V.P. v. P.P., 2011 ONCJ 299

Toronto (North York) Registry No. D52119/10 DATE: 2011·IV·28 CITATION: V.P. v. P.P. , 2011 ONCJ 299 ONTARIO COURT OF JUSTICE BETWEEN: V.P., Applicant, — AND — P.P., Respondent. Before Justice Stanley B.

Sherr Heard on 26 April 2011 Reasons for Judgment released on 28 April 2011 ACCESS TO CHILD — Interim access — Form of order — Supervised access — Grounds — Disturbing behaviour by access party — Despite fact that father had physically abused mother throughout marriage, often in front of children, mother still wanted children to have relationship with father, provided that their safety could be assured — Under consent interim order made 4½ months ago, father was to have supervised access to older child and mother had taken necessary arrangements on her part with access centre — Evidence of father’s violence and older child’s fear of this violence justified court’s imposition of supervision, as it was in children’s best interests — Despite his consent to earlier order, father took no steps to make visiting arrangements with access centre, explaining that he did not feel that supervision was needed — Motion judge extended access to younger child, but also made it subject to supervision — There was no change in circumstances since initial access order to justify making any other changes — Father’s access continued to need supervision.

CUSTODY OF CHILD — General — Incidents of custody — Choosing custodian of child’s legal documentation — Nine months after breakup of her marriage to physically abusive husband, wife made motion for interim child and spousal support, for condition that his interim access be supervised and for interim restraining order — Wife had always been children’s primary caregiver and became sole caregiver when husband decided not to have any relationship with his children — Wife also asked to be named custodian of children’s legal documentation with right to obtain or to renew such documentation without husband’s signature or consent — Motion judge found that it was unlikely that husband would co-operate with wife in getting necessary documentation for children and that it was in children’s best interests to name her custodian of children’s legal documentation — Judge made order on final rather than interim basis.

RESTRAINING ORDERS — Interim restraint — Need for evidentiary base — Prospect of possible expiry of criminal restraint order — Father faced criminal charge of having assaulted mother 9 months ago and was currently under bail condition that prohibited him from directly or indirectly contacting or communicating with mother and children, with any access to be arranged through third party — In family court, mother’s evidence was that father had physically abused her throughout marriage, often in front of children and that it terrified older child (girl, now 6 years old) who would sometimes intervene and try to protect mother — Girls had told her teacher about father’s threat to kill mother — Mother’s evidence was corroborated by material from local police force — Even though mother and daughter completed domestic violence treatment program, child was still emotionally scarred by incidents that she witnessed and feared possible recurrence — Mother also deposed that father had nearly completed anger management program and that she feared that criminal charge might be withdrawn, leaving her without protection of bail conditions — Father did not refute mother’s allegations and, for purpose of mother’s motion, motion judge accepted her allegations as true and granted interim restraining order.

SUPPORT ORDERS — Interim support — Evidence at motion for interim relief — Inference from incomplete financial disclosure — At court appearance 4½ months ago during motion for interim spousal and child support, father had filed financial statement wherein he swore that he was earning $50,400 per annum — On next appearance in continuation of motion, he failed to file updated financial statement, even though court gave him 2-week extension to do so, but he did provide incomplete income tax return for last year where he now claimed to have earned only $20,500, offering no coherent explanation for drastic difference in amounts — He said that he was working fewer hours for medical reasons and because of stress of separation, but provided no opinion from health professional that medical condition prevented his earning income at ordinary level — For father’s failure to comply with court order for financial disclosure and for his inability to provide clear financial documentation of his income, motion judge drew adverse inference against

father by assuming that he was, in fact, earning $50,400 annually — If he earned less, then judge found that he was intentionally under-employed without reasonable excuse and imputed income of $50,400 per year to him for purposes of this motion.

