Court File and Parties
COURT FILE NO.: FC1026/20 DATE: April 16, 2024
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Chigozie Nnaemeka Agbasi Applicant
AND:
Hadassah Gimba Hassan Respondent
COUNSEL: Alla Kikinova, for the Applicant In Person, for the Respondent
HEARD: December 4, 6, 7 and 8, 2023, January 15, 16, 17 and 18, 2024
TOBIN J.
Reasons for Judgment
Introduction
1The parties are the parents of two children who are now nine and five years old.
2The parties are before the Court requesting an order related to parenting of the children, child support, and the respondent’s claim for spousal support and damages for the tort of intentional infliction of mental suffering.
3The applicant asks for a divorce order. The respondent agrees with this request.
4In these Reasons, the applicant will be referred to as the “father” and the respondent as the “mother,” for the sake of clarity.
Issues
5The issues to be decided in this case are:
- What parenting order is in the best interests of the children?
- What amount of child support is to be paid depending on the parenting order made and incomes of the parties?
- Is the mother entitled to spousal support and, if so, in what amount and for what duration?
- Is the father liable to the mother for damages for the tort of intentional infliction of mental suffering and, if so, in what amount?
Background facts
6The father is now 43 years old. He is self-employed in the construction business.
7The mother is 34 years old and is currently unemployed.
8The parties met in the United Arab Emirates (U.A.E.) in December 2011. At that time, this is where the mother lived. The father was living in Nigeria. After a long-distance courtship, the parties married in Nigeria, on December 15, 2012.
9After the marriage, the parties lived with the father’s family in Lagos, Nigeria. They had their own unit within the family home.
10The parties’ relationship was strained almost immediately after the marriage. The mother struggled to adapt to life in Nigeria and, in particular, to the father’s and his family’s expectations of her. For example, two guests were invited by the father into their home. One person, a pregnant woman, was allowed to take over the parties’ bedroom while there. This was a major affront to the mother. The father did not see the problem; he was helping a pregnant friend. The other guest, a male friend of the father, addressed and touched the mother inappropriately. She felt sexually harassed by this guest. The mother felt that the father was not understanding or supportive of her. [1]
11The father’s mother was also not supportive of her.
12After a few months of living in Lagos, the mother needed medical attention for a problem that developed. She returned to her parents in the U.A.E. for medical support.
13Because of the mother’s concerns about life in Nigeria, the parties agreed that they would move. The plan was for the mother to apply for a student visa to Canada. The mother remained in the U.A.E. while this application was outstanding. When it was eventually granted, the mother enrolled in an engineering course at Fanshawe College that began in August 2013. It was then that she came to Canada, and she has remained here ever since.
14The father first visited the mother in London in July 2014. The mother became pregnant with the parties’ first child during this visit. The father remained in London for approximately one month. He returned to Canada to stay in October 2014.
15On February 26, 2015, the parties’ first child, Zarachi Amira Agbasi, was born.
16The mother, though still a student, was primarily responsible for the care of the child. Though the father was employed, finances were a struggle for the parties.
17The parties continued to experience problems in their relationship. They sought counselling from their pastor and others.
18In 2016, the mother was able to find employment within the automotive industry. The nature of the job was exactly what she had wanted. As well, she worked during the night shift and was available for childcare during the day.
19The parties gave conflicting evidence about the father’s role in the home and with respect to childcare. The father worked long hours but did care for the child when the mother was not home. Based on this evidence, I find that the mother continued to assume primary responsibility for the care of the child and that the father helped with household chores.
20In March 2018, the father was making plans to travel to Vietnam for one week with a friend. The mother did not have overnight childcare plans in place during the time the father was to be away. The child had never been in the overnight care of anyone else. The mother was not able to obtain a leave from her job while the father was planning to be away as she was out of vacation and leave time. Also, at the time, many people were being laid off by her employer. In all of these circumstances, the mother decided to look for other employment so she could be available for the child. She left her employment with the automotive company.
21This was a difficult time for the mother. She was pregnant and felt sad. The mother was referred to LHSC outpatient mental health services by her doctor. The father did not attend the appointment with the mother. Following her appointment, the mother understood that she was not suffering from depression. Her symptoms were situational: a failing marital relationship, the end of a job she liked, childcare was shared with the father “on the fly,” the mother felt worried and guilty. She left her job because she thought it was best for the family. No medication was prescribed to the mother.
