Patrick v. Taylor, 2011 ONCJ 729

Toronto Registry No. D46292/08 DATE: 2011·XI·29 CITATION: Patrick v. Taylor , 2011 ONCJ 729 ONTARIO COURT OF JUSTICE BETWEEN: KRISTOPHER PATRICK Applicant — AND — LATOYA TAYLOR Respondent Before Justice Curtis Heard on 15-17 June; 11-14, 17 October 2011 Reasons for Judgment released on 29 November 2011 Samuel I. Willoughby ……………………………………………………………counsel for the Applicant Denise Badley .......................................... counsel for the Respondent CURTIS, J.: INDEX 1. Overview 2. Background 3. Litigation History 4. The Father a. The Father ‘s Plan for Shared Custody b.

The Father’s Behaviour which has Resulted in Criminal Charges c. The Father as a Parent d. The Father as a Witness 5. The Mother a. The Mother’s Plan for Sole Custody

b. The Mother as a Parent 6. Custody a. The Children b. The Custody Contract c. The Law regarding Custody d. Decision regarding Custody e. Access 7. Child Support a. The Evidence regarding Child Support b. The Law Regarding the Father’s Income c. Decision regarding Child Support 8. Orders 9. Costs Overview 1 . This is the decision in the eight day trial regarding custody of and access to the three very young children of the parties. 2 .

The father’s claim is for shared custody of the children (specifically shared, not joint custody), for there to be no child support payable, and for any arrears owing under court orders to be reduced to zero. 3 . The mother’s claim is for sole custody with specified access, child support, annual financial disclosure, and a non-removal order. Background 4 . The father (the applicant) Kristopher Patrick (born 15 November 1985) was 26 years old at the trial’s conclusion. He lives in Mississauga with his parents. 5 . The mother (the respondent) Latoya Taylor (born 19 August 1989) is 22 years old.

She lives in North York with her paternal aunt and paternal grand-parents. 6 . The parents lived together from 2 November 2006 to August 2008, and were not married to each other. There are three very young children of this relationship: • Kris, born 1 November 2007 (not yet 4 when the trial finished); • Kamille, born 10 October 2008 (3 years old); and, • Kayden, born 21 November 2009 (not yet 2 when the trial finished). 7 . The parents met when they were 15 and 19 years old, and they were very young when they started to have children together. As well, the three children came quickly and are very close in age.

Three children were born to these parents in precisely two years (eleven months between the first two children, and thirteen months between the second two children).

8 . The parents have an on-again-off-again relationship, and have had many separations and reconciliations. The relationship has been and is tumultuous, and volatile, involving physical fights, involving the police, and criminal charges on many occasions. The Children’s Aid Society of Toronto (“C.A.S.T.”) has been and is now involved with this family and these children. The parents do not seem to think any of this is unusual or in any way a negative or harmful aspect of their relationship. 9 .

As well, the parents each live with their respective families, and the families of both parents have been and continue to be significantly involved in their lives, and in the parenting of the children. There was no evidence about conflict between the two families, and in fact, there was evidence about co-operation, particularly when the father was in jail (more details are provided below). Litigation History 10 . There is a long history of conflict and litigation between the parents over many years. 11 .

Spence, J. made a temporary without prejudice order for sole custody to the mother of two children on 8 December 2008, with specified access to the father, supervised by his parents, on Sundays from 11.00 a.m. to 6.00 p.m.. The order provided for temporary without prejudice child support of $327 per month for two children from 1 January 2009, based on the father’s self-declared income of $21,400. 12 . The parents signed a Child Custody Agreement on 10 January 2009, providing for joint custody of two children, with a specified parenting schedule.

The children were to be with the father from Friday evening to Monday morning, and with the mother from Monday morning to Friday evening. The agreement was prepared by the father. Neither parent was represented by a lawyer nor received independent legal advice regarding this agreement. At the time this agreement was signed, there was a criminal no contact order (the father was to have no contact with the mother). 13 .

A further temporary access order was made by Spence, J. on 23 December 2009 for the father to have access to two children (even though the third child had been born by then) every week-end from Friday at 6.00 p.m. until Monday at 10 a.m., with specified pick-up and drop-off locations. 14 . At trial, the father took the position that the joint custody agreement was the existing valid binding arrangement between the parents. The mother said that she signed the agreement under duress and that she should not be held to the terms of the agreement. 15 .

Neither the custody nor the child support orders, nor the agreement, was ever changed to reflect the birth of the third child Kayden in 2009. The Father The Father‘s plan for Shared Custody 16 . The father’s claim is for equal time and equal (not joint) decision-making rights, that is, the parent that the children are with shall make the decision. The father thinks that with this arrangement there shouldn’t be any problems. The father believes that the parents have had a shared custody arrangement since January 2009, when the agreement was signed. 17 .

