J.V.M. v. F.D.P., 2011 ONCJ 615

Toronto (North York) Registry No. D50923/10 DATE: 2011·XI·07 CITATION: J.V.M. v. F.D.P., 2011 ONCJ 615 ONTARIO COURT OF JUSTICE BETWEEN: J.V.M., Applicant, — AND — F.D.P., Respondent. Before Justice Stanley B. Sherr Heard on 31 October 2011 and 1 November 2011 Reasons for Judgment released on 7 November 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 19. Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended], subsection 24(2). CASES CITED Decker v. Fedorsen, 2010 ONCJ 618, [2010] O.J. No. 5661, 2010 Cars​well​Ont 9891 (Ont. C.J.). 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.). Geremia v. Harb (No. 5), , 90 O.R. (3d) 185, 54 R.F.L. (6th) 274, [2008] O.J. No. 1716, 2008 Cars​well​Ont 2483(Ont. Fam. Ct.). 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 199. Graham v. Bruto, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J. No. 1306, 2008 Cars​well​Ont 1906 (Ont. C.A.). Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S. (3d) 265, [2005] O.J. No. 3090, 2005 Cars​well​Ont 3209 (Ont. C.J.). Kaplanis v. Kaplanis, , 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 Cars​-well​Ont 266 (Ont. C.A.). MacKenzie v. Flynn, 2010 ONCJ 184, [2010] O.J. No. 2145, 2010 Cars​well​Ont 3450 (Ont.

C.J.). Meade v. Meade, , 31 R.F.L. (5th) 88, [2002] O.J. No. 3155, 2002 Cars​well​Ont 2670 (Ont. S.C.). Orser v. Grant (2000), 96 A.C.W.S. (3d) 644, [2000] O.J. No. 1429, 2000 Cars​well​Ont 1354 (Ont. S.C.). Pastway v. Pastway (1999), 49 R.F.L. (4th) 375, [1999] O.J. No. 2525, 1999 Cars​well​Ont 2055 (Ont. Gen. Div.). Roy v. Roy, , 27 R.F.L. (6th) 44, [2006] O.J. No. 1872, 2006 Cars​well​Ont 2898 (Ont. C.A.). Sarafinchin v. Sarafinchin, , 189 D.L.R. (4th) 741, [2000] O.J. No. 2855, 2000 Cars​well​Ont 2640 (Ont. S.C.).

Warcop v. Warcop, , 66 R.F.L. (6th) 438, [2009] O.J. No. 638, 2009 Cars​well​Ont 782 (Ont. S.C.). Whelan v. O’Connor, , 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, 2006 Cars​well​Ont 2581 (Ont. Fam. Ct.). Sophia L. Williams ........................................................................ counsel for the applicant mother Tahir Majeed ............................................................................... counsel for the respondent father JUSTICE S.B. SHERR:— 1: INTRODUCTION [1] This trial was about the parenting and child support arrangements for the parties’ son (the child), born on […]June2009.

Both parties seek sole custody of the child and child support. The respondent (the father) asked in the alternative for an order ofjoint custody. The parties made other claims in their pleadings, but chose not to pursue them at trial. 2: FACTUAL BACKGROUND [2] The applicant, Ms. J.V.M. (the mother), is 44 years old. She is employed full-time as a registered nurse. She owns herown home where she lives with the child and three of her four daughters from another relationship who are 14, 15 and 18 years old.

Herother daughter (L.), lives close by and has two young children of her own. [3] The father, F.D.P., is 46 years old. He is self-employed. He is the sole owner and operator of a corporation called FDPGroup Inc. The company has a dump truck and removes soil for its customers. The father has two children from other relationships. Hehas a 25-year-old daughter who resides in Jamaica and a four-year-old daughter who resides with her mother in Ontario. The fathertestified that he exercises regular access with this child. The father provided inconsistent information about his living arrangements.

Inhis affidavit sworn on 25 October 2011 (filed as his direct evidence), he deposed that he lived alone. However, in cross-examination, heclaimed that he had a girlfriend who was paying him $1,000 per month in living expenses. [4] The parties never cohabited. They had a relationship that was described as “on and off” for about five years before thechild was born. [5] The parties broke off their relationship while the mother was pregnant with the child. The mother was distraught aboutthis development and handled it poorly.

She made several plans to terminate her pregnancy and made statements about harming thebaby to the father and to third parties. In February of 2009, she slashed the father’s car tires and was criminally charged. She eventuallyentered into a one-year peace bond in January of 2010. The Catholic Children’s Aid Society of Toronto (the society) apprehended thechild at birth because of concerns about this behaviour. [6] The father quickly came forward to plan for the child. On 9 June 2009, in the child protection case, Justice GeraldineF.

