Court File and Parties

COURT FILE NO.: FC-20-1134 DATE: 2024/09/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: D. W., Applicant AND: J. C., Respondent

BEFORE: Somji J.

COUNSEL: Marie-Josee Roy, for the Applicant Respondent, Self-Represented

HEARD: In Writing

Decision on Uncontested Trial

[1] The Applicant mother seeks an order for sole decision-making authority, primary residence of the children, parenting time for the father at her discretion, and imputation of the father’s income for ongoing child support and s. 7 expenses.

[2] The issues to be decided are:

(1) Have the grounds been met for an uncontested trial? (2) What Final Order is in the best interests of the child? (3) What income should be imputed on the father for the purposes of ongoing child support and s. 7 expenses? and (4) Have the grounds for divorce been met?

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

[3] The parties were married on January 12, 2018, and separated on August 23, 2019. They have two children from the relationship R.A.C. age 8 and C.R.C. age 5.

[4] On April 11, 2023, AJ Kaufman, as he then was, ordered that the mother would have sole decision-making responsibility for the children and that the father would have supervised parenting time with the children on a temporary basis. The father was ordered to pay costs of $750 in any event of the cause.

[5] The father failed to attend a case conference before Justice Jensen on January 15, 2024. Given the father’s apparent health issues, Jenson J provided the father an opportunity to attend a further case conference. Her Honour cautioned the father in her endorsement that should he not attend the next case conference he would be noted in default and the matter could proceed without his input. The father failed to attend a second case conference on March 6, 2024.

[6] Jenson J also ordered the father to file an Answer, Financial Statement, Notices of Assessment, and proof of his most recent pay or social assistance stubs. The father has not complied with the disclosure order.

[7] Given the father’s failure to file updated materials and participate in the family court proceedings on two occasions, I am satisfied that the matter can proceed to an uncontested trial.

Issue 2: What Final Order is in the best interests of the child?

[8] On April 11, 2023, AJ Kaufman as he was then, issued a Temporary, without prejudice, Parenting Order. The Applicant mother received information following a Children’s Aid Society (“CAS”) investigation on March 27, 2023, that the children reported to the CAS that:

➢ The father sleeps all the time, and they have trouble waking him and keeping him awake. ➢ They are not getting fed or the food is not healthy and they do not eat at regular times. ➢ They do not bathe and are not provided clean changes of clothes or prescribed medication. ➢ They are often forced to care for themselves while in the father’s care. ➢ They stay up late during school nights while in the father’s care.

[9] CAS verified the allegations based on the children’s information and the mother and paternal grandparents’ reports. The father did not meet with CAS in person, but did participate in a virtual meeting. The father was reported to be experiencing an acute substance abuse crisis.

[10] The father has not provided any information since that time to suggest those concerns have dissipated. On the contrary, the mother reports that the father asked her to take him to a food bank on three occasions on October 11, November 2, and December 1, 2023 as he was unable to feed himself. According to the mother, the father has admitted to experiencing substance abuse issues, but has not sought treatment or therapy of any kind.

[11] The mother reports that the father exercised supervised parenting time on a few occasions and that the children have virtual parenting time with the father, albeit, not consistently.

[12] The mother reports that the children are happy and healthy in her care. They have a school routine and participate in activities. They also see both the maternal and paternal grandparents regularly. The mother presently works at Health Canada and earns an income of $58,000/year. She is able to meet all the children’s needs.

[13] The governing test for determining decision-making responsibility, primary residence, and parenting time is the best interests of the children: s. 16 Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am (DA). The best interests of the child framework requires primarily consideration of the children’s physical, emotional and psychological safety, security and well-being: 16(2) DA. However, s. 16(3) DA lists additional factors that must also be considered as follows:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[14] Upon consideration of the above-noted factors, I find it is in the best interests of the children to reside primarily with the mother and for her to have sole decision-making responsibility. She has been the children’s primary caregiver since separation. She has a stable home life and is able to provide for all the children’s physical and emotional needs. In contrast, it is unclear whether the father can take care of even the children’s basic needs given his recent health challenges. The mother’s plan of care also maintains the children’s relationships with both sides of the extended family.

