Court File and Parties
COURT FILE NO.: FC948/15 DATE: 2023/02/28
ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Alicia Christen Haggis Unrepresented Applicant
- and -
Sebastian Sokolski Matthew Gianotti, for the Respondent Respondent
HEARD: October 11, 12, 13, 2022
T.G. PRICE J.
AMENDED JUDGMENT
Parties
[1] The parties to this proceeding are Alicia Haggis (hereinafter, Alicia), the Applicant, and Sebastian Sokolski (hereinafter, Sebastian), the Respondent.
Nature of Case
[2] Alicia has had sole decision-making responsibility for the parties’ child, O, born March 8, 2015, since Justice David Aston made a consent order to that effect on May 17, 2016.
[3] This trial focused on Sebastian’s request for a prospective parenting time order, to take effect when he is released from jail after serving a two-year sentence for robbery that was imposed on October 31, 2022. The issue of his parenting time has remained unresolved since the proceeding began in 2015.
[4] The only other issue pertains to child support. At issue in that regard are:
a) whether, at the time of trial, Sebastian was in arrears of child support or whether he had overpaid; and
b) whether income should be imputed to him for child support purposes while incarcerated.
Order
[5] For the reasons that follow, I make the following order:
Contact by the Respondent While Incarcerated
For the purposes of this order:
a. “incarcerated” and “incarceration” mean time during which Sebastian is housed in a correctional facility, as well as any time during which Sebastian, after his final release from a correctional facility, is required by the Correctional Service of Canada to reside elsewhere than at his own residence or at the home of his parents;
b. “correctional facility” includes a penitentiary and any place where Sebastian is housed while under guard and prevented from leaving, but does not include a place where Sebastian is required by the Correctional Service of Canada to reside after finally leaving a correctional facility, such as a half-way house;
c. “Respondent” and “Sebastian” mean Sebastian Sokolski;
d. “Alicia” means Alicia Christen Haggis; and
e. “the child” means O. V. S. H. [1] , born March 8, 2015.
Sebastian shall be entitled to write to the child once per week while incarcerated. At no time shall he inform the child where he is located or residing.
Alicia shall read Sebastian’s correspondence, upon receipt, before the child sees it. All indications (such as pre-printing on paper or envelope) that it was sent from a place of incarceration shall be removed by Alicia. Alicia shall have the authority to read to the child the contents of Sebastian’s correspondence to her, with such changes as Alicia feels are appropriate to the child’s understanding. Alicia may also, if she deems it appropriate, allow the child to read the correspondence herself.
If the child wishes to respond to any letter received, Alicia shall assist her to write to Sebastian. She shall have the right to determine what topics are appropriate for inclusion in the child’s letters. Alicia shall insert address information after any such letter has been written by the child, and she shall prepare and mail the envelope containing the child’s letter. She shall also keep a record of each date that she has mailed a response on behalf of the child.
Once Sebastian knows the date of his final release from incarceration in circumstances which will permit him to have in-person contact with the child, he shall notify Alicia of the date.
Respondent’s Parenting Time Following Release from Incarceration
Once Sebastian has been finally released from a correctional facility, all communications between the parties shall thereafter be through the parental communication program called “Our Family Wizard.” Each party shall pay the costs of their use of the program.
Upon his final release from a correctional facility, Sebastian shall:
a. provide Alicia with a copy of any of his release documents provided to him by the Correctional Service of Canada, including any which have imposed release conditions on him;
b. authorize Alicia, in writing, to communicate with his parole officer, probation officer, or any counsellor with whom he is required to meet after his release;
c. undergo a mental health evaluation, the purpose of which will be to determine whether Sebastian is susceptible to further episodes of psychosis and, if so, the degree, if any, to which he may pose a risk of physical or emotional harm to the child;
d. provide the evaluation to Alicia; and
e. produce to Alicia proof of Sebastian having obtained an up-to-date, clean drug test.
Upon Sebastian having complied with Paragraph 7 hereof, Alicia shall, within 10 days, meet with a counsellor or therapist, chosen by her, to ascertain whether reconciliation counselling between Sebastian and the child is recommended before Sebastian resumes having parenting time with the child.
If requested by the counsellor or therapist, Alicia shall provide her or him with a copy of Sebastian’s mental health evaluation.
If requested by the counsellor or therapist, Alicia shall ensure that the child meets with the counsellor or therapist in order to formulate his or her views as to the child’s need, or not, to participate in reconciliation counselling.
Alicia shall immediately advise Sebastian of the counsellor or therapist’s contact information and inform the counsellor or therapist of her obligation to do so. Sebastian may contact the counsellor or therapist to discuss reconciliation counselling.
Alicia shall inform Sebastian, in writing, of the opinion of the counsellor or therapist about the child’s need to participate, or not, in reconciliation counselling as a precursor to him resuming to exercise parenting time with the child.
If the counsellor or therapist is of the opinion that the child needs to participate in reconciliation counselling before beginning to attend parenting time visits with Sebastian, the counsellor or therapist shall determine the parameters and procedure for the reconciliation counselling, including the timing and conditions of any meetings between the child and Sebastian during counselling sessions.
Alicia shall pay one-third of the cost of reconciliation counselling and Sebastian shall pay two-thirds of the cost of reconciliation counselling, on such terms as are set by the counsellor or therapist.
As applicable,
a. if no counsellor or therapist has agreed within 30 days of meeting with Alicia to participate in the process set out herein, or the counsellor or therapist selected by Alicia is of the opinion that the child has no need to participate in reconciliation counselling as a precursor to Sebastian resuming his parenting time with the child, or
b. upon the counsellor or therapist determining that Sebastian and the child may begin to participate in expanded in-person parenting time visits,
both parties shall immediately thereafter register with Merrymount Children’s Centre for Sebastian to begin having supervised parenting time with the child as soon as a spot for such parenting time becomes available. The cost of such supervised parenting time shall be paid by Sebastian.
As applicable,
a. when deemed appropriate by the reconciliation counsellor or therapist, or
b. should no counsellor or therapist be involved, after Sebastian has participated in supervised parenting time at Merrymount for no less than three (3) months,
Sebastian’s parenting time with the child shall transition to bi-weekly for a period or periods totalling no less than 6 hours, supervised by Sebastian’s mother, Danuta Sokolski.
As applicable,
a. when and as deemed appropriate by the counsellor or therapist, or
b. should no counsellor or therapist be involved, when and as deemed appropriate by Alicia in consultation with Sebastian and Danuta Sokolski,
the frequency of Sebastian’s parenting time may thereafter be increased, and supervision lessened or eliminated.
At each step in the process described in Paragraphs 15 though 17 herein, the child’s views and preferences shall be considered when decisions are being made by, as applicable, a counsellor or therapist, Alicia, Sebastian, and Danuta Sokolski.
General Terms
Nothing herein precludes the parties from agreeing to a different process or timing for the commencement and advancement of Sebastian’s parenting time with the child.
At any time, should the parties disagree about Sebastian’s ability to begin or expand his parenting time with the child, including having parenting time on holidays and special occasions, either party may request a more specific order from the court, on application, based on circumstances as they exist at the time of such disagreement. Neither party need show a material change in circumstances for such application to proceed.
Sebastian is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health, education and extracurricular activities, from,
(a) Alicia; and
(b) any other person who is likely to have such information.
Without exception, Sebastian shall not consume alcohol or non-prescription medications for 24 hours before his participation in counselling, if any, or for 24 hours before or at any time during his parenting time.
Sebastian shall seek referral to and thereafter meet with a psychiatrist, psychologist, physician, or qualified mental health counsellor as often as is recommended by such person.
Sebastian shall sign an authorization permitting Alicia to communicate with his selected psychiatrist, psychologist, physician, or qualified mental health counsellor to obtain general information about Sebastian’s mental health.