Waldman placed the child in his temporary care and custody, subject to society supervision. [7] The mother subsequently exercised access to the child. Initially, her access was supervised by the society. It quicklybecame unsupervised and increased to overnight access. The access went well.

The mother went to counselling and saw a psychiatristwho did not report any psychiatric concerns. [8] On 30 September 2009, on consent, the child was placed in the temporary care and custody of the mother in the childprotection case. [9] On 26 October 2009, in the child protection case, the father was granted access on alternate weekends from Fridays at 6p.m. until Sundays at 6 p.m. and on Sundays from noon to 6 p.m. in the intervening weeks. [10] The parties’ relationship was fractious throughout the society’s involvement. They both made several allegations to thesociety about the other’s deficient parenting.

The police were often called over access disputes. There were arguments about the peoplewho the father chose to exchange the child at visits. The mother, at times, did not facilitate access. Justice Waldman was required tomake orders addressing problems at access exchanges. [11] The mother issued this application on 3 May 2010. The child protection case was still ongoing. [12] On 21 October 2010, the society discontinued its protection application. Justice Waldman noted in her endorsement thatthere were no further protection concerns.

On the same day, in this case, Justice Waldman ordered on a ‘without prejudice” basis thatthe child be placed in the temporary custody of the mother. The father was ordered to pay to the mother temporary child support of $194per month, commencing on 15 October 2010. This was based on his declared annual income of $22,000. [13] The parties have continued to be in conflict with one another since the child protection case was terminated. Both partieshave involved the police in their disputes. The father was denied access for a short period of time in January of 2011.

Until recently, theparties only communicated with each other through a communication book. [14] The child has lived with the mother since 30 September 2009. [15] The father did not bring a motion to change the temporary custody order or to increase his access during this case. He has

exercised the access that was ordered in the child protection case (although that order terminated with the end of the child protection case). His access has proceeded consistently since January of 2011. 3: CUSTODY AND ACCESS 3.1: Positions of the Parties [ 16 ] The mother seeks sole custody of the child. She states that the child has done well in her care and that this parenting arrangement should continue. She wishes to adjust the access

schedule to give her some weekend time with the child and is prepared to offer some mid-week access to the father. She is in support of an additional holiday

schedule being specified. Her position is that joint custody is not viable given the level of conflict between the parties. [ 17 ] The father also seeks sole custody of the child. He feels that he is better suited to be the child’s custodial parent, given the mother’s history with the society. He also feels that the mother, if given the opportunity, will attempt to exclude him from the child’s life. He is prepared to give the mother generous access.

In the alternative, if the mother is granted primary residence of the child, he seeks an order for joint custody and to maximize his time with the child. 3.2: Primary Residence [ 18 ] The court must decide what parenting order is in the child’s best interests. The evidence was overwhelming that it was in the child’s best interests to remain in the primary care of his mother. [ 19 ] In coming to this determination, I considered the factors set out in subsection 24(2) of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended, as follows: (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the care and upbringing of the child; [ 20 ] Both parents have a loving relationship with the child and want what is best for him. The child loves and is comfortable with both of his parents. He also loves his four siblings (with the mother) and has a very close relationship with them. His eldest sister provides care for him when the mother works a night shift at the hospital.

The child is fully integrated into this family. [ 21 ] The child also has a very good relationship with Ms. R.T. Ms. R.T. is a 67-year-old relative of the father, who has a close relationship with the father and has provided considerable parenting support for him. She lived with the father when the child was in his care in 2009. She looked after the child when the father was working. She has continued to see the child on access visits and has helped to facilitate the exchanges. The father provided no evidence about the nature of the relationship between the child and his girlfriend. (

b) the views and preferences of the child, where such views and preferences can reasonably be ascertained; [ 22 ] The child is too young to express views and preferences. (

c) the length of time the child has lived in a stable home environment; [ 23 ] This is probably the most important factor in my decision. The child has lived with the mother and her daughters since 30 September 2009. The evidence indicates that the child is thriving in the mother’s care. He is happy, healthy and developing normally. The mother maintains a clean home. The child is well-dressed and groomed. His medical needs have been attended to and his immunizations are up-to-date. There is no compelling reason to disturb this stable and secure parenting arrangement for him. (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; [ 24 ] Both parties have the capability of providing the child with guidance and education. The father did a good job caring for the child when the child lived with him for three months in 2009. He provides the child with appropriate care during his access visits.