The father said that during the school year, the children are with the mother from Monday to Friday, and with the father every week- end from Friday to Monday. The children are also with the father every other week overnight on Wednesday. When the children are out of school, the

schedule is split, one week with each parent.

18 . The father believes that this arrangement is working. He says that they do not have to deal with each other much about the children, and that there is not much of anything to talk about regarding the children. 19 . The father lives in Mississauga with his parents, and that is where the three children stay when they are with the father. The father’s mother is Jehovah’s Witness, and his family does not celebrate Christmas or birthdays at his parent’s home. 20 .

The father has arranged it so that the children’s services (doctor, speech therapy, day-care) are in Mississauga, where he lives, although the children live with the mother in Toronto, Monday to Friday. He has registered Kris (not yet 4) and Kamille (3 years old) in day-care in Mississauga, even though the children are with the mother Monday to Friday each week, and he admits that he did not tell the mother. 21 . The father owns a car, but does not drive, as his driver’s license was suspended in August 2011 for non-payment of child support. His parents do the driving regarding the children. 22 .

The father says that the mother needs help to parent the children, that she does not have the patience needed, that she cannot manage by herself, and that she would have to remain living with her family to assist her. He says he has some problems with the way the mother and her family care for the children. The Father’s Behaviour which has Resulted in Criminal Charges 23 . Kris was born on 1 November 2007 and there was a confrontation at the hospital that day involving the father.

The father and the mother had a disagreement in her hospital room, the mother asked the father to leave, and he refused to leave without taking the baby with him. The father admits that he picked up the baby with the intention to leave the hospital. Security came to the room and suggested that the father leave, and he admits that he refused to leave. The police were called then and took the father out of the hospital. The father‘s parents came to the hospital grounds and tried to convince him to leave.

Both the father and his parents said that he stayed a long time (about an hour) on the hospital grounds before he left. The father admits that nobody could convince him that he needed to leave. CAST was contacted regarding this confrontation, and identified this confrontation as resulting in protection concerns. 24 . Both the father’s parents gave evidence. They were calm and credible witnesses. They clearly want to help their son and their grandchildren.

Both said that they did not even know they were going to have a grandchild until the father called them at 1 a.m. from outside the hospital the night Kris was born. The paternal grand-father said that he pretty well does what he is told by the father. 25 . There was another confrontation involving the police on 6 August 2008, when the parents separated. The mother said that the father hit her and punched her in the face. The father said that he called the police to the home to have the mother removed.

He said that he refused to give the mother the car seat for Kris, and that the police took the car seat from him by force because it was in his hand and he would not give it to them willingly. 26 . The father has twice broken into the home of the mother’s aunt and grand-parents. On 5 September 2008 there was another confrontation involving the father at the home of the mother’s grand-parents. The mother was then eight months pregnant with Kamille. The father came to the home to pick-up Kris (then 10 months old) for a visit.

The father banged repeatedly and loudly on the door, and rang the doorbell repeatedly, behaviour which even he admits is not normal behaviour. He admits he did this to annoy the persons indoors. The mother’s aunt said that her family hid in the house because they were afraid of the father. When the door was not answered, the father admits that he circled the house trying to find an open window to get in. He admits that he entered the house without the permission of those present by entering through the kitchen window. He admits that he removed Kris from the home without the mother’s consent.

He was charged with assault (3 counts), break and enter, and abduction. His bail conditions included a no contact provision regarding the mother. He was later also charged with fail to comply (re seeing the mother). 27 . The father was convicted of assaulting the mother‘s grand-mother and assaulting the mother, and of being unlawfully in a dwelling, and was sentenced to 82 days in jail and 18 months probation. The father spent 6 months in jail (from April to October 2009). The probation order contained a term for no contact with the mother or her family (except through a family court order) for 18 months. 28 .

The families of both parents said that the paternal grand-parents had a relationship with the mother and that they saw the children while the father was in jail, and that they had no problems, no conflict and no arguments during this period.

29 . The father said that he was also charged with fail to comply (4 counts), uttering death threats (6 counts), assault, theft under, mischief under, being unlawfully in a dwelling, attempted obstruction of justice and forcible confinement. He said that he pleaded guilty to fail to comply (4 counts). 30 . In April 2009 the father was charged with abducting the mother and threatening. He took the mother and the two children to a motel outside Toronto and they stayed there for a week. He was convicted of a breach of bail, and the other charges were dropped. 31 .