For a period of 12 months following the completion of his incarceration, Sebastian shall participate in drug testing as frequently as his selected psychiatrist, psychologist, physician, or qualified mental health counsellor determines to be necessary. Sebastian shall provide copies of all test results to Alicia.
Without the written consent of Sebastian, Alicia shall not schedule any conflicting or competing activities for the child during times when Sebastian is to be exercising his parenting time with her.
Alicia is hereby authorized to apply for a Canadian passport for O. without requiring Sebastian’s consent to do so. [2]
Alicia is hereby authorized to travel outside of Canada with O. without requiring Sebastian’s consent to do so. She shall, however, inform him when she intends to travel outside of the country with O., at least 7 days in advance of their departure. [3]
Child Support
In the period between January 1, 2019 and October 31, 2022, Sebastian overpaid child support to Alicia in the cumulative amount of $17,467.00.
For the period beginning November 1, 2022 and ending with the earlier of October 31, 2024 and the date of Sebastian’s final release from a correctional facility, whichever shall first occur, income shall be imputed to Sebastian in the amount of $12,025.00 per annum. During this period, Sebastian shall pay child support to Alicia in the amount of $1.00 per month, which shall be credited to Alicia by reducing the cumulative overpayment of child support, as set out in paragraph 18 hereof, by $1.00 per month.
Commencing on November 1, 2024 or upon Sebastian’s final release from a correctional facility, whichever shall first occur, Sebastian shall have an annual income imputed to him in the amount of $29,000.00, resulting in Sebastian being required to pay to Alicia child support of $247.00 per month, which shall be credited to Alicia by reducing the cumulative overpayment of child support, as set out in paragraph 18 hereof, by $247.00 per month.
Sebastian shall immediately notify Alicia when he has been finally released from a correctional facility, and Alicia shall, in turn, notify the Director of the Family Responsibility Office in order that the Director’s records can be adjusted accordingly.
In any full calendar year following his final release from a correctional facility during which Sebastian’s income does not exceed $29,000.00, his child support obligation shall be $247.00 per month.
Sebastian shall notify Alicia immediately upon obtaining employment and inform her of his annual income.
Commencing May 1 of the year following Sebastian’s final release from a correctional facility, and yearly thereafter on the same date, the parties shall exchange their income tax returns, including all information slips, schedules, attachments, and notices of assessment for the previous year.
By June 1 annually, and upon Sebastian earning an annual income of greater than $29,000.00, the parties shall adjust, as required, the amount of child support payable by Sebastian, based upon their annual incomes, in accordance with the Child Support Guidelines. They shall confirm their adjustment, for enforcement purposes, by obtaining, by means of a Consent Motion to Change, a consent court order setting out Sebastian’s child support obligation for the next year, meaning the period between June 1 and May 31 of the following year. They shall do so each year, once Sebastian’s income exceeds $29,000.00, for so long as the child is entitled to child support pursuant to the Family Law Act.
Upon obtaining employment, and if available, Sebastian shall add the child to any benefits coverage available to him for family members and shall name her as a beneficiary of any insurance policy available to him through his employment.
When he obtains full-time employment, Sebastian shall apply for life insurance in the amount of $200,000.00, naming Alicia, in trust for the child, as beneficiary. If approved, he shall pay the annual premium and provide proof of both the application and the payment of premiums to Alicia.
The parties shall share the child’s s. 7 Child Support Guideline expenses, with each paying the percentage thereof that his or her income is as a percentage of their combined incomes, such percentages to be recalculated annually by June 1.
There shall be no order as to costs.
Unless this support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and any amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Facts
[6] The facts which follow are taken from the parties’ trial evidence, and that of the paternal grandmother, who were the only witnesses. They represent my findings in the case.
Background – Parenting Time
Prior to Child’s Birth
[7] Alicia and Sebastian met in May or June 2014. They had a brief relationship which ended in July 2014, although they continued to communicate occasionally thereafter.
[8] Later that year, Alicia learned that she was pregnant with Sebastian’s child. She contacted Sebastian to inform him of the pregnancy. The parties disagree on when that occurred, but it was sometime in the autumn of 2014.
[9] Alicia wanted to know how Sebastian would react to being told that he was going to be a father. She said that he was not excited about the pregnancy, which did not surprise her. She expected to be raising the child as a single parent.
Following Child’s Birth – Prior to Litigation
[10] On the day of O.’s birth, Sebastian was present at the hospital for a brief period after she was born. Thereafter, Sebastian visited with her at Alicia’s residence.
[11] The parties disagree on the frequency of his visits. Alicia testified that Sebastian did not visit regularly because he felt that he could not really develop a relationship with a child so young. She estimated that, in the first eighteen months of O.’s life, Sebastian visited with her, maybe, twenty times. Alicia felt that Sebastian and his parents tended to float in and out of O.’s life.
[12] According to Sebastian, he visited once per week for periods of between one and four hours. His parents sometimes accompanied him.
[13] I find that the dispute on this issue is likely rooted in a difference in the parties’ expectations as to the purpose of parenting time with such a young infant, especially since they were not planning to raise the child together.
[14] Disagreements also developed between the parties over whether Sebastian could have O. in his care away from Alicia’s residence.
[15] Also contributing to the parties’ disagreements about Sebastian’s parenting time was the fact that Alicia had learned during the break-up of their relationship that Sebastian had a history of abusing drugs and alcohol. When they spoke about his requests for parenting time away from Alicia’s residence, she expressed her concerns to him about his drug and alcohol use, but she felt that he never really responded to her concerns.
[16] Compounding the difficulties between the parties was the fact that Alicia also came to the conclusion that Sebastian’s parents were not prepared to address the fact that Sebastian had a drug problem.
[17] According to Sebastian’s mother, Danuta Sokolski (hereinafter, Ms. Sokolski), Alicia and Sebastian had many arguments about Sebastian’s parenting time with O. When they did, Ms. Sokolski felt that she was always being put in the middle. She testified that she told Alicia that she simply wanted to be a grandmother to O. She also testified that Alicia would often complain to her about how she had done a poor job raising Sebastian.
[18] Ms. Sokolski was unaware that Sebastian was telling Alicia to contact her whenever he and Alicia were having a dispute, usually about child support, nor did she know what Sebastian was saying to Alicia to cause strife between the two of them.
Following Child’s Birth – Consent Custody Order
[19] Ultimately, based on what she said was advice from her family, Alicia commenced an application on July 27, 2015, seeking custody of O., child support and related financial relief.
[20] In his Answer dated January 8, 2016, Sebastian agreed with Alicia’s claims, but asked for parenting time every weekend for up to six hours, plus Wednesday evenings.
[21] He admitted that, as a result of injuries sustained by him approximately two years before, he had been prescribed and became addicted to the pain medication Oxycontin. He further admitted that in, September 2015, he had attended a two-week detoxification program in Kitchener and that, in November 2015, he had been admitted to a drug rehabilitation program at Homewood Health Centre in Guelph.
[22] In her Reply, Alicia opposed Sebastian having unsupervised parenting time, citing his drug addiction which she claimed was, by an admission he had made to her at the time their relationship ended, longer-term than he admitted in his Answer. (At trial, Sebastian testified that his struggle with opiates had begun when he started taking pain medication while previously attending Fanshawe College in 2005-2006, saying that he had an opiate addiction for 10 years.)
[23] Alicia further claimed that Sebastian had had a further relapse in January 2016.
[24] Alicia’s position was that his parenting time needed to be supervised, and that he should undergo drug testing on a regular basis, producing clean drug tests for a period of six months before she would agree to the expansion of his supervised parenting time.
[25] As noted, on May 17, 2016, Justice David Aston made a partial final order, on consent. It granted Alicia sole custody of O. The order contained some corollary financial relief. It did not address Sebastian’s parenting time, which was adjourned to a settlement conference.