22The mother subsequently found employment at a bank as a customer service representative. She worked 15 hours per week and was mostly at home with the child.
23On October 30, 2018, the parties’ child, Moriah Chisom Agbasi, was born. The mother left her employment with the bank and went on maternity leave.
24The parties continued to experience difficulties in their relationship. This continued despite their attempts at counselling from family and through their church.
25The parties separated on January 14, 2020. On that day, the mother moved from the matrimonial home with the children.
26Since separation, the children have lived in the primary care of the mother.
27Pursuant to the temporary order of this Court dated November 10, 2021, the parties were granted joint decision-making responsibility with respect to the children. The mother was granted final decision-making authority if the parties were not able to agree after having meaningful discussion. During the school year, the father was to have parenting time on Wednesdays overnight and on alternating weekends. During the summer months of July and August, the father was to have expanded parenting time on a two-week rotating basis.
28At present, the father is self-employed in the construction industry. He sells and installs windows and doors. He adjusts his work schedule to accommodate having the children in his care on Wednesday overnights and on alternate weekends.
29The mother has had two different employers since leaving the bank, both short-term jobs, though not by her choice. She has been in receipt of Ontario Works and employment insurance benefits.
30The father has paid child support voluntarily based on his income since the parties separated.
The children
31Both parents described Zarachi as a caring, loving, and compassionate child. She is nine years old and attends grade three at Sainte-Jeanne-d’Arc, a Catholic elementary school. She excels academically.
32According to the mother, Zarachi is a child who is reserved and withdrawn, and struggles emotionally. When she sees conflict, she tries to make everyone happy. This is consistent with the evidence of the child’s former daycare provider. She described Zarachi as calmer than her sister—a child who holds her emotions in. This witness described Zarachi as “an old soul.”
33The only physical health issue with respect to Zarachi has been breathing problems that may be asthma. This has not yet been diagnosed.
34Moriah is a five-year-old child and attends SK at the same school as her sister.
35The father describes Moriah as “a little bit of the opposite…” of the sister. She is very independent, a born leader.
36The mother describes Moriah as a loud child, one who is spontaneous and a risk-taker. She is a child with a big personality. At school, she is quick to make friends.
37Moriah has had some speech delays and, when not able to express herself, she may “throw tantrums,” according to the father. The mother’s strategy to calm down Moriah is by singing. The father’s strategy is to “just be patient with her and just give her hugs…”
38Moriah tries to keep up with her older sister. According to the mother, the dynamic between the two sisters can be volatile.
39The children’s maternal grandfather also described the children in much the same way as the parties and daycare provider.
Issue #1–What parenting order is in the best interests of the children?
Legal considerations
40The Divorce Act, RSC 1985, c 3 (2nd Supp), s. 16, provides that when making a parenting order, the Court shall take into consideration only the best interests of the child. Section 16(2) provides that when considering factors related to a child’s best interests, the Court is to give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing. At s. 16(3), the Act sets out a number of factors related to the circumstances of a child that are to be considered in determining best interests. The factors related to family violence to be taken into account are specifically set out at s. 16(4).
41When allocating parenting time, the Court is required under s. 16(6) to give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests.
42The following is a consideration of the best interest factors relevant to the children and these parties.
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability
43As described in these Reasons, the children are at different stages of their development. Despite that, what the parties understand is that both children need to have their permission to have a positive relationship with the other parent. Both parents say they want the children to have a good relationship with the other parent.
44Both children need stability and certainty in their living arrangements, relationship with both parents, and time with both parents. They need to be shielded from any conflict between the mother and father.
45The mother and father have been successful in allowing the children to respect and want to be with both parents. There is no credible evidence the children are now resistant to seeing or being with either parent. There was no evidence provided that transitions are a problem for either child.
46Both parents will allow the children to speak with the non-resident parent every day.
47Both parents have similar views of the children’s respective temperaments and strategies to meet their needs.
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life
48On the evidence, I find that the children have a strong and positive relationship with both parents. In assessing the nature and strength of the children’s relationship with the parties, I take into account that the mother has been the primary caregiver of the children both before and after the parties separated.