There was another confrontation involving the police on 7 October 2009, when the father came out of jail. His own sister called the police that night. The father said that the police had to convince him to let the children go home with the mother. 32 . At trial there were charges outstanding against the father for a confrontation which took place on 7 April 2011. The mother’s aunt said that father broke into her home, came into her bedroom and assaulted her. He also forcibly removed one of the children (Kayden, then 17 months old) who was wearing just a t-shirt and diaper.

The father was charged with assaulting the mother’s aunt, and for being unlawfully in a dwelling. Despite bail conditions preventing him from being in the neighbourhood of that home, the mother’s aunt said that the father has recently been in her neighbourhood, and during the trial came right up to the door of the house. 33 .

The mother’s aunt and her grand-mother both said that there were at least three occasions when the father came to the house the mother was at (the aunt’s home) and forcibly carried out one of the children without the child being properly dressed (i.e., the child was removed dressed in a diaper and undershirt). Two such occasions occurred in September 2008 (the father removed Kris, then 10 months old), and in April 2011 (the father removed Kayden, then 17 months old). The father did not deny this. 34 . The father’s evidence regarding these several confrontations was remarkable.

The father expressed no remorse for causing these incidents, nor even regret. There was no apology about these confrontations, nor about his behaviour. He accepted no responsibility for the incidents, and did not describe his behaviour as in any way inappropriate. The father was calm and business-like in recounting those events. He showed a complete lack of understanding of the inappropriateness of his behaviour. He described the events from a place of entitlement and thereby suggested that his behaviour was acceptable and appropriate. 35 .

The father’s parents did not appear embarrassed or ashamed regarding their son’s many criminal charges and convictions. They did not appear concerned regarding the high level of conflict between the parents (which conflict they acknowledged), nor regarding the violence by the father, and did not appear disapproving of their son’s behaviour. The Father as a Parent 36 . The father says he is fully capable of providing day-to-day care for these very young children. He says that he provides routine and structure, assists with the children’s development, and takes the children to the doctor.

He identifies that he has the support of his parents and his extended family. 37 . The father repeatedly went behind and around decisions made by the mother regarding the children, changing those decisions without discussion or even communication with her. For example, he registered the children in day-care in Peel where he lives without asking or telling the mother about this. He repeatedly made doctor’s appointments for the children without asking or telling the mother about it.

He repeatedly unilaterally changed the children’s doctor’s appointments that the mother had made, without asking or telling the mother about it. He registered Kris in speech therapy weekly in Peel on Fridays, without asking or telling the mother about it. At least twice, he took two of the children for immunization shots and did not tell the mother about this. The doctor he dealt with had only his telephone number (and not the mother’

s) as contact information for the children. It was clear from his evidence about these actions that he saw nothing wrong with any of this behaviour. 38 . The father’s behaviour was serious enough that Spence, J. made several court orders to address it. On 15 December 2010 Spence, J. ordered that only the mother could make doctor’s appointments for the three children and only with one named doctor. On 23 February 2011 Spence, J. ordered that the mother was permitted to make speech therapy appointments for Kris and Kamille without the father’s consent. 39 .

The father had to be ordered twice by Spence, J. to return the children on time to the mother (10 a.m. on Monday), in orders made 14 June 2010 and 26 May 2011.

40 . When making decisions about the children, the father behaves as though the mother does not exist, and treats her as though she does not exist. He neither consults her nor even tells her about his decisions. 41 . At trial there was an open file at CAST and an on-going investigation regarding these parents. CAST was initially involved with the mother in 2007, around the time Kris was born, regarding concerns that the mother was young, she had no financial means, and she had few supports. But CAST closed the file in November 2007 after an investigation. 42 .

The father described the mother as a having a mental illness (bipolar disorder, he said) but offered no evidence to support that, including no medical evidence, and he admitted that he had never seen a medical report confirming this diagnosis. No other witness even mentioned this issue, or this possibility. The Father as a Witness 43 . In his evidence, the father communicated that he believes he was in the right, whenever there was a confrontation, and that this justified his behaviour, no matter how severe or how violent his behaviour. 44 . The father was confrontational, smug and arrogant giving his evidence.

He presented as immature, controlling and difficult. He was often condescending, both to the questioner and to the court. He was flip and sometimes disrespectful, even to his own lawyer. The Mother The Mother’s Plan for Sole Custody 45 . The mother lives in North York with her aunt and her grand-parents. The mother’s aunt raised her from the time she was two years old and is her long-time legal guardian. The aunt has been employed for 24 years as an accounting administrator with Manulife Financial. The mother’s grand-parents are retired.