Interim Parenting Time Orders – 2016-2017
[26] On August 3, 2016, Justice Korpan made an interim, without prejudice order granting Sebastian supervised parenting time at Merrymount as frequently as time might be available, together with two hours each week supervised by Alicia and two hours each week supervised by one of Sebastian’s parents.
[27] That arrangement, however, ended in February 2017, when Sebastian was charged with assaulting Alicia. The assault occurred at Alicia’s residence in O.’s presence on the same weekend that Sebastian had an argument with his mother, resulting in his mother refusing to continue supervising his parenting time. As a result, Alicia had been brought home early from her grandparents’ residence.
Initial Evidence about and Effects of Sebastian’s Delusional Thoughts
[28] Ms. Sokolski testified that she knew, beginning in 2016, that something was occurring with respect to Sebastian’s mental health.
[29] According to Sebastian, his assault of Alicia occurred during a period in February 2017 after he had begun to experience delusional thinking. That month he had also attempted to steal a car from his doctor’s office after removing the keys, but he had been stopped by the owner. That, apparently, also led to a criminal charge.
[30] Following the assault, the parties did not have contact for a period. Alicia’s relationship with Sebastian’s parents also worsened after the assault. She attributes that to the fact that she had called the police on him.
[31] Sebastian was later admitted to Victoria Hospital in February 2017, where he was seen by Dr. Kara Dempster, a psychiatrist. Following his release, he continued to meet weekly with her. She diagnosed him with psychosis in March 2017.
[32] Sebastian testified that alcohol consumption contributed to his psychotic episodes.
[33] The parties agree that Sebastian was likely in a psychotic state both when he stole the motor vehicle and when he assaulted Alicia in February 2017. Although not clear, his Form 35.1 includes no reference to a conviction for either the assault or the car theft. It seems likely, given his agreed-upon psychotic state that, in the case of the car theft, the charge was either withdrawn or he was given a discharge. In the case of the assault, since he ended up with an order that he not associate with Alicia, it may be the case that he entered into a peace bond.
[34] In any event, on April 19, 2017, Justice Henderson made an interim order granting Sebastian parenting time with O. on Sundays between 8:30 a.m. and 11:30 a.m., supervised by his parents at their residence.
[35] On May 19, 2017, Justice Henderson extended the hours of Sebastian’s Sunday supervised parenting time to 1:30 p.m., on consent. Justice Henderson’s endorsement also allowed the parties to agree that Sebastian’s parenting time could be further expanded on consent. Apparently, it later was, including overnight periods, always supervised by his parents.
[36] Sebastian was again hospitalized in July 2017 for a month after having another episode of psychosis. Upon his release, he returned to reside with his parents.
[37] The matter was next before Justice Henderson on September 13, 2017. At that point, having regard to Sebastian’s recent hospitalization and its underlying cause, Justice Henderson deemed a trial necessary to determine what parenting time regime would be in O.’s best interests. The matter was placed on the trial list for April 3, 2018, with appearances scheduled for a trial management conference on March 19, 2018 and a trial readiness court on March 27, 2018.
Resumption of Parties’ Relationship – 2017-2018
[38] Upon learning that Sebastian had been diagnosed as having psychosis, Alicia claimed that her view of him softened somewhat since she gained an understanding about why he behaved as he did.
[39] She began to accompany him to his appointments with Dr. Dempster. As part of her treatment of Sebastian, Dr. Dempster prescribed a medication called Abilify. Sebastian claims that it made him lethargic, and he found it hard to think. Alicia, on the other hand, felt that, while it made him lethargic, it also calmed him, thereby making him, in Alicia’s view, a more suitable candidate for parenting time with O.
[40] Sebastian testified that he and Alicia resumed their relationship in late 2017, and that it continued until June or July, 2018. While Alicia did not expressly agree in her evidence with Sebastian’s characterization of their renewed relationship, she did testify that she formed the opinion that, because of his medication, he became “not bad company.” For example, they took O. to the aquarium in Toronto sometime in 2018.
[41] Whatever the nature of their relationship at that time, I find that, when Sebastian was on Abilify, the parties’ relationship improved and Sebastian was able to spend more time with O., all under Alicia’s continuing supervision and almost always at her residence.
[42] Neither party attended court on January 10, March 19, or March 27, 2018. While Justice Henderson had directed that the application proceed to trial in April 2018, it did not. The file simply went dormant. I find that the parties did not attend court in the early months of 2018 because their relationship was not problematic and they saw no need to proceed with, or ignored, Alicia’s application.
End of Parties’ Resumed Relationship - 2018
[43] Regardless of the reason the parties missed court dates, their renewed relationship ended over Sebastian’s desire to discontinue his medication.
[44] Both parties, together with Sebastian’s mother, attended a meeting with Dr. Dempster to discuss this issue. At the meeting with Dr. Dempster, Alicia expressed the view that Sebastian should remain on Abilify, Sebastian expressed the view that he should be allowed to go off it, and Ms. Sokolski, who held Sebastian’s medical power of attorney, expressed the view that, while she would prefer that he remain on it, she could not stand in his way of discontinuing it. Sebastian discontinued his medication.
[45] According to Alicia, “that was the beginning of the end.” After Sebastian stopped taking the medication, he began to consume alcohol again and the positive visits that he had been having with O. started to deteriorate.
[46] Due, presumably, to Alicia’s refusal to allow Sebastian to have unsupervised parenting time with O., and the fact that, with the end of his and Alicia’s relationship in July 2018 he was likely being offered less time with O. than he wanted, further litigation ensued over his parenting time.
[47] On October 25, 2018, Justice Korpan made an interim order which afforded Sebastian parenting time with O., supervised by his mother. I was not told what became of that order or the parenting time arrangements it set in place.
2019 Events – Prior to October 31, 2019
[48] The parties were, however, again before Justice Korpan on May 1, 2019 on motions brought by each of them. Justice Korpan adjourned the motions to May 29, 2019. She also made an interim order that granted Sebastian parenting time with O. on Sundays, supervised by his mother, pending the motions being argued on May 29, 2019.
[49] Justice Korpan made a number of other interim orders that day, including a without prejudice order with respect to child support.
[50] A matter that particularly irritated the parties’ deteriorating relationship was the fact that Sebastian had filed a copy of a letter dated April 1, 2019, reportedly written by Dr. Dempster, for use on his motion returnable May 1, 2019. Alicia was concerned about the letter’s authenticity because it supported Sebastian having parenting time with O.
[51] Whether to address Alicia’s concern, or her own, Justice Korpan also ordered on May 1, 2019 that Sebastian produce the original of Dr. Dempster’s April 1, 2019 letter or, if not available, an original letter from Dr. Dempster confirming its authenticity.
[52] Justice Korpan did not make Sebastian’s parenting time contingent on the authenticity of the letter being established.
[53] Notwithstanding, text messages between the parties in early May, 2019, entered into evidence by Mr. Gianotti, counsel for Sebastian, clearly show that, despite Justice Korpan’s order, Alicia simply refused to comply with it by not allowing Sebastian to have parenting time with O. until such time as he produced evidence that Dr. Dempster’s letter dated April 1, 2019 was authentic.
[54] Alicia’s texts were often rude and condescending to Sebastian. She argued with him over his failure to comply with other terms of Justice Korpan’s order, while refusing to accept responsibility for her own failure to comply with the provisions allowing him to have parenting time supervised by his mother.
[55] When pressed in cross-examination, Alicia rejected the suggestion that she was doing everything in her power to make things difficult for Sebastian to see O. She testified that, to the contrary, she did a number of things to make life easier for him but that he constantly behaved in a manner which indicated that what she was doing was of little concern to him. Ultimately, however, when pressed, Alicia acknowledged that both parties were not complying with terms of the May 1, 2019 order made by Justice Korpan.