The mother has also done a good job caring for the child since he returned to her care in September of 2009. [ 25 ] The father, since the child has been placed with the mother, has not met his responsibility to provide him with the necessaries of life — he has deliberately misrepresented his income and has paid inadequate child support. The mother, at times, has had to rely on food banks. (

e) any plans proposed for the care and upbringing of the child; [ 26 ] Both parents provided viable parenting plans. The mother provides appropriate accommodations for the child. She works 12-hour shifts at the hospital, four days each week. When she works day shifts, she has a regular baby-sitter caring for the child with whom the child is familiar and comfortable. When she works night shifts, the mother’s eldest daughter, L., looks after the child. When she is not working, the mother cares for him. The mother plans to enrol the child in a soccer program next summer.

The child is followed regularly by his family doctor. [ 27 ] The father deposed that he will have the support of Ms. R.T. and his girlfriend in caring for the child while he is working.

Ms. R.T. testified that she was prepared to move back into the home to assist the father, if necessary. She appeared to the court to be a warm and caring person who would take very good care of the child. She clearly loves him. The father plans to have the child attend day care. The father has appropriate accommodations for the child. I am unable to assess the role of the father’s girlfriend in his plan. She did not testify and the father provided minimal evidence about this relationship. (

f) the permanence and stability of the family unit with which it is proposed that the child will live; [ 28 ] The mother’s family unit has been stable since the child was placed in her care. It appears that this will be a stable unit for the foreseeable future. The stability of the father’s relationship with his girlfriend is an unknown. (

g) the ability of each person applying for custody of or access to the child to act as a parent; and [ 29 ] The father called two witnesses at the trial. [ 30 ] The first witness was Ms. R.T. Ms. R.T. testified that the father was a very good and loving parent for the child. She stated that she had no difficulties with the mother when she exchanged the child on visits — the mother always acted appropriately with her. She testified that the child is very happy, appears healthy, eats well and is meeting his developmental milestones.

She observed that, on exchanges, the child will run enthusiastically to both parents as well as to the mother’s daughter who is often present on exchanges. She agreed that the current parenting is working for the child — “that he is wanting for nothing”. [ 31 ] The second witness was Peter Grace, a private investigator. The father had the mother placed under surveillance in May and June of 2010. A video of part of the surveillance was shown in court. The video showed that the mother’s supervision of the child was lax at a couple of points during the surveillance.

However, I had a number of concerns with the evidence given by Mr. Grace, including: (

a) The court was only shown a small and selective portion of the video surveillance. (

b) Mr. Grace was very quick to place negative connotations on the mother’s behaviour and did not mention positive parenting in his report. He described her handling of the child as rough. I did not see that on the video. In fact, the mother often acted in an affectionate and loving manner towards the child. Mr. Grace failed to mention this in his report. He made assumptions, at times, that the child was unsupervised, but acknowledged during cross-examination that he could not see into the home to ascertain whether an adult was watching the child. Mr.

Grace claimed that the mother was not engaging with the child, but acknowledged that he was too far away to know whether the mother was speaking with him. There was no audio on the tape. (

c) Mr. Grace was retained by the father. He was not an independent witness. I did not find his evidence, based on the video I saw, to be balanced. (

d) The evidence, such as it was, was dated. [ 32 ] The father provided me with no other evidence that would cause me concern about the mother’s current care of the child. [ 33 ] Both parents can look after the physical needs of the child. However, there is more to parenting a child than this. Parents have a responsibility to shield children from significant conflict and to promote a relationship with the other parent. Both parents have been lacking in these respects. [ 34 ] Neither of the parents has shown the ability to de-escalate their conflict for the child’s benefit.

Both parents blamed the other for the conflict and demonstrated no insight to me about their role in perpetuating it. The evidence indicates that they have both, at times, acted immaturely. They interpret the other’s actions in the most negative light possible. They are far too quick to call the police or the society when they have a dispute. If they continue on this path, the child will eventually be damaged. [ 35 ] I am also concerned that both parents lack respect for the other as a parent. The mother has chosen to keep the father in the dark about the child’s medical issues.

He did not know who the child’s doctor was. The mother has not given him a copy of the child’s Ontario Health Card. The father, on the other hand, is quick to jump to the conclusion that the mother is not being an appropriate parent. He puts her under surveillance. On 23 October 2011, he called the society to report a cut on the child’s back. He did not even provide her with the courtesy of first asking her what had happened. At best, he assumed the worst about the mother.