SUPPORT ORDERS — Interim support — Grounds — Immediate needs and ability to pay — At motion for interim spousal support,wife established right to spousal support on both compensatory and non-compensatory basis — She had been economicallydisadvantaged by marriage breakdown by having to assume totality of child-care responsibilities during marriage and by being primarilyresponsible for management of household — Thereafter, she had to turn to public assistance — Because of her care of young children, itwas reasonable at this stage for her to stay at home — Moreover, her job skills were limited — Eventually, however, she would have totake reasonable steps to become self-supporting, but not yet — Motion judge found that wife had need for support and husband hadability to pay it — For interim spousal support, quantum should fall within ranges suggested by Spousal Support Advisory Guidelines —In this case, judge concluded that mid-range level of support was appropriate, since it would leave husband with 47.1% of family’s totalnet disposable income, which was reasonable distribution, in view of length of marriage (10½ years), parties’ respective budgets andmother’s having to support 3 people in her household.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended], clause 19(1)(a). Family Law Act, R.S.O. 1990, c. F-3 [as amended], clause 34(1)(i), clause 34(1)(j), subsection 34(2). Family Law Rules, O. Reg. 114/99 [as amended], clause 14(6)(e.2) and Form 14B. CASES CITED Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 236 N.R. 79, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740, 196 W.A.C.211, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1, , [1999] S.C.J. No. 14, 1999 Cars​well​BC 532. Cook v. Burton, , 136 A.C.W.S. (3d) 504, [2005] O.J. No. 190, 2005 Cars​well​Ont 178 (Ont. Fam. Ct..).

Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No.3731, 2002 Cars​well​Ont 3228 (Ont. C.A.). Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008] O.J. No. 38,2008 Cars​well​Ont 43 (Ont. C.A.). Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 Cars​well​Man 422 (Man.Q.B.). M.(D.R.) v. M.(R.B.), 2006 BCSC 1921, 63 B.C.L.R. (4th) 331, [2006] B.C.J. No. 3299, 2006 Cars​well​BC 3177 (B.C.S.C.). Robles v.

Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009 Cars​well​BC 2239(B.C. Mast.). Stoangi v. Petersen (Johnson), , 150 A.C.W.S. (3d) 171, [2006] O.J. No. 2902, 2006 Cars​well​Ont 4375 (Ont. Fam.Ct.). AUTHORS AND WORKS CITED Rogerson, Carol J. and D.A. Rollie Thompson: Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney Generalof Canada, July 2008). Paula M.

McGirr ....................................................................... counsel for the applicant mother Respondent father, P.P. .................................................................................... on his own behalf JUSTICE S.B.

SHERR:— 1: INTRODUCTION [1] The applicant (the mother) has brought a motion for temporary relief, including claims for temporary child and spousalsupport, an order that the respondent (the father) cover her and the subject children, C., age 6, and D., age 1, (the children), on anybenefits available through his employer or union, a restraining order and an order that the father have supervised access to the children. [2] The father denies that he is D.’s biological father and does not seek access to him. He admits paternity of C. and is onlywilling to pay child support for her.

He opposes the balance of relief sought by the mother. He claims that he is earning very littleincome at this time because of the stress of the separation. [3] The father failed to file an affidavit or an updated financial statement for this motion, despite being granted an extensionto file this material on 13 April 2011.

2: FACTUAL BACKGROUND [ 4 ] The mother is 28 years old. The father is 35 years old. They were married on 18 December 1999 and separated on 26 July 2010. The children have lived with the mother since the separation. [ 5 ] The father has been steadily employed in construction as both a bricklayer and forklift operator and is a member of the Labourers’ International Union of North America. He was the primary financial supporter of the family. [ 6 ] The mother was the primary caregiver for C. while the parties lived together.

She worked at a minimum-wage level at a bakery during the marriage and stopped working when D. was born. She is currently staying at home to care for both children and is in receipt of public assistance. [ 7 ] On 29 July 2010, the father was charged with assaulting the mother. His criminal release conditions prohibit him from directly or indirectly contacting or communicating with the mother and the children, with any access to be arranged through a third party.

The criminal charge remains unresolved. [ 8 ] The mother issued her application on 28 September 2010. [ 9 ] On 7 December 2010, the parties consented to a temporary order that the father have supervised access to C. at the Toronto Supervised Access Centre (the “access centre”) and requiring the father to pay the table amount of support under the Child Support Guidelines , O. Reg. 391/97, as amended (the “guidelines”), for C., based on his annual income of $50,348, commencing on 1 December 2010. The father denied paternity of D. and agreed to pay for DNA testing.