[56] Eventually, Alicia’s concern about the authenticity of the letter from Dr. Dempster was alleviated by having Alicia meet with Dr. Dempster, who confirmed the authenticity of the letter. Alicia acknowledged at trial that she had never admitted her error to Sebastian about the letter, nor did she apologize to him for having suggested that he forged Dr. Dempster’s signature.
[57] On May 29, 2019, Justice Tobin made the final pre-trial interim parenting-time order. Under its terms, Sebastian was granted three hours of parenting time on each of the next four Saturdays, supervised by his mother, followed by four Saturdays during which he had five hours parenting time, supervised by his mother, after which his parenting time was to occur on alternate Saturdays from 11:30 AM to 8 PM, unsupervised. All transportation was to be undertaken by Ms. Sokolski.
[58] The order contained other terms, including that Sebastian not consume alcohol or non-prescription medications for 12 hours prior to or during his parenting time, that the parties maintain a communication book, and that Alicia not schedule activities for O. during times when she was to be with Sebastian, unless he consented.
[59] All parties agree that the parenting time started out well. Alicia, Sebastian, and Ms. Sokolski were all getting along, and utilizing the communication book.
[60] However, in August 2019, just before or at the time when Sebastian was supposed to begin unsupervised parenting time, Ms. Sokolski withdrew her consent both to continue acting as a parenting time supervisor and to drive O. to and from parenting time. She did this because Sebastian was again consuming alcohol.
[61] Deprived of both a driver for O. and a parenting time supervisor, Sebastian’s parenting time ground to a halt.
[62] In September 2019, Sebastian entered rehabilitation at Homewood for the fourth time to receive treatment for his alcohol and drug usage. He did not complete the program because he was removed due to his consumption of alcohol while there.
[63] He had also been taking Suboxone, a prescription drug taken to counter opiate addiction, which had been prescribed by Dr. Judson. After his removal from Homewood, he stopped taking his suboxone in October 2019, a move that he claims was supported by Dr. Judson, although I was presented with no medical evidence confirming his statement. Sebastian further testified that he has not taken opiates since October 2019.
Sebastian Commits Robbery – October 31, 2019
[64] On October 31, 2019, while masked, Sebastian robbed a variety store, armed with a replica pellet gun. He had consumed alcohol before the robbery. He testified that stress was a trigger for his psychosis and that he was having a psychotic episode when he committed the robbery. At trial, he described the robbery as a “lapse in judgment based on a psychosis moment.”
Events Following the Robbery
[65] Following his release from jail after 22 days of pre-trial custody, Sebastian began residing with his parents, who were his sureties.
[66] Because of the criminal offences with which he was charged, on November 14, 2019 Toyota terminated Sebastian’s employment, with cause. After he lost his job at Toyota, he kept to himself and kept a watchful eye on his own health as he was concerned about any possibility of his delusions returning. He did not do much since his main concern was to stay sober.
[67] Sebastian also met with psychiatrist Dr. Lena Palaniyappan, Dr. Dempster’s supervisor in the Prevention and Early Intervention Program for Psychosis. Dr. Palaniyappan recommended that he resume taking Abilify, but he balked because he did not like the medication’s effects. Instead, he asked Dr. Palaniyappan if he could try to reason his way out of his delusional thinking. He did not testify as to her response.
[68] Sebastian also brought a motion, returnable January 22, 2020, seeking to suspend his ongoing child support obligation, the most recent order pertaining to which had been that made by Justice Tobin on May 29, 2019. The motion was dismissed, with Justice Tobin noting that child support was an issue which could be reviewed at trial.
[69] On September 15, 2020, Sebastian was discharged from the Prevention and Early Intervention Program for Psychosis because he continued to refuse to take Abilify. Dr. Palaniyappan recommended that if, in future, he required psychiatric care, he should seek a referral to a general psychiatry program from his family doctor.
Sebastian’s Parenting Time Since August 2019
[70] Sebastian last had parenting time with O. in August 2019. After it ended, Sebastian changed his telephone number and did not provide his new number to Alicia. She explained at trial that she could not contact him for that reason.
[71] Similarly, with the loss of his parenting time, Sebastian ceased his contact with Alicia and, through her, with O. He testified that he blames the robbery for motivating Alicia to deny him the opportunity to see O.
[72] When asked why he did not make inquiries of Alicia about O., he said that he found Alicia’s attitude difficult to deal with, so he would not seek information from her. He said that his interactions with Alicia harm his mental health because she speaks to him condescendingly, treats him like he is stupid and causes stress in his life. Having regard to the text messages entered into evidence by Mr. Gianotti, it is not difficult to believe Sebastian on this point.
[73] His last communication with O. prior to the trial was on December 26, 2019. He said that he had tried to reach out to Alicia after that for parenting time and was told to back off, so he did.
[74] Alicia’s view was that if Sebastian was genuinely interested in seeing O., he should have arranged or agreed with her to have his parenting time supervised by a non-involved third-party. In response, Sebastian indicated that it occurred to him to speak with Alicia about O., but the stress of their relationship always interfered. As a result, he did not press to see her, deciding, instead, to focus on himself. He also cited the pandemic as a reason why he did not press for a resumption of parenting time.
Relationship Between Alicia and Ms. Sokolski
[75] Ms. Sokolski agreed that she never offered to help Alicia with O. because Alicia never asked her to do so. She said that she always kept her phone open to Alicia to allow communication to develop between them.
[76] Ms. Sokolski also claimed that Alicia has denied her several opportunities to spend time with O., including for ordinary visits to the Sokolski residence and for celebrations.
[77] Another series of text messages entered into evidence by Mr. Gianotti evidenced Alicia being critical of Sebastian’s parents and the role they played both in his life and that of O. They focused on what appeared from Ms. Sokolski’s perspective to be Alicia’s unfair refusal to allow the paternal grandparents to see O. Alicia explained the texts on what she regarded as the paternal grandparents’ lack of consistency in trying to spend time with O.
[78] Making matters worse, Ms. Sokolski had helped Sebastian with his motion to suspend child support in January 2020 by swearing an affidavit in support of him and by accompanying him to serve Alicia with the motion materials at O.’s school while Alicia was there to retrieve O. As might be expected, this distressed Alicia. Unfortunately, that stress manifested itself in an entirely inappropriate manner.
[79] Mr. Gianotti entered into evidence a number of text messages sent from Alicia to Ms. Sokolski in January 2020. They were rude, obnoxious, condescending, and bordered on threatening. The texts clearly demonstrate that Alicia held much anger towards Sebastian’s parents. When asked about her disrespectful language, Alicia responded that she had been hurt by language critical of her that had been contained in the affidavit sworn by Ms. Sokolski in support of Sebastian’s motion returnable January 22, 2020.
[80] Moreover, in evidence confirmed by Alicia, Ms. Sokolski indicated that Alicia had contacted extended members of the Sokolski family in Poland and elsewhere who had not been aware that Sebastian had been charged with robbery, informing them of that fact. This was said to have caused upheaval and distress in the Sokolski family.
[81] Alicia’s behaviour at this time was inexcusable, and it contributes in large measure to the continuing rift which exists today between her and Sebastian’s parents. One of her complaints was that they have not been as fully involved in O.’s life as they could have been, but given her propensity for inflammatory commentary, it is not hard to see why Sebastian’s mother, at the very least, was not so willing to set aside the grievances of the past.
[82] While Alicia had some further communications with Sebastian’s parents after January, 2020, by May 29, 2020, those communications had ceased. That did not mean the end of Alicia’s contacts with Ms. Sokolski, however.
[83] According to Ms. Sokolski’s evidence, even though she had not spoken to Alicia for a long time, Alicia continued to text her, despite being asked to stop. Alicia last texted her sometime prior to 2022. She testified that the continued communications from Alicia, after she had been asked to discontinue them, had taken a toll on her health. She said that it was only Alicia’s repeated, attacking text messages which compelled her to ask Alicia to stop contacting her.