At worst, he was trying to manipulate the evidence one week before the start of the trial. [1] [ 36 ] Providing appropriate child support is part of acting as a parent. The father, as will be set out below, has misrepresented his income and has failed to pay adequate child support for the child. However, he has been able to finance and maintain two homes that he owns (and possibly three homes) and has paid $1,500 for a private investigator to spy on the mother. [ 37 ] The father’s credibility was seriously damaged during the examination of his financial affairs. He gave inconsistent and misleading evidence.

He tended to deflect blame when asked to explain inconsistencies, at times blaming his previous lawyer or claiming that he did not know that he had to fully explain his financial circumstances. The deflection of blame was particularly interesting as he completely blamed the mother for their conflict. All of this affected the weight that I attributed to his evidence, particularly when the evidence of him and the mother was in conflict. [ 38 ] The father’s attitude towards covering the child on his life insurance policy was also informative about his ability to act as a parent.

The father is upset that the child does not have his last name. He currently names his other two children as beneficiaries under his life insurance policy. He testified that he would name the child as a beneficiary on his policy once his last name was changed. The father’s pride, in this instance, is more important than the child’s financial security. (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. [ 39 ] This is not a factor.

3.3: Joint Custody 3.3(a): Legal Considerations [40] The Ontario Court of Appeal in Kaplanis v. Kaplanis, , 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 Cars​well​Ont 266, set out the following principles in determining whether a joint custodyorder is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It cannot be ordered in the hope that it will improve their communication. 3. Just because both parents are fit does not mean that joint custody should be ordered. 4.

The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise theymust be able to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. [41] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on toomany issues affecting the child’s best interests. See Graham v. Bruto, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J.

No. 1306,2008 Cars​well​Ont 1906 (Ont. C.A.); Roy v. Roy, , 27 R.F.L. (6th) 44, [2006] O.J. No. 1872, 2006 Cars​well​Ont 2898(Ont. C.A.). [42] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standardof perfection is not required and is obviously not achievable. See Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S. (3d) 265, [2005]O.J. No. 3090, 2005 Cars​well​Ont 3209 (Ont. C.J.).

The issue is whether a reasonable measure of communication and cooperation is inplace and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See Warcop v. Warcop,, 66 R.F.L. (6th) 438, [2009] O.J. No. 638, 2009 Cars​well​Ont 782 (Ont. S.C.). [43] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent,that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurateparent to engineer a result in his or her favour.

However, where the conflict is extreme and there is substantial blame to be levelledagainst both parents, a joint or shared custody approach is not appropriate. See Geremia v. Harb (No. 5), , 90 O.R.(3d) 185, 54 R.F.L. (6th) 274, [2008] O.J. No. 1716, 2008 Cars​well​Ont 2483 (Ont. Fam. Ct.). 3.3(b): Analysis [44] The level of conflict between the parties remains far too high to order joint custody. [45] The parties both testified that each mistrusts the other. The father feels the need to conduct private surveillance of themother. The mother claims that the father is vindictive.

Their direct communication has been minimal. They rarely speak to oneanother. The father is reluctant to speak to the mother on the telephone. They have often involved the police or the society when there isa dispute. It was interesting to observe the parties during the trial. They rarely looked at each other while the other was testifying. Thefather sat with his arms crossed staring down or in a different direction. The mother would often be leaning away from the father, herhand on her chin, often with a disdainful look on her face.

It was apparent that they would be unable to effectively communicate in thechild’s best interests. [46] The incident of 23 October 2011 was a good example of their continued poor communication. The child had a small cuton his back. The mother did not notify the father about this when he picked up the child for his visit. The father noticed the cut onSaturday morning. He did not contact the mother. He claimed that he did not have her telephone number, despite the fact it was on thefront page of all of her court papers. He did not go to her home to ask her about it.

He returned the child on Sunday and made no inquiryhow the child received the cut. Instead, that evening he reported the matter to the society. When asked why he did not ask the motherabout what had happened, the father answered, “because we are not on that kind of speaking terms”. The next day the police and asociety worker attended at the mother’s home to investigate the matter. The mother felt betrayed and attacked. [47] This is not a case where one party is unilaterally frustrating the communication process in order to obtain a custodyorder.

There is plenty of blame to go around. [48] Although the mother has not properly provided the father with medical information about the child, she has facilitated theaccess visits since January of 2011 and more recently, offered the father additional time with the child. The father’s response was to putit in writing. [49] The mother’s approach to the child support issue was also instructive about her motivations. She could have sought acontribution to the child’s baby-sitting costs, as well as retroactive child support. She chose not to pursue these claims.