The mother’s aunt and the mother’s grand-mother both said that caring for the three children is a team effort, as one person cannot take care of three babies effectively. The mother and her family are all raising the children together as a family. The mother’s aunt supports the children financially, and if the children need something that the mother cannot afford, the mother’s aunt buys it. The mother’s aunt paid for both the day-care and the speech therapy for the children. 46 . The mother has never been employed outside the home.

She is currently in school in an up-grading program at Centennial College five days per week. That program ends in January 2012, and next she will go to Seneca College for a program in interior decorating. 47 . The mother had made arrangements for speech therapy for Kris and there were several appointments. However, that therapist discontinued the treatment due to the harassing contact she received from the father. 48 . Kris (nearly four years old) is in junior kindergarten at a school nearby the mother’s home.

The mother has made day care arrangements for Kamille (three years old) and Kayden (nearly two years old), who were to be starting day-care in October 2011 during the trial. 49 . The mother proposes that the father have access every other week-end from Friday to Sunday, and that they share the holidays equally, apart from those events which the father does not celebrate in his home. She also claims a non-removal order and child support for the three children. The Mother as a Parent 50 . The mother has deficits as a parent.

The mother’s evidence was that she sometimes left places she was staying, or arrived at other places to stay, in the middle of the night with the child or children, without telling those she was staying with that she was leaving. She may not have located and registered the children in daycare as soon as she should have. She may not be as attentive to the children’s medical needs as she should, a serious deficit. She may not have moved promptly to get speech therapy for Kris, and even perhaps for Kayden, as she should have.

If the mother was the primary care-giver and the parent with decision-making authority around these issues, she would have to be more attentive and more active to ensure that the children get the proper medical and therapeutic attention. She would have her hands full to be caring for the children full-time, although she has the support of her family in every way.

Custody The Children 51 . There was almost no evidence presented about the children. The court has almost no information about how the children are functioning; what their life is like with each parent; how their health is; what their routines are in the homes of each parent; what each parent understands about the needs of the children; what is the ability of each parent to meet those needs; what is the relationship of each child with each parent; what is the relationship of each child with the parent’s respective families. 52 .

There was a small amount of evidence about Kris having a close relationship with the father and asking to see the father regularly. That is the only evidence offered about the children’s relationships with the parents. 53 . The absence of this evidence in a custody trial is quite telling, particularly since each parent was represented by a lawyer. The parents did not see the children as the focus of this case. The Custody Contract 54 . The father says that the joint custody agreement signed 10 January 2009 is a valid and binding contract, that it reflects the status quo, and that the court should uphold it.

The mother says the father drafted the agreement, she had no input to it, that it did not reflect what she wanted nor what she understood they had agreed to, that she did not read the agreement but that she signed it because the father had the children and was refusing to return them to her if she did not sign the agreement. The father did not give the mother a copy of the agreement. The mother says that she signed the agreement under duress, and that she had no legal advice about it, and the court should not uphold the agreement. The mother also says that neither parent followed the terms of the agreement. 55 .

Even if the agreement is a valid and binding agreement, the court can still set it aside and come to a different conclusion if there has been a material change since the agreement was signed. As well, the court has jurisdiction to disregard a provision in a domestic contract if it is in the best interests of a child to do so ( Family Law Act , R.S.O. 1990, c. F.3, as amended (“ F.L.A. ”), s. 56(1) ). 56 .

It is not necessary for the court to determine whether the agreement is a valid and binding agreement, for there has clearly been a material change in circumstances since it was signed, which is, that the custody and access arrangements are not working and are clearly not in the children’s best interests. As well, it would not be in the best interests of these children to uphold the provisions of this agreement, under s. 56(1) F.L.A. . The Law regarding Custody 57 . The test for determining custody of and access to children is the best interests of the children: Children’s Law Reform Act , R.S.O. 1990, c.

C.12, as amended (“ C.L.R.A. ”), s. 24 : Merits of application for custody or access 24.

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1) . Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including, (

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 child’s care and upbringing; (

b) the child’s views and preferences, if they can reasonably be ascertained;

(

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, thenecessaries of life and any special needs of the child; (

e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1,s. 3 (1); 2009, c. 11, s. 10. Past conduct

(3) A person’s past conduct shall be considered only, (

a) in accordance with subsection (4); or (

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1). Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence orabuse against, (

a) his or her spouse; (

b) a parent of the child to whom the application relates; (

c) a member of the person’s household; or (

d) any child. 2006, c. 1, s. 3 (1). Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence orabuse. 2006, c. 1, s. 3 (1). 58. C.L.R.A. s. 24(2) requires the court to consider all the child’s needs and circumstances (emphasis added) in determining bestinterests, and sets out a non-exhaustive list of criteria to be considered. 59. In every custody case, the sole issue is the best interests of the children. The evidence should have revealed what bonds eachchild had with each of the parents and their respective ability to parent each child.