The parties agreed to defer the child support claim for D. on a “without prejudice” basis until receipt of the DNA test results. [ 10 ] On 3 February 2011, the mother was granted final custody of the children. The father had not yet arranged the supervised access, obtained the DNA testing, provided the financial disclosure ordered or paid any child support. He was given another opportunity to do all of this. Leave was given to the mother to bring this motion. [ 11 ] The DNA testing with respect to D. was conducted. The results state that it is 99.999% probable that the respondent is D.’s biological father.

He continues to deny paternity of D. and claims that the DNA testing result is wrong. [ 12 ] The father is still choosing not to see D.. He has not arranged the supervised access agreed to for C.. He has not seen her since September of 2010. [ 13 ] The father has still not paid any of the court-ordered child support. 3: THE RESTRAINING ORDER [ 14 ] The mother stated in her affidavit that the father abused her throughout their marriage. She deposed that this abuse took place in front of the children and that it terrified C.. At times, C. would intervene and try to protect her.

C. disclosed to her teacher in 2009 that her father told her that he was going to kill the mother. Both the mother and C. have participated in a domestic violence treatment program at the Child Development Institute in Toronto. [ 15 ] The mother provided corroboration from Toronto Police Services that she suffered injuries in the incident for which the father is currently facing an assault charge. [ 16 ] The discharge report from the Child Development Institute sets out that C. worried that the violence would not stop and that she continues to worry about the fighting that happened at home.

C. reported to her counsellor that she often struggles with sleeping, nightmares, headaches and has memory problems. C. told her counsellor that her father was responsible for the violence that she witnessed at home and that she was very sad and worried when it occurred. [ 17 ] The mother deposed that the father has almost completed an anger management program. She is worried that the criminal charge may be withdrawn, leaving her without the protection of a no-contact order. [ 18 ] The father has not refuted the mother’s allegations. For the purpose of this motion, her allegations will be accepted as true.

A temporary restraining order is warranted and will be granted on a separate endorsement form. 4: SUPERVISED ACCESS [ 19 ] The mother would like the father to have a relationship with both children. Quite reasonably, she wants to ensure that the children are safe and asks that the visits take place at the access centre. She has taken all necessary steps to arrange the supervised access. She is just waiting for the father to do the same. [ 20 ] The evidence of the father’s violence and C.’s fear of this violence justify the court making a supervised access order.

Such an order is in the children’s best interests. [ 21 ] Unfortunately, the father has not followed through with arranging visits with the access centre, despite the consent into which he entered. He explained at the hearing of this motion that this is because he does not feel that supervision is needed. [ 22 ] There has been no change in circumstances since the initial access order was made to warrant changing it. Supervision of

the father’s access continues to be required. [23] The court continues to encourage the father to see both of the children. The father’s actions in the next few months willprovide the court with important information whether he is able to appreciate his children’s need to have a positive and consistentrelationship with their father. 5: THE FATHER’S INCOME [24] The father did not file an updated financial statement for this motion. The best evidence of his income is his financialstatement of 4 December 2010 where he deposed that he is earning $50,400 per annum.

The attachments to this financial statementindicate that the father earned $50,348 in 2009, $36,948 in 2008 and $155,843 in 2007. [25] At the hearing of this motion, the father provided (for the first time) an incomplete 2010 income tax return, claiming thathe only earned $20,500. He was unable to provide a coherent explanation why his income has radically changed since he swore hisfinancial statement on 4 December 2010. He said that he is not working as many hours for medical reasons and because of the stress ofthe separation.

However, he did not provide any evidence of medical issues that would prevent him from earning his ordinary incomelevel. The case law sets out that cogent medical evidence in the form of detailed medical opinion should be provided by the payor inorder to satisfy the court that his reasonable health needs justify his decision to not work as many hours. See Cook v. Burton, , 136 A.C.W.S. (3d) 504, [2005] O.J. No. 190, 2005 Cars​well​Ont 178 (Ont. Fam. Ct..); and Stoangi v. Petersen (Johnson),, 150 A.C.W.S. (3d) 171, [2006] O.J. No. 2902, 2006 Cars​well​Ont 4375 (Ont. Fam.

