BACKGROUND

The parties were married in the United States in February 2017. They moved to Toronto shortly after their marriage and had one child together (“The Child”). The parties separated in March 2020.

Post-separation, the Child has lived exclusively with the mother and has had sporadic parenting time with the father. The mother was always present during the visits. The father has only seen the Child twice since June 2023. The father has not paid any child support since separation.

The father’s Visitor Visa expired in July 2022. He has been in Canada illegally since that time.

In September 2023, the father filed an Application for parenting orders; the mother filed her Answer. On motion, the Court adjourned the matter twice and ordered the father to provide financial disclosure and file his Financial Statement. The terms for adjournment included a temporary order (made in November 2023 and January 2024). Since then, the father filed no further materials or provided financial disclosure.

The mother is asking the court to maintain the temporary orders.

ISSUES

1. Should the mother have sole decision-making responsibility for the child?
2. Should the father’s parenting time with the child be supervised?
3. What temporary child support order should be made?
   1. What income, if any, should be imputed to the father?

ANALYSIS

The law relating to the child’s best interests

The Court stated that any proceeding with respect to children is determined by considering the best interests of the child, pursuant to sections 24(2) to 24(7) of the Children’s Law Reform Act (“the Act”) Section 24(2) of the Act states the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

The Court also noted that 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 that is meant to ensure their safety and protection.

Section 24(4) of the Act sets out a list of factors related to family violence for courts to consider when determining a child’s best interests. Essentially, domestic violence has a has a negative impact on children who are exposed to it, so it is important to protect children from conflict (see section 33.1 of the Act).

Further, section 24(6) of the Act states that with respect to parenting time, a child should have as much time with each parent as is consistent with their best interests. Thus, the Court noted that the person seeking supervised parenting time for the other parent has the onus of establishing that supervision is necessary.

Applying the Law

1. Should the mother have sole decision-making responsibility for the child, and be the child’s primary caregiver?

The Court found that it is in the child’s best interests for the mother to have sole decision-making responsibility for the child, and for the child’s primary residence to remain with the mother for the following reasons:

1. She has been the primary caregiver for the child since March 2020;
2. She has responsibly made all decisions for the child;
3. The father has had very limited time with the child since March 2020 and has only seen the child twice since June 2023;
4. The father has never had unsupervised parenting time with the child; and
5. The father revealed a lack of insight in claiming joint decision-making responsibility for a child he has had little contact with, due to his own choices, since June 2023.

2. Should the father’s parenting time with the child be supervised?

The Court determined that the father’s parenting time should be supervised due to the following reasons:

1. There is strong evidence that the father has perpetrated significant family violence against the mother in front of the Child;
2. The father did not deny the mother’s allegations that he has faced criminal charges for assault, driving under the influence, and a charge in relation to prostitution. The father also did not reveal these charges in his 35.1 parenting affidavit;
3. The father has made a number of threats to harm himself, raising concerns about his mental health and emotional stability;
4. The father abuses alcohol and marijuana, including in front of the child; and
5. The father has frequently threatened to take the Child to the United States. The Court agreed that there is a risk that the father would do this.

Thus, the Court found that it is in the child’s best interests to be cautious with the father’s parenting time.

3. What temporary child support orders should be made?

The Law regarding imputing income

Section 19 of the Child Support Guidelines (“CSG”) permits courts to impute income.

Jurisprudence shows that in order for parties to meet their child support obligations, they must earn what they are capable of earning. If they fail to do so, barring any reasonable explanations, they will be found to be intentionally under-employed.

Further, the Court stated that where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

Applying the Law

The father did not file a financial statement or provide financial disclosure despite being ordered to do so twice. Thus, the Court drew an adverse inference against the father.

The father argued that he is unable to find work because he is in Canada illegally.

However, the Court stated that the father intentionally decided to remain in a country where he could not legally work and that children should not bear the consequences of such a decision.

Further, the mother stated that while the parties lived in the United States, the father was the sole provider for the family and earned about $75,600 USD each year. She also claimed that when the parties came to Canada, the father worked for a mechanic and brought home “wads of cash”. The father provided no evidence disputing this, nor did he explain how he currently supports himself.

Thus, for the purposes of this motion, the Court accepted the mother’s evidence that the father is likely earning cash income, or is capable of earning an annual income of $34,400. The Court also stated that if the father is not earning at least this amount, it is because he is deliberately unemployed without a valid excuse. The Court also noted that the father has the choice of returning to the United States and earning much more income.

Thus, the Court ruled that it would impute income to the father in the amount sought by the mother.

CONCLUSION

The Court released a temporary order where, among other things, the father’s parenting time will be supervised, and the father shall pay temporary child support to the mother in the amount of $297 each month per his imputed income of $34,000.

Further, the court ordered that the father provide financial disclosure to the mother within 45 days.