Mulik v. McFarlane, 2023 ONCJ 148

CITATION: Mulik v. McFarlane , 2023 ONCJ 148 DATE: April 3, 2023 COURT FILE NO. D41467/21 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) DIANA MALGORZATA MULIK MONIKA CURYK, for the APPLICANT ) ) APPLICANT ) ) - and - ) MICHAEL WESLEY MCFARLANE ) ) ) ) ACTING IN PERSON ) ) ) HEARD: MARCH 30, 2023 ) ) ) JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] This trial was about the parenting and child support arrangements for the parties’ 6-year-old daughter (the child) and the applicant’s (the mother’

s) claim for spousal support from the respondent (the father). [ 2 ] The mother seeks parenting orders that the child shall have her primary residence with her, that she have sole decision- making responsibility for the child and that the father’s parenting time with the child be as agreed upon between the parties. [ 3 ] The mother also seeks incidents of parenting.

She seeks orders dispensing with the father’s consent for her to obtain and renew government documentation for the child and for her to travel with the child outside of Canada. [ 4 ] The mother seeks child support from the father of $1,146 each month, starting on July 1, 2021, increasing to $1,296 each month, starting on April 1, 2023. [ 5 ] The mother seeks spousal support from the father of $2,400 each month, starting on July 1, 2021, increasing to $3,132 each month, starting on April 1, 2023. [ 6 ] The father opposes the mother’s claim for sole decision-making responsibility for the child and her claims for incidents of parenting.

He submits that the amounts the mother is seeking for child support are too high. He further submits that the mother is not entitled to spousal support, and if she is, the amounts that she is claiming are too high. [ 7 ] On November 30, 2022, the court struck the father’s Answer/Claim pursuant to subrule 1 (8) of the Family Law Rules (the rules), arising from the father’s multiple breaches of court orders to pay support and costs and to provide meaningful financial disclosure

to the mother. See: Mulik v. McFarlane , 2022 ONCJ 555 . [ 8 ] The court gave the father until January 16, 2023 to move to reinstate his Answer/Claim upon the performance of specific conditions, including the production of financial disclosure and making payments towards support arrears and outstanding costs. The father did not bring the reinstatement motion.

He filed none of the financial disclosure ordered and did not make any of the payments required by the court. [ 9 ] Pursuant to subrule 1 (8.4) of the rules, the court provided the father with rights of participation at the trial if he did not move to reinstate his Answer/Claim. It gave him until February 21, 2023 to serve and file a draft parenting plan and an affidavit setting out why this plan was in the child’s best interests.

The father did not do this. [ 10 ] The court also permitted the father to serve and file by February 21, 2023 an updated sworn financial statement, together with all attachments required by the rules. The father did not do this. [ 11 ] The court also ordered on November 30, 2022 that the father was permitted to make submissions on the evidence filed at this trial. He was not permitted to call further evidence (other than the evidence set out in paragraphs 9 and 10 above), or cross-examine the mother. [ 12 ] The trial was scheduled to take place in person. The father did not attend at the court.

He did appear by videoconference and explained that he was out of the country. The trial was conducted as a hybrid proceeding. The mother testified. The father was permitted to make submissions. [ 13 ] The issues for the court to determine are as follows:

a) What parenting orders are in the child’s best interests?

b) When should child support start?

c) What income should be imputed to the father for the purpose of the support analysis?

d) Is the mother entitled to spousal support?

e) If the answer is yes:

i) What income should be imputed to the mother for the purpose of the spousal support analysis? ii) What should be the amount and the duration of the spousal support order? iii) When should the spousal support order start? Part Two – Background facts [ 14 ] The mother is 38 years old. The father is 47 years old. [ 15 ] The mother was born in Poland. She came to Canada in 2008 and became a permanent resident of Canada in 2017. [ 16 ] The mother married another man in 2009. They are the parents of a 13-year-old child who lives with the mother. The mother separated from her husband in 2012. They are now divorced.

