Background

In this case, the parties were married on September 21, 2015, and separated in April 2017. They have a six-year-old child who has been living with the mother since the separation. The father resides in Alberta and has not had any contact with the child for more than five years.

The mother filed an application seeking sole decision-making responsibility for the child, which includes the right to obtain travel documents without the father's consent. Additionally, she requested that the child continue to reside primarily with her, child support, and a divorce from the father.

Issues

1. Should the mother have sole decision-making responsibility?

2. What income should be imputed to the father for the purpose of calculating his child support

payments?

3. Should the father be ordered to pay retroactive child support?

4. Should a divorce be granted?

Analysis

1. Should the mother have sole decision-making responsibility?

In determining the child's best interests, the court takes into account various factors outlined in s.16 of the Divorce Act, including:

1. the child's needs, including the need for stability;
2. the nature and strength of the child's relationship with each parent;
3. each parent's willingness and ability to care for and meet the child's needs;
4. each parent's willingness and ability to support and maintenance of the child's relationship with the
5. other parent;
6. the history of care of the child; and
7. any plans for the child's care: s.16 of the Divorce Act, s.16(1) and 16(3).

After considering these factors, the court found that the mother has been the primary caregiver for an extended period. Since the parents' separation, she has taken sole responsibility for all decisions regarding the child. Conversely, the father has not been involved in the child's life and did not submit a Form 35.1 Affidavit detailing his intentions to participate in the child's life.

Given these circumstances, the court granted the mother sole decision-making responsibility to ensure the child's security and stability. Additionally, the mother was given the authority to apply for and renew travel documents for the child, allowing her to travel internationally without the father's consent.

2. What income should be imputed to the father for the purpose of calculating his child support payments?

The father failed to provide any information regarding his income. Consequently, the court determined his income by imputing it to the minimum wage in Alberta, which is $15 per hour. Since the father did not present any evidence to demonstrate his inability to work, the court imputed his income at an annual amount of $22,500. As a result, he was ordered to pay $197 per month in child support.

3. Should the father be ordered to pay retroactive child support?

When considering retroactive support, the court considers the following:

1. Any delay from the mother in seeking child support
2. The needs of the child
3. The father's behavior
4. Whether a retroactive award would cause hardship to the father

In this case, the court ordered retroactive support starting from the date when the father was served with the mother's application. The father has not made any support payments and has also failed to provide his income information to the mother. Additionally, he did not demonstrate to the court that he would face hardship if required to pay retroactive support. As a result, the court determined that the father should pay retroactive support for the period from October 2021 to February 2023, which amounts to 16 months, at a rate of $197 per month, totaling $3,152.

4. Should a divorce be granted?

Before a divorce can be granted, two statutory criteria must be met:

1. Firstly, at least one spouse must have lived in Ontario for a minimum of one year before initiating the divorce application, as stated in the Divorce Act, R.S.C. 1985, c.s. 3(1).
2. Secondly, there must be evidence of a breakdown in the marriage, as outlined in section 8(1) of the Divorce Act.

The mother can establish that the marriage has broken down if she and the father have been living "separate and apart for at least one year," as stated in section 8(2) of the Divorce Act.

The parties were married on September 21, 2015, and separated in April 2017. The mother filed for divorce in December 2020 and has been living in Toronto with her child since 2017. Therefore, the conditions for divorce have been met.

Additionally, before granting a divorce, the court must be satisfied that reasonable arrangements are in place to support any child of the marriage, as per section 11(1)(b) of the Divorce Act. In this case, the mother has been solely responsible for caring and supporting their child since the separation. The court has determined that reasonable arrangements are in place for the child's support.

Therefore, considering all these factors, the court was satisfied that reasonable arrangements were in place for the support of the child and granted the divorce.

Conclusion

The court awarded sole decision-making responsibility to the mother, determining that it is in the best interest of the child for her to have this role. Additionally, the court ruled that the child should primarily reside with the mother.

In terms of child support, since the father did not provide any income disclosure, the court imputed his income at the minimum wage of $22,500. As a result, he was ordered to pay child support retroactively.

Lastly, the court granted the mother's application for divorce, considering the statutory criteria that had been met and being satisfied that reasonable arrangements were in place for the support of the child.

Therefore, the mother was awarded sole decision-making responsibility, the father's income was imputed, retroactive child support was ordered, and the divorce application was granted.