Sebastian’s Sentence for Robbery
[84] Sebastian pleaded guilty to the robbery in December 2021. His sentencing was originally scheduled to occur in January 2022, but was then adjourned to February, May, and September before finally being imposed on October 31, 2022. He was sentenced to two years’ incarceration in a federal penitentiary. He is currently serving his sentence.
[85] He testified that he would be asking to serve his sentence in a facility where there is a program to help people with mental illness. He told Alicia, under cross-examination, that he was not concerned about the stress of going to prison leading to another psychotic episode. He said that, if it did occur, he would seek medical care in prison.
[86] Despite facing a term of incarceration, Sebastian enrolled in a four-year Computer Programming Analyst program at Fanshawe College, which commenced in January 2022. Jail will interrupt his program at Fanshawe College. He told staff there that he will have to take a year off from the program, but he did not explain why.
Sebastian’s Position Regarding Parenting Time and His Plans for a Relationship with O. – Before, During and After His Incarceration
[87] Sebastian testified that he did not think that it would be in O.’s best interests to have parenting time with him when he is in jail. He did, however, ask to see her before he began to serve his sentence. He also wished to be able to communicate with her while incarcerated.
[88] On those points, I released an interim endorsement dated October 24, 2022 permitting two video conversations between Sebastian and O. between October 25, 2022 and October 30, 2022, subject to strict conditions, and authorizing him to write to the child once per week while incarcerated, again subject to strict conditions. The terms of the interim order are incorporated into the final order.
[89] Sebastian indicated that he would like to re-commence a relationship with O. as soon as possible after he is released from jail, and have it expand over time.
[90] To support his request for expanded parenting time, Sebastian noted that, not only did Justice Tobin order expanding periods during which he could exercise parenting time, including overnight visits, Alicia had sometimes agreed to him having extended visits. As noted earlier, however, that all came to a conclusion in August 2019 because of his use of alcohol.
[91] Sebastian believes that he can play a major role in O.’s life. He asked for an order granting him post-release parenting time on alternating weekends, including sleepovers. He also spoke of vacationing with her in the future and said that he is open to any form of parenting or co-parenting relationship which would give him more time with O.
[92] He said that he would agree to his mother supervising his parenting time and that he would show up regularly. He asked for his parenting time to occur, firstly, at his parents’ house and, later, at his own.
[93] He said that he would abide by a term prohibiting him from consuming alcohol for 24 hours before or during any time that he is parenting O.
Alicia’s Position Regarding Sebastian’s Post-Incarceration Parenting Time
[94] Alicia agreed that O. wants to see her father. One of her major concerns is that once Sebastian’s parenting time resumes yet again, O. will be devastated if it does not continue, just as has occurred in the past.
[95] In her view, Sebastian’s sporadic visits left O. confused about why he would not come to see her, forcing Alicia to make excuses to cover for his absences. She also wondered about his ability to be a role model for O., given his history of drug and alcohol abuse, and his robbery conviction.
[96] As to the latter point, Alicia was concerned that she knows nothing about the current state of Sebastian’s mental health, the treatment he is or has been receiving or his level of alcohol consumption.
[97] Alicia testified that she still supports there being a relationship between O. and Sebastian, but that their relationship needs to build slowly and consistently, after Sebastian completes his incarceration. She also wants him to be free of his drug and alcohol addictions, and not be engaged in criminal activity, so that he can be a mature, concerned and involved father for O.
[98] Alicia did indicate, however, that she is prepared to consider having Ms. Sokolski again supervise Sebastian’s parenting time, but that she would like it to first be supervised for a period by Merrymount.
Danuta Sokolski’s Evidence About any Role She Might Play in Sebastian’s Post-Incarceration Parenting Time
[99] Ms. Sokolski testified that she would supervise Sebastian’s time with O. after he is released from custody and would do her best, like she always did. She said that she would love to help the parties get their parenting relationship on the right track.
[100] When asked about any potential conflict between her loyalties to Sebastian and O., she said she would always, and has always, put O. first.
[101] Her previous actions make her claim credible. In November 2018, when O. was with Sebastian for parenting time, she removed O. from his care, returning her to Alicia because she was concerned about Sebastian’s behaviour. This was consistent with her refusal to supervise Sebastian, or transport O., in August 2019 because Sebastian had resumed consuming alcohol and she did not wish to put O. at risk.
Child Support
Alicia’s Evidence
[102] Sebastian paid child support for years, primarily through the FRO. The amounts that he paid varied over the years because of changes in his income.
[103] She believed that he last provided her with child support in January, 2020 but acknowledged that it may have been later. When pressed under cross-examination, she agreed that it was possible that he had actually made his last child support payment in February 2022. She said that she did not know if she received any child support in 2021.
[104] She believed that, if there were arrears of child support, they were likely in the amount that Sebastian had set out in his Financial Statement sworn October 2, 2022. That amount was $5,385.41.
[105] At the time of trial, Sebastian’s monthly child support obligation was $834.00, set by Justice Tobin on May 29, 2019, based on Sebastian having an estimated income of $90,000.00 per annum. His payments were not being made at that time, however.
Sebastian’s Evidence
[106] According to Sebastian, he had regularly paid child support until February 2022, with the payments for January and February, 2022 being paid, as he understood, out of a surplus that he had accumulated with the Director of the FRO.
[107] He had started paying child support of $800.00 per month when O. was born. Because there was no court order, he had paid the support directly to Alicia.
[108] The first court order addressing child support was that of Justice Mitrow dated July 6, 2016, which set interim child support at $746.00 per month, commencing July 1, 2016, based on Sebastian having an income of $83,112.00. He paid that for a couple of years.
[109] Next, on May 1, 2019, Justice Korpan set interim, without prejudice child support at $690.00 per month as of January 1, 2019, based on Sebastian having an estimated 2019 income of $73,944.00. Justice Korpan also noted that his child support for 2018 remained to be adjusted once he produced his 2018 income tax return and Notice of Assessment. Justice Korpan ordered Sebastian to file his 2018 income tax return by May 24, 2019.
[110] Finally, on May 29, 2019, Justice Tobin set interim child support at the $834.00 per month noted by Alicia in her evidence.
[111] After Toyota terminated Sebastian’s employment, he received Employment Insurance for eight months, during which he continued to pay child support in the amount ordered by Justice Tobin, after which he paid support out of the proceeds of sale of his house.
[112] He did not work between November 2019, when Toyota fired him, until he commenced the Computer Programming Analyst program at Fanshawe College in January 2022. He cited two reasons for not working during that period. He said that his pending criminal charges made finding a job difficult, and there was really no available work during the pandemic. He said that he had not wanted to return to work in a factory.
[113] Sebastian produced a Director’s Statement of Arrears dated December 2021. It indicated that, at December 1, 2021, his support payments were up-to-date and that he owed nothing. The first payment noted as due under the Statement was $746.00, owing on September 1, 2016.
[114] The Statement of Arrears also shows that, as of October 1, 2017, there was an adjustment to his monthly support obligation, dropping it from the $746.00 set by Justice Mitrow to $455.00 per month. Neither of the parties mentioned an order adjusting support as of that date, and none was produced. However, on September 13, 2017, Justice Henderson had authorized interim motions pertaining to interim parenting time and child support.
[115] The Statement of Arrears further reflects the monthly amounts ordered to be paid by Justice Korpan, as of January 1, 2019, and by Justice Tobin as of May 29, 2019.
[116] While Sebastian agreed that his Financial Statement of October 2, 2022 likely best reflected his support obligation at that date, he felt that the amount should be less because the amount in the Financial Statement was based on the support set by the various interim court orders, most of which had estimated his income.
[117] According to the income tax documents produced by Sebastian, his Line 15000 income was in the following amounts for the years 2019 through 2021:
2019 - $82,380.00 2020 - $27,536.00 2021 - $1,112.00
[118] Sebastian requested that his child support obligation be adjusted, retroactively, to reflect his actual earnings over the years.