Ct.). [26] The court draws an adverse inference against the father because of his failure to comply with my financial disclosureorder when required and his inability to provide clear financial documentation setting out his income. It was unclear whether all of hisT4 slips for 2010 were provided. No explanation was given why the father’s employer had changed. No separation slip explaining whyhis previous employment ended was provided. The documentation provided was incomplete and unclear. [27] The court will impute income where, pursuant to clause 19(1)(

a) of the guidelines, it finds that a party is intentionallyunderemployed without a reasonable excuse. Imputing income is one method by which the court gives effect to the joint and ongoingobligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. Ifthey fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(

a) of the guidelines is perceived as being a test ofreasonableness. See Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th)293, [2002] O.J. No. 3731, 2002 Cars​well​Ont 3228 (Ont. C.A.). [28] In the event that the father is actually earning less income than he represented on 4 December 2010, this court finds thathe is intentionally under-employed without reasonable excuse.

His income will be imputed at $50,400 per annum for the purpose of thismotion. 6: CHILD SUPPORT [29] In light of the paternity results, it is appropriate that the father start paying temporary child support for D.. The guidelinetable amount for two children, based on the father’s imputed annual income of $50,400, is $759 per month. The father was served withthe application in November of 2010. The parties agreed to start child support for C. on 1 December 2010. For the purpose of thistemporary order, I find that this is an appropriate start date for D. as well.

This does not preclude the mother from seeking retroactivechild support on a final basis. [30] The mother sought an order that the father contribute to special expenses of the children pursuant to

section 7 of theguidelines. She deposed that she is not incurring such expenses at this time. This request is premature. 7: SPOUSAL SUPPORT [31] In Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 Cars​well​-Man 422 (Man. Q.B.), the court set out the following principles in dealing with temporary spousal support motions: 1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial. 2.

The court need not conduct a complete inquiry into all aspects and details to determine what extent either party sufferedeconomic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge. 3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as theclaimant is able to present a triable case for economic disadvantage. 4. Interim support is to be based on the parties’ means and needs assuming that a triable case exists. The merits of the case inits entirety must await a final hearing. [32] In Robles v.

Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009Cars​well​BC 2239 (B.C. Mast.), the court added the following considerations: 1. On interim support motions, needs and ability take on greater significance. 2. On interim motions, the need to achieve self-sufficiency is of less importance. 3. Interim support should be ordered within the range of the Spousal Support Advisory Guidelines, (Ottawa: Minister ofJustice and Attorney General of Canada, July 2008), unless exceptional circumstances dictate otherwise. 4.

Interim support should only be ordered where a prima facie case for entitlement has been set out.

[33] On a temporary basis, the mother has established a spousal support claim on both a compensatory and non-compensatorybasis. See Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 236 N.R. 79, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740, 196W.A.C. 211, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1, , [1999] S.C.J. No. 14, 1999 Cars​well​BC 532. The mother hasbeen economically disadvantaged by the breakdown of the relationship and has had to turn to public assistance. She has been theprimary caregiver for the children.

Although she lived with the father, she was also primarily responsible for managing the household. The father has chosen, at this point, to abdicate any child-care responsibilities for the children. The mother is economicallydisadvantaged by having to totally assume child-care responsibilities. She has the need for support and the father has the ability to pay it. [34] I am not inclined to impute any income to the mother on a temporary basis. She has assumed the sole responsibility ofcaring for two children, one very young. It is reasonable at this stage for her to stay at home. She has limited job skills.

However, shedoes have an obligation under the Family Law Act, R.S.O. 1990, c. F-3, as amended, to take reasonable steps to become self-supportingand should provide details of her future plans to accomplish this at the next conference. [35] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47R.F.L. (6th) 235, [2008] O.J. No. 38, 2008 Cars​well​Ont 43, stated that the Spousal Support Advisory Guidelines, while only advisory,are a useful starting point to assess the quantum of spousal support, once entitlement is established.

