Burnett v. Ffrench, 2011 ONCJ 527

Toronto (North York) Registry No. D4753-09A4 DATE: 2011·X·07 CITATION: Burnett v. Ffrench, 2011 ONCJ 527 ONTARIO COURT OF JUSTICE BETWEEN: JANELLE ANTONETTE BURNETT, Applicant, — AND — ROHAN ANDREW FFRENCH, Respondent. Before Justice Stanley B.

Sherr Heard on 5 October 2011 Reasons for Judgment released on 7 October 2011 ACCESS TO CHILD — Form of order — Supervised access — Grounds — Probationary interval to assess access parent’s reliability —Parents of girl (now 10 years old) had never cohabited — Although offered numerous opportunities, father seemed quite indifferent toexercising access and, on rare occasions when he did exercise it, he managed to drive off child — In 2 instances when he attempted totelephone child, she refused to talk to him — Nevertheless, mother was open to idea of access but wanted it to be safe and consistent and,because of father’s assault on her, she wanted no direct contact with father and thus wanted any access or transfer of child to occuranywhere but her home — Father resisted need for supervision but, on basis of evidence, court concluded that he had given little thoughtto access and seemed to want to exercise it when it was convenient for him to do so — Because of toxic relationship between parents,court agreed that there be no contact between them — But it was in child’s best interests that any access be structured, consistent andinitially at supervised access centre to ensure that father would exercise it responsibly and in safe and child-focused manner — Oncefather demonstrates ability to act responsibly, he could then ask court to vary order, so that only exchanges are supervised at accesscentre.

SUPPORT ORDERS — Assessment of quantum — Deviation from table amount — Undue hardship — Evidence — Onus on claimant— Payor father had not pleaded undue hardship in his answer but only raised for first time in closing argument — Court ruled that hecould not ambush mother in this manner at 11th hour but, even if he were allowed to do so, he had failed to meet two-fold threshold:namely, showing that his hardship was indeed “undue” and passing “comparison of household standards of living” test — On those twomatters, father had adduced no evidence whatsoever — Court dismissed hardship claim.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 10, subsection 10(1) and subsection 10(2). Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended], subsection 24(2) and clause 28(c)(i). Family Law Rules, O. Reg. 114/99 [as amended], Form 14. CASES CITED A. (Margaret) v. D. (John), , 124 A.C.W.S. (3d) 524, [2003] O.J. No. 2946, 2003 Cars​well​Ont 2793 (Ont. C.J.). Gordon v. Goertz, [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321,19 R.F.L. (4th) 177, [1996] R.D.F. 209, , [1996] S.C.J. No. 52, 1996 Cars​well​Sask. Hanmore v. Hanmore, 2000 ABCA 57, 255 A.R. 163, 220 W.A.C. 163, 4 R.F.L. (5th) 348, [2000] A.J. No. 171, 2000 Cars​well​Alta 144(Alta. C.A.).

Najjardizaji v. Mehrjerdi, 2004 ONCJ 374, 136 A.C.W.S. (3d) 493, [2004] O.J. No. 5472, 2004 Cars​well​Ont 5656 (Ont. C.J.). Rodaro v. Royal Bank of Canada, , 59 O.R. (3d) 74, 157 O.A.C. 203, 22 B.L.R. (3d) 274, 49 R.P.R. (3d) 227, [2002]O.J. No. 1365, 2002 Cars-well-Ont 1047 (Ont. C.A.). Van Gool v. Van Gool, , 113 B.C.A.C. 200, 59 B.C.L.R. (3d) 395, 64 B.C.L.R. (3d) 94, 184 W.A.C. 200, [1999] 7W.W.R. 443, 166 D.L.R. (4th) 528, 44 R.F.L. (4th) 314, [1998] B.C.J. No. 2513, 1998 Cars​well​BC 3028 (B.C.C.A.). David A.

Weisman ........................................................................ counsel for the applicant mother S. Leonard Kotylo ........................................................................ counsel for the respondent father JUSTICE S.B. SHERR:— 1: INTRODUCTION [1] The parties are the parents of Tahja, born on 9 January 2001. On 4 February 2011, the parties consented to an ordergranting the applicant (the mother) final custody.

