K.W. v. T.N., 2024 ONSC 4567

COURT FILE NO.: FS-23-00038465

DATE: 20240816

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.W.

Applicant

– and –

T.N.

Respondent

Stephen Eaton, for the Applicant

Self-represented (not appearing)

READ: August 12, 2024

REASONS ON UNCONTESTED TRIAL

MATHEN, J.

Relief Sought

1The Applicant mother seeks an order for the following:

a. The Applicant shall exercise sole decision-making authority for the child, M. born February 14, 2022;

b. The child’s primary residence shall be with the Applicant;

2A non-disparagement order and an order that the parties shall not discuss the litigation with M.;

a. The Applicant may apply for M.’s personal documents, including a passport, without the Respondent father’s consent;

b. The Applicant may travel with M. outside of Ontario without the Respondent father’s consent;

3The Respondent may not travel with M. outside of Ontario without the Applicant’s consent which shall not be unreasonably withheld;

a. An annual income of $33,100 shall be imputed to the Respondent;

b. The Respondent shall pay retroactive and ongoing table child support based on the income imputed to him;

c. The Respondent shall pay retroactive and ongoing childcare expenses;

d. The Respondent shall share in M.’s future section 7 expenses on a proportionate to income basis;

e. The Respondent shall:

i. obtain and irrevocably designate the Applicant as sole beneficiary of a life insurance policy with a face value of $60,000 and that he maintain the policy for as long as he has child support obligations to M.;

ii. obtain and maintain dental, medical and extended health plan coverage for M.; and

iii. provide the Applicant with details of benefits available through his work within 30 days and update her of any change to the Respondent’s employment;

f. The Applicant is entitled to spousal support on a compensatory basis but the sum is currently zero;

g. A restraining order shall issue against the Respondent;

h. A declaration that the dog, Luna, is the Applicant’s property;

i. There shall be post-separation adjustments in the amount of $835.37 for the Respondent’s cell phone bills paid by the Applicant post separation;

j. The Respondent shall return the Applicant’s passport to her forthwith;

k. A divorce; and

l. Costs.

Background

4The parties started a relationship in 2018 and married on August 21, 2021. They separated on August 21, 2022. Their child, M., is two years old.

5The Applicant has been M’s primary caregiver since birth. She and M. currently live at the Applicant’s parents’ home.

6The Applicant deposes that the Respondent father has not exercised any parenting time since their separation just under two years ago. In December, 2022, the Respondent expressed interest in parenting time but declined to follow up when supervised visits were proposed.

7The Applicant deposes that the Respondent was verbally and physically abusive throughout their relationship, including her pregnancy. She deposes that the Respondent neglected the family. She says he offered little in the way of financial support to the household. She was fearful of him.

8The Applicant initiated an application for divorce and corollary relief on September 12, 2023. The Respondent failed to reply to the pleadings, or, indeed, serve and file any materials whatsoever. The parties have never appeared before this Court.

9The Applicant initially made but has since withdrawn a claim for equalization.

10As a result of the Respondent’s failure to participate in these proceedings, the Applicant lacks basic financial information about him. In the total absence of disclosure, she requests that the Respondent’s income be imputed to the minimum wage in Ontario: $33,100.

ANALYSIS

Analysis

11Having reviewed the affidavit and other evidence submitted, I find the following.

12The Respondent has been duly served notice of this matter. He has failed to reply and participate in these proceedings, which is his legal obligation.

13With respect to M., the Applicant should have primary parenting and sole decision-making. The Respondent has not seen M. for two years. M. has been residing with the Applicant. Section 16(1) of the Divorce Act states that my only consideration is M.’s best interests – which I find are served by a final order for sole parenting and decision-making to the Applicant.

14I make no finding concerning the Respondent’s parenting time. The Applicant’s Application contemplated some parenting time for him. It is in M.’s best interest that a pathway to a relationship be kept open to be determined at the appropriate time, on the appropriate evidence and attended by the appropriate conditions.

15Currently, the Applicant exercises sole decision-making responsibilities. The Respondent has been uninvolved in M.’s life post-separation. In my view, this warrants dispensing with the Respondent’s consent for the Applicant to:

a. obtain or renew all of M’s personal documents and government identification, including passports; and

b. travel with M. outside Ontario.

16Given the Respondent’s non-presence in M.’s life, subject to further order of this Court he must obtain the Applicant’s consent before travelling with M. outside Ontario.

17Given the nature of the material, a restraining order against the Respondent is not justified. The Applicant’s materials do contain numerous allegations of abuse. These allegations, while disturbing, have not been fully tested. None of the alleged abuse post-dates the parties’ separation. Indeed, it appears that the parties have not had any contact since December, 2022. It would be both inappropriate to subject the Respondent to the grave consequences of a restraining order, and counter-productive to his ability to maintain the gainful employment necessary for his child support obligations.

18That said, section 28 of the Children’s Law Reform Act permits the court to make an order “limiting the duration, frequency, manner or location of contact or communication between any of the parties.” I am satisfied that the parties’ relationship is, at least, deeply troubled and that further ad hoc contact between them is not in M.’s best interests. This matter therefore warrants an intermediate step to control the Respondent’s access to the Applicant. Consequently, a no contact order shall issue.

19An income of $33,100 – the equivalent of the Ontario minimum wage – shall be imputed to the Respondent. The Applicant deposes that she currently does not know whether the Respondent is employed or what his income is. She does state that the Respondent previously worked in client services for Canadian Choice Windows and Doors. There is no material before me indicating that the Respondent is unable to work. The Respondent bears continuing responsibility for his child. It is appropriate to make this modest imputation in order to set retroactive and prospective child support.

