W.C. v. W.C., 2022 ONCJ 254

WARNING The court hearing this matter directs that the following notice be attached to the file: The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information about the identity of the child This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows: 135.—

(2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information. Subrules 31(5) and 31(6) of the Family Law Rules state as follows: . . . 31.—

(5) Contempt orders.— If the court finds a person in contempt of the court, it may order that the person, (

a) be imprisoned for any period and on any conditions that are just; (

b) pay a fine in any amount that is appropriate; (

c) pay an amount to a party as a penalty; (

d) do anything else that the court decides is appropriate; (

e) not do what the court forbids; (

f) pay costs in an amount decided by the court; and (

g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property. ONTARIO COURT OF JUSTICE CITATION: W.C. v. W.C., 2022 ONCJ 254 DATE: May 31, 2022 File # D41138/21 BETWEEN: W.C. Applicant — AND — W.C. Respondent Before Justice D. Paulseth

Heard on May 9, 10, 11, 12, and 16, 2022 Reasons for Judgment released on May 31, 2022 O. Benjamin Vincents................................................................... counsel for the applicant Glenda Perry.............................................................................. counsel for the respondent Paulseth, J.: Overview: [ 1 ] The parties are the parents of one son, WC, who was born [xxx], 2019. [ 2 ] The applicant is the father and he is 49 years old. The respondent is the mother and she is 24 years old. They began a relationship in December of 2015.

At that time mother was a single parent to a new baby K. Father lived in Ontario and the mother and K lived in Guatemala. Father visited mother in Guatemala several times a year and they were married in Guatemala in 2017. [ 3 ] Father sponsored the mother, WC, and K. They arrived in Canada in February of 2020. [ 4 ] Father has three daughters from a previous relationship, aged 12, 18, and 20 who live in the Greater Toronto Area.

He was divorced from their mother in 2016. [ 5 ] The parents separated on January 18, 2021, when the mother and both children left the home. [ 6 ] Father issued his court application on January 28, 2021, and Mother issued her Answer/Claim on March 10, 2021.Father amended his application and mother amended her answer. [ 7 ] On June 1, 2021, the court made temporary orders, which can be summarized as follows:

(1) Sole decision-making to mother;

(2) Parenting time to father: a mid week and a Saturday visit, supervised by one of his two older daughters; not to be in the father’s home; exchanges to also be with one of the daughters; father not to be alone with the child;

(3) No direct contact by the father with the mother;

(4) Child support of $379 a month for both children, based on father’s stated income of $25,200, starting May 1, 2021; and

(5) The father of mother’s first child was added as a party. [ 8 ] On June 30, 2021, father was ordered to pay costs of $4,800. to the mother, by monthly payments of $150, commencing August 1, 2021.

Position of the Parties: [ 9 ] Father initially sought: • Divided decision-making; father to have sole decision-making on matters relating to health care and medical needs; father to have a role in education decision-making if mother does not follow the recommendation of the child’s education provider. • At the end of the trial, father conceded sole decision-making to mother; [ 10 ] Father also seeks: • Unsupervised parenting time increasing from day visits to alternate weekends with one overnight and then alternate weekends from Friday to Sunday; and introducing mid-week overnights; • Alternating Christmas Eve and Christmas Day; and alternating New Year’s Eve and New Years Day; Father’s Day; • One month in the summer and half of March break; • No parenting time with K; full responsibility to mother for K; and • Child support for two children based on an annual income of $30,000. commencing January 1, 2022; with no arrears as of the same date; annual disclosure by both parties [ 11 ] Mother seeks:

• Sole decision-making along with control of travel and identifying documents; • Graduated supervised parenting time for the father in the presence of an agreed upon third party, or father’s sister CC or his daughter DC; which time cannot be exercised in the father’s home, including vacation time and Father’s Day; • restriction on father from being within 500 metres of the mother or children, pursuant to

section 28 of the Children’s Law Reform Act (the Act) and • Child support for both children, based on an imputed income rising over three years from $30,000 to $72,000. with a support deduction order and annual disclosure

Part 1 – Parenting Issues Legal Framework: Decision Making Responsibility [ 12 ] Subsection 18 (1) of the Act defines decision-making responsibility as follows: “decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to, (

a) health, (

b) education, (

c) culture, language, religion and spirituality, and (

d) significant extra-curricular activities; [ 13 ]

Section 20 of the Act reads as follows: Equal entitlement to decision-making responsibility 20

(1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child. Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child. Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise. Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. [ 14 ] Subsection 21 (1) of the Act reads as follows: 21

(1) A parent of a child may apply to a court for a parenting order respecting, (

a) decision-making responsibility with respect to the child; and (

b) parenting time with respect to the child. [ 15 ] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in

section 24 of the Children’s Law Reform Act (the Act) . The court has considered these factors, where relevant. [ 16 ] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests. [ 17 ] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows: 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, (

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

l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 18 ] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun , 2021 ONSC 41 ; Pereira v. Ramos , 2021 ONSC 1736 . It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v.

Phillips, 2021 ONSC 2480 . [ 19 ] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah , 2021 ONCJ 201 . [ 20 ]

Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of

section 28 for this case are (1), (4), (5), (6), (7) and (8). They read as follows: Parenting Orders and Contact Orders 28

(1) The court to which an application is made under

section 21, (

a) may by order grant, (

i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (

a) or subsection 21 (2), (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3); (

b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and (

c) may make any additional order the court considers necessary and proper in the circumstances, including an order, (

i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (

v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons. Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule. Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child. Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so. Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order 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 and education, from,

(

a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under aparenting order; and (

b) any other person who is likely to have such information. [21] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows: 33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from theproceeding. Family Violence [22] Subsection 24 (4) of the Act requires us to consider if the party has committed violence or abuse against the spouse or parent ofthe child, a member of the person’s household, or the child when considering their ability to parent.

Violence is considered to include: • A pattern of coercive and controlling behaviour in relation to a family member; • Physical, emotional, or psychological harm or risk of harm to the child; • Any compromise to the safety of the child or other family member; • Whether the violence causes the child or other family member to fear for their own safety; • Any steps taken by the person engaging in the violence to prevent further violence from occurring and improve the person’sability to parent; and • Any other factor- financial control has been considered as an example of coercive and controlling behaviour. [23] Family violence is also defined in subsections 18 (1) and (2) of the Act .

In particular I note the phrases: • Violent or threatening; • A pattern of coercive or controlling behaviour causes a family member to fear for their safety; • And, in the case of a child, includes direct or indirect exposure to such conduct. [24] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will bephysically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physicallyand emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615 .