The remaining issues for trial were how much child support the respondent (thefather) should pay to the mother and his access to Tahja — specifically, whether it should be supervised. 2: BRIEF BACKGROUND [2] The mother is 31 years old. She is currently unemployed and enrolled in the second year of a four-year program insocial work at Ryerson University. The father is also 31 years old. He works seasonally for the City of Toronto and receivesemployment insurance benefits the rest of the year. [3] The parties never co-habited. Tahja has always lived with the mother.

The level of the father’s contact with Tahja until2009 was in dispute. The mother claimed that the father exercised access sporadically — the father claimed that he was a constant figurein Tahja’s life and enjoyed an excellent relationship with her. The father kept changing his evidence about the degree of his contact withTahja. At one point, it changed several times within the course of one answer, when he said that he saw Tahja every weekend, then onceeach weekend, then once each month and then finally twice every three weeks.

He then testified that he often had no access, eitherbecause of the mother’s obstruction of his access or because of his busy schedule. The mother’s evidence was more consistent andcredible and I accept her version of events. [4] In January of 2009, the father was charged with assaulting both Tahja and the mother. He has only seen Tahja twicesince then. [5] The father’s bail condition restricted him from communicating directly or indirectly with Tahja and the mother.

He didnot move to change this condition to permit contact with Tahja through a family court order. [6] The mother issued this application on 18 March 2009. [7] The criminal charges against the father were dismissed and the father entered into a recognizance to keep the peace withrespect to Tahja on 7 May 2010.

The recognizance to keep the peace provides that the father should have no contact with Tahja exceptthrough a mutually agreed upon third party, subject to the wishes and preferences of the child, or through the terms of a family courtorder. [8] On 18 June 2010, on consent, this court ordered that the father could have access with Tahja each Saturday from 11:30a.m. until 3:30 p.m., to be supervised by his sister. [9] The father exercised access with Tahja on 6 July 2010.

He then made no further efforts to see her. [10] At court, on 4 February 2011, on consent, the parties agreed to follow through with the previous access order. Themother agreed that Tahja could spend the following weekend at the home of the father’s sister. According to the father, he briefly sawTahja at this visit. He testified that she came up to him and said “boo”. He said that he responded, “I guess I need to be supervisednow”. Tahja, he said, turned around, went away and told his sister, “that was not the greeting I was expecting”.

The father said thatneither he nor Tahja made a real effort to have contact with each other for the balance of the visit. He said, “My sister and her went offsomewhere”. [11] The father made no real effort to arrange access with Tahja after that day. [12] The father testified that he twice telephoned Tahja to speak to her, but she refused to talk to him. 3: ACCESS ISSUE 3.1: Positions of the Parties

[13] The mother testified that she wants Tahja to have a relationship with the father. However, she wants the access to be safeand consistent. The mother wants to have no contact herself with the father. She proposed that access take place at the TorontoSupervised Access Centre (SAC) for two hours each visit for three months and, if access proceeds smoothly, that it be changed so thatexchanges take place at the SAC, with visits to last three hours. [14] The father’s position is that there is no need to supervise his access. Despite given several opportunities, he could notarticulate a proposed access schedule.

It was evident that he had given this little thought and that his plan was to exercise access when itwas convenient for him. 3.2: The Law [15] The test for determining access is what order is in the best interests of the child. In making this determination, I haveconsidered the “best interest” factors set out in subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, aswell as all other relevant considerations. [16] The child should have maximum contact with both parents if it is consistent with the child’s best interests.

See Gordon v.Goertz, [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L.(4th) 177, [1996] R.D.F. 209, , [1996] S.C.J. No. 52, 1996 Cars​well​Sask. [17] Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who requiregradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is nolonger in danger of physical or emotional harm. See Najjardizaji v. Mehrjerdi, 2004 ONCJ 374, 136 A.C.W.S. (3d) 493, [2004] O.J.

No.5472, 2004 Cars​well​Ont 5656 (Ont. C.J.). [18] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See Margaret A. v. John D., , 124 A.C.W.S. (3d) 524, [2003] O.J. No. 2946, 2003 Cars​well​Ont 2793 (Ont. C.J.). 3.3: Analysis [19] With minor modifications, I find that the mother’s plan is in Tahja’s best interests. [20] The father’s commitment to being a stable and responsible parent for Tahja is seriously in question.

