing date by a Facebook message but upon further request by the court, counsel could not subsequently locate the message or confirm that notice of the date or the mother’s affidavit for an uncontested trial was sent to the father: Email from counsel to Registrar June 14, 2023. The father did not appear for the trial date.

[6] I find the grounds for an uncontested trial have been established given the father’s failure to file an Answer and according to the Family Law Rules, the father is not entitled to any further notice of the proceedings: r 1(8.4) FLR. Nonetheless, it is customary in these instances that counsel provide the opposing party notice of the court date because of the seriousness and finality of the family court orders requested at an uncontested trial. Should the opposing party attend the trial date, the presiding judge has the discretion to determine if based on the circumstances of the individual and the case, an extension of time should be given to the opposing party to respond or to make submissions on any of the issues. The reason for this practice is because where a Final Order is issued, in order for any party to make change, they must bring a motion to demonstrate a material change in circumstances which is high threshold.

[7] In the present circumstances, any orders imposed will be on an interim basis and the matter will return on August 15, 2023, for a further hearing. At that time, the presiding judge will have the discretion to determine if the Interim Order should be converted to a Final Order.

Issue 2: Is it in the best interests of the child to make a parenting order on the terms requested by the mother?

[8] The mother seeks a parenting order providing as follows: one, that the child reside primarily with her; two that she have sole decision-making responsibility; three, that the father have parenting time with the child supervised by his mother or sisters which is presently the current arrangement; four, that the father abstain from the consumption of drugs and alcohol during and within 12 hours prior to the start of his parenting time; and five, that the mother be able to travel with the child without the father’s consent.

Decision-Making and Parenting Time

[9] Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: r. 23(22) FLR. In this case, I have relied on the mother’s affidavit for an uncontested trial dated May 23, 2023, her original affidavit dated January 10, 2023, and her Application dated January 10, 2023.

[10] The mother is 26 and the father is 29 years of age. The mother attests that she and the father dated briefly and never lived together. Their child C.G.P. was born in August 2021. Their relationship came to an end a month later in September 2021.

[11] The mother states the father was abusive to her both during and after their relationship. She had to seek police assistance following their break up as the father refused to stop attending the residence and yelling at her. Her last direct contact with the father was in October 2021 when he attended her home and yelled at her. She slammed the door on him. She was frightened for herself and the child.

[12] Notwithstanding the poor relationship with the father, the mother has maintained a positive relationship with the paternal family. She has relied on the paternal grandmother as an intermediary to arrange for the father’s parenting time. The parenting time has varied, but since service of the Application, it has been once per week. It is her intention to continue keep the father informed of the child’s development through the grandmother. She is agreeable to the father having reasonable parenting time with the child supervised by his mother or his sisters. She does not wish to have any direct contact with the father and seeks that the parenting exchanges occur with the supervisors picking up the child from her home.

[13] The mother seeks supervised parenting time and a condition requiring the father to abstain from alcohol and non-prescription drugs because one, she believes the father has a criminal record related to drugs and violence, and two, she has observed signs of substance abuse. During the course of their relationship, the mother observed multiple incidents where she suspected the father was under the influence of drugs based on his erratic behaviour, slurred speech, jerky movements, skin conditions, dilated pupils, and long periods in the bathroom. Consequently, the mother is concerned about the safety of the child while in the father’s care.

[14] The primary consideration in determining a parenting plan for a child which includes in this case primary residence, decision-making responsibility, and reasonable supervised parenting time for the father, is the best interests of the children: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (“CLRA”). Section 24 of the CLRA endorses a child-centered approach in determining parenting orders: Young v Young, [1993] 4 S.C.R. 3, at pp. 62-63, per L’Heureux-Dubé J.; Knapp v Knapp, 2021 ONCA 305, at para 34.

[15] The best interests factors requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: ss. 24(1)-(2). Section 24(3) CLRA. The CLRA lists additional factors that must be considered as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall 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. 2020, c. 25, Sched. 1, s. 6

Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(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 co-operate, 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 co-operate 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. 2020, c. 25, Sched. 1, s. 6.

[16] In this case, the mother has been the primary caregiver of the child since birth. She has made all decisions for the child’s health and welfare. The father has not challenged the mother’s decision-making authority nor has he offered up an alternate plan of care.

[17] Based on the evidence presented and upon consideration of all the best interest factors including the history of care, the need for stability, the age and development needs of the child, and the absence of any proposed plan of care from the father, I find that it is in the best interests of the child that the mother have sole decision-making responsibility for the child on all matters and that the child continue to reside primarily with her.

[18] Section 24(3)(j) CLRA requires the court to consider family violence when crafting a parenting order. The mother has indicated that the father was abusive both during and after she terminated the relationship and in some instances, she was required to seek police assistance. Notwithstanding these safety concerns, she has continued to allow the father to see the child and has made such arrangements through the paternal family so that she need not have any contact with him. Based on her affidavit evidence regarding her personal experiences with the father and her belief that he may have a substance abuse issue, evidence which has not been challenged by the father, I find it is in the best interests of the child to include the terms and conditions requested by the mother with respect to the father’s parenting time. These conditions are that the parenting time will be supervised, the parenting exchanges will occur at her home with the person supervising, and the father will abstain from the consumption of alcohol and non-prescription drugs during his parenting time and in the 12 hours preceding his parenting time.

[19] The mother’s request for other corollary relief including the ability to obtain a passport and travel with the child without the father’s consent are also in the child’s best interests given the child is residing primarily with her, that she has been the child’s decision-maker, and that she does not have contact with the father.