He pays her child support of $300 each month. [ 17 ] The parties met and began cohabiting in September 2014. They ended their relationship in September 2020. [ 18 ] The mother has not worked since she came to Canada. [ 19 ] The father resides in Mississauga Ontario with his parents (the paternal grandparents) and a child from another relationship.

He is employed full-time. [ 20 ] The mother issued her application on June 2, 2021. [ 21 ] The father filed his Answer/Claim on October 4, 2021. [ 22 ] On October 21, 2021, on consent, temporary without prejudice orders were made that the father have weekend parenting time with the child, and based on an annual income of $129,996, that he pay child support of $1,146 each month to the mother, starting on October 1, 2021.

The father was represented by counsel at that time. [ 23 ] The father is several thousand dollars in arrears of this order. [ 24 ] On February 23, 2022, after a contested motion, the court ordered the father to pay the mother temporary spousal support of $2,400 each month, starting on March 1, 2022 (the temporary spousal support order). See: Mulik v. McFarlane, 2022 ONCJ 67 . [ 25 ] The father has not paid any spousal support pursuant to that order. [ 26 ] On April 19, 2022, the father was ordered to pay the mother her costs of $5,085 for the temporary spousal support motion. See: Mulik v.

McFarlane , 2022 ONCJ 180 . [ 27 ] On July 7, 2022, the parties were ordered to serve and file by August 15, 2022 updated financial statements, their 2021

income tax returns and notices of assessment, proof of 2022 income from all sources, including pay stubs, and any record of employment if they had left a job. The parties were also ordered to serve and file trial management conference briefs for the next court appearance. [ 28 ] The mother complied with this order. The father did not. [ 29 ] On September 2, 2022, the father was granted an adjournment to obtain new counsel and file the disclosure ordered on July 7, 2022. The father was cautioned that he must serve and file these documents, otherwise the mother could move to strike his Answer/Claim.

He assured the court that the documents would be filed, whether or not he had counsel. The case was adjourned until September 29, 2022. [ 30 ] The father did not attend court on September 29, 2022. He had filed none of the documentation ordered on July 7, 2022. The mother moved orally to strike his Answer/Claim. The court required the mother to serve and file a notice of motion seeking this relief. The court ordered that the father pay the mother’s costs fixed at $600, payable forthwith. [ 31 ] The mother then moved to strike the father’s Answer/Claim.

It was struck on November 30, 2022, as the father had still not complied with the court’s orders. [ 32 ] On January 5, 2023, the court ordered the father to pay the mother her costs of $5,424 for that motion. [ 33 ] The father has filed no further financial disclosure despite clear court direction about what he needed to file for this trial.

Part Three – Parenting orders [ 34 ] The court must make parenting orders that are in the child’s best interests. [ 35 ] The court considered the best interests factors that are contained in subsection s 24 (2) to (6) of the Children’s Law Reform Act (the Act). [ 36 ] The child has resided with the mother since the separation. The mother has been the child’s primary caregiver. The child is thriving in her care.

The father does not contest that the child’s primary residence should be with her. [ 37 ] The court finds that it is in the child’s best interests for the mother to have sole-decision making responsibility for the following reasons:

a) The father cannot communicate with the mother due to criminal release conditions. These conditions have been in place since the father assaulted the mother in April 2021. They remain in place until November 2023.

b) The mother testified that the father also sent her threatening photos.

c) The mother only communicates with the paternal grandparents She says that she has a “decent” relationship with them.

d) In considering a child’s best interests, it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah , 2021 ONCJ 201 ; Seyad v. Pathan, 2022 ONCJ 501 . The father’s failure to follow multiple court orders in this case informs the court that he is a very difficult person to deal with. There is no reason to believe that he would cooperate with the mother to effectively make major decisions regarding the child.

e) Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed , [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022 ; McBennett v Danis , 2021 ONSC 3610 ; J.T. v. E.J., 2022 ONSC 4956 ; Shokoufimogiman v. Bozorgi , 2022 ONSC 5057 . The father’s failure to meet his child support obligations informs the court that he puts his own interests ahead of the child’s.

f) The mother has made responsible major decisions for the child. She has always facilitated the father’s parenting time. The court trusts her to keep doing this. [ 38 ] The court does not have confidence that the father would consistently execute consents for the mother to obtain necessary government documentation for the child and for the child to travel outside of Canada for vacation purposes because:

a) He is very angry at the mother. He resents that she is seeking spousal support from him.

b) He is unreliable. He has not met his financial obligations. He has not provided financial disclosure.

c) He has demonstrated throughout this litigation that if given the chance, he will make life difficult for the mother. [ 39 ] It is in the child’s best interests that the mother be able to obtain or renew necessary government documentation for the child and for the child to experience travel outside of Canada. The court will dispense with the father’s consent, as sought by the mother. [ 40 ] The mother has made direct arrangements with the paternal grandparents for the child to spend weekends at their home.

The mother said that the child really enjoys her time with the paternal grandparents, the father and the father’s other child. [ 41 ] The mother did not ask for a structured parenting time

schedule as she hopes to be able to find work soon and does not know what her work

schedule will be. She was confident that organizing parenting time through the paternal grandparents will not be an issue. The court will make the parenting time order sought by the mother. Part Four – Child support

[42] The mother asks for child support to start on July 1, 2021. This is prospective child support as the mother issued herapplication on June 2, 2021. See: See MacKinnon v. MacKinnon (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 22.Accordingly, the retroactive support principles set out by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24 do not apply. [43] The father did not pay any child support to the mother from July 1, 2021, until the temporary child support order started onOctober 1, 2021. He should have been paying child support during this time.

It is appropriate to start child support on July 1, 2021, asrequested by the mother. [44] The mother seeks to assess the father’s annual income at $129,996 for support purposes up until March 31, 2023, and thenimpute an annual income to him of $149,500, starting on April 1, 2023. [45] The father submitted that he has had six jobs over the past two years and no longer earns $129,996. He filed no documentaryevidence to support this claim. [46] The parties consented to assess the father’s annual income at $129,996 for the temporary child support order.

The court alsoused this income for calculating temporary spousal support on February 23, 2022. The court will continue to use that income for thepurpose of the support calculations. There is no evidence that the father is earning more income than this. And, the court is far fromconvinced that he is earning less, as the father has had multiple opportunities to prove this to the court. The court draws an adverseinference against the father arising from his failure to provide this evidence. [47] The father shall pay the mother child support of $1,146 each month, starting on July 1, 2021.

This is the Child SupportGuidelines (the guidelines) table amount for one child. Part Five – Spousal support 5.1 Entitlement [48] The father claims that the mother is not entitled to spousal support. [49]

Section 30 of the Family Law Act (the FLA) states that every spouse has an obligation to provide support for himself orherself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33 (8) of theFLA sets out the purposes of spousal support and subsection 33 (9) of the FLA sets out how to determine the amount of spousal support.The court has considered these provisions in making this order. [50] Spousal support is not merely a consideration of needs and means.

In determining the appropriate amount of spousal support,compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economicconsequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569 . Entitlement can be based oncompensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, (S.C.C.). [51] In its temporary spousal support decision, the court found that the mother was entitled to spousal support on both acompensatory and non-compensatory basis as it set out in paragraphs 41 (

a) to (

c) of that decision:

a) There is a prima facie case that there is a compensatory basis to the applicant’s support claim as:

i) The applicant delayed returning to school to upgrade her education due to her roles in the relationship. This has adverselyimpacted her marketability and earning potential. From September 2014 until February 2017, the applicant was the sole financialsupporter of the family, working full-time as a cleaner and primarily caring for the older child. She even gave the respondent $3,000towards the purchase of his present vehicle. ii) The applicant has been the primary caregiver for the child.