Her positions atthis trial did not indicate that she was vindictive or trying to remove the father from the child’s life. [50] Lastly, the mother has made responsible decisions for the child. It is in the child’s best interests that she be grantedcustody. My order will contain provisions to ensure that the father can participate in the child’s medical care, as well as his schooling,when the time comes. This will reflect the important role that the father should play in the child’s life. 3.4: Access [51] The court must make an access order that is in the child’s best interests.

[52] A 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 199. [53] The best interests of the child have been shown to be met by having a loving relationship with both parents and that such arelationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. SeePastway v.

Pastway (1999), 49 R.F.L. (4th) 375, [1999] O.J. No. 2525, 1999 Cars​well​Ont 2055 (Ont. Gen. Div.). [54] The evidence supports an order that it is in the child’s best interests to spend substantial time with his father. [55] The father deserves considerable credit for coming forward and caring for the child in 2009. If it were not for his actions,the child would have spent his initial months in foster care. The father showed that he was able to care for the child. He has consistentlyexercised his access. He has a close and loving relationship with the child.

He wants to play a meaningful role in the child’s life andshould. [56] The mother’s access complaints were minor. The father is occasionally late on access exchanges. The father did notdeny this. However, the child is always returned, clean, well-fed and happy. [57] The current access arrangement does not give the mother exclusive weekend access time. She would like to be able tosometimes take the child to church on Sundays. This is a reasonable request. [58] The child is now over two years old and is comfortable spending extended time with his father.

It is appropriate, at thisstage of his development, to extend the time that he spends with his father. The child will now spend two out of every three weekendswith the father, as well as an evening visit each week. The order will also set out extended holiday access time.

Given the level ofconflict between the parties, it is important that the parenting order be structured and specific. 4: CHILD SUPPORT 4.1: Positions of the Parties [59] The mother asked the court to fix the father’s income at $80,000 per annum for child support purposes and to make anorder that the father pay child support starting from the date of her application (May of 2010). Although she was not seeking retroactivechild support or contribution to baby-sitting expenses, the mother was justifiably upset that the father was misrepresenting his income tothe court to reduce his child support obligations.

The mother testified that, while they had a relationship, she was aware that the father,in his soil removal business, would charge customers $250 per load and carry about six loads each day. She claimed that the father is nothonest and would not accurately report the income that he earned. She testified that she believes that the father has been renting the threeproperties in which he has an ownership interest and is not declaring the income. [60] The father asked the court to fix his income at $22,000 per annum. The father started his business in 2008.

He testifiedthat his corporation pays him as a salaried employee and he does not even earn close to the amount to which that he is prepared to agree. He is the sole owner and operator of his business. [61] Prior to starting this business, the father worked as an employee, earning $38,978 in 2006 and $39,511 in 2007. In hisincome tax returns, he declared income of $24 in 2009 and $11,628 in 2010. He provided no evidence of his income in 2011. 4.2: Legal Considerations [62]

Section 19 of the Child Support Guidelines, O. Reg. 391/97 [as amended], reads as follows: 19. Imputing income.—

(1) The court may impute such amount of income to a parent or spouse as itconsiders appropriate in the circumstances, which circumstances include, (

a) the parent or spouse is intentionally under-employed or unemployed, other than where theunder-employment or unemployment is required by the needs of any child or by the reasonableeducational or health needs of the parent or spouse; (

b) the parent or spouse is exempt from paying federal or provincial income tax; (

c) the parent or spouse lives in a country that has effective rates of income tax that aresignificantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to bedetermined under these guidelines; (

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

f) the parent or spouse has failed to provide income information when under a legal obligation todo so; (

g) the parent or spouse unreasonably deducts expenses from income; (

h) the parent or spouse derives a significant portion of income from dividends, capital gains orother sources that are taxed at a lower rate than employment or business income or that areexempt from tax; and (

i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or otherbenefits from the trust.

(2) Reasonableness of expenses.— For the purpose of clause (1)(g), the reasonableness of an expensededuction is not solely governed by whether the deduction is permitted under the Income Tax Act(Canada).

[63] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to supporttheir children. 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.). [64] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includesdemonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, , 28 R.F.L. (6th) 433, [2006] O.J.

No. 1660, 2006 Cars​well​Ont 2581 (Ont. Fam. Ct.). Thisprinciple also applies where the person’s employment income is derived from a corporation that he or she fully controls. See MacKenziev. Flynn, 2010 ONCJ 184, [2010] O.J. No. 2145, 2010 Cars​well​Ont 3450 (Ont. C.J.). [65] The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of incomeand expenses, from which the recipient can draw conclusions and the amount of child support can be established. See Meade v. Meade,, 31 R.F.L. (5th) 88, [2002] O.J. No. 3155, 2002 Cars​well​Ont 2670 (Ont.