Parenting time [25] The test for determining parenting time is what order is in the best interests of the child. [26] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child shouldhave as much time with each parent as is consistent with the best interests of the child. [27] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates withequal-parenting time.

Every family, it wrote, is different and the court must focus on the child’s best interests in determining theappropriate parenting time order. [28] Subsection 24 (6) of the Act does not override the best interests test contained in

section 24. Rather, it means that a child shouldhave as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the bestinterests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204. [29] In Baredregt v.

Grebliunis, 2022 SCC 22, the Supreme Court of Canada wrote the following about the maximum time principleat paragraphs 134 and 135: [134] Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are thesole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can andshould restrict contact”: Gordon, at para. 24; see also para. 49.

But in the years since Gordon, some courts have interpreted what isknown as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal

parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14 ; Slade v. Slade, 2002 YKSC 40, atpara. 10 ; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the CanadianCourts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98. Indeed, the term “maximum contact principle” seems to imply that asmuch contact with both parents as possible will necessarily be in the best interests of the child. [135] These

interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant tothe extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Actrecasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language ismore neutral and affirms the child-centric nature of the inquiry.

Indeed, going forward, the “maximum contact principle” is betterreferred to as the “parenting time factor”. [30] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when thechild is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child.This should not be ordered where an equal-parenting time plan requires a high level of communication and coordination between theparties, particularly when the child is very young.

The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given thedynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E.,2021 ONCJ 114; L.I.O. v.

I.K.A., 2019 ONCJ 962. [31] The best interests of the child has been found to be met by having a loving relationship with both parents and such a relationshipshould be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the childhas a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451. [32] A custodial parent must not just accommodate access, they must facilitate it. See; Scrivo v. Scrivo, 2012 CarswellOnt 5545; Tranv.

Chen, 2012 CarswellOnt 8551. [33] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visitwith a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right andshould only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB) Evidence for Father: [34] The father was born in Guatemala but has been a permanent resident of Canada since 1990. He met mother in early 2015 inGuatemala through a family friend.

They began a relationship in December of 2015. At that time K was only a few weeks old. Fathercontinued to visit in Guatemala several times a year and they were married on February 17, 2017. Their child, WC, was born inGuatemala […], 2019. Father was present for the birth. Father then returned to Canada. [35] Father sponsored mother and their child, WC, and mother’s child from a previous relationship, K, to come to Canada. Theyarrived here in February of 2020. [36] Throughout most of their relationship, father worked as a banquet server at the RY hotel and as a mortgage agent.

He said that hedid not make much money in the mortgage business and his license expired in 2020. [37] Previously, father deposed that he earned about $60,000 a year on average. He worked in the financial sector and also did casuallabour at times. At one time, he co-owned a house in Barrie with his mother as an investment property. They had to sell it in 2019 and hereceived about $3,700 in net profit. [38] Father was then unemployed for part of 2019. He used his savings to bring the mother and the children to Canada. He thenaccumulated debt of $92,000 and had to declare bankruptcy.

He paid $300 a month towards his debts and was discharged on November24, 2021. [39] Father said that he and the mother were having sexual difficulties in their marriage and they would watch pornography together.They saw a therapist about the pornography issue. [40] In November of 2020 father drafted a separation agreement and asked the mother to sign it. She did not.. [41] During the marriage, father said he did a lot around the house. He deposed that he did most of the cooking and laundry.

He saidhe often put both children to bed. [42] Father said he tried to be kind to K and often took her to and from school. [43] Father said he has a very close relationship with his three daughters from a previous relationship. They stayed with he and themother approximately every second weekend. These three daughters are very close to WC and often took him to the park. [44] Father’s mother and his sister are also very close to WC and used to see him often when the family was together. [45] When mother left the home with the children, father did not see WC for almost three months.

Mother was insisting onsupervision and a motion had to be heard in court. [46] Father absolutely denies the mother’s allegations that he watched child pornography. The pornography web sites that he visits allcarry a clear warning that child pornography is illegal. The pictures that mother has screen shots of are small statured Asian women orwomen made to look younger. [47] Father said that mother often complained about their sex life and about him watching adult pornography.

[ 48 ] Father denies staring at young girls. [ 49 ] Father denies ever exposing his children to pornography or to him masturbating. [ 50 ] Father denies ever shaming mother about her sexual history or her body. [ 51 ] Father denies ever threatening to take WC away from her or kicking her out of their home. [ 52 ] Father believes that mother fabricated these allegations in order to be able to return to Guatemala with her children. [ 53 ] Father does not oppose mother having sole decision-making over K. He describes K as a “nice little girl “.

Because of the mother’s allegations, he does not think it would be wise to have parenting time with K. [ 54 ] Father maintains that he has been very involved in parenting WC in the past. He would bathe the child once or twice a week. [ 55 ] Father describes mother as having low self-esteem as she didn’t speak the language and was isolated here in Canada. [ 56 ] Father describes a visit he and the mother made with paternal grandmother to paternal grandmother’s psychiatrist in November of 2020. The notes from that doctor were provided as evidence, and included the following:

(1) Father admitted to verbally abusing the mother by criticizing her body and small breasts; because mother called him an old man;

(2) Father admitted to being addicted to adult pornography; mother denied enjoying it;

(3) Mother was quiet and crying; she looks depressed; she had difficulty speaking English; she is 23 and father is 47; the age difference is obvious; mother looks very young and petite [ 57 ] Father denies any physical abuse of mother. He finds her allegations about a dispute in April of 2020 which resulted in her falling and hurting her arm suspicious; particularly as she doesn’t tell anyone about it for months. [ 58 ] Mother claims that she worked in construction for about 10 weeks and father took all her money.

Father denies this and says she kept it to use when she left him about a month later. [ 59 ] Father would like unsupervised time with WC. There have been no parenting concerns raised by the mother. His family have found it really difficult to be available, particularly since his sister is returning to work in the office rather than online and his daughter has graduated from university. [ 60 ] Father is aware of the hearing concerns about WC and appreciates that WC does not speak, just sings. He is concerned. [ 61 ] In January 2022, father was laid off from the RY hotel due to the covid pandemic.

He obtained work as a full-time driver for UBR in February, 2022, He earns a gross pay of $1200. every two weeks. [ 62 ] Father’s sister testified. She is a project manager for a bank. She describes father as a reliable and hard working person who lives for his children. She lived with father and his first wife and observed him to be a caring father who cooked for the family and drove them to medical appointments. He was very involved in extended family activities. [ 63 ] Paternal aunt testified that father and his first wife were together for 17 years.