49The maternal grandfather has been in London to support the mother and children. The extent and nature of his and the maternal grandmother’s relationship with the children was not provided in the evidence.
50The father’s family resides primarily in Nigeria and have had little in-person contact with the children.
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
51I find that both parties are willing to support the development and maintenance of the children’s relationship with the other parent.
52Both recognize the importance of the other in the lives of the children.
(d) the history of care of the child
53As described in these Reasons, the mother has been the primary caregiver of the children both before and after separation.
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
54There was no independent evidence of the views and preferences of the children. However, there is no evidence that the children have difficulty with transitions between the parties. They speak to the non-resident parent daily and both parents have effective strategies to console and manage the children’s behaviour. From this, I infer that the children want a relationship with both parents.
55Ms. Benninger, the mother of the father’s girlfriend, has observed the children enjoying their time with the father and being comfortable with him.
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
56Both parties are closely connected to their respective Christian communities. They both want the children to be part of that experience.
57Both parties want the children to learn about and be part of their respective ethnic and cultural heritage.
(g) any plans for the child’s care
58The father’s plan is to have the children in his care on a week-about schedule. With him, they will continue their current and usual routines and activities. His evidence is that his work schedule can be rearranged so as to ensure he is available to care for the children when they are in his care.
59The mother’s plan is to continue with the current parenting time plan. She too will continue to have the children maintain their current routines and activities.
(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
60Both parties are able and willing to meet the children’s needs. Both are interested in and committed to ensuring the children’s needs are identified and met by them and any service providers that may be needed.
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child
61The father is better able and willing to communicate with the mother about the children than is the mother with the father.
62The mother has been reluctant at times to keep the father informed, on a timely basis, about decisions she has made for the children. Evidence about the father’s ability to access the school portal and be advised of healthcare appointments support this finding.
63However, there is also evidence contained within the many text exchanges between the parties that were put in evidence that they were and are able to communicate in a cordial and constructive manner.
(j) any family violence
64The Divorce Act defines family violence at s. 2(1) as follows:
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person; (b) sexual abuse; (c) threats to kill or cause bodily harm to any person; (d) harassment, including stalking; (e) the failure to provide the necessaries of life; (f) psychological abuse; (g) financial abuse; (h) threats to kill or harm an animal or damage property; and (i) the killing or harming of an animal or the damaging of property
65The mother’s evidence is that she experienced family violence because of the father’s behaviour towards her during the marriage. She described that he was hypercritical of her parenting ability. He was not supportive of her feelings, especially when they first married and while she tried to adjust to life in Nigeria. During the marriage, it was the mother’s experience that according to the father, she was expected to “be submissive to your husband in the Lord.” [2]
66The mother’s experience led to her fearing to say “no” to him. She tried to avoid interactions with him.
67The mother’s history with the father has informed her view of his motives in this case. She sees his request for week-about parenting time as being a means of staying “in control and to exert himself…” and it is “purely a business move…”
68The father’s perspective is different. He does not characterize his behaviour in the same way the mother does. It is his view that during the marriage, he acknowledged, as is evidenced by some text messages, that he was insensitive and would try to do better. He views himself as having responded to the mother’s concerns sometimes. He agreed to leave his family and business in Nigeria and move to Canada for the mother. Another example is that he “came around” to the mother’s plan for a proposed home birth.
69I find that the perceptions of both parties can and are true. It was the mother’s experience that the father was insensitive and controlling. It was the father’s experience that he tried to support and accommodate the mother’s wishes.
70The disconnect between the parties’ respective perceptions has in the past affected their ability to communicate. However, this disconnect has not materially affected the mother’s nor the father’s ability to care for and meet the needs of the children, as described above.
71This is a case where there have been examples of cooperation in making decisions about the children. I do not agree with the mother that their recent success in this regard is just a show by the father and that he will revert to his old controlling behaviour when the court case is over.
72The Court can order terms that will promote communication in a safe and respectful manner. There will be an objective record of this communication that can be shown in court should it become necessary to submit evidence in a future case.
Discussion
73I have carefully considered the best interests factors in relation to the evidence and submissions of the parties.