S.C.). [66] The onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentationin respect to those deductions, failing which an adverse inference may be drawn. See Orser v. Grant (2000), 96 A.C.W.S. (3d) 644,[2000] O.J. No. 1429, 2000 Cars​well​Ont 1354 (Ont. S.C.). 4.3: Analysis [67] The father failed to meet his obligation to provide meaningful financial disclosure, despite being given severalopportunities to do so (including a further opportunity that I provided to him after the first day of trial, while he was in the middle ofcross-examination).

His evidence about his personal and business finances was inconsistent, incomplete and at times misleading. [68] The father failed to provide a corporate financial statement, for any year, outlining the revenue and expenses of hiscorporation. He provided no revenue or expense ledgers for this business. He did not provide corporate tax returns or a personal noticeof assessment for 2010. He did not report rental revenue on either of his Form 13 financial statements filed with the court. He did notreport several personal loans on these financial statements. This information only came out during cross-examination.

He did not revealhis ownership in a third property on his financial statements.[2] The father blamed these omissions at times on lawyers and coyly, at onepoint, said he would have provided this information, if only he had been asked for it. [69] The father provided copies of a bank account covering the period from November of 2009 until September of 2010. Heclaimed that this was his only business account and initially testified that only business-related expenses were paid from this account.

This testimony quickly unravelled when it became apparent that he was paying personal expenses from this account, including legal feesfor this case. The father then claimed that he would take out cash for personal matters from this account and would subsequently repaythese amounts. He provided no proof of this. He kept changing his evidence about the values of his real estate properties. He appearedto be making up the evidence as he was going along. [70] The father’s first financial statement was sworn on 19 May 2010.

He declared annual income of $23,000 per annum,annual expenses of about $40,140 per annum and further debt payments of about $13,548 per annum (not including his mortgagepayments), for total annual expenses of $53,688. He declared assets of $669,315 and debts of $601,400 for a net worth of $67,915. Thefather subsequently testified that he also owed $14,000 for a personal loan (undocumented) at this time. He filed an overdue notice forproperty taxes (exhibit 4).

This showed that the father owed close to $9,000 for property taxes at this time.[3] These additional debtswould have reduced his net worth as of 19 May 2010 to $44,915. [71] The father’s second financial statement was sworn on 25 October 2011. Here, he declared annual income of $16,872. Hereported no rental income, although he admitted that he had earned net rental income of about $2,000 in 2010.[4] The father claimedannual expenses of $39,300. He reiterated in his testimony that he had actually paid these expenses in the past year.

He also testifiedthat he was paying child support for his daughter during the past year, child support for the child in this case and legal fees for thiscase.[5] The father’s line of credit and credit card balances were comparable to those in his first financial statement.[6] Although he didnot put monthly payment amounts in his second financial statement, he did depose that these payments were being made. His firstfinancial statement indicated that he had to pay $13,548 per annum to maintain his debt level, not included his mortgage payments. Ifind that his debt payments were continuing at this rate.

Accordingly, the father’s annual expenses in the second financial statement total$52,848 ($39,300 plus $13,548). If I add in the child support for the child and his daughter and legal fees not declared in the secondfinancial statement, the father’s annual expenses were likely closer to $60,000, in the year prior to this trial. [72] This second financial statement declared assets of $669,830 and debts of $583,000. The father subsequently filed proof ofa higher amount for one of the mortgages ($10,000), increasing his debts to $593,000.

With this adjustment, the father had a net worth,according to his financial statement of $76,830, as of 25 October 2011. [73] This left the father with the conundrum of explaining how his net worth increased from $44,915 in his first financialstatement to $76,830 in the second financial statement when his expenses of $60,000 exceeded his declared income of $16,872, by$43,128 (his annual shortfall).[7] [74] The father could only provide a partial explanation.

He testified (for the first time on cross-examination) that hisgirlfriend was contributing $1,000 per month towards household expenses. [75] The father also provided proof that he had taken out a second mortgage of $32,500 in 2011. His evidence about this loanwas confusing. He had not declared this debt on his second financial statement and could not explain the omission. On the first day of

trial, he claimed that, from the proceeds of this loan, he had paid $12,000 for outstanding property taxes and that the balance of over$20,000 had gone towards paying truck repairs. On the second day of trial, he changed this evidence, testifying that $12,000 was for theoutstanding property taxes, $14,000 to pay off the personal loan, existing, but not declared on the first financial statement and over$6,000 for truck repairs. He provided some invoices for truck repairs, but they did not come close to $6,000.