[119] He also indicated that he would not be able to pay child support while incarcerated and asked that I suspend his child support obligation for that period.
Submissions
Mr. Gianotti on behalf of Sebastian
[120] According to Mr. Gianotti, Sebastian is a changed man whose mistakes are in the past. He submitted that all the issues that previously led to Sebatian’s problems are now under control.
[121] He pointed to there being no evidence of any relapses in Sebastian’s use of drugs or alcohol and no evidence of him having breached any of the terms of his release from custody in respect of his robbery conviction.
[122] According to Mr. Gianotti, the greatest challenge faced by Sebastian in the recent past has been dealing with Alicia. He submitted that she has effectively shut the Sokolski family out of O.’s life.
[123] He further submitted that Merrymount was not a suitable place to begin Sebastian’s post-incarceration parenting time with O. He suggested that the evidence showed that O. was comfortable at the home of Ms. Sokolski and that, as she resumes parenting time with her father, she may be less able to adjust comfortably to that parenting time regime at Merrymount than she would at the home of her paternal grandparents.
[124] He did, however, recognize that Sebastian’s mental health is an issue and indicated that Sebastian is prepared to agree to monthly mental health checkups.
[125] He also agreed with a suggestion made by Alicia that reintegration counselling would be appropriate, but he suggested that the parties should equally share the cost.
[126] Mr. Gianotti also had been the one to suggest that the parties communicate via a communication program such as Our Family Wizard. Given the tone of some of the communications, I agree that his proposal is a good one.
[127] As to child support, Mr. Gianotti submitted that no child support should be charged against Sebastian after October 31, 2019, the date of his arrest.
[128] He produced a chart showing what Sebastian paid in child support for the years 2020, 2021 and 2022, and the amount that he says Sebastian ought to have paid, based on his incomes for those years. According to the chart, Sebastian overpaid child support, based on his actual income for the years 2020, 2021 and 2022, in the amount of $18,923.04. Mr. Gianotti did not make any submission on what, if anything, should be done about the alleged surplus.
Alicia
[129] She reiterated her desire for there to be parenting time afforded to Sebastian once he is released from custody, provided that appropriate safeguards are put in place in the best interests of O.
[130] She pointed to the fact that, since 2019, Sebastian had made no effort to speak to or spend time with O.
[131] Upon his release from incarceration, she suggested, if he did not do so before, Sebastian should complete an intake at Merrymount because his initial parenting time should occur there. She suggested that his supervised parenting time at Merrymount should occur for at least nine months without incident before there would be any consideration to changing the arrangement.
[132] She also insisted that, in order for parenting time to progress, Sebastian should be required to provide her with updates relevant to his mental, physical, and other circumstances in order that she could determine by whom supervision would be provided and how parenting time would occur.
[133] She asked that terms be included requiring that she be provided with any documents relating to Sebastian’s release from custody including any conditions of release, that she be provided with an updated doctor’s report relating to his mental health, and that he undergo weekly drug testing, with the results to be provided to her.
[134] On the issue of child support, Alicia requested that Sebastian pay $2,500.00 per annum into a trust account for O. set up in the form of an RESP. She cited the likelihood of Sebastian having access to the proceeds of disposition of his residence as a source for those funds.
[135] Alicia also linked the issue of child support and Sebastian’s absence for extended periods from O.’s life, saying that, in her experience, Sebastian connected the payment of child support with the right to have parenting time. She therefore attributed his absence from O.’s life to the fact that he had not been paying child support, leading her to conclude that he must be of the view that he is not obliged to see O.
Analysis
Parenting Time
[136] In order for there to be a parenting time order in favour of Sebastian, such an order must be in the best interests of O.
[137] There is agreement between the parties that it would be in O.’s best interests for her to know her father, and the best way for her to get to know him would be for him to have parenting time with her. I agree and find that an appropriately cautionary parenting time order for Sebastian will be in O.’s best interests.
[138] That said, Sebastian is, at this point, somewhat of a stranger to O., and may be even more so when he is released from custody, depending on whether he has taken advantage of the opportunity my interim order afforded him to communicate with her, in writing, while incarcerated.
[139] That Sebastian is somewhat of a stranger to O. is, in my view, attributable to more than one factor. He has not been a consistent figure in her life since she was an infant. His absences have been a function of three contributory components:
a) his addiction to opiates and alcohol,
b) his mental health issues, and
c) Alicia’s aggressive reaction to the first two components.
[140] I do not agree with Alicia’s submissions that Sebastian’s desire to have parenting time with O. was tied to his payment of child support. While the Director’s payment history shows that there were many periods when he was in arrears over the period between September 1, 2016 and December 1, 2021, there were also many occasions when his support payments were fully caught up and he had no arrears owing. During these periods, his parenting time was, in my view, more tied to the three factors I have cited than to the state of his child support payments.
[141] Prior to his incarceration, Sebastian seemed to be trying to manage his addictions. However, he had apparently given up on managing his mental health issues with the assistance of a medical doctor. That was an unwise thing to do.
[142] Alicia’s reaction to the existence of the first two factors was, in my view, overly aggressive, and had the effect of contributing to Sebastian’s decision to not make any real effort to spend time with O. after August 2019.
[143] She clearly communicated her disrespect for Sebastian through her written communications with him. I do not doubt that her attitude toward him did not help with any efforts he may have been making to address his problems.
[144] That noted, I do not fault Alicia for attempting to protect O. from the erratic behaviours of her father.
[145] I also find, however, that Alicia was, at least until he stopped taking his Abilify, willing to allow Sebastian into O.’s life when she felt that he did not pose a potential risk to O.’s safety and well-being. She demonstrated that willingness when the parties attempted to resume their relationship in the period between 2017 and 2018, a time when Sebastian was following his physician’s recommendation about taking Abilify. During this period, they travelled together with O. I find that Sebastian was being given regular, albeit always supervised, parenting time with her.
[146] However, when Sebastian again suffered the mental health ravages inflicted by his psychosis and became irrational, Alicia again came to the defence of O., seeking to protect her by aggressively thwarting Sebastian’s ability to spend time with her. She also demonstrated her willingness to violate a court order in her quest to prevent him from having time with O. in pressing her effort to prove Dr. Dempster’s letter to be a forgery. While she did acknowledge that she ought not to have done so, the damage to the relationship between father and daughter was increased each time that she prevented Sebastian from spending time with his daughter.
[147] That, however, is not the only reason there is an estrangement in place between Sebastian and O. Justice Tobin made an order in 2019 which allowed for Sebastian to have supervised parenting time at the home of his mother. By all accounts that went well. It only ended when Ms. Sokolski was required in August 2019 to terminate it because Sebastian had started to again consume alcohol, a factor, according to his own evidence, which contributed to his psychosis and his commission of a robbery. In that regard, the responsibility for loss of contact lies entirely with Sebastian.
[148] Furthermore, with his arrest, Sebastian, by his own admission, ceased his efforts to see O. While I have no doubt that the aggressive posture taken by Alicia contributed to his withdrawal from those efforts, I am equally satisfied that he withdrew because of his concern about his mental health. Moreover, he was facing criminal charges and he was likely preoccupied with addressing them.
[149] To advance his case for parenting time with O., Sebastian relied upon the April 1, 2019 letter from Dr. Dempster, which was positive with respect to his mental health circumstances at that time and supported him in having parenting time with O. He also testified that the only mental health-related diagnosis that has been made with respect to him is psychosis, for which he has had no hospitalization since July 2017.
[150] While that may all be true, the dates he cited all fell before his robbery, while in a psychotic state, on October 31, 2019.