He took noresponsibility for his failure to see Tahja and showed no insight into what impact his disinterest might have upon her. He has only seenher twice since January of 2009. He has had the opportunity to see Tahja consistently and has not done so. When asked to explain whyaccess has not taken place, he claimed that he could not co-ordinate his

schedule with that of his sister. This made little sense,particularly since he does not work for half the year. He also never moved to court to change the access supervisor, if in fact his sisterwas unavailable. In fact, in February of 2011, he consented again to have her continue as the access supervisor. [21] It was revealing that, when asked whether he was content to keep missing visits, the father answered, “It is becoming achore now”. [22] It is understandable why Tahja has refused to speak with the father on the telephone. She must feel hurt and abandoned.

When she finally saw the father in February of 2011, he acted as a petulant child towards her. She deserves much better. [23] Layered on to this serious issue is the violent behaviour of the father. Although he was acquitted in criminal court ofassault, the evidence that I heard at this trial satisfied me, on a balance of probabilities, that the father was violent to both Tahja and themother in January of 2009.[1] [24] The mother deposed that the father argued with Tahja that day and hit her on the leg.

She deposed that, when she went toprotect Tahja, the father grabbed her (the mother) around the neck causing her to fall. He then got on top of her and tried to choke her. [25] The father testified that he was involved in an argument with Tahja. He felt that she was being disrespectful to him. Hestated that she ran off, he followed behind her, she turned around and somehow she fell. He said that he then slapped her lightly on thethigh. He claimed that the mother then violently attacked him.

He stated that, at some later point, he went to hug Tahja, the mother gotin the middle and somehow she stumbled back and fell to the floor, breaking a shoe rack. I did not find this evidence credible. I found ithard to believe that both Tahja and the mother “somehow” fell during the course of these intense arguments. I preferred the mother’sevidence. [26] The mother testified about her fear of the father’s outbursts and violent temper during their relationship, often witnessedby Tahja. She also deposed that he would be abusive to her on the phone, swearing at her and telling her that she deserved to die.

Shegave evidence that the father has assaulted his sister and girlfriend. The father did not respond to this evidence and I accept it as true. [27] This court would like for Tahja to have a relationship with her father. However, it is in her best interests for this access tobe structured, consistent and initially in a supervised access centre to ensure that he will exercise it responsibly and in a safe and child-focused manner. [28] It was very clear to the court that the relationship between the parties is toxic. This order shall provide that the father is tohave no contact with the mother.

Tahja should not be exposed to the conflict that would inevitably result if her parents had contact onaccess exchanges. [29] I encourage the father to take this opportunity to show that he truly cares for Tahja and see her consistently. It is time for

him to put her needs ahead of his own pride. If he can act responsibly, the order will provide that the access can move forward, so thatonly the exchanges are supervised at the SAC. 4: CHILD SUPPORT [30] The mother seeks child support from the date the application was issued, based on the table amounts set out in the ChildSupport Guidelines, O.

Reg. 391/97, as amended (the guidelines), for the applicable year. [31] During the course of the trial, the parties agreed that the father’s annual income has been as follows: 2009 $9,246 2010 $39,991 2011 $43,129 [32] Despite this agreement, the father would not agree to pay the table amount of child support for the relevant years and toresolve this issue. In closing argument, the father argued that the table amount should be reduced based on undue hardship. The fatherdid not plead undue hardship in his answer — it was raised for the first time in closing argument.

He cannot do this without providingproper notice to the mother. See Rodaro v. Royal Bank of Canada, , 59 O.R. (3d) 74, 157 O.A.C. 203, 22 B.L.R. (3d)274, 49 R.P.R. (3d) 227, [2002] O.J. No. 1365, 2002 Cars-well-Ont 1047 (Ont. C.A.). In any event, aside from the fact that the fatherhad another child born on 13 September 2009, he offered no evidence showing that he would come anywhere close to meeting the unduehardship test set out in

section 10 of the guidelines. [33] The undue hardship test under

section 10 of the guidelines is two-fold. The spouse applying for relief under this sectionmust prove that payment of the table amounts would cause undue hardship under subsection 10(1), having regard to the criteria insubsection 10(2). Subsection 10(2) sets out a non-exhaustive list of circumstances that may give rise to a finding of undue hardship. Ifthis test is met, the applicant must go on to establish that, if required to pay the amount of support otherwise payable under theguidelines, the standard of living of his or her household would be lower than that of the household of the other party.