They were both hardworking, had a lovely home, and took two vacations abroad each year. She has never observed father to be abusive in any way. [ 64 ] Paternal aunt testified that she had limited contact with mother. She met her twice in Guatemala and found her very quiet. Paternal aunt and the paternal grandparents were invited for lunch to the parents’ home about 6 times.

Father always cooked and looked after the baby. [ 65 ] According to paternal aunt, mother did not tell her about child pornography, and she has never heard this concern before. [ 66 ] Paternal aunt describes WC as very attached to father and testified that the child lights up when father or this witness walk into the room. Father plays with the child and feeds him. Father tries to teach him words.

Father needs no supervision in caring for the child. [ 67 ] This witness would continue to facilitate parenting time for father if necessary, but the commuting time is quite arduous- one hour for pick up and about two hours for the return trip. [ 68 ] Father’s oldest daughter, D, gave evidence. She has graduated from university in psychology and lives with her mother and two younger sisters.

She and her sisters spend time at her father’s apartment several times a month and did so when mother and the children were there. [ 69 ] She describes her father as always attentive and supportive even after the separation with her mother about 7 years ago. [ 70 ] D recalls the mother as always smiling and being very nice to her and her sisters.

She did not know the parents were having marital difficulties. [ 71 ] D has observed her father to be very helpful around the house with chores, shopping, and cooking. [ 72 ] D has assisted with the driving for WC’s visits with father, and, if necessary, will continue to assist. She has never heard of any pornography allegations against her father and does not believe them.

Evidence for the Mother [ 73 ] Mother testified that early in 2015, she was kidnapped while riding her motor bike to college. She was then held by a young man for a sustained period of time and was forced to engage in sexual relations with him. The maternal grandmother contacted the police who located her and freed her. As a result, mother conceived the child K. [ 74 ] Mother recalls being introduced to the father at a local fair in February of 2015, when she was 17 years old and he was 42. They began a romantic relationship in December of 2015. When father first met K, K was only 15 days old.

K has only ever known this father. Thereafter father travelled to Guatemala often. [ 75 ] They were married on February 14, 2017. Father visited Guatemala for WC’s birth on […], 2019. Mother and K are permanent residents of Canada. WC is a dual citizen of Guatemala and Canada. [ 76 ] Mother only spoke, wrote, and understood Spanish until beginning some English lessons after arriving in Canada. She had never been exposed to English while living and attending school in Guatemala. Her first English lessons were in the summer of 2020 by zoom, but she had to stop when father refused to pay for them in August of 2020.

Father did not support her in obtaining any further English classes. [ 77 ] Mother noted that when father’s family came to visit their apartment in Toronto, they spoke English, which, of course, she didn’t understand. [ 78 ] After the separation, father cut off all contact with K. Father was ordered by the court to provide the sponsorship immigration file which contains relevant information about father’s income and his relationship with K. He has not done so.

He has now agreed to pay support for her. [ 79 ] About one month after arriving in Toronto, mother saw a folder on the father’s computer containing pornographic photographs and videos of naked young girls. The girls appeared to mother to be from 10 to 15 years of age, due to their pre-pubescent bodies. In some of the images the girls were engaged in sexual activity with naked older men. [ 80 ] Father began to reject the mother sexually, constantly saying she was now “too old” and “ugly”.

He was experiencing erectile dysfunction. [ 81 ] In July of 2020, mother found father masturbating while watching pornography in his office. The door was open. This became a daily activity of the father. [ 82 ] Mother also noticed how father would stare at young girls at the mall. She had seen him staring at her two sister’s bodies, when they were in Guatemala. [ 83 ] Mother found a video on the father’s phone that he had recorded while watching a strange woman at the park. Mother recognized his voice. Mother believes he sent his video to a friend. [ 84 ] Mother became more and more distressed by this behaviour.

She was depressed and felt rejected. [ 85 ] In August or September of 2020, mother looked through father’s phone. The internet history showed he was looking at “girls” and some of the search phrases were: “father and daughter having sex”, father having sex with his young girl”, “mother, father, and step- daughter having sex”. She saw children who looked as young as 10 years of age, completely naked. [ 86 ] Mother observed these types of images on father’s phone and computer numerous times. In October of 2020, mother took pictures of the images she saw on father’s phone.

These images were filed with the court and clearly show naked pre-pubescent girls with older men. [ 87 ] During Thanksgiving dinner at the paternal grandparents’ home, mother told the paternal grandmother about the pornography, masturbation and father’s lack of interest in her. Thereafter, father and paternal grandmother took her with them to see the grandmother’s psychiatrist. This visit is described above. The mother, of course, could not understand much of what occurred in that visit. [ 88 ] Father repeatedly threatened that no one would believe mother if she shared her allegations about him.

On one occasion near the end of the relationship, mother did watch pornography with father. [ 89 ] On two occasions, father physically hurt the mother:

(1) In November of 2016, while on a holiday with family to the beach, father insisted mother not wear her bathing suit. He believed she was just trying to attract other men. He yelled and pushed her into some furniture which hurt her back.

(2) In April of 2020, during an argument about the pictures on his phone, he pushed the mother so hard she fell on the floor and hurt her shoulder. This fight occurred in front of K. [ 90 ] Throughout the mother’s pregnancy with WC, father repeatedly insisted that he was not the father. [ 91 ] Shortly after arriving in Toronto, father started to complain about the cost of sponsoring and maintaining mother and the children. He repeatedly accused her of not contributing to the household. He began to regularly kick her out of the apartment, although she spoke no English and had no friends here. [ 92 ] Father also began calling the mother useless and stupid. He constantly criticized her body.

[ 93 ] In November of 2020, father produced a document entitled “divorce settlement” in English and told her to sign it. She didn’t understand the document.

Father said that if she signed it, she would be forfeiting her residency in Canada. [ 94 ] In December of 2020, the paternal grandmother told mother she had four options: sign the agreement; go home to Guatemala with K, leaving WC with father; see a lawyer with father that she would pay for; leave K in Guatemala with mother’s family; or go with both children to live in Guatemala and she and the paternal aunt would send her money. [ 95 ] Mother connected with a local pastor who assisted her in obtaining counselling and going to a shelter with the children. [ 96 ] Mother disputes father’s claims that he did most of the housework and child care.