He provided no evidenceof the $14,000 loan being advanced or repaid. [76] The father also claimed that he had recently borrowed about $11,000 from a friend to pay outstanding mortgage arrearsthat had accumulated on his properties. This personal loan was also omitted on his second financial statement. He did provide proof ofrecent lump-sum payments totalling about $11,000 to the bank. [77] The most favourable

interpretation of the father’s evidence is that his total debt in his second financial statement shouldbe increased by the loans of $11,000 and $32,500. This would decrease his net worth as of 25 October 2011 to $33,330. This wouldmean that his net worth had gone down by $11,585 ($44,915 - $33,330) in the 17-month period between the two Form 13 financialstatements.

Further, if his evidence was accepted, his annual shortfall would be decreased by the $12,000 ($1,000 per month) that heclaimed that he received from his girlfriend, leaving his annual shortfall at $31,128 ($43,128 less $12,000). [78] Even accepting the father’s evidence, the $11,585 reduction in his net worth over 17 months does not explain his annualshortfall of $31,128. [79] The father has been able to maintain two properties (and possibly three) during the past 17 months. He paid $1,500 for aprivate investigator. He has paid only $194 per month for the child.

This is an unacceptable amount given his standard of living, basedon the expenses that he claimed to be spending. [80] This leaves the question of the appropriate amount income to attribute to the father. [81] One approach is to fix a minimum annual income of $40,000. This would be based on the argument that the father wasearning this income level as an employee and it is unlikely that he would continue with a business since 2008 if he was not earning atleast that much income by this time.

The father’s standard of living corroborates that he is earning at least this level of income. [82] A second approach is to assess the father’s income based on his evidence set out in his two Form 13 financial statements.

With this approach, we would take his declared annual income of $16,872 (in his second financial statement), add the $2,000 that hetestified that he earned for net rental income in 2010, add back his annual shortfall of $31,128, less the reduction in his net worth of$8,177.[8] The logic behind this analysis is that the father was able to maintain this declared standard of living with only a moderatereduction in his net worth. The money had to come from somewhere to meet these expenses.

Using this approach, the father’s annualincome totals $41,823 for the year. [83] However, these first two approaches are not fair to the mother or the child, particularly since the second approachassumes the accuracy of the father’s evidence. These approaches are minimum amounts that should be imputed to the father. I agreewith the mother that the court should not trust the father’s evidence and have considered the following: (

a) He has failed to file meaningful financial disclosure. (

b) He has not provided a proper explanation of his business expenses. (

c) He has mixed personal and business expenses out of his business bank account. (

d) He did not reveal several loans on his financial statements. (

e) He kept changing his evidence about his assets and debts. (

f) He declared that he was living alone and then changed his evidence to claim that his girlfriend was contributing $1,000 permonth towards household expenses. He provided no evidence to support that these payments have actually been made. The second approach assumes that these amounts were paid each month. It is questionable whether this was actually thecase. To the extent that such payments were not made, this would increase his income. (

g) He provided no evidence as to what portion, if any, of the mortgage arrears paid off by the $11,000 loan existed at the timeof the first financial statement. The second approach assumes there were no mortgage arrears at that time. Any amountsowing then would increase his income. (

h) He has provided no evidence to support his contention that he is just a “paper owner” of the third property. (

i) He provided no evidence of his 2011 income. (

j) The mother claims that the father earns undeclared rental income from more than one of his properties. (

k) The mother claims that the father earns undeclared cash income from his business. (

l) An adverse inference should be drawn against the father. [84] This leads me to the third and preferred approach. The father’s business bank statements reveal that his deposits for thefirst nine months of 2010 came to over $78,000. This revenue projects to about $104,000 for the year. The father provided no evidenceof 2011 revenue or expenses. He provided no meaningful explanation about any of his expenses. In the absence of such explanation, Ifind it appropriate to fix his annual expenses at 50% of his gross revenue, being $52,000 per annum. The father runs a simple business.

He is the only employee and he provided no evidence of necessary office expenses. His expenses would mostly be for fuel and truckmaintenance. This is similar to the approach that I took in Decker v. Fedorsen, 2010 ONCJ 618, [2010] O.J. No. 5661, 2010 Cars​well​-Ont 9891 (Ont. C.J.), where the payor also failed to provide a plausible explanation of corporate expenses. I find $52,000 to be thefather’s annual income. [85] The income analysis does not end there. It is appropriate in these circumstances to gross-up the additional income to thefather.