The evidence should also have indicated whatpractical plan to care for the children each parent proposed to make when each had the children with them and the benefits to the child ofsuch an arrangement: Kaplanis v. Kaplanis, (ON CA), 2005 CarswellOnt 266, [2005] W.D.F.L. 1005, [2005]W.D.F.L. 996, [2005] W.D.F.L. 995, [2005] W.D.F.L. 1067, [2005] W.D.F.L. 1045, [2005] W.D.F.L. 1040, 136 A.C.W.S. (3d) 860, 194O.A.C. 106, 10 R.F.L. (6th) 373, 249 D.L.R. (4th) 620 (Ont. C.A.), para 10. 60.

The father specifically claimed shared (as opposed to joint) custody, equal time sharing and equal (not joint, but separate)decision-making. In determining the legal test to be applied, there is not sufficient difference in the terms joint custody and sharedcustody to require a different analysis. The test for the court is the children’s best interest, and this requires consideration of both wherethe children should spend their time, and also, who should be making decisions about their lives. 61. Joint custody requires parents to have a history of co-operation, of effective communication and mutual respect.

Where there is noevidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate: Habel v.Hagedorn, 2005 CarswellOnt 3863, 2005 ONCJ 242, 141 A.C.W.S. (3d) 777 (Ont. Ct. J.), para 4; Patterson v. Patterson, supra, (ON SC), 2006 CarswellOnt 8904, 36 R.F.L. (6th) 268, [2007] W.D.F.L. 2379, [2007] W.D.F.L. 2410, [2007] W.D.F.L.2442, [2007] W.D.F.L. 2437, [2007] W.D.F.L. 2443, [2007] W.D.F.L. 2466, [2007] W.D.F.L. 2420 (Ont. Sup. Ct.), para 11; Lee v.Christie, 2011 CarswellOnt 91, 2011 ONSC 67, [2011] W.D.F.L. 1915, 100 R.F.L. (6th) 434 (Ont. Sup.

Ct.), para. 43.

62. Hoping that communication between the parents will improve once the litigation is over does not provide a sufficient basis forthe making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are ableto communicate effectively with one another: Kaplanis v. Kaplanis, supra, 2005 (Ont. C.A.), para 11; Habel v. Hagedorn, supra, 2005(Ont. Ct. J.), para 4; Patterson v. Patterson, supra, 2006 (Ont. Sup. Ct.), para 11. 63.

When the children are so young that they cannot communicate their developmental needs, communication between the parents iseven more important: Kaplanis v. Kaplanis, supra, 2005 (Ont. C.A.), para 11. 64. Past parenting experience, both during cohabitation and after separation, is of critical importance to a court's decision on whetherto order shared parenting in any form: Habel v. Hagedorn, supra, 2005 (Ont. Ct. J.), para 4; Patterson v. Patterson, supra, 2006 (Ont.Sup. Ct.), para 11. 65.

Any temporary custody order and how that order has worked is a relevant consideration for the court in determining the abilityof the parents to set aside their personal differences and to work together in the best interests of the children: Kaplanis v. Kaplanis, supra,2005 (Ont. C.A.), para 12. 66. It is incumbent on the parties to provide the court with sufficient evidence to allow the court to decide on each parent's custodialpotential. A court should not order shared parenting in any form unless it is satisfied that the arrangement under consideration isworkable and in the children's best interests.

The onus is on the person seeking such an order to prove these things: Kaplanis v. Kaplanis,supra, 2005 (Ont. C.A.), annotation. 67. A parent’s conduct is relevant to his ability to act as a parent: C.L.R.A. s. 24(3), (4); Lee v. Christie, supra, 2011 (Ont. Sup. Ct.),para. 29, 43. 68. The court is required to consider violence or abuse against the other parent or any member of her household in determining aperson’s ability to parent: C.L.R.A., s. 24(4). Decision regarding Custody 69. It is not necessary to analyse the criteria enumerated in every

section of s. 24(2) C.L.R.A.: Walsh v. Walsh, (ON CA), 1998 CarswellOnt 2893, 111 O.A.C. 118, 39 R.F.L. (4th) 416, [1998] O.J. No. 2969 (Ont.C.A.), para 13, but it is useful tospecifically review several criteria, particularly those set out in C.L.R.A. s. 24(2)(e), (g), and s. 24(4). 70. C.L.R.A. s. 24(2)(

e) requires the court to consider the plan proposed by each parent. The father’s plan is to essentially continuethe status quo, with some adjustments. The court has had an opportunity to see exactly how custody and access would work if thefather’s plan were to be ordered and implemented. The parents have no history of co-operative parenting and their entire relationship ischaracterized by conflict and violence by the father. This plan is not working, and is not in the children’s best interests.