Mother maintains that she was the primary caregiver for the children and di lots of cooking and cleaning. Father did the laundry because he went to one outside the building as he said it was cheaper. [ 97 ] Mother testified that father’s daughter D only came to their apartment twice when mother and the children were there. Mainly they saw her at family celebrations. [ 98 ] In December of 2020, mother worked in construction for 10 days. She quit as she was worried about the children alone with father.

Father took the money from her. [ 99 ] Father was working full time since their arrival in Canada, but after the pandemic lockdown he worked from home. [ 100 ] Mother has continued to communicate with father’s sister about WC’s health and routines. Mother sends her pictures and videos. They have video chats and on two occasions the grandmother was also there. [ 101 ] When mother left the home, she moved into a shelter with both children. She was connected to a social worker who spoke both English and Spanish. This social worker supported her a great deal.

Mother registered for English classes and K also took online English. Mother and K both took trauma counselling at the Child Development Institute. Mother engaged in counselling through the Scott Mission. [ 102 ] Both the pastor who assisted mother and her counsellor from the Scott mission gave evidence. Mother told the counsellor that she had nightmares from the child pornography she witnessed on the father’s computer. [ 103 ] Mother describes a busy but happy life with her two children here in Toronto. WC is in full time daycare and K attends school and afterschool care. Mother is in fulltime English classes.

They have friends and often play at the local park. Mother describes their favourite foods and activities and their friends. [ 104 ] The children have regular appointments with their pediatrician. Mother has reported her concerns about WC’s hearing and language. The pediatrician advised her to wait before seeing a specialist as WC is already speaking better since attending full time daycare. [ 105 ] Maternal grandmother and two maternal aunts both gave evidence from Guatemala. Mother has two sisters and a younger brother, all of whom live in Guatemala.

Her parents own a large home and dearly want her to visit with the children. Mother also has maternal grandparents who live about 15 minutes from her parents. If her family come to Canada, it costs them more than mother going there, because each person travelling into Canada must have a costly visa. [ 106 ] Maternal aunt is 27 years old. She lives with her parents. She is studying to be a social worker at the university in Guatemala. Mother and the children also lived there before their immigration to Canada, except for a short period of time when father set them up in an apartment.

She spent periods of time with mother and father in the family home when father visited from Canada. They all went to the local pool together and to the beach on vacation. [ 107 ] Maternal aunt gave many examples of why the father made her uncomfortable:

(1) He would stare at her body;

(2) He would stare at other women’s bodies;

(3) Father would give her a hug and a kiss, and put his hands around my waist;

(4) When mother would say something to father about looking at other women, he would respond aggressively to her;

(5) He repeatedly said that the baby was not his; mother would often cry;

(6) One day he came to the family home and threw all of the mother’s and children’s clothes on the ground by the family home and yelled at the maternal grandmother that he was not the baby’s father; and

(7) Mother told her about the abuse in Canada and father threatening to have her deported without her baby. [ 108 ] This witness helped mother safety plan to leave father. [ 109 ] This witness complained to father about his conduct towards her. He said there was nothing wrong with it. She told him it made her uncomfortable. He did not stop. She would stay in her room when he came over. She did tell her mother about the father’s conduct. [ 110 ] The second maternal aunt also gave evidence. She is now 21 years old. She recalls a school day about 6 years ago when the father offered to drive her to school.

He gave her money and then grabbed her and kissed her on the mouth. She was very scared and did not tell anyone until recently. In addition to this particular act,, this witness told the court:

(1) The father took an interest in her soccer games; he would attend by himself and stare at the 13 and 14 year old girls who were playing; once he ran into the field to give first aid to one of the players who hurt her ankle. Father had no first aid training for this;

(2) On one occasion father came into her room where she was lying on her bed; he got on top of her and began to tickle her. She told him to get out and told her mother;

(3) She often observed the father to stare at her breasts and legs when the family went to the beach;

(4) Mother asked father why he was looking at this witness like that; mother asked this witness to not wear short shorts, skirts or dresses when the father was in Guatemala;

(5) When she was 15, the father started sending her messages on WhatsApp, telling her she was pretty and that he had made a mistake choosing mother when he should be with this sister;

(6) When she was 16, father arrived at the home and hugged her and put his hand on her buttocks. He also started bringing the two sisters underwear as gifts; and

(7) On many occasions, the father would ask this witness to go places alone with him and she would always refuse. [ 111 ] The maternal grandmother gave evidence. [ 112 ] She recalls hearing the mother’s younger sister telling the father to get out of her bedroom. She found him outside her bedroom. He was laughing and claimed nothing happened. She did not believe him. [ 113 ] Maternal grandmother observed the father to change as time went by. He became jealous and controlling of the mother.

H was also aggressive with mother. [ 114 ] During a holiday to the beach, mother told maternal grandmother that father had been mad at her for wearing a bathing suit She said that he had pushed her hard against a piece of hotel furniture. Maternal grandmother saw the bruise forming on mother’s back. [ 115 ] Many times, this witness observed mother crying because of something father said to her. She advised the mother repeatedly to end the relationship. She observed the father to throw bags of mother and K’s belongings on the ground at the grandparents’ home.

Father told this witness that the baby was not his. [ 116 ] Maternal grandmother was very worried about the mother moving to Canada with father. She spoke to mother often. Mother told her :

(1) Father did not treat she and K very well;

(2) Father was always kicking her out of the apartment or threatening to kick her out;

(3) Father ridiculed her;

(4) Father said he was tired of supporting her;

(5) Father had hit her on the arm; and

(6) Mother sent her messages with pictures she had found on father’s phone of child pornography; the pictures showed naked men and young people in volved in sexual scenes; and references to websites; this was shocking to the maternal grandmother; these pictures were filed with the court [ 117 ] This witness phoned father directly on two occasions and asked him to treat mother better. Father denied anything was happening and said it was the mother’s fault for exaggerating.

Thereafter, father would not answer her calls. [ 118 ] Maternal grandmother said that K considered father her own daddy and would ask for him after they moved to the shelter. [ 119 ] Maternal grandmother talks to mother two to three times a day. They are very close. She misses her daughter and grandchildren very much. Credibility of the Parties: [ 120 ] Mother is very detailed in her recollection of events. Several of her key recollections are also confirmed by her family members. [ 121 ] Paternal aunt confirms that mother is pleasant and communicates well with her.