74I also take into account that best interests factors in the Divorce Act are not an exhaustive list. These factors do not comprise a checklist to be tabulated to determine who has the most points. Instead, the Divorce Act requires the Court to take an holistic look at the children, their needs, and the people in their lives.
Decision-making responsibility
75When I take all of these factors into account, I find that it is in the best interests of the children that the parties share joint decision-making responsibility with respect to the children. However, if after ten days of meaningful communication, they are unable to agree, then the mother shall have final decision-making responsibility.
- There has been a history of some effective and cordial communication between the parties.
- A joint decision-making plan will demonstrate to the parties and to the children that both parents have an important role to play in the children’s upbringing and care.
- Providing the father with joint decision-making responsibility will assist in ensuring the father’s relationship with the children will not be marginalized: see Rigillo v. Rigillo, 2019 ONCA 548, para. 12. In his evidence, the father’s reason for wanting joint decision-making responsibility is to ensure he is kept informed and consulted.
- Allowing the mother final decision-making responsibility is consistent with this family’s long-standing practice.
- Requiring meaningful communication that is recorded will ensure that the views of both parties are considered.
- The parties will have the opportunity to consult with others whom they both respect for advice and input.
- The mother will have greater responsibility for the children’s upbringing and for implementing the decisions that are made for their wellbeing, and she will have to live with the consequences of these decisions.
76The parties are to communicate through the Talking Parents application unless they both agree otherwise.
Parenting time
77The children have been in the mother’s primary care since the parties separated. She is well able to identify the children’s needs and arrange for their needs to be addressed and met. This was the case even before the parties separated.
78In considering what parenting plan is in the children’s best interests, I take into account they are attending a French language school. Neither parent is fluent in French, but the mother is learning. She is quite involved in their school community. She is involving the children in French cultural events where they meet families of African and European origin who speak French.
79Another factor considered is that the children have a positive relationship with the father. The children must have the opportunity to maintain and develop this relationship.
80The father’s request for a week-about parenting plan during the school year I find will be disruptive for the children. He is not as well able to help the children with their schoolwork as is the mother. The existing plan, whereby the children are primarily with the mother during the week, has worked very well for them. Under the current schedule, the father has been able to adjust his work schedule to accommodate having the children in his care on Wednesdays and Sundays overnight for parenting time.
81The father’s plan to adjust his work schedule so radically from what is in place now appears to be aspirational and is untried. He is a self-employed businessperson who will be required to meet the needs of his customers to ensure the success of his business. His plan does not include any backup for childcare should the need arise. I find that the father’s plan for week-about parenting time during the school year is more likely than not to be disruptive to the children’s stability and not, therefore, in their best interests.
82During the school year, the father shall have parenting time with the children on alternate weekends, from Friday after school until Monday’s return to school. If either Friday or Monday is a school holiday, his parenting time will start the day before or the day after, accordingly.
83During the children’s summer vacation from school, a week-about schedule will not interfere with the stability needed by them during the school year. During the four or five weeks that the father will have with the children during the summer, he will need to arrange his schedule to accommodate parenting time with the children during the week.
84The children’s best interests will also be met if the children’s Christmas and March Break holidays from school are shared equally.
Issue # 2 - What amount of child support is to be paid?
85The issues raised by the parties regarding child support are:
i. Should income be imputed to the mother? ii. Should any of the father’s corporation’s pre-tax income be included in his income for child support purposes?
Imputing income to the mother
86The father’s request that income be imputed to the mother is premised upon:
i. His request that s. 9 of the Federal Child Support Guidelines (“CSG”) be considered in determining the amount of child support to be paid; and ii. There being s. 7 expenses to be shared.
Section 9
87Section 9 is engaged when spouses share parenting time with their children. Specifically, child support is calculated pursuant to s. 9 when each spouse exercises not less than 40% of parenting time with the child over the course of a year.
88Based on the parenting time order made in this case, s. 9 is not engaged. Income need not be imputed to the mother for this purpose.
Section 7
89The father asks that s. 7 expenses be shared on a 50/50 basis when they occur.
90Neither party made a claim for a specific s. 7 expense.
91On the evidence, the mother’s income will change in the future. At present, she expects to be in receipt of Ontario Works as her employment insurance benefits recently expired. As well, she continues to look for employment.