These responsibilities have had and will likely continue to havean adverse impact on her marketability and earning potential. iii) The respondent has been able to advance his career, pursue employment opportunities and earn substantial income while theapplicant has assumed the majority of child-care responsibilities.

b) The applicant has a strong non-compensatory claim for support. She has no source of revenue other than Canada Child Benefits,OSAP loans and grants, and child support. There is a huge discrepancy in the parties’ incomes. The respondent leads a much betterlifestyle than the respondent. For example, he is able to afford to pay over $1,500 each month for vehicle expenses.

c) The respondent has not met his financial responsibilities to the applicant and the child. It appears that he did not disclose hisincome to the applicant during their relationship and let her assume most of the financial responsibility for their family – even though hehad the ability to pay support. He paid no child support until the applicant brought the case to court. Even after agreeing to pay childsupport in October 2021, he has gone into significant arrears, without explanation. His first support payment was made in December2021. He has failed to provide the required financial disclosure. It is has become evident that he is resistant to paying fair support.

[ 52 ] No new evidence was led at trial that would change this analysis. The mother is entitled to spousal support on both a compensatory and non-compensatory basis. 5.2 The mother’s income [ 53 ] In assessing temporary spousal support, the mother agreed to have her annual income imputed at $17,000. She is prepared to continue to use this figure for the spousal support calculation from July 2021 until March 31, 2023. [ 54 ] The court will extend the imputation of the mother’s annual income at $17,000 for spousal support purposes until the end of August 2023.

However, the income analysis changes after that date. [ 55 ] The mother has an obligation to use her best efforts to become self-sufficient. The court recognizes that she has faced a number of challenges to do this. She immigrated to Canada and had poor English skills. She is a single parent for two children. She received little financial assistance and had to manage the children during the pandemic. She has not worked since she arrived in Canada. [ 56 ] The mother made a reasonable decision to attend school to upgrade her English skills. She graduated from George Brown College in June 2021.

She then enrolled at Andersen College of Health, Business and Technology, in the Toronto Law Enforcement/Police Foundations program. She finished this program in April 2022. However, she still was required to pass a licencing exam and do a one-week placement. [ 57 ] The mother testified that Anderson College delayed getting the necessary paperwork to her to write her exam. She wrote the exam in February 2023 and said that she barely failed it.

She intends to write it again shortly. [ 58 ] The mother expressed optimism that she will be able to find security work in the next month or two, either at the airport or at a private security company. She expects to earn annual entry income of between $30,000 to $35,000. The mother acknowledged that she has not sought any other work. [ 59 ] The court finds it fair in these circumstances to assess the mother’s annual income, for spousal support purposes, at $32,000, starting on September 1, 2023. 5.3 Amount and duration [ 60 ] The mother seeks indefinite spousal support.

She asked that it increase from $2,400 each month to $3,132 each month, starting on April 1, 2023. [ 61 ] The Court of Appeal in Fisher v. Fisher , 2008 ONCA 11 stated that the Spousal Support Advisory Guidelines (the SSAG ), while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established. [ 62 ] In Mason v. Mason , [2016] ONCA 725 , the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis.

It wrote in paragraph 122: [122] Further, in The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version , the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs “is the problem of unsophisticated use.” The authors continue by stating: For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point.

There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results. [ 63 ] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry , 2016 ONCA 930 , paragraph 95 . [ 64 ] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache , 2012 NBQB 75 . If the recipient required training or education to improve their earning capacity, this can push the amount higher in the range for a short period of time. See: Jones v.

Hugo , 2012 ONCJ 211 . [ 65 ] Based on the mother’s annual income of $17,000 and the father’s annual income of $129,996, the SSAG ranges are as follows: Low range $1,717 each month Mid range $2,269 each month High range $2,756 each month [ 66 ] In paragraph 41 of its temporary spousal support decision, the court explained why it ordered temporary spousal support of $2,400 each month – between the mid and high range. No new evidence was led at trial that would change that analysis.