[15] The mother does not oppose the father having parenting time with the children, but requests that it be supervised and at her discretion. The mother’s request is reasonable given the concerns verified by the CAS and the father’s failure to demonstrate he has addressed any of those concerns or his substance abuse issues.

[16] For all these reasons, there will be a Final Order granting the mother sole decision-making responsibility, that the children reside primarily with her, and that the father have supervised parenting time at her discretion.

Issue 3: What income should be imputed on the father for the purposes of ongoing child support and s. 7 expenses?

[17] The mother seeks child support of $915/month on a going-forward basis along with an additional contribution of $250/month for s. 7 expenses. These expenses would include the costs of gymnastics, soccer, and various dental treatments. The mother also seeks that support be enforceable by the Family Responsibility Office.

[18] The mother believes the father has been employed as a carpenter since February 12, 2024. Based on website information, she calculates that a carpenter working full time at $29/hr per hour would earn $60,000 annually warranting a support payment of $915/month pursuant to the Federal Child Support Guidelines, SOR/97-175, as am.

[19] The mere fact that the Respondent has failed to file an Answer does not preclude the need for proper evidence to enable a family court judge to make an order for the relief sought: E.S.R. v R.S.C. (2019) ONCJ 381 at para. 208; CAS v J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.

[20] The court may draw an adverse inference against a spouse who fails to comply with financial disclosure and impute income to that spouse in such an amount as it considers appropriate: ss. 19 and 23 Child Support Guidelines O. Reg. 391/97 as am, see also parallel provisions in the Federal Child Support Guidelines.

[21] Having said this, the court is not entitled to impute an arbitrary amount of income to the father. Such an approach would be unfair: Monahan-Joudrey v Joudrey, 2012 ONSC 5984 at paras 20 and 21; Staples v Callender, 2010 NSCA 49 at para 21.

[22] In this case, I am not satisfied based on the evidence filed that the father is working as a carpenter and earning the amount attributed by the mother. There is no indication of who his employer is, if he is self-employed, or even what his hours are. To be able to earn such a stable and large income (more than the mother’s present income) would require that the father have made a considerable turn around in his personal health since the fall of 2023 when it appeared he had ongoing substance abuse issues and was relying on the support of food banks for his basic subsistence. In these circumstances, I decline to make an order for child support based on an imputation of annual income of $60,000 on the part of the father.

[23] The dilemma, of course, is that the father has not provided financial disclosure to allow the court to calculate child support nor has he meaningfully participated in these proceedings. The children should not be penalized by the father’s non-compliance with the law requiring him to provide his income information upon receipt of the mother’s application to this court for an order of child support: r. 13 Family Law Rules, O.Reg. 114/99 as am and s. 21(2) Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines, SOR/97-175, as am.

[24] Consequently, counsel will schedule the matter before a judge for a 45-minute motion hearing on the imputation of the father’s income for calculation of support and s. 7 expenses as well as costs. The mother may file a supplemental affidavit of her own or from others who may have knowledge of the father’s present employment. The mother should be prepared to provide viva voce evidence should the court require it.

[25] The father shall be provided materials and notified of the hearing date.

[26] In the interim, there will be a further Temporary Order requiring the father to provide the following financial disclosure:

a) His up-to-date Financial Statement; b) His Notices of Assessment for 2020, 2021, 2022, and 2023; and c) His last three most recent pay or social assistance stubs.

[27] Should the father fail to provide the financial disclosure, the court may impute income against him based on the evidence presented to the court.

Issue 4: Divorce

[28] The application for divorce is granted pursuant to the Divorce Act. The issues relating to corollary relief are separated from the divorce.

Costs

[29] The mother seeks costs of $750 as per Justice Kaufman’s order on the urgent motion. In addition, she seeks costs of $5,000 for the remaining proceedings. The mother is the successful party on the uncontested trial and presumptively entitled to costs. At the next hearing, counsel shall provide an updated Bill of Costs and brief costs submission.

[30] Counsel for the mother will provide a draft Final Order on Parenting consistent with this decision and a Temporary Order with respect to disclosure. The Temporary Order shall include the date of the upcoming hearing. Both Orders should be sent to me by end of September 2024.

Somji J. Date: September 17, 2024