92Section 7 provides that the guiding principle in determining how a special or extraordinary expense is shared is in proportion to the parties’ respective incomes less any contribution from a child.
93In circumstances where there are no s. 7 expenses claimed and the mother’s income is in flux, I find that it is not appropriate to impute income to the mother for the purpose of calculating s. 7 expenses. This request is better made when there is an actual claim to consider.
Corporate Pre-tax income
94The father is the sole shareholder and only employee of Tiltish Windows Inc. The company was incorporated in late 2021. It is through this corporation that the father operates his business of sales and installation of windows and doors. He takes a bi-weekly salary from the corporation. He has not received any dividends from the corporation.
95In his financial statement sworn September 14, 2023, the father deposed that he had gross income in 2022 of $56,038. For the year 2023, he expected to have total income of $56,508. This is also the income he anticipates for 2024.
96The father’s 2023 income was made up of income from the corporation ($55,446), self-employment income as an Uber driver ($571) and Trillium benefits ($470).
97The father put in evidence the March 31, 2023 financial statements of the corporation. These statements were prepared with a Notice to Reader statement. On the face of the financial statement, it is not clear if it was prepared by a CPA.
98The statement discloses that for the year ending March 31, 2023, the corporation sustained a net loss before income tax of $12,079 on a gross profit of $75,278. One of the expenses claimed included salaries and wages of $61,171.
99Section 18 of the CSG provides that the court can consider all or part of a corporation’s pre-tax income in determining a spouse’s income for child support purposes if income determined under s. 16 does not fairly reflect the money available to the spouse for the payment of child support. [3]
100Based on the most recent corporate financial statement, the corporation had no pre-tax income. Therefore, none can be added to the father’s income for the determination of child support. If, in the future, the corporation has pre-tax income, s. 18 may then be engaged.
101The best evidence before the Court with respect to the father’s income for child support purposes is his most recently sworn financial statement. It is on this basis that his child support obligation will be calculated.
102The father has been meeting his obligation to pay child support to the mother for the children on a voluntary basis following the separation. He has paid child support based on his income and the Tables. Currently, he is paying $855 per month.
103Starting May 1, 2024 and on the first day of each subsequent month, the father is to pay to the mother for the support of the children $862 based on the CSG s. 3(1)(a) and his income of $56,508.
104Both parties will be required to make ongoing financial disclosure as may be required of them under s. 25 of the CSG.
Issue #3 - Is the mother entitled to spousal support and, if so, in what amount and for what duration?
105The mother asks for spousal support from the father in the amount of $375 per month retroactive to the date of separation. She did not specify the duration sought.
106The father claims that the mother is not entitled to spousal support. In the alternative, if the mother is entitled, no spousal support should be ordered because of his inability to pay. He argues that income should be imputed to the mother in the amount of $30,000 per year.
107When determining the amount of child support he is to pay and having regard to their respective incomes (father $56,508 and mother $20,000 imputed), no spousal support is payable at this time.
Legal considerations
108In deciding the issue of spousal support, the first step is to consider whether a spouse is entitled to a spousal support award. In Cassidy v. McNeil, 2010 ONCA 218, at para. 64, the Court described entitlement as the “important threshold issue and precondition to an award of spousal support.” Under the Divorce Act, the Court is required to consider the factors (s. 15.2(4)) and the objectives (s. 15.2(6)). These sections are formulated as follows:
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
109All four objectives must be considered. No single objective is paramount: Moge v. Moge, [1992] 3 S.C.R. 813, at para. 53, and Bracklow v. Bracklow [1991] 1 S.C.R. 420, at paras. 35 and 36.
110Entitlement to spousal support can be found on a compensatory or non-compensatory (sometimes referred to as need) basis.
Discussion
111I find that the mother is entitled to spousal support on the basis of both.
112The mother is in need of spousal support. She is not employed at this time. After her last job ended because of economic reasons within the company, the mother received employment insurance benefits. When those ended, she applied for Ontario Works. This is the source of her income. I accept the mother’s evidence that she is looking for employment but, at present, she has not had success. For these reasons, I also do not accept the father’s submission that the mother chooses not to work and that it is her choices, not the consequences of the marriage or its breakdown, that are the cause of the mother’s financial circumstances.