They have been endorsed as idealfor use on temporary support motions. See D.R.M. v. R.B.M., 2006 BCSC 1921, 63 B.C.L.R. (4th) 331, [2006] B.C.J. No. 3299, 2006Cars​well​BC 3177 (B.C.S.C.). [36] The SSAG indicate that the low range for support is $457 per month, the mid-range for support is $580 per month andthe high range for support is $706 per month. At this point, the mid-range level of support is appropriate.[1] This will leave the fatherwith 47.1% of the family’s total net disposable income.

This is a reasonable distribution, given the length of this relationship, therespective budgets of the parties and the mother’s having to support three people in her household. The spousal support will be taxdeductible for the father and tax inclusive for the mother. [37] To be consistent, the temporary spousal support order shall start on 1 December 2010.

Again, this is without prejudice tothe mother’s claim for retroactive support. 8: MISCELLANEOUS RELIEF REQUESTED [38] The mother asks to be the custodian of the children’s legal documentation and to obtain or renew such documentationwithout the father’s consent. It is in the best interests of the children to grant this order.

She is the custodial parent, the father ischoosing at this point not to have a relationship with the children and the evidence indicates that it is unlikely that he will co-operate withthe mother in obtaining necessary documentation for them. [39] The mother also asks that the father cover her and the children on any benefits or insurance available through hisemployment or union. This request is made pursuant to clauses 34(1)(

i) and (

j) of the Family Law Act. [40] Subsection 34(2) of the Family Law Act provides this court with the jurisdiction to make the orders requested by themother for the provision of necessities or to prevent the mother and children from becoming or continuing to be a public charge. I findthat the mother’s requests satisfy both of these purposes and are appropriate to order because of her limited means and to ensure thefinancial security of the children. [41] A production order will be made in order that the court has the necessary information before it to meaningfully assess thesupport issues at the next conference. 9: CONCLUSION [42] An order will go on the following terms: (

a) Paragraphs 1 and 2 (supervised access) of my order on 7 December 2010 shall continue. The terms of this ordershall also extend to D. if the father wishes to visit with him at the access centre. (

b) The father shall pay temporary child support to the mother on the first day of each and every month, commencingon 1 December 2010, for both C. and D., in the sum of $759 per month. This is the guideline table amount basedon the father’s income imputed at $50,400 per annum. (

c) The father shall pay temporary spousal support to the mother in the sum of $580 per month on the first day of eachand every month commencing on 1 December 2010. (

d) On a temporary basis, the father shall designate and maintain the mother and the children on any medical, dental orextended health benefits and as beneficiaries on any life insurance policy that he has available to him through hisplace of employment or through his union. The father shall provide the mother with proof of these designationswithin 30 days. (

e) On a final basis, the mother shall be the custodian of all of the children’s legal documentation, including passports,and may obtain or renew such documentation without requiring the father’s signature or consent. (

f) The father shall serve and file the following documents at least ten days before the next conference: (

i) An updated, sworn financial statement. (ii) His complete 2010 income tax return with all attachments. (iii) His 2010 notice of assessment. (iv) His separation slips from any employers since 1 January 2010. (

v) Copies of all pay stubs from employers in 2011. (vi) Copies of all bank account and credit card and line-of-credit statements since 1 January 2010.

(vii) A job search list, setting out all jobs applied for, including the name and address of the employer and the date of the application. (viii) A medical report setting out any medical condition restricting him from employment, the extent of any impairment and a prognosis as to the anticipated duration of the impairment. (ix) A copy of the portions of his union handbook setting out the benefits to which he is entitled. [ 43 ] A separate temporary restraining order will be made on the prescribed form. [ 44 ] If the mother seeks an order for costs, she is to serve and file written submissions by 10 May 2011.

The father will be given until 24 May 2011 to either serve and file a written response, or bring a Form 14B motion [2] that requests a date for oral argument of this issue. Written submissions are not to exceed two pages, not including any bill of costs or offer to settle.