She also confirms that mother is very flexible about times and days for visits, in that the paternal aunt is working full time.. [ 122 ] Father relies on blanket denials and says repeatedly that certain events “didn’t happen”. He offers no explanation as to why mother would fabricate all of these concerns and leave herself stranded in a foreign country without any supports or use of the primary language. [ 123 ] Father, in cross examination admits to lying on his bankruptcy application – he blames the trustee and to lying on a loan application – he blames the loans officer.

Such a pattern of dishonesty negatively affects father’s credibility. [ 124 ] Mother testified to telling paternal grandmother about the father’s daily use of pornography and to paternal grandmother taking both parents to see her psychiatrist. The psychiatrist’s notes confirm mother’s allegation is repeated to the psychiatrist and not denied by

the father. The doctor recommends, amongst other options, therapy.

Paternal grandmother was not called as a witness by father, although she was on his original trial planning list. [ 125 ] Father gave mother a separation agreement to sign, without legal advice, and in the document she was given options to return to Guatemala with both children or without WC. [ 126 ] Father has not made any payments towards his outstanding cost order. [ 127 ] Father did not make any voluntary child support payments until November of 2021, some ten months after separation. [ 128 ] Father said he did not pay any child support to his first wife and the primary residence of the three children was with their mother.

This first wife was observed by mother to bring her some provisions when she was in the shelter with the children. [ 129 ] In considering the evidence as a whole and particularly the examples above, where the parents’ evidence conflicts I prefer the mother’s version. Best Interests of WC: Decision-making [ 130 ] By the conclusion of the trial, father conceded that mother should have sole decision-making of WC. This was a wise but very late position on father’s part. [ 131 ] Mother presents as a very caring and child-focused parent. She described her children’s and her life in Canada in detail.

She describes their school, day care, activities, foods, and friends with great joy in her children. She is working hard to now learn English and maintain a good connection with her family in Guatemala. Both she and K have been in counselling. They have successfully moved past a very traumatic time in their lives. [ 132 ] Father had always conceded sole decision-making of K to mother and wants no parenting time with K. In itself, this is a concerning factor. Originally, father had taken the position that he had no responsibility for K.

Following a contested motion, father was ordered to pay temporary chjld support to K as a settled intention parent. Father had also sponsored K to this country. K called him daddy and has asked about him. Now WC goes for visits with father but not K. Father is the only male parent that K has known since she was a few weeks old until the separation in January of 2021. This is heartbreaking for K. Violence [ 133 ] Father denies any violence in the relationship. I disagree.

For these reasons, I find that there is ample proof of intimate partner violence in this relationship: • Father repeatedly denied that he was the father of WC. This is a hurtful and emotionally abusive comment to make. Mother, her sisters, and her mother all heard these nasty comments by the father. • Shortly after arriving in Canada, father started to threaten mother by kicking her out of their apartment. She knew no one in Canada and spoke no English.

These threats increased in frequency. • On two occasions, father pushed the mother and caused her some physical injury: once in Guatemala, when maternal grandmother saw the bruise forming and once here. Mother weighs less than 100 lbs. and father weighs 245 lbs. Father is about 25 cm or 10 inches taller than mother • Father would only fund two months of English classes for mother.

This kept her very isolated and dependent on him. • Father complained that mother was not contributing financially to the household so she eventually got a job in construction but quit after 10 days as she was worried about father being home with the two children. Father then took her earnings • Father had a bank account to which mother had no access. Another account to which they both had access showed him transferring money from the joint account into his own account. • Father repeatedly told the mother she was “ugly” and “not 17 any more “ so therefore unattractive to him.

Pornography/sexual issues [ 134 ] Both parents agree that father had difficulties with erectile dysfunction and sexual intimacy [ 135 ] Mother testifies that father was using pornography almost daily.

She described walking in on him while he was working in an open closet/office; the door open; and looking at pornography and masturbating. [ 136 ] Some of the porn sites that mother saw on father’s internet history included: “girls”; “father and daughter having sex”; “father having sex with his young girl”; “mother father and step-daughter having sex”. [ 137 ] Mother observed the pictures on some of those sites to show images of children who looked as young as 10 years of age.

The pictures that mother filed with the court show girls who are pre-pubescent or dressed and/or made up to look pre-pubescent. [ 138 ] Mother testified that father said he had to watch this type of porn because she was too old and only this kind of porn excited him. [ 139 ] Mother observed these images on father’s phone and laptop.

[140] Mother told the paternal grandmother about this pornography issue. The topic is recorded in the notes of paternal grandmother’spsychiatrist when she took both parents to see her doctor. [141] Father stares at young women in public places and has gone so far as to surreptitiously video a strange woman in public and sendthe video to a male friend. [142] The maternal aunts were very credible witnesses. They had no reason to fabricate such humiliating and demeaning overtures fromfather. He stared at their bodies in such a way as to make them uncomfortable and refused to stop when asked.

He touched theminappropriately. His attendance at young girls’ soccer games is completely outrageous. [143] Father’s conduct in this regard is completely disrespectful and insensitive, and probably illegal. Certainly, unwanted touching isagainst the law in Canada. Father shows no insight into the effect this has had on mother and his other victims. [144] The evidence supports a finding that father has an unhealthy sexual attraction to girls aged 10 to 16. [145] Mother says she was crying daily and became depressed. Her sisters were clearly distraught.

Her mother was also clearly upsetby much of the father’s conduct [146] Father’s lack of empathy and poor judgment also point to probable parenting deficits. Supervision [147] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. Thegreater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., (ON CJ), [2003]O.J. No. 2946 (OCJ). [148] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v.

Klymenko,2020 ONSC 5451 [149] Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require gradualreintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer indanger of physical or emotional harm. See: Najjardizaji v. Mehrjerdi, 2004 ONCJ 374 , [2004] O.J. No. 5472 (OCJ). [150] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed bysupervision to diminish, it is appropriate to order long-term supervision of access.

See: Tuttle v. Tuttle, 2014 ONSC 5011. [151] It is clear that father does not see any issue with his treatment of the mother or his sexual deviancy and assaults. Mother hasclearly satisfied the burden on her to show why continued supervision is necessary in this case:

(1) The psychiatrist offered to make a referral for counselling; father did not agree;

(2) Father has denied anything inappropriate in his conduct;

(3) Father has shown no remorse for the ongoing pain he has caused mother;

(4) Father shows no remorse for his poor treatment of mother’s sisters;

(5) Father has little or no insight into his actions;

(6) All of these findings make it impossible for the court to trust that father will be child-focused;

(7) Father’s judgment is seriously impaired and he is dishonest; and

(8) WC is only two and a half years old. [152] Ongoing supervision will be necessary to protect the best interests of WC. The supervision can be provided by father’s sister ordaughter or any adult that the parents agree upon. The child cannot be at the father’s apartment. The supervisor must be present for theexchange of the child such that mother and father will have no contact. [153] The visit can be overnight if a supervisor is present. The mid-week visit is not practical anymore as paternal aunt has returned towork and must also travel for work.