[151] I am also of the view that Dr. Dempster’s letter, dated as it was by over 3 years when this matter proceeded to trial, fails to satisfy the view expressed by Justice Henderson in his endorsement dated September 13, 2017 that, at trial, Sebastian would have to produce medical evidence containing a diagnosis, prognosis and doctor’s opinion regarding his parenting time with O.
[152] While the letter, dated April 1, 2019, may have sufficed had the trial occurred prior to October 31, 2019, the events of that day and Sebastian’s subsequent discharge on September 15, 2020 from the Prevention and Early Intervention Program for Psychosis by Dr. Palaniyappan demand that a more recent medical report be provided.
[153] Sebastian also said that he is a different person today, and that he has experienced personal growth over the past four years. He attributed some of that growth to being enrolled in his program at Fanshawe College
[154] According to Ms. Sokolski, Sebastian had matured over the period between 2019 and October 31, 2022, “something he should have done long ago.” Based on her observations of him while residing with her as one of his sureties, she believed that he was no longer taking illegal drugs.
[155] While Sebastian is to be commended for his apparent progress, it does appear that he still has some work to do. Although there was no evidence directly on this point, I infer from a series of questions put to him by Alicia that Sebastian made a comment while on an LTC bus about a bomb, which he said was a quote from the movie “Speed,” but which his bus driver took to be a threat. While Sebastian disagreed with Alicia about whether he engaged in criminal behaviour (and I received no evidence that such event, if it occurred, had led to a charge), he did agree that what occurred did not constitute good community behaviour.
[156] All that having been noted, the real issue in this case is under what conditions Sebastian’s post-incarceration parenting time with O. should resume.
[157] Those conditions are outlined in the order, the terms for which I listed earlier in this judgment. They address the issues that I have discussed in this analysis.
[158] I must note that I do not agree with Alicia that Sebastian must attend at Merrymount for nine months before there can be any change in his parenting arrangements. In my view, as reflected in my order, three months is more than sufficient, so long as the reports coming from Merrymount are positive.
[159] The reason I apportioned costs for reconciliation counselling as I did is that, since both parents bear some responsibility for the estrangement which exists between Sebastian and O., there should be sharing of the costs of that reconciliation counselling. The apportionment of costs reflects my view of the respective share of responsibility for Sebastian’s estrangement that is borne by each party.
Child Support
[160] This proceeding began on July 27, 2015. In her application, Alicia requested child support from the date of O.’s birth, with Sebastian to receive credit for any payments made by him.
[161] She also sought an order for the parties to share any section 7 expenses for O. based on the proportion that the income of each of them is of the total of their combined incomes, as provided for by s. 7 of the Child Support Guidelines.
[162] She also requested orders that Sebastian maintain O. on his medical and dental benefits available through his employment, and that he list Alicia as a beneficiary of a life insurance policy of not less than $200,000.00 for as long as child support is payable.
[163] Each order made in this proceeding thus far has been an interim order.
[164] The evidence indicates that Sebastian paid $800 per month child support to Alicia for O. until the July 16, 2016 order of Justice Mitrow.
[165] I cannot determine the amount of child support that ought to have been paid by Sebastian in the period between the date of O.’s birth (March 8, 2015) and the effective date of Justice Mitrow’s order (July 1, 2016).
[166] However, Justice Mitrow’s order of July 6, 2016 was, presumably, based on evidence that Sebastian’s income in 2015 was $83,112.00. While that, however, is merely conjecture, I do note that, throughout the period between O.’s birth on March 8, 2015 and July 1, 2016, Sebastian worked at Toyota and was paying Alicia $800.00 per month in child support. That amount exceeds the monthly amount ordered to be paid by Justice Mitrow commencing July 1, 2016.
[167] I also cannot determine the amount of child support that ought to have been paid by Sebastian in 2017 or 2018 because neither party filed evidence of Sebastian’s income for either calendar year.
[168] Consequently, I leave unaltered the amounts that Sebastian paid for child support for the period between O.’s birth on March 8, 2015 and December 31, 2018.
[169] If Alicia had wanted me to adjust those figures, she should have presented me with whatever income tax information might have been provided to her by Sebastian for those years. If Sebastian had wanted me to adjust those figures, he should have provided me with his income tax information for those years. Since neither did so, those figures could not be changed.
[170] What I can do, however, is set child support for the years 2019, 2020, 2021 and 2022, to the date of Sebastian’s incarceration, based on the information available to me and properly entered into evidence in the trial.
[171] Doing so yields the following information:
a) In 2019, Sebastian’s income was $82,380.00. That would yield a child support payment of $768.00 per month or an annual child support obligation of $9,216.00. At the end of December 2018, according to the Director’s Statement of Account, Sebastian had a credit balance of $1,249.10. That year, he paid $6,371.00 in child support through the FRO. Accordingly, at the end of December 2019, Sebastian would have had a calculated deficit of $1,596.00 with the FRO, meaning that, based upon his income for that year, he had underpaid child support by that amount.
b) In 2020, Sebastian’s income was $27,536.00, which would have yielded a monthly child support payment in the amount of $230.00, or $2,760.00 per annum. In 2020, Sebastian paid child support in the amount of $13,945.00. Subtracting the amount of child support that Sebastian should have paid for 2020 and the calculated deficit that existed at the end of 2019, at the end of 2020 Sebastian had a calculated surplus with the FRO in the amount of $9,589.00. This means that, based upon his income for that year, and after accounting for the payments made by him and the previous calculated deficit, Sebastian had overpaid child support in the amount of $9,589.00 in 2020.
c) In 2021, Sebastian’s income was $1,112.00, which would have yielded no child support payment. In 2021, Sebastian paid child support in the amount of $9,174.00. When added to the previous calculated surplus, at the end of 2021 Sebastian had overpaid cumulative child support in the amount of $18,763.00.
d) In 2022, Sebastian had no income, according to the evidence. However, he paid child support for the months of January and February, 2022 in the total amount of $1,668.00. Sebastian was incarcerated on October 31, 2022. Therefore, at October 31, 2022, Sebastian ought to have had a calculated cumulative surplus with the Family Responsibility Office in the amount of $20,431.00, an amount arrived at by adding the two payments made by Sebastian for the first two months of 2022 to the calculated cumulative surplus of $18,763.00 at the end of December 2021.
[172] This analysis raises the question of whether income should be imputed to Sebastian for 2020, 2021 and 2022, to the point of his incarceration.
Imputation of Income – Prior to Incarceration
[173] The court has the authority to impute income to a person under s. 19 of the Child Support Guidelines. The most relevant sub-section in this case is s. 19(1)(a), which provides as follows:
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
[174] As the Court of Appeal wrote in Lavie v. Lavie, [2018] O.J. 90, at paragraph 26:
The reasons for underemployment are irrelevant. If [someone] is earning less than she or he could be, he or she is intentionally underemployed.
[175] Notwithstanding, the imputation of income is discretionary. As Justice D. Chappel wrote on that issue in Kinsella v. Mills, 2020 ONSC 4785:
167 … Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. In carrying out the exercise, the court must take into consideration the purposes of the Guidelines and must arrive at a figure that is reasonable based on the evidence before the court….The process of imputing income is not an exact science, particularly when the evidence before the court is imprecise or incomplete…The overall goal is to determine a figure that fairly reflects the parties' financial circumstances…
172 If the court determines that income should be imputed on the basis of a party's intentional under-employment or unemployment, it must then determine the appropriate level of income to impute to the party. In carrying out this task, the court must consider all of the evidence adduced by both parties and determine what is reasonable and fair having regard for the particular facts of the case and the circumstances of the family members… Relevant factors in quantifying the imputed income include the age, education, experience, skills and health of the party, their historical income when they were earning a higher income, their ability to resume an income commensurate with their past income, the availability of work and any other obligations which they may have… [edited; citations omitted]
[176] In reviewing Sebastian’s income for 2020, a period following his arrest, and when he was unemployed because of Toyota’s termination of his employment and the pandemic, I find that there is no basis to impute a higher income to him for that year.