The high levelof conflict between the parents, the fathers continuing violence and the father’s behaviour around decision-making puts the children atrisk. 71. The parent’s relationship has not evolved since they met when they were 15 and 19 years old. Although they are now older (22 and26 years old) the parents are still immature, and are in a continuing and consistently high conflict and violent relationship. Therelationship continues to be tumultuous and volatile, involving physical fights, involving the CAST and the police, and criminal chargesas recently as 2011.

There was no evidence of effective communication, or, in fact, of any communication. The evidence was to thecontrary. The parents both openly admit that they do not communicate with each other, not even about the children, and that they argueconstantly. They are, moreover, still in a relationship, as they had sex as recently as a few months before the trial. 72. The immaturity of both parents came through clearly throughout the trial. There continues to be a great deal of head-butting

between the parents, a high level of conflict, and violence by the father, all of which is unhealthy and inappropriate. This level of conflict is unhealthy for the adults, and it is harmful to the children. The continuing conflict and continuing violence by the father has caused substantial concern to the court about the effect all of this is having on the three small children emotionally, developmentally and behaviourally. 73 . It is clear that these parents have great difficulty parenting three children this young and this close in age.

They are barely managing to parent these children now, and could not do it without the substantial amount of help they are getting from both their families. The fact that they continued to have children after the first child, and that they had three children, and that they had the children so close together in age, all raises serious questions about the parent’s judgment. 74 . Their families have rallied around to help them and to help their children. One wonders if these children would all be in foster care if the respective families were not as involved as they currently are in care-giving. 75 .

The father is very critical, even dismissive, of the mother as a parent, and is openly disrespectful to her and about her. The father continues, even in 2011, to make decisions about the children and to not ask the mother or even tell the mother about those decisions. The father continues to rebook doctor’s appointments for the children, after the mother has booked them, and to not tell her about this. This continues to happen even after the court made a specific order to address this (Spence, J. on 15 December 2010). 76 .

It is unbelievable that the booking and re-booking of doctor’s appointments has gone on as long as it did. This situation is not in the children’s best interests, and in fact, is potentially dangerous (particularly the actions of the father regarding the immunization shots). It is remarkable that there were no health problems or emergencies as a result of this. This behaviour by the father is about control and authority, not about the children. 77 . Decisions about the children and the authority to make these decisions are not a game.

The father thinks the authority to make decisions about the children’s medical treatment is a game that he plays with the mother. He believes he has the right to make decisions about the children, and to assert his control over the mother and the children, whether he legally has that authority or not. He continues to make decisions even in the face of court orders specifying that the mother is the decision-maker, and he openly refuses to comply with court orders, even after years of litigation. 78 . C.L.R.A. s. 24(2)(

g) requires the court to consider the ability of each person applying for custody to act as a parent. The father is not a suitable sole custody parent, not even a suitable joint custody parent. The father chose to have three children with the mother and then chooses, repeatedly, to treat her with disrespect and contempt. The father insists on things being done his way, with no input from or even communication with the mother. Regarding parenting decisions, he treats her as though she does not exist.

If he had sole custody, joint custody, or joint decision-making authority, nothing that has gone on in the past would change. He has had ample opportunity to show the court how he would work together with the mother, and he has not. He does not work together with the mother and has no intention of working together with the mother. He would not ensure that the children had a healthy continuing relationship with the mother and her family. 79 . C.L.R.A. s. 24(4) requires the court to consider acts of violence and abuse by a parent in determining the parent’s ability to act as a parent.

In other words, acts of violence and abuse are relevant to a person’s capacity to parent. The father has repeatedly been violent towards the mother and her family members. He has been repeatedly charged with criminal offences regarding the mother and her family. He has been convicted of assaulting the mother and the mother’s grand-mother, and has served jail time for these offenses. He has recently been charged with assaulting the mother’s aunt.

The father has on three occasions forcibly removed one of the children (when they were babies) from the mother, when they were not dressed for the outside, and were wearing only a diaper and underwear. As well, the father has behaved like a bully in his dealings with the mother regarding the children. The father made no excuses, nor apologies, nor offered any explanations for this behaviour. He thinks this behaviour is acceptable. He made no suggestion this behaviour would change or stop in the future. 80 . It is in the children’s best interests for there to be one parent with decision-making authority.