Mother and the children are very busy through the week and mother has public transit as her onlymeans of transportation. Travel: [154] Because father has displayed a pattern of controlling behaviour with respect to the mother, he cannot have any control over hertravel. [155] When father sponsored mother and the children to Canada, he had to reasonably expect that she would want to visit family inGuatemala.

All of mother’s family is there. [156] Mother should be able to travel without the consent of the father for reasonable periods of time, upon reasonable notice to thefather. [157] Because the father has caused such pain to the mother’s family in Guatemala, I am not ordering that he can have parenting time in

Guatemala when mother and children are there. If, in future, mother wishes to agree to something, she is free to do so. Further restrictions on father: [158] Under

section 28 of the Act, I am ordering a continuation of the restrictions on the father’s contact or proximity to the mother, forthese reasons:

(1) Father has no insight into the controlling and abusive nature of his conduct;

(2) Mother has made great strides and should not have her efforts hampered by the father’s sense of entitlement being extended toher space; and

(3) Father has not abided by all of the court orders to date.

Part 2: Child Support Legal Framework: [159]

Section 31 of the Family Law Act (FLA) provides for both parents’ obligations to support their child, to the extent they arecapable of doing so. The purposes of a child support order are that it should recognize this support obligation and apportion it accordingto the Child Support Guidelines: see section 33(7). [160] Section 33(1) of the Family Law Act is the statutory authority for the Court to make a child support order in this case. Section33(11) requires the Court to make an order in accordance with the Child Support Guidelines (CSG), subject to certain statutoryexceptions. None of the exceptions apply in this case. [161] The objectives are set out in

section 1, CSG. Those objective are (1) that the Guidelines should establish a fair standard of support that ensures the child will benefit from the financial means ofboth parents, (2) the Guidelines reduce conflict and tension by making the calculation more objective, (3) they improve efficiency by giving guidance in setting the levels of child support and encouraging settlement, and (4) they ensure the consistent treatment of parents and their children, in similar circumstances. [162] The most significant issue about child support in this case is the determination of the father’s income.

Section 2(3) of the ChildSupport Guidelines provides that the most current income information is to be used in determining the amount of child support to bepaid. [163] Income is determined in accordance with sections 15-20 of the CSG.

Section 16 provides that a parent’s income is determinedusing line 150 income on the tax return. [164]

Section 19 provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides anon-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows: 19.

(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in thecircumstances, which circumstances include, (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of any child or by the reasonable educational or health needs of the spouse; … (

e) the spouse’s property is not reasonably utilized to generate income; (

f) the spouse has failed to provide income information when under a legal obligation to do so; … (

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate thanemployment or business income or that are exempt from tax. [165] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support theirchildren. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be foundto be intentionally under-employed. Clause 19(1)(

a) of the guidelines is perceived as being a test of reasonableness. See Drygala v.Pauli, (ON CA), [2002] O.J. No. 3731(Ont. CA). [166] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court inconsidering a request to impute income: 1. Is the party intentionally under-employed or unemployed? 2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs?

3. If not, what income is appropriately imputed? [167] A court must also consider whether the under-employment is required by the needs of a child or by the health needs of thespouse. See: Lavie v. Lavie, 2018 ONCA 10, at para. 28. Intentionally Underemployed? [168] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployedor under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can bemade. See: Homsi v. Zaya, 2009 ONCA 322 , [2009] O.J. No. 1552. (Ont. C.A.).

However, in Graham v. Bruto, 2008 ONCA260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide anevidentiary basis to impute income. [169] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to theindividual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v.

Carriere, 2016 ONSC 4719. [170] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionallyunder-employed or unemployed. See Filippetto v. Timpano, (ON SC), [2008] O.J. No. 417, (Ont. S.C.); T.L. v. D.S.,2019 ONCJ 809. [171] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income isimputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The courtmust look at whether the act is voluntary and reasonable.

Reasonable Exception? [172] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When anemployment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins (ON SC), (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support theirchildren and they cannot avoid that obligation by a self-induced reduction of income.

See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

a) The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they areearning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would havecontinued to earn but for their decision to leave their job: Olah v. Olah (ON SC), (2000), 7 R.F.L. (5th) 173 (Ont.S.C.); Weir v. Therrien, (ON SC), [2001] O.J. No. 2612, supra; Vitagliano v. Di Stavolo (ONSC), (2001), 17 R.F.L. (5th) 194 (Ont.S.C.); Zagar v. Zagar, 2006 ONCJ 296 , 2006 ONCJ 296; Laing v. Mahmoud, 2011ONSC 4047 , 2011 ONSC 4047.

b) Reckless behaviour which diminishes income earning capacity may also result in income being imputed. See: Rogers v. Rogers, 2013ONSC 1997 ; Tillmanns v. Tillmanns, 2014 ONSC 6773 . The proper income: [173] The third question in Drygala v.

Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, whatincome should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light ofsuch factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyedduring the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See:Lawson v. Lawson, (ON C.A.).

Adverse Inference [174] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligationsas provided for in

section 21 of the guidelines and impute income. See Smith v. Pellegrini, (ON SC), [2008] O.J.No. 3616, (Ont. S.C.); Maimone v. Maimone, (ON SC), [2009] O.J. No. 2140, (Ont. S.C.). The parent must make fulland complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v.Carriere, 2016 ONSC 4719. [175] The court must determine if the payor’s choice to leave his second job was reasonable in light of all circumstances.

It mustconsider their age, health, child-care commitments, and work history (have they historically worked two jobs?), the stress associated withworking at two jobs and their motivation for leaving the job. See: Poulin v. Poulin, 2002 BCSC 1374 , [2002] B.C.J. No. 2206(BCSC); Blagdon v. Blagdon, 2003 NSSF 27 , [2003] N.S.J. No. 245 (NSSC-Family Division); M. (S.A.J.) v. M. (D.D.)(1998), (MB KB), 40 R.F.L. (4th) 95; Houghton v. Houghton, 2000 MBQB 86 , [2000] M.J. No. 298 (ManitobaQ.B.); Aboagye v. Sakyi, [2012] O.J. No. 575 (OCJ). [176] Father presented no evidence about poor health.