This amount will be ordered until August 31, 2023. [ 67 ] Based on the mother’s annual income of $32,000 and the father’s annual income of $129,996, the SSAG ranges are as follows: Low range $1,341each month Mid range $1,868 each month

High range $2,234 each month [ 68 ] The SSAG set out the duration of the award as being indefinite with a minimum of three years and a maximum of 15 years from the date of separation (September 2020). [ 69 ] Duration and quantum of support are separate and interrelated tools available to courts to best achieve the purposes of an order for spousal support. See: Domirti v. Domirti , 2010 BCCA 472 ; Lazare v. Heitner, 2018 CarswellOnt 9389 (Ont. S.C.J.) . [ 70 ] The court has considered that:

a) This was a 6-year relationship.

b) The mother has a strong compensatory support claim. She has been and will continue to be the child’s primary caregiver. She will need to arrange her work

schedule to look after all the child’s needs, including appointments with service providers and meetings with the school. This has and will continue to compromise her earning capacity.

c) The roles assumed by the mother both during and after the parties’ relationship allowed the father to maximize his income.

d) The father was secretive about his income during the parties’ relationship and the mother disproportionately supported the family.

e) The mother’s challenges to become self-sufficient have been set out above. She has struggled without proper support from the father and will likely to continue to struggle without meaningful support.

f) The father has another child living with him. [ 71 ] The court will order the father to pay spousal support to the mother in the SSAG mid range from September 1, 2023 until August 31, 2025 ($1,800 each month); in the low to mid range from September 1, 2025 until August 31, 2027 ($1,500 each month); and in the low range ($1,350 each month) from September 1, 2027 until December 31, 2029. At that time, spousal support will terminate. [ 72 ] The software calculations will be attached for the parties. 5.4 Start date for support [ 73 ] The mother asks that spousal support start on July 1, 2021.

Since the court is time-limiting the spousal support order, it will start the support payments on January 1, 2022, to avoid any income tax complications. [ 74 ] The mother will be receiving spousal support for eight years in total. The court finds this meets the purposes and objectives of spousal support set out in the FLA. Part Six – Conclusion [ 75 ] A final order shall go on the following terms:

a) The child’s primary residence shall be with the mother.

b) The mother shall have sole decision-making responsibility for the child.

c) The mother shall inform the father of any major decisions affecting the child.

d) The mother may obtain or renew all government documentation for the child, including passports, without the father’s consent.

e) The mother may travel with the child outside of Canada for vacation purposes without the father’s consent. She shall notify him of any trip at least 14 days in advance and provide him with an itinerary.

f) The father’s parenting time with the child shall be as agreed upon by the parties. In the event of any disagreement, the mother shall have final say on parenting time.

g) Based on an imputed annual income of $129,996, the father shall pay child support to the mother of $1,132 each month, starting on July 1, 2021. This is the guidelines table amount for one child.

h) The father shall pay the mother spousal support of $2,400 each month, starting on January 1, 2022.

i) The father shall pay the mother spousal support of $1,800 each month, starting on September 1, 2023.

j) The father shall pay the mother spousal support of $1,500 each month, starting on September 1, 2025.

k) The father shall pay the mother spousal support of $1,350 each month, starting on September 1, 2027.

l) Spousal support shall terminate on December 31, 2029.

m) A support deduction order shall issue.

n) The parties shall exchange their full income tax returns and notices of assessment by June 30 th each year.

o) The Family Responsibility Office shall only credit the father with support paid as reflected in its records since July 1, 2021. It is asked to adjust its records in accordance with this order. [ 76 ] The mother is the successful party. She may serve and file written costs submissions by April 17, 2023. The father will then have until May 1, 2023 to serve and file his own costs submissions. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. The submissions are to be delivered to the trial coordinator’s office on the second floor of the courthouse. Released: April 3, 2023 _____________________ Justice Stanley B. Sherr