On balance, even identifying and acknowledging the deficits in the mother, and even with these inadequacies, it is in the children’s best interests to be in the mother’s sole custody. Access 81 . The father is claiming every week-end with the children and the mother is proposing the father’s access be every other week-end. The children need to have a more structured and regularized

schedule than they have had for the last several years, and a life without

conflict and confusion about their care. As well, the parents have had this

schedule (every week-end with the father) in place for some time, and it is not working. The father uses this

schedule to make decisions about the children’s care that he does not have the legal authority to do, and in so doing, to dominate and control the mother and the children. Continuing this schedule, even under a sole custody order in the mother’s favour, would send the wrong message to the father, and is not in the children’s best interests. The father needs to understand that the mother has decision-making authority about the children, and that he is a parent with access. Child Support The Evidence regarding Child Support 82 .

The order of Spence, J. made 8 December 2008 provided for temporary without prejudice child support of $327 per month for two children from 1 January 2009, based on the father’s self-declared income of $21,400. The order was not changed from 2008 to the trial in 2011 (even though a third child was born in 2009). 83 . The father takes the position that he owes no money for child support, neither on-going child support nor arrears. His position is that the children were either with him, or in the shared custody of the parents, and that no child support is payable. 84 .

The paternal grand-mother said that she was not even aware that there was a child support order, although she gave extensive evidence about whether or not there should be child support paid. She said that the father told her there was no order granted that was in effect. 85 . The father’s evidence about child support was confusing and inconsistent. Notwithstanding his position that he owed no child support, he said that he paid money directly to the mother and that he deposited money into a joint bank account that he opened in January 2009 for four months.

He provided no exact total amount that he says he paid, and provided no proof of the amounts he says he paid. 86 . The Statement of Arrears from the Family Responsibility Office shows that the father has made no voluntary payments for child support at all. He describes the Family Responsibility Office calculations as “their belief that I still owe them money”. He said that there never was an amount owing. The father said that whether the Family Responsibility Office wipes the arrears off or not does not mean that he actually owes the money. 87 .

Others (the mother’s family or sometimes friends) often helped support the mother and the children financially (buying baby furniture and baby supplies) as the father was not supporting them, although he was working during some of these periods. 88 . The father’s evidence regarding his income over the years 2008 to 2011 was incomplete, imprecise, unclear, confusing and unsupported by documentation or other proof. The father says that he has worked sporadically (sometimes full-time, sometimes part- time) over the several years before the trial, and has sometimes been a student.

The mother says he was always working when she lived with him. 89 . The father’s evidence was that he started working seven months before the trial, at an annual wage of about $27,000 to $30,000. He also said that he was a full time student at trial, since September 2011. The father said that he finished high school and went to college for two years (out of three required) in a business administration program. He plans to complete this program by August 2012. 90 .

As well, at times the father was receiving the child tax benefit and the universal child tax credit (from December 2007 to August 2008, $427 per month for one child; and from January 2009 to April 2009, $835 per month for two children). Spence, J. made an order on 14 June 2010 that the father shall tell Canada Revenue Agency that he did not have the children with him 50% of the time, and that he shall reimburse the mother for all benefits he had received since March 2010 and any further benefits until the matter is rectified.

The father said that the matter was still under review by Canada Revenue, and that therefore had not been “rectified” and so he had no obligation to repay the mother the benefits he improperly received. The Law Regarding the Father’s Income 91 . The primary issue regarding child support is the father’s income, that is, not what he is earning, but rather, whether there should be

income imputed to him for the purposes of child support. 92. Section 19(1) of the Child Support Guidelines, Ont. Reg. 391/97, as amended, addresses imputing income: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment isrequired by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs ofthe parent or spouse; 93. There is a duty to seek employment in a case where a parent is healthy: Drygala v. Pauli, (ON CA), 2002CarswellOnt 3228, 29 R.F.L. (5th) 293, [2002] W.D.F.L. 406, 219 D.L.R. (4th) 319, 61 O.R. (3d) 711, 164 O.A.C. 241 (Ont. C.A.), para38. 94.

The need to ensure appropriate financial support for the children is dealt with by imputing income. Imputing income is onemethod by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legalobligation, a parent must earn what he is capable of earning: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 32, 35. 95. The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent isintentionally unemployed when he chooses not to work when capable of earning an income: Drygala v.

Pauli, supra, 2002 (Ont. C.A.),para 28. 96. A parent cannot pursue an improvident career path at the expense of the child: Evans v. Gravely, (ON SC),[2000] O.J. No. 4748 (Ont. S.C.J.), para. 10. 97. A parent cannot avoid child support obligations by a self-induced reduction of income: Weir v. Therrien, (ON SC), [2001] O.J. No. 2612, 20 R.F.L. (5th) 199, 106 A.C.W.S. (3d) 494 (Ont. Sup. Ct.), para 25. 98. The court has a broad discretion to impute income where the father is not working to his potential. 99. In Duffy v. Duffy, [2009] N.J.