[177] Father let his broker license expire [178] Father did not provide the full disclosure requested from his self-employed income. [179] Father did not explain his decision to forego a second job after the pandemic. Fault [180] Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had somecontrol) or misconduct, the support obligations will not be reduced or cancelled. See: Luckey v. Luckey, (ON SC),[1996] O.J. No. 1960 (SCJ); Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ)); Sherwood v. Sherwood, (2006) (ON SC), O.J. No. 4860 (SCJ).

This situation is similar to the one in Baldini v. Baldini (1999), (BC SC), 46 R.F.L.(4th) 407, [1999] B.C.J. No. 1426, where the court imputed income to the payor because he had been fired for doing personal work oncompany time and using company material without permission. The court found that the consequences of the payor’s actions should beborne by him and not by their dependants. Also see: Aboagye v. Sakyi, [2012] O.J. No. 575 (OCJ). [181] However, the imputation of income to a payor who is earning less income due to their own misconduct or reckless behaviour isnot automatic.

It remains an exercise of discretion for the court. See: Sheridan v. Cupido, 2018 ONSC 5817. [182] The court is also not bound to impute income at the payor’s previous income level if it decides to impute income due to thepayor’s reckless behaviour or misconduct. It can impute income in an amount different than what the payor had been earning, or it canimpute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. See:Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773. [183] In Samaroo v.

Monasar, 2016 ONCJ 47, where a payor had unjustifiably quit his job in 2014 and had not found comparableemployment by the time of trial, the court decided to maintain the payor’s support obligation from the time he quit his job, and onlyreduce it beginning in February, 2016. This was determined to be a fair balancing of the consequences of the payor’s decision to quit hisjob. In Malcolm v. McGee, 2017 ONCJ 357, where a payor was fired from their job due to his misconduct, the court wrote at paragraphs 46and 47: [47] The court must determine how to allocate the consequences of the father’s poor decisions.

The mother argues that the fathershould bear the entire cost of these decisions – the child should not receive any less support. [48] The court agrees with the mother to some extent. However, at a certain point, an existing order can become unrealistic and unjustdue to a payor’s changed circumstances – no matter if those changed circumstances were caused by the payor’s misconduct.

The courtshould conduct a contextual examination of all the circumstances in determining the support amounts it should order. [184] In Malcolm, the court balanced these factors by maintaining support at the father’s prior income level for seven months beforereducing it to reflect his actual income.

Father’s Line 150 Income: [185] Father’s Notices of Assessment from Canada Revenue indicate a line 150 income as follows: 2021 $28,400 2020 $52,383 2019 $62,706 2018 $61,324 2017 $72,393 [186] Father’s income in 2021 consisted of employment insurance, some call centre work, COVID–CERB payments from the federalgovernment, and the RY hotel position. [187] The employment history indicates a long period of work as a residential mortgage broker (2009-2019) and several years’experience as an operations manager in the hospitality industry (2008-2018).

He clearly supplemented his income for many years withmore than one position at a time. He has worked in collections and customer service. [188] During the period of time from 2016 until 2019, father would travel frequently to Guatemala. Usually he would stay for twoweeks but if a long time had passed since the last trip, he would stay for a month, according to the mother.

Therefore, he was not actuallyworking on a full time basis and yet was able to earn over $72,000 in income in 2017. [189] The bankruptcy, according to father, prohibits him from working in some financial sectors. [190] The job search provided by the father covers the period from February of 2021 until July of 2021, consisting of 16 onlineapplications, without success. [191] From January 2021 until April 2021, father paid no child support. His bank account for this same period shows deposits in the

amount of the Canada child benefits and no transfers of that money. [ 192 ] On April 29, 2021, father was ordered to pay child support in the amount of $201. per month based on his stated income of $25,200, effective May 1, 2021. On June 1, 2021, he was ordered to pay for two children, $379 a month, effective May 1, 2021. [ 193 ] On November 26,2021, father made his first voluntary support payment of $155. His arrears at that time were $1895.

Thereafter there were federal diversions towards his arrears in child support and very few voluntary payments. [ 194 ] The statement of arrears from the Family Responsibility Office (FRO) indicates that as of May 1, 2022, father owes $1,895. in child support. [ 195 ] On June 30, 2021, father was ordered to pay costs of the motions that had been argued in the amount of $4800. The court ordered that the costs be paid at $150 a month commencing on August 1, 2021.

Not one payment has been made towards this cost order Findings on Father’s Income: [ 196 ] Father’s own evidence indicates that he regularly worked two or more jobs for many years. [ 197 ] Father’s own evidence is that he was frequently in Guatemala for sizable amounts of time, sometimes weeks, from 2015 until he brought mother and the children here in February of 2020. [ 198 ] Father is now working full time as a driver for UBR, which he has never done before. He earns $31,200. [ 199 ] There is nothing to corroborate father’s view that his bankruptcy prevents him from working in the entire financial sector.

In cross-examination the mortgage legislative framework was put to father and there was no reference to bankruptcy related limitations. He voluntarily let his license expire. [ 200 ] For the period of his self-employed income, father did not provide the schedules which indicate his expense deductions. His income for child support purposes may be even higher than indicated. [ 201 ] Most recently, father has worked in a call centre setting online and this kind of work can be complementary to the hospitality industry, where he worked for many years.

It is quite consistent with his pre-covid lifestyle. [ 202 ] Father’s job search chart is very thin. From March of 2020 to the date of his affidavit for this trial, he responded to 16 online postings.

It would be difficult to put less energy into looking for work [ 203 ] Clearly father has been underemployed. [ 204 ] Father’s explanations do not ring true: - He cannot find work – but very little effort has been put into his job search; - He is not able to work in the financial area – not true; and - He is getting old and has less energy. [ 205 ] Father’s explanations do not fall under any of the statutory exceptions. [ 206 ] Certainly father is at the age when many people are looking at second or third careers.

He may need to obtain some employment assistance to help him gain some new skills and assess his current abilities. He should do this as soon as possible. [ 207 ] Based on the legal framework and the above findings, I would fix father’s income for child support purposes as follows: 2021- $30,000 2022- $50,000 2023- $65,000 [ 208 ] Father has conceded he has an obligation to pay for two children., which he surely does.

Part 3: Final Orders Parenting: 1. The child’s place of residence shall remain with the mother in Ontario and no other place. 2. Mother shall have sole decision making in regards to the child WC, born […], 2019. Mother will inform the father of any major decisions she makes.