If this dual test ismet, the court has the discretion to award a different amount of support than that otherwise required under the guidelines. The father hasthe onus of providing adequate supporting documentation to prove his undue hardship claim. See Van Gool v. Van Gool, , 113 B.C.A.C. 200, 59 B.C.L.R. (3d) 395, 64 B.C.L.R. (3d) 94, 184 W.A.C. 200, [1999] 7 W.W.R. 443, 166 D.L.R. (4th) 528, 44R.F.L. (4th) 314, [1998] B.C.J. No. 2513, 1998 Cars​well​BC 3028 (B.C.C.A.). [34] In the first part of the test under

section 10, the father must prove more than hardship. He must show that the hardship isexceptional, excessive or disproportionate, not merely awkward or inconvenient. See Hanmore v. Hanmore, 2000 ABCA 57, 255 A.R.163, 220 W.A.C. 163, 4 R.F.L. (5th) 348, [2000] A.J. No. 171, 2000 Cars​well​Alta 144 (Alta. C.A.). The father led no evidence aboutwhat his support obligation is for his new child. He also led no evidence that would cause the court to find hardship. [35] The father also failed to lead any evidence that would show that his standard of living was lower than that of the mother.

Given the fact that the mother is unemployed, I find that her standard of living is lower than that of the father. [36] The father will be required to pay the table amount of child support from 1 April 2009, based on his annual income eachyear as assessed above, pursuant to the guidelines. He will be credited for payments made to date to the Family Responsibility Office. 5: CONCLUSION [37] There shall be a final order as follows: (

a) The father shall have access to Tahja on alternate Saturdays or Sundays for two hours, at times and dates to be co-ordinated with the SAC. Access shall begin as soon as the SAC can accommodate the visits. These visits shall befully supervised. (

b) Once the father has exercised six supervised visits, the access shall change so that only the access exchanges shalltake place at the SAC. The balance of the visits shall be unsupervised. The first 4 visits shall take place from10:00 a.m. until 1 p.m. Thereafter, access shall take place from 10:00 a.m. until 4 p.m. (

c) The father shall pay any costs for the access charged by the SAC. (

d) Both parties are to co-operate with the SAC intake procedure. (

e) The father is to notify the SAC if he will be unavailable to exercise access a minimum of 48 hours before the visit. (

f) Pursuant to clause 28(c)(

i) of the Children’s Law Reform Act, the father shall not directly contact the mother. Heshall also not attend at Tahja’s school or activities, nor see her at any other time than as set out in this order, unlessagreed to in advance by the mother. (

g) If the father is not consistently or responsibly exercising access, the mother will be entitled to move on notice, byForm 14 (under the Family Law Rules, O. Reg. 114/99, as amended), for an order suspending the provisions in thisorder increasing access. (

h) The father will be entitled after six months from the date of this order to move to change the order to seekovernight access. This will only be seriously considered if he has exercised his access consistently andresponsibly. (

i) The father shall pay to the mother child support as follows: (

i) Commencing on 1 April 2009, the sum of $13 per month based on the father’s 2009 income of $9,246. (ii) Commencing on 1 January 2010, the sum of $341 per month, based on the father’s 2010 income of$36,991.

(iii) Commencing on 1 January 2011, the sum of $397 per month, based on the father’s 2011 income of $43,129. (

j) The father shall provide the mother with complete copies of his annual income tax returns and notices of assessment by 30 June of each year. (

k) The father shall be credited with all payments made to date to the Family Responsibility Office. (

l) A support deduction order shall issue. [ 38 ] The mother may make written submissions for costs by 20 October 2011. The father may make a written response by 4 November 2011. The submissions shall not be more than two pages, not including any offer to settle or bill of costs. The submissions should be delivered to the trial co-ordinator’s office.