No. 245, 2009 NLCA 48, 73 R.F.L. (6th) 233, 289 Nfld. & P.E.I.R. 132, 2009 CarswellNfld 211,179 A.C.W.S. (3d) 879 (Nfld & Lab. S.C. – C.A.), para. 35, the Newfoundland and Labrador Court of Appeal set out a list of generalprinciples to be considered regarding child support and when determining whether to impute income: 1. The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices. 2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his orher children. 3.

A parent is required to act responsibly when making financial decisions that may affect the level of child support available from thatparent. 4. Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate arequirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond theparent's control.

5. The determination to impute income is discretionary, as the court considers appropriate in the circumstances. 6. Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where thatparent establishes the reasonableness of his or her decision. 7. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirationsor interests.

Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or herchildren, unless the parent establishes the reasonableness of his or her course of action. 8. A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverseinference and imputing income. 100. The absence of evidence of a diligent job search leaves the court with no choice but to find that the payor was intentionallyunemployed: Filippeto v. Timpano, (ON SC), [2008] O.J. No. 417, 164 A.C.W.S. (3d) 303 (Ont. Sup.

Ct.), para 12. 101. The court finds that the father has structured his financial affairs to reduce his income for support purposes. The father madechoices which contributed to his current financial situation. It is open to the court to find that he is intentionally under-employed, and onthe basis of the evidence available at trial, the court finds that he is.

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be arational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be groundedin the evidence: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 44. The Decision regarding Child Support 103. There is no proof regarding any payments the father said that he made directly to the mother, and no exact amount paid wasoffered, and the court finds that no such payments were made.

The only evidence regarding child support paid is the Statement ofArrears from the Family Responsibility Office. 104. The evidence provided regarding the father’s income for the years 2008 to 2011 was incomplete. The original temporary childsupport order on 8 December 2008 was based on the father’s self-declared income of $21,400. 105. The father admits he is currently earning an annual income of $27,000 to $30,000 in 2011. The father has been unemployed orunder-employed for some time, during which period the mother, her family and others have been financially supporting his threechildren, with no help from him.

In fact, the father is rather defiant about his failure to pay any child support. The father is a young,healthy, competent man. There should be income imputed to him of $30,000 from the time of the birth of the third child, and for theyears 2010 and 2011. Orders 106. The mother shall have sole custody of the three children. 107. The children shall be with the mother for Christmas, Easter, Thanksgiving, Mother’s Day, each of their birthdays and themother’s birthday, no matter whose week-end those events fall on, with no make-up time required. 108. The father shall have the following access to the children:

a) Every other week-end from Friday at 6 p.m. to Sunday at 6 p.m.;

b) Exchanges to take place in the parking lot of the mother’s home;

c) From 27 December at 10 a.m. to 31 December at 6 p.m. each year;

d) Two weeks in the summer, to be determined by written notice from the father to the mother before 1 May in each year; and,

e) Other times that the parents can agree on. 109 . Only the mother shall make decisions regarding the health, education and welfare of the children. All professionals providing services to the children (including schools, daycares, doctors) shall be provided with a copy of this order. 110 . The father has the right to make enquiries and be given information as to the health, education and welfare of the children under s. 20(5) of the C.L.R.A. . 111 . The father shall not remove the children from Ontario without the mother’s prior written consent or court order. 112 . The father shall pay child support for the children as follows:

a) For two children, $327 per month from 1 January 2009 on the father’s self-declared income of $21,400; and,

b) For three children, $598 per month from 1 December 2009 on imputed income of $30,000. 113 . The father shall produce to the mother every year by 1 June, starting in 2012, copies of his Income Tax Returns and Notices of Assessment, pursuant to ss. 24.1, 25 and the disclosure requirements of the Child Support Guidelines. 114 . Any arrears of child support owing under this order shall be paid by the father at the rate of $100 per month starting 1 January 2012.

If the father defaults on any on-going child support payments or payments towards arrears, all arrears then owing are due and payable immediately, and the Family Responsibility Office may take whatever steps to enforce the order they determine to be appropriate. 115 . The father shall reimburse the mother for all benefits received by him regarding the children since March 2010, to be paid in full by 31 January 2012. Costs 116 . If either parent is seeking costs, the scheduling office shall set a return date as soon as available for costs to be argued.

The parent seeking costs shall make this request of the Scheduling Office by Friday 30 December 2011. Released: 29 November 2011 _______________________ Justice Carole Curtis