3. Mother may apply for all identifying documents for the child, including passports, health cards, and other government documents without notice to nor the consent of the father. 4. Mother may travel outside of Canada with the child for vacation purposes, without the father’s consent, as follows: ▪ Once a calendar year for up to 30 days during the summer ▪ In odd numbered years for up to two weeks during the school March break ▪ In even numbered years for up to two weeks during the Christmas/winter break ▪ Up to 10 days at any other time of year. 5.

For any travel that is more than 10 days, mother will provide father with a reasonable itinerary and, where practical, provide reasonable video parenting time to father. 6. Father may not remove the child from Ontario without the written consent of the mother. 7. All of the father’s parenting time with the child is subject to these conditions: ▪ Father is not to be left alone with the child at any time ▪ Parenting time should not occur at the father’s home ▪ All parenting time with father shall be supervised by a mutually agreed upon third party.

Current agreed upon supervisors include the paternal aunt CC and father’s daughter DC. Third parties must be agreed upon in advance in writing ▪ Any supervisor must have read this decision and sign a consent indicating that he or she has read this decision and agree to be bound by the terms of supervision set out in this order. ▪ Overnight parenting time may only occur in the homes of either of the two current supervisors or another location if agreed upon in writing between the parties in advance 8.

Father’s parenting time will be, subject to the conditions stated above: ▪ Commencing Saturday June 4 th , alternate weekends on both Saturday and Sunday from 10 am until 5 pm ▪ Commencing Saturday September 24, 2022, alternate weekends from Saturday at 10 am until Sunday 5 pm ▪ Commencing in January of 2023, alternate weekends from Friday at 6 pm until Sunday at 5 pm ▪ Every Wednesday from 2- 7 pm until he starts school when the visit will be after school until 7 pm. ▪ Once WC is in school, a weekend may extend to the Monday or include the Friday if the day is a Professional Activity day or holiday ▪ Such other times as the parents may agree upon in advance in writing 9.

Subject to father’s conditions and mother’s travel time, ▪ In odd numbered years father may have WC From December 24 at 10 am until 2 pm on December 25 and then with mother on December 25 at 2 pm until December 26 at 7 pm; ▪ In even number years, the plans will be the reverse. ▪ The same applies to New Years Eve and New years Day; in odd numbered years mother will WC from December 31 from 10 am until January 1 at 2 pm and to the father from 2 pm until 7 pm- reversed in even numbered years. 10. On Mother’s Day, if it is not the mother’s regular scheduled time, WC will be with Mother from 10 am until 7 pm.

The same applies to father on Father’s Day. 11. For vacation: • Mother will advise father by June 1 st if she is travelling to Guatemala with WC. • Commencing in 2024, father may have up to two weeks, non consecutive, in the summer with WC. He is to provide notice of his choice of weeks to the mother by June 15 th ; otherwise the regular

schedule applies. • Mother may have up to two weeks, non consecutive with WC, during the summers that she is not travelling outside of the province with the child. She should provide reasonable notice to father. • Commencing in 2024, during even numbered years, father may have March break with the child, excluding any weekend that belongs to mother. Father should notify mother by February 15 th if he wishes to take that march break, otherwise the regular

schedule prevails. 12. Exchanges for parenting time:

• Exchanges shall be done with the current two supervisors or an agreed upon third party. Father shall not be present, but may be in the car. • Exchanges are to take place in a community location chosen by mother. Until WC starts daycare or school, when the exchange can take place there. • Any supervisors need to sign a consent that he or she has read this decision and this order and will abide by the order. 13. Each parent shall immediately advise the other parent if the child has a medical emergency or allergic reaction during their parenting time, along with the pertinent details.

Mother may attend the hospital or clinic and will resume parenting care and control. 14. Cancellations: • Visits should only be cancelled if there is a medical issue or the mother is travelling. All cancellations must be in writing and as far in advance as possible. If mother cancels, the visit will be made up the following week. If father cancels, it will not be made up. 15. Communications • All communications between the parents and their designates or supervisors shall be respectful and child-focused • Parents shall immediately advise the other parent of any change in email or telephone number.

Father should advise of any change in his residential address or the address where the parenting time is taking place in advance and in writing. • Communications about WC’s day to day health issues, routine, appointments, and parenting time logistics shall be through CC or, in the alternative, DC. This should be done through WhatsApp, text, or email. • Communications required between the parents shall be through a designated email address for this purpose only 16. Under

section 28 of the Children’s Law Reform Act , (the Act) and subject to the necessary communications set out above, father is restricted from having direct contact or communication with the mother and is not to come within 300 metres of her. 17. Further to section 20(5) of the Act, father shall have the right to make direct inquiries and to be given information about WC’s well-being, health, and education from WC’s teachers, doctors, and other professionals. Mother will execute the required consents and releases and will ensure father has the most current location and identification of these resources.

Any disclosure from these resources shall not include the mother or child’s address or place of work or school. 18. Father may

schedule parent teacher meetings that are not at the same time as the mother’s or within 20 minutes of the start or finish of school day. The Child, K: 19. Mother shall have all aspects of decision-making for K, including obtaining all identifying documents and travel without notice to or consent of the father. 20. Father is to have no parenting rights with respect to this child. Father may send K cards or communications through CC, on written advance notice to mother and it is in mother’s complete discretion whether to pass these onto K. Child Support: 21.

Commencing February 1, 2021, father will pay the mother child support of $459 each month. This is the Child Support Guidelines Table amount for two children based on an annual income imputed to him of $30,000. 22. Commencing January 1, 2022, father will pay the mother child support of $755 each month. This is the Child Support Guidelines Table amount for two children based on an annual income imputed to him of $50,000. 23. Commencing January 1, 2023, father will pay the mother child support of $991 each month.

This is the Child Support Guidelines Table amount for two children based on an annual income imputed to him of $65,000. 24. There will be a support deduction order. 25. By June 1 st of each year father will provide his Notice of Assessment to the mother. When father obtains new or additional employment, he will notify the mother in writing within 14 days of the commencement date and provide the income details.

Part 4 Costs: 26. Counsel for mother may serve counsel for father by email and file cost submissions of a maximum of 3 pages, excluding Bills and Offers, with the Trial Office at this court within 2 weeks of receiving this decision. 27. Counsel for Father may respond by serving counsel for mother by email and filing with the Trail Office of this court with cost

submissions of a maximum of 3 pages, excluding Bills and Offers, within one week of receiving the submissions from counsel for mother. Released: May 31, 2022. Signed: Justice D. Paulseth