113The mother is also entitled to spousal support on a compensatory basis. The parties cohabited for seven years. She was and remains the children’s primary caregiver. These are young children, now in grade three and senior kindergarten. The mother had to take time away from her work following the birth of both children. She relied upon the father for support, though much less so during the period when she was employed from 2016 to 2018. For much of the period they cohabited, she was the secondary wage earner.
114The mother left a job that she enjoyed so that there could be childcare when the father planned to travel to Vietnam. At this point, the mother, who trained as an engineer, has not worked in this field for over five years.
115The father argues that the marriage brought many benefits to the mother and disadvantages to him. He left his family and his family business in Nigeria so that the mother could study in Canada, and she was successful in this regard. He contributed to the mother’s tuition and living expenses while she studied in Canada. With her education, the mother was able to obtain a job that paid almost as much as he earned.
116These factors do not vitiate the mother’s entitlement claim. Arguments made after the fact regarding choices made during the marriage are generally not helpful in determining entitlement unless a party acted unreasonably. This was not the case here. The mother has made understandable and reasonable choices regarding her employment.
117The factors relied upon by the father are better considered when addressing the range of support within the Spousal Support Advisory Guidelines (“SSAG”).
118When considering the amount and duration of spousal support, the Court is required to take into account the SSAG where they have been addressed by the parties: Fisher v. Fisher, 2008 ONCA 11, at para. 97. The SSAG was addressed by the father.
119The father’s income for spousal support purposes is $56,506.
120In the mother’s financial statement of July 24, 2023, she disclosed employment insurance benefits of $1,098 per month together with the Child Tax Benefit and child support. The mother did not give evidence as to the amount she is to receive from Ontario Works. I note that in 2022, the mother had income of $18,024 from Ontario Works (nine months) and employment (three months). In 2023, the mother was able to earn approximately $4,000 per month during the brief time she was employed. The mother did not provide evidence of her total 2023 income when the matter resumed, in January this year.
121Having regard to the mother’s history regarding her income, her desire and ability to find employment and her obvious intelligence, I find that it is reasonable to expect the mother to have income this year of a minimum of $20,000.
122When these income figures are inputted in the DivorceMate SSAG calculator, I calculate the amount of spousal support is $0 at all three levels of the range. A copy of the SSAG calculation relied upon by me is attached at Appendix “A” to these Reasons.
123This calculation does not mean the mother is not entitled to spousal support. It simply reflects the father’s inability to pay spousal support in addition to the child support ordered.
124Section 15.3(1) of the Divorce Act provides that the Court must give priority to child support.
Issue #4- Is the father liable to the mother for damages for the tort of intentional infliction of mental suffering and, if so, in what amount?
125The mother claims damages from the father for intentional infliction of mental suffering, as well as aggravated, special and punitive damages in the amount of $11,000. The basis of her claim is the father’s treatment of her during the marriage. She also asks for equitable compensation [4].
126The father denies any liability on this account arising from the parties’ relationship.
127In Ahluwalia v. Ahluwalia, 2023 ONCA 476, the Court held that a court can include a tort claim in a family law proceeding (paras. 39–46). One of those claims is the tort of intentional infliction of emotional distress, also called intentional infliction of mental suffering.
128This tort of intentional infliction of mental suffering is comprised of three elements:
i. The defendant’s conduct was flagrant and outrageous; ii. The conduct was calculated to cause harm; and iii. The conduct caused the plaintiff to suffer a visible and provable illness.
129At para. 70 of Ahluwalia, the Court addressed the requirements of conduct that is “calculated to cause harm” and proof with respect to “visible and provable illness” as follows:
[70] The requirement that the conduct be calculated to produce harm is met where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow: Allen M. Linden, Canadian Tort Law, 7th ed. (Markham, Ont.: Butterworths, 2001) at p. 34, Prof. G.H.L. Fridman, The Law of Torts in Canada (Toronto: Carswell, 1989) at p. 53. The "visible and provable illness" does not require expert medical evidence. It is satisfied when depression or physical illness result from the conduct: see Saadati v. Moorhead, [2017] 1 S.C.R. 543, 2017 SCC 28.
