Shaver v. Williams, 2024 ONSC 6036

Court File and Parties

COURT FILE NO.: FC-23-211 DATE: 2024/10/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Keara Shaver, Applicant – and – Kayne Williams, Respondent

COUNSEL: Cameron Croxall, for the Applicant Respondent, Self-Represented (in default)

HEARD: October 21, 2024

REASONS FOR DECISION ON UNCONTESTED TRIAL

Overview

Somji J

1This decision addresses the Applicant mother’s request for a Parenting Order for the parties’ 22-month old child K.M.S.W (“child”) and child support. The father was served materials for the application but failed to file an Answer and did not attend today’s hearing. The issues to be decided are: one, have the grounds been met for an uncontested and trial?; two, what Parenting Order is in the best interests of the child?; and three, what income should be imputed to the father for the purposes of child support?

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

2Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

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

4In this case, the mother’s Application was served on the father on November 15, 2023, and he failed to file an Answer. The matter was scheduled for an uncontested trial. The father was served the materials for the uncontested trial on October 15, 2024, at a valid email address used to communicate with him, and failed to respond or attend the hearing. The Applicant mother advised that the father is aware of the hearing date as he had recently asked her about it.

5The father is in default. I am satisfied that the conditions have been met to proceed with an uncontested trial.

Issue 2: What parenting order is in the best interests of the child?

6The mother seeks to have decision-making responsibility for the child and that the child reside primarily with her. The mother supports the child’s relationship with the father and is agreeable to him having parenting time, the terms of which would be at her discretion.

7The primary consideration in determining the parenting plan for the children which includes primary residence, decision-making, and parenting time for the father, is the best interests of the children: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (“CLRA”). Section 24 of the CLRA endorses a child-centered approach in determining parenting orders: Young v Young, [1993] 4 S.C.R. 3, at pp. 62-63, per L’Heureux-Dubé J.; Knapp v Knapp, 2021 ONCA 305, at para. 34.

8The best interests of the child requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss. 24(1)-(2). Section 24(3) CLRA lists additional factors that must be considered as follows:

Best interests of the child

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

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

9In arriving at my decision, I have considered all the best interest factors but focus below on those most pertinent to this matter.

10The parties started living together in July 2018 and separated in August 2022. They had one child together in 2022. The mother has been the child’s primary parent since birth. Since separation, the mother and child reside at the maternal grandfather’s home. The mother has been responsible for all the child’s physical, developmental, emotional, and financial needs. She has been responsible for all the child’s medical appointments. She is in a position to continue raising the child with the support of her family. I am satisfied that the history of care, the child’s need for stability, and the mother’s plans of care warrant a parenting order where the child continues to reside primarily with her and that she have decision-making responsibility on all issues.

11The father was not present for the child’s birth. His access with the child was initially sporadic, but he has been visiting more this year, sometimes once or twice a week. The mother noted in her Application that she did allow the father one overnight with the child, but he overheld the child requiring police intervention. The parenting time has been exercised at her discretion. The father has not filed any materials to request an alternative parenting schedule. In these circumstances, I find that it is in the best interests of the child that the father have parenting time, virtual or in-person, at the mother’s discretion. The mother shall continue to determine the nature, duration, and terms of the father’s parenting time.

Issue 3: What income should be attributed to the father for the purposes of child support?

12The mother seeks child support on an imputed income for the father of $43,000. According to the mother, the father works full-time at Ingleside Cheese Plant. She acknowledges that the suggested income is based on speculation that the average salary for a person working at the plant is $24/hr. The mother has no other income information from the father.

13Child support may be ordered on imputed income: Federal Child Support Guidelines, SOR/97-175, s. 19(1). However, there must be some evidentiary basis for the imputation as well as a rational basis for the amount chosen: Drygala v Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 44. To impute anything more than a minimum wage income the court needs to have some evidence upon which to make such a finding: Dassin v Perpignan, 2021 ONSC 1066, at para. 8.

14As I noted at the hearing, I find it would be unfair to impute an income of $43,000 without a better understanding of the wages at the plant. Nonetheless, I am satisfied that the father is working full time and would be earning at least a minimum wage. A full-time minimum wage income in Ontario is $38,000/year. There will be an order that effective November 1, 2024, the father will pay child support in the amount of $336 per months based on an income of $38,000. There will also be an order that the father shall provide the mother with his Income Tax Return and Notice of Assessment annually by June 15th and child support shall be adjusted accordingly on the basis of any change in income.

15The mother’s income for 2020 was $46,925 but appears to have decreased to $22,149 for 2022. While the mother’s income was less than the father’s income last year, she is agreeable that s. 7 expenses be shared equally by the parents going forward.

16While there has been a shortfall of child support to date, the mother does not seek any retroactive child support or s. 7 expenses.

17There will be a support deduction order and child support and s. 7 expenses will be enforceable by the Family Responsibility Office.

18Counsel for the mother will prepare a draft Order consistent with this decision for my review and issuance. The draft order should be forwarded to me by November 15, 2024.

19The mother does not seek costs.

Somji J.