[177] For 2021, his income was $1,112.00. He continued to be underemployed, and he had not yet started his education at Fanshawe College as it did not begin until January 2022. While there were, undoubtedly, factors which would have made the securing of employment difficult in that year, it is not unreasonable to conclude, and I do, that I should impute an income to him for that year.
[178] While I have no doubt that, in 2021, Sebastian would not have been successful securing meaningful employment in most industries, given that he was awaiting trial on a serious criminal charge, that does not mean that he could not have found some form of employment which would have paid, at the very least, minimum-wage. Accordingly, I impute an income of $29,000 to Sebastian for 2021.
[179] Such an income yields a monthly child support payment in the amount of $247.00. Over the calendar year 2021, therefore, Sebastian’s child support obligation amounted to $2,964.00.
[180] As I have already noted, Sebastian paid $9,174.00 in child support that year. Adjusting my earlier calculation [Paragraph 171(c)] to account for the amount he ought to have paid, rather than zero, I find that, at the end of 2021, Sebastian had overpaid cumulative child support in the amount of $15,799.00, rather than the $18,763.00 that would have resulted if he had no income imputed to him for 2021.
[181] I am not imputing income to Sebastian for 2022 to the point of his incarceration because, throughout the year, he was awaiting a sentencing hearing that was repeatedly adjourned. It would have been difficult to find, much less hold, a job knowing that, on any one of the scheduled sentencing dates, he could have been incarcerated.
[182] As a result, an adjustment needs to be made to the calculated cumulative surplus that I determined existed at October 31, 2022 [Paragraph 171(d)] by adding the total of the two payments made by Sebastian in January and February 2022 to the adjusted surplus of $15,799.00 [Paragraph 180] at December 31, 2021.
[183] As a result, I find, based on the evidence, and allowing for the imputation of income to Sebastian for the calendar year 2021, that the calculated cumulative surplus of child support paid by Sebastian to October 31, 2022 amounted to $17,467.00.
Imputation of Income – During and After Incarceration
[184] The next question to be addressed is whether any income should be imputed to Sebastian for the period that he will be incarcerated.
[185] Mr. Gianotti submitted that I should not impute income during that period. He cited Sheridan v. Cupido, 2018 ONSC 5817 as his authority for the court refusing to impute income during incarceration. Alicia made no submissions on the point.
[186] There is authority which is contrary to that which was relied upon by Mr. Gianotti. In Khentov v. Bieler, [2007] O.J. No. 1159, Justice Czutrin imputed income to the support payor despite his pending incarceration. In that case, according to Justice Czutrin, it was the nature of the charges of which the support payor was convicted (forcible confinement; attempted sexual assault) which caused Justice Czutrin to conclude that income would continue to be imputed to the support payor during his incarceration. He was also a chartered accountant and had readily found employment upon his release from custody after being charged.
[187] Similarly, in Billingsley v. Billingsley, [2010] O.J. No. 3193, Justice P.B. Kane refused to decline to impute income to a support payor who was incarcerated for the sexual abuse of his stepdaughter. Child support for her and the payor’s two other children was in issue. Justice Kane held that stopping the payor’s child support obligation while incarcerated for an offence against his stepdaughter would constitute the financial penalization of both her and his other children for his “willful misconduct.”
[188] In my view, both Khentov v. Bieler and Billingsley v. Billingsley are distinguishable from this case. In each of those cases, the offences for which the support payor was being, or was, incarcerated were committed against members of the family for whom the support was to be paid. In each case the court appeared to be unwilling to grant a support payment hiatus to a person whose very acts against members of the family led to their incarceration. Justice Kane said as much in Billingsley.
[189] In this case, however, Sebastian’s offence was committed against a third party. Additionally, it is accepted that he was suffering from psychosis at the time that he committed the offence. While there is no doubt that he was convicted of the offence, and I have no indication that the convicting court factored his psychosis into the finding of guilt in the entering of a conviction, for the purposes of this case I am able to factor that element of the offence into my discretionary determination of whether income should be imputed to Sebastian while incarcerated.
[190] The facts in Sheridan v. Cupido are also distinguishable from the facts of this case. In that case, Justice Minnema declined to impute an income to the support payor because he was concerned that to impute an income to the support payor in circumstances where, if the support payor were to be “ incarcerated for a long period, for example say 5 years” the support payor could be “saddled by way of imputation with a very large (in this example $76,000) debt upon his release, a debt that would be very difficult if not impossible to vary given that his circumstances while incarcerated are unlikely to change.”
[191] In this case, however, Sebastian has already built up a surplus of overpaid child support. To impute an income to him at some level while in a correctional facility would, in effect, reduce the surplus during that period when he cannot possibly work. He would emerge from jail having a surplus of somewhat less than $17,467.00.
[192] I also recognize that imputing an income to Sebastian must be based on evidence, and I was provided with no evidence that he would be capable of earning any income while in a correctional facility. I certainly could not impute an income equal to the $29,000 per annum that I imputed to him for 2021.
[193] Because I am dealing with a surplus, however, and because the facts of the case are not the same as either those in Sheridan v. Cupido, on the one hand, or those in Khentov v. Bieler and Billingsley v. Billingsley on the other, I have decided to exercise my discretion by imputing a lesser income to Sebastian for the period that he is housed in a correctional facility. This will have the effect of reducing the surplus while he is there, without eliminating it.
[194] In all of the circumstances, I have decided that I will impute an income to Sebastian while housed in a correctional facility in the amount of $12,025.00 per annum, which will generate a nominal child support payment of $1.00 per month. While it is highly unlikely that, housed in a correctional facility, Sebastian will earn that amount, the amount imputed represents the lowest amount that could be earned by a person who is responsible for paying child support.
[195] Accordingly, for each month that Sebastian is housed in a correctional facility, the cumulative child support surplus that I have calculated herein will be reduced by one dollar.
[196] Upon Sebastian’s final release from a correctional facility, including any period when he remains under the supervision or control of the Correctional Service of Canada while residing somewhere such as a half-way house, when he can presumably seek employment, his imputed income will increase, as of the first day of the month, following his final release, to the $29,000.00 per annum I imputed to him for 2021. At that point, the surplus will begin to reduce at the rate of $247.00 per month.
[197] As requested by Alicia, Sebastian is also required to notify Alicia when he obtains or changes employment, with child support to increase as his income increases.
Costs
[198] I made the costs order that I did bearing in mind that success can be divided. Having regard to the facts of the case and the behaviour of each party, I concluded that success was divided and that, in certain respects, each of the parties acted unreasonably at various times throughout the proceeding.
“Justice T. Price”
Justice T. Price
Released: January 18, 2023
Explanation of Amendments
Following the release of the Judgment as originally written, Ms. Haggis asked that I include terms allowing her to obtain a passport for O. and travel with her without Mr. Sokolski’s consent. She made no such claims in her Application. Counsel for Mr. Sokolski agreed to speak with his client to see if he had a position about the request. At my request, counsel for Mr. Sokolski held off on having the original order issued to avoid me becoming functus officio. I had told Ms. Haggis that if Mr. Sokolski disagreed with her request, I could do nothing because she had neither made the claim originally nor asked for such relief at trial. Mr. Sokolski informed his counsel, from his place of incarceration, that he consented to the two terms being sought by Ms. Sokolski being added to the order. As a result, they have been, as Paragraphs 27 and 28.
COURT FILE NO.: FC948/15 DATE: 2023/02/28 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEE N: Alicia Christen Haggis Applicant - and - Sebastian Sokolski Respondent REASONS FOR JUDGMENT T.G. PRICE J. Released: February 28, 2023
[1] When the formal order is prepared for issuance, the child’s full name shall be inserted instead of her initials.
[2] See Explanation of Amendments on last page
[3] See Explanation of Amendments on last page