130The mother submits that during the marriage, the father treated her “in some extremely outrageous and callous ways,” which caused her to live in fear and distress.
131The mother referred the Court to a number of letters and texts the parties wrote and shared. I reviewed each of these texts and letters. The essence of these texts and letters is that the parties expressed their respective concerns about the relationship and their expectations. In some, the father recognizes that he has acted insensitively; in others, he apologizes for his behaviour. These exchanges are not objectively in the nature of abusive communications. It appeared to me that these exchanges were most consistent with a couple working through relationship problems.
132In addition, the mother refers to an occasion where the father did not stay with her at the hospital. On another occasion, a friend, who was at the time pregnant, was allowed to use their bed while the mother and father slept elsewhere. This was a particularly galling and upsetting event for the mother. On another occasion early in the parties’ relationship, the father did not intervene when a houseguest, who was a friend of the father’s, was inappropriately forward with the mother.
133The mother states that she came to fear the father when, on one occasion, he lost his temper and damaged a toy stroller and, on another occasion, when he was in a fight and beat up another person. The father does not admit that these events occurred.
134The mother also states that on occasion, the father gave her “the silent treatment and withdrew his affections.”
135The father acknowledges there were occasions that he knew the mother was unhappy and that he could have been more sensitive.
136In Ahluwalia, at para. 74, the Court noted that, in the context of family law cases, patterns of physical and emotional abuse constitute tortious behaviour. The cases then cited by the Court in support of that proposition dealt with very serious and persistent abusive conduct: assault and battery over an almost 4-year period that induced a state of terror (para. 74); persistent abuse including assault, battery, sexual assault and intentional infliction of emotional distress over a 38-year marriage resulting in the wife living a life of fear and physical abuse (para. 75); threats of violence, throwing a cupboard door at the wife, stalking, videotaping the wife through her bathroom window from a tree and threatening to kidnap her daughter (para. 76); physical violence including punching the wife in the face and head, forcing her head into the walls of a hallway, kicked and forced to sit on a couch with instructions not to move; striking the wife and hitting her with a car phone; the husband threatened the wife with a handgun on one occasion and with a rifle on another occasion (para. 77); three discrete violent incidents that formed a pattern of physical and emotional abuse (para. 78); the wife suffered physical and verbal abuse on a daily basis and sexual assaults as frequently as four or five times a week during their 6.5-year relationship (para. 79). In Ahluwalia, at para. 87, the Court noted that theories of liability can be premised on patterns of conduct.
137In summary, I accept the mother's evidence that from time to time, the father acted insensitively and was careless about her feelings. I am not persuaded that the father’s actions can fairly be categorized as flagrant and outrageous in the context of a claim for intentional infliction of mental suffering.
138I also find that the evidence does not support a finding that the father’s actions or inaction towards the mother were calculated to harm her. At times, he tried to engage the mother and respond to her concerns. At other times, he did not. The evidence discloses that the father was not an enthusiastic participant in marriage counselling. However, his resistance to counselling is not grounds for finding that his actions were calculated to harm the mother. I do not accept the mother’s submission that the father’s conduct was intentional and crafted to demoralize her, instill fear, and to cause her to lose self-confidence.
139I do accept that the mother did experience emotional upset because of unmet expectations and the deterioration of the parties’ marriage.
140For these reasons, the mother’s claim for damages for the tort of intentional infliction of mental suffering has not been proven on the balance of probabilities.
Divorce
141As all of the requirements of the Divorce Act have been met, a divorce order shall issue.
Order
142For these reasons, the following order shall issue:
- A divorce order shall issue.
Decision-making responsibility
The mother and father shall have joint decision-making responsibility with respect to the children.
Prior to making decisions concerning the children, the parties shall have meaningful consultation with each other and will endeavour to make significant decisions about the children’s health, education and wellbeing together.
If, after meaningful consultation on significant decisions about the children’s health, education and wellbeing, a mutual decision is not made within 10 days, the mother shall make the decision and she will inform the father of the decision that has been made. Consultation by the parties shall be through a parent communication application or other electronic means unless the parties agree otherwise. They may consult with impartial third parties for input and advice.
If either or both children should require emergency care while in the care of one parent, that parent shall promptly notify the other of the emergency.