20With respect to retroactive and ongoing child support, I adopt the Applicant’s calculations at paragraphs 9 through 10 of her Form 23C Affidavit, all of which are based on table child support based on an income of $33,100.

21The Respondent also bears shared responsibility for M.’s childcare and section 7 expenses. I endorse the Applicant’s requests at paragraphs 11 through 14 of her Form 23C Affidavit.

22The materials on this uncontested trial do not show that the Applicant is entitled to compensatory spousal support. This claim is dismissed without prejudice.

23It is appropriate for the Respondent to secure life insurance to secure future payment for his child support obligations. No material in the record militates against this common practice. The Applicant’s Form 23C Affidavit at page 15 justifies the need for a policy with a face value of $60,000.

24The Respondent shall obtain and maintain dental, medical, and extended health plan coverage for M. for so long as she is eligible and such coverage is available from the Respondent’s employment.

25On the basis of the material filed, I am prepared to order on a final basis that the Dog, Luna, shall remain in the Applicant’s custody and care for the remainder of its natural life until such time as the Applicant determines that Luna shall be transferred to another person’s custody and care. The Applicant shall make decisions about Luna taking into account the dog’s welfare and quality of life. I find it unnecessary to decide whether Luna is the property of the Applicant.

26The materials do not establish that the Respondent has custody of the Applicant’s passport. However, I will order the Respondent to return to the Applicant any of her personal documents in his possession.

27Based on the voluminous cell phone records submitted, I am satisfied that the Applicant paid for the Respondent’s use of a cell phone for some months post separation. Therefore, a post-separation adjustment for that sum is justified.

28The Applicant has filed an Affidavit for Divorce. All of the requirements in the Divorce Act have been met. A divorce shall be granted.

29Despite his failure to participate in these proceedings, I cannot conclude that the Respondent acted in bad faith. The proceeding was initiated less than a year ago. The Respondent is relatively young and has not breached any court orders. Consequently, the Applicant is entitled to substantial but not full recovery of her costs.

ORDER TO GO

Order to Go

30In conclusion, I make the following order:

a. The Applicant shall have sole decision-making authority for the child of the marriage, M., born February 14, 2022. M. shall have her primary residence with the Applicant;

b. The Applicant shall retain all government-issued identification for the child M., including but not limited to Passports, Birth Certificates, Health Cards and Social Insurance Cards;

c. The Applicant may apply for passports for the child M. without the Respondent’s consent;

d. The Applicant may travel outside the Province of Ontario with M. without the Respondent’s consent;

e. Subject to further order of this Court, the Applicant’s consent is required before the Respondent travels with M. outside the Province of Ontario, such consent to not be unreasonably withheld.

f. The Respondent shall pay to the Applicant retroactive child support of $4,811.

31Beginning January 1, 2024 and on the first day of each month thereafter the Respondent shall pay to the Applicant table child support at $283/month.

a. A Support Deduction Order shall issue.

b. Unless the order is withdrawn from the Director’s office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

c. The Respondent shall pay to the Applicant his portion of childcare expenses as follows:

i. For the period September 2, 2022 to December 31, 2022 the total sum of $466;

ii. For the period January 1, 2023 to December 31, 2023 the total sum of $154; and

iii. Commencing January 1, 2024, the sum of $6 a month.

d. The parties shall share in any section 7 expenses on a proportionate to income basis. Subject to further order of this Court, the Respondent’s share shall be 54%. The Applicant shall provide notice of any proposed expenses and confirmation of payment forthwith to the Respondent. The Respondent shall make any payments within two weeks of receiving confirmation of the payment by the Applicant.

e. The Respondent shall obtain and irrevocably designate the Applicant as sole beneficiary of a policy of insurance on the Respondent’s life, for the Applicant, having a face value of $60,000 and requiring the Respondent to maintain same in good standing for so long as he has an obligation to pay child support to the Applicant;

f. The Respondent shall obtain and maintain dental, medical, and extended health plan coverage for the child, M., for so long as M. is eligible for coverage under such plans of insurance, and the coverage is available from the Respondent’s employment.

32Within 30 days of the date of this Order, the Respondent shall provide the Applicant with details of the benefits available through his work and shall provide an update to the Applicant if there is a change to the Respondent’s employment.

33The Applicant’s claim for compensatory child support is dismissed without prejudice.

34Except for the purpose of any court proceedings, or to facilitate parenting time with the child M., the Respondent T.N. shall not attend within 30 meters of the Applicant K.W, K.W.’s residence, K.W.’s place of employment or K.W.’s place of education.

35The Respondent shall pay to the Applicant $835.41 in post-separation adjustments for his share of the cell phone bills that the Applicant paid from August 2022 to November 2022.

a. The parties shall not denigrate the other to the child, M., directly or indirectly, by words or actions.

b. Within fourteen days of this Order, the Respondent shall return to the Applicant any of her personal documents, including passports, currently in his possession.

c. The Dog, Luna, shall remain in the Applicant’s custody and care. The Applicant shall make decisions about Luna applying appropriate judgment and good faith bearing in mind Luna’s welfare and quality of life.

d. These reasons and accompanying orders shall be served on the Respondent by regular mail and by email using the information provided by the Applicant in her Form 23C Affidavit. Should the Applicant within sixty days of the date of this Order become aware of a different address and/or email, she shall serve these reasons and accompanying orders to those coordinates.

36The Applicant, K.W. and the Respondent, T.N. who were married at Markham, Ontario on August 21, 2021 shall be divorced and the divorce shall take effect 31 days after the date of this Order.

37The Respondent shall pay to the Applicant costs of $7,736.50, including disbursements and HST, of which $2,000 is related to support and is enforceable as support by the Director, Family Responsibility Office.

C. Mathen