This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. SeeSarafinchin v. Sarafinchin, , 189 D.L.R. (4th) 741, [2000] O.J. No. 2855, 2000 Cars​well​Ont 2640 (Ont. S.C.). Thefather declared income of only $11,638 in 2010. A software analysis shows that, with the grossing up of his income, his income shouldbe imputed at $65,856 per annum. This is the amount of income that will be assessed to the father for the purpose of calculating childsupport.

[ 86 ] The table amount of child support at this income level is $610 per month. The mother’s request to adjust support to the date that she started this application is very reasonable. She would likely have been awarded retroactive child support and a contribution to the babysitting expense if she had chosen to pursue this. Child support shall begin on 1 May 2010 and the father shall be credited with child support payments made to the Family Responsibility Office to date. [ 87 ] This order will create immediate arrears for the father.

He will be permitted to repay these arrears at the rate of $200 per month, with the condition that, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount owing shall immediately become due and payable. 5: CONCLUSION [ 88 ] A final order shall go on the following terms: (

a) The mother shall have custody of the child. (

b) The mother shall sign whatever directions are required to permit the father to speak directly to any service provider for the child. This includes doctors, day-care providers and schools. (

c) When the child begins to attend school, the father shall be entitled to attend any parent-and-teacher meeting or school event. (

d) The parents are to promptly notify the other about any medical issue or the outcome of any medical appointment for the child. (

e) The mother is to deliver a copy of the child’s Ontario Health Card to the father within 10 days. (

f) The mother is to consult with the father about any major decision regarding the child. (

g) The father shall have access to the child on the following terms: (

i) Commencing on 11 November 2011, two out of every three weekends from Friday at 6 p.m. until Sunday at 6 p.m., extending until Monday at 6 p.m., if the access falls on a weekend where the Monday is a statutory holiday.

The father will have two consecutive weekends with the child, followed by one weekend when the child will remain with the mother. (ii) Every Wednesday from 5 p.m. until 7:30 p.m. (iii) The child shall spend every Father’s Day with the father from 10:00 a.m. until 6 p.m. and every Mother’s Day with the mother starting at 10:00 a.m., in the event that it is not already their regularly scheduled day with the child. (iv) In odd-numbered years, starting in 2011, the child shall be with the mother from 24 December at 6 p.m. until 25December at 6 p.m. and with the father from 25 December at 6 p.m. until 26 December at 6 p.m.

In even-numbered years, starting in 2012, these times will be reversed. (

v) In addition to this time, each party shall be entitled to spend 5 exclusive days with the child between 20 December and 2 January each year (not including 24-26 December, which is covered above). In odd- numbered years, the father gets the first choice of the 5 days. In even-numbered years, the mother gets the first choice of the five days. The person making the choice must let the other know of their chosen dates by 1 December. (vi) Each parent shall be entitled to spend one exclusive week with the child in both July and August each year.

The father will have the first choice of the July week and the mother will have the first choice of the August week. The parents are to notify the other of their preferred week by 30 May and of the second week by 15 June of each year. (vii) The regular access

schedule will be suspended during the designated holiday times. (viii) Such further and other access as the parties may agree to. (

h) The father shall pay child support to the mother in the sum of $610 per month commencing on 1 May 2010. This is the child support guideline table amount, based on the father’s income, imputed at $65,856 per annum. The father is to be credited for payments made to date to the Family Responsibility Office. (

i) The father shall be entitled to repay the child support arrears created by this order at the rate of $200 per month, starting on 1 January 2012. However, if he is in default of either ongoing or arrears payments as set out in this order for more than 30 days, the entire amount of arrears shall immediately become due and payable. (

j) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source (income tax returns, GST refunds) or lottery or prize winnings. (

k) A support deduction order shall issue. (

l) The balance of the claims contained in the application and answer-claim are dismissed. [ 89 ] If there are any mathematical errors in this decision or input errors in the software calculations, either party may serve and file written submissions about this by 14 November 2011, failing which this order may be issued. [ 90 ] If either party seeks costs, they are to serve and file written submissions no later than 22 November 2011. The other party will then have until 30 November 2011 to serve and file a written response. The submissions should be delivered to the trial co- ordinator’s office.

The submissions should not exceed three pages, not including any offers to settle or bill of costs. [ 91 ] The parties have been litigating in court since the child was born. It is time for this conflict to end. They have an important responsibility to protect the child from conflict. They need to work much harder to accomplish this and look inward as to what they can each do to make this situation better for their child. They need to be much more generous to the other and focus on the positive parenting (and both parents have parenting strengths) that the other parent has to offer the child.

I strongly suggest that they both attend counselling to provide them with strategies to accomplish this for the child. His future well-being depends on this.