The parties shall keep the other informed of significant events or issues that arise, that are reasonably expected to impact the children’s wellbeing, in either parent’s home no later than the next parenting time exchange. The parties shall advise the children’s schools that they both are to be designated as primary contact and both should be contacted every time necessary. The parent who receives a call from the school regarding the children shall immediately notify the other to ensure that information is delivered to both parents.
Each party shall be noted as a contact person with each school, doctor, dentist, or institution providing extracurricular activities or other services.
The mother shall have the right to obtain, retain, renew and replace all legal documents related to both children, including their passports, birth certificates and health cards. If the father does not provide his consent or signature within 5 days after being requested to do so, the mother may obtain these documents without the father’s consent or signature. The father is to provide the mother with all original copies of the children’s identification and travel documents now in his possession.
Neither party shall travel with the children outside of Canada without the prior written permission of the other parent or Court order. Such consent shall not be unreasonably withheld.
Parenting time
The primary residence of the children shall be in the residence of the mother.
The father shall have parenting time with the children as follows: a) During the school year, on alternate weekends, from Friday after school until Monday’s return to school. If either Friday or Monday is a school holiday, the father’s parenting time will start the day before or end the day after, accordingly. b) During the children’s summer vacation from school, the children shall be in the parties’ care on a week-about basis unless the parties agree otherwise, in writing, in advance.
Special holiday parenting time
- Special holiday time shall be shared by the parents equally in the following manner and the schedule below shall override the schedule set out above, in case of conflict: a) Mother’s Day and Father’s Day: i. The children shall spend Mother’s Day with the mother and Father’s Day with the father; ii. If the children are in the care of the other parent during the Mother’s Day or Father’s Day weekend, the children shall be returned to the parent entitled to that day on Saturday at 6:30 p.m. b) Christmas: i. Commencing in 2024 and in each even-numbered year thereafter, the children shall spend Christmas eve with the mother from 3:30 p.m. on December 24 until 3:30 p.m. on December 25. The children shall be in the care of the father from December 25 at 3:30 p.m. until December 26 at 3:30 p.m. ii. The reverse shall occur in odd-numbered years. iii. The balance of the holiday is to be shared equally. c) New Year’s Eve: The children shall spend New Year’s Eve with the mother in even-numbered years and with the father in odd-numbered years, from 6:00 p.m. on December 31 until 3:00 p.m. on January 1. d) Easter: i. The children shall spend Sunday and Monday of the Easter long weekend with the mother, and Friday and Saturday with the father in even-numbered years; ii. The reverse is to occur in odd-numbered years. e) All other holidays are to take place as they fall in the parenting schedule.
Child support
Starting on the first day of May 2024 and on the first day of each month thereafter, the father shall pay child Table support to the mother for the benefit of the children in the amount of $862 based upon Child Support Guidelines clause 3(1)(a) and the father’s annual income of $56,508.
On or before June 1 of each year, commencing June 1, 2025, the parties are to provide ongoing financial disclosure as required by s. 25 of the Child Support Guidelines.
Spousal support
This Court declares that the mother is entitled to spousal support on a compensatory and needs basis.
Having regard to the father’s child support obligation, his income and s. 15.3 of the Divorce Act, the father is financially unable to pay spousal support at this time.
Tort of intentional infliction of mental suffering
- The mother’s claim for damages for intentional infliction of mental suffering is dismissed.
Costs
If the mother and father are not able to resolve the issue of costs, the mother may make written submissions within 10 days of the release of these reasons. The father shall have 10 days after the receipt of the mother’s submissions to respond. The submissions shall be no more than three pages, double-spaced, and a minimum of 12-point font, together with any offers to settle and a bill of costs.
The party opposing a claim for costs shall include in their submissions documentation showing their own fees and expenses: see Family Law Rules, r. 24(12.2).
The parties have the option of filing their costs submissions through the JSO portal or to London.courthouse@ontario.ca.
If costs submissions are not provided within the time provided for in these reasons, they shall be deemed to be settled.
“Justice B. Tobin” Released: April 16, 2024
Footnotes
1See Exhibit 47.
2See Exhibit 33.
3Section 18(1) is formulated as follows: “Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.”
4The mother did not make submissions or explain the basis of this claim.