[20] There will be an Interim Order that:

1. The mother shall have decision-making responsibility for the child.
2. The child shall reside primarily with the mother.
3. The father will have reasonable parenting time with the child supervised by the father’s mother Brenda Perrin, sisters Olivia Patterson, Kristen Patterson, or Crystal Gow, or such other supervisor as the parties may agree. The father’s parenting time shall be scheduled by the supervisor with reasonable notice to the mother.
4. The parenting exchanges shall take place at the mother’s residence.
5. The father shall not consume alcohol or non-prescription drugs during his parenting time or within twelve hours prior to the start of parenting time.
6. The mother shall be authorized to apply for a passport for the child without the consent or signature of the father.
7. The mother shall be authorized to travel with the child without restriction and without the consent of the father.

Child Support

[21] The mother seeks child support and s. 7 expenses on a pro-rata basis based on imputation of a minimum wage income to the father. The father has never paid support. Should the father be entitled to any health and dental benefits for the child or life insurance through his employer, the mother seeks an order that the child be designated a beneficiary and herself a trustee.

[22] In her January 2023 affidavit, the mother posited that the father is a heavy equipment operator and has had intermittent employment. More recently, in her May 2023 affidavit, the mother posits that based on recent photos of the father on business Facebook pages, she understands he is presently working at Wilson Street Auto. The mother does not know if the father is working full-time. She has not discussed the matter with the paternal family preferring not to involve them in these matters and she understands they also wish not to be involved.

[23] Minimum wage in Ontario is currently $16.55/hr and at 40 hours a week multiplied by 52 weeks, the father’s imputed income would be $34,424. The father’s Table amount of support would be $297/month: Child Support Guidelines (Ontario), O. Reg. 391/97.

[24] The mother’s 2022 income is $16,080 from unemployment insurance earnings. The mother recently returned to work and has a seasonable job at a resort. She earns minimum wage but on part time hours. She expects her income for 2023 to remain approximately the same. The mother has child care costs of $25/day or approximately $500/month. On a pro rata basis, the father’s share of s. 7 expenses would be 68%.

[25] The mere fact that the father 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.

[26] This court is not entitled to impute an arbitrary amount of income to the father. Such an approach would be unfair: Monahan-Joudrey v Joudrey, 2012 ONSC 5984 at paras 20 and 21; Staples v Callender, 2010 NSCA 49 at para 21. There must be some basis in evidence for the amount that the court has chosen: Monahan-Joudrey at para 21.

[27] On the other hand, a child’s right to child support should not be undermined by the father’s unwillingness to engage in court proceedings and failure to comply with his financial disclosure obligations upon receipt of the mother’s Application: r. 13 FLR and s. 21(2) Child Support Guidelines (Ontario); see also parallel provisions in the Federal Child Support Guidelines, SOR/97-175, as am.

[28] In some circumstances, the court may draw an adverse inference against a spouse who failed to comply with the financial disclosure and impute income to that spouse in such an amount as it considers appropriate: ss. 19, 21, and 23 Child Support Guidelines (Ontario); see also parallel provisions in the Federal Child Support Guidelines.

[29] Given the father has a suspected history of substance abuse, periods of intermittent employment, and at one point was living at a campground with his parents, I find that a fair and reasonable approach in this case would be to issue an interim order rather than a final order for child support and s. 7 expenses at this time on the basis of the evidence provided which is that the father is working at Auto Wilson and at a full-time minimum wage. Should the father wish to challenge the child support order, he may do so by providing the mother and the court with financial disclosure that validates his present income. In the interim, the mother should take steps to verify the father’s income and hours including with his present employer.

[30] The matter is adjourned to a further Uncontested Trial on August 15, 2023, at 11 am. The matter need not be before me.

[31] There will be an Interim Order that:

1. The issues of child support, imputation of income, special and extraordinary expenses, extended healthcare benefits for the child, and life insurance to secure child support, shall be adjourned to a further Uncontested Trial on August 15, 2023 at 11:00 a.m.
2. The Respondent, Philip Patterson, shall serve and file a Form 13 Financial Statement, 2021 and 2022 Notices of Assessment, and proof of income for 2023 within 30 days.
3. The father shall pay to the mother support for the child in the amount of $297.00 per month, based on an imputed full-time minimum wage income of $34,424.00 per annum, commencing June 1, 2023.
4. The father shall pay the mother 68% of the future special and extraordinary expenses of the child calculated on a pro rata basis based on the father’s imputed income of $34,424.00 per annum and the Applicant’s 2022 gross annual income of $16,080.00
5. The father’s payment for such expenses shall be made within 14 days of receiving the mother’s invoice or proof of expense.
6. The father shall maintain extended medical and dental coverage for the child for any period during which coverage is available through his employment and so long as the child is eligible for support.
7. The father shall notify the mother of any such benefits, and sign consents to allow her to make claims directly to the insurance provider for the benefit of the child. In the event that the benefits provider will not allow the mother to make a claim directly, the father shall promptly submit receipts given to him by the mother and immediately reimburse the mother for all amounts recovered by him for such expenses.
8. The father shall designate the mother as the trustee of any life insurance policy he has or for which he may become eligible through his employment, for the benefit of the child.
9. The parties shall provide updated income disclosure including but not limited to their annual Income Tax returns and Notices of Assessment, to the other by June 1st each year and in accordance with section 24.1 of the Child Support Guidelines.
10. Unless this Order is withdrawn from the Office of Director of 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.

[32] The precise wording of the terms and conditions of the Interim Orders are set out in the draft orders provided by counsel for the mother.

[33] Counsel for the mother shall serve a copy of this decision and the Interim Orders on the father so that he is aware of orders and the next court date of August 15, 2023, at 11 am.

Costs

[34] The Applicant mother has not requested costs for this hearing.

Somji J. Released: June 14, 2023