Court File and Parties
Court File No.: D54144/11 Date: 2012-04-10
Ontario Court of Justice Toronto North Family Court
Between:
Kimberley Carter, Applicant
- and -
Gordon Spracklin, Respondent
Counsel:
- Evan Chang, for the Applicant
- Renata Kirszbaum, for the Respondent
Heard: April 5, 2012
Justice: Stanley B. Sherr
Endorsement
Part One – Introduction
[1] The applicant has brought a motion seeking temporary child support for her two children, ages 15 and 9. She asks that the respondent be required to pay her the table amount of child support pursuant to the child support guidelines (the guidelines) based on an imputed income to him of $25,000 per annum. She asks that support begin as of November 1, 2011.
[2] The respondent is on Ontario Works. His position is that he cannot afford to pay child support and that no income should be imputed to him for child support purposes. In the alternative, he argued that he should not be required to pay child support for the older child (the daughter) as she is currently not in school.
[3] The court heard oral evidence from both parties on this motion in addition to the affidavits filed on their behalf.
Part Two – Background Facts
[4] The applicant is 38 years old. The respondent is 40 years old.
[5] The parties resided together from 1989 until August 9, 2010.
[6] In addition to the two children who are the subject of the motion, the parties have a third child, age 22, who lives with the applicant.
[7] The applicant was primarily a homemaker while the parties cohabited. The respondent financially supported the family.
[8] The applicant is presently working with the Salvation Army, earning a modest income (just under $15,000 per annum).
[9] The applicant issued this application for custody and child support on May 11, 2011.
[10] The parenting issues have already been dealt with by temporary order. The mother has temporary custody of the children.
[11] The respondent was convicted of mischief arising out of an incident that prompted the separation of the parties. The respondent's probation terms require that he stay 500 meters away from the applicant, except for purposes of visitation.
[12] The respondent has paid no child support to the applicant since the application was issued.
[13] The respondent has a grade 12 education.
[14] The respondent worked full-time from 1989-1996 in a number of jobs, such as contracting, cabinet-making and sales.
[15] The respondent worked as a fiberglass laminator from 1996-2009. He earned annual income of about $35,000 towards the end of his employment.
[16] The respondent was laid off by his employer in 2009. He has not worked since then. He initially went on employment insurance and has been on Ontario Works since early in 2011. He presently receives $574 per month.
[17] The respondent lives with his mother. He is not working and is not in school.
[18] On September 28, 2011, the court made an order that the respondent provide financial disclosure to the applicant. The respondent has not provided his current resume or job search list as required by the order.
Part Three – Entitlement to Support for the Daughter
[19] The respondent argued that he had no obligation to pay child support for the daughter since she is currently not attending school.
[20] This argument was a non-starter.
[21] Section 31 of the Family Law Act reads:
Obligation of parent to support child
- (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. c. 20, s. 2.
Idem
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
[22] The daughter is under 16 years of age. Until the age of sixteen years, the obligation of a parent to provide support for a child in accordance with the guidelines is absolute. See: Ferguson v. Charlton, 2008 ONCJ 1, per Robert J. Spence. The exception to a child's entitlement to support created by subsection 31(2) of the Family Law Act does not apply here. Further, even if the daughter was 16 years of age, she has not withdrawn from parental control. She resides with the applicant and is supported by her. There is no legal requirement that the daughter, while she is under 18 years of age, has to be attending school to be entitled to child support.
[23] Lastly, the applicant explained that the daughter is only temporarily out of school due to bullying issues at her last school. The daughter is involved with a program called Operation Springboard. She attends workshops there and they are assisting her in finding part-time work this summer. The daughter intends to return to school once she completes a credit recovery program.
[24] The applicant is entitled to receive child support for the daughter.
Part Four – Imputing Income
[25] Clause 19(1)(a) of the child support guidelines (the guidelines) reads as follows:
Imputing income
- (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
[26] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed or unemployed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. Drygala v. Pauli.
[27] The court in Drygala sets out a three-part test to determine if income should be imputed. The first part of the test is to ask if the payor is intentionally under-employed or unemployed. The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.
[28] The onus is on the applicant to establish that the respondent is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322. However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income. Absence of a reasonable job search list will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano. Lastly, a parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. DePace v. Michienzi.
[29] I find that the respondent is intentionally unemployed. The court accepts that the respondent was legitimately laid-off from work in 2009, but based on his age, skills and employment history, he should have found work long ago. The court also draws an adverse inference against the respondent arising out of his failure to provide a job search list as ordered by the court.
[30] The testimony of the respondent was very revealing. It showed that he has made only nominal efforts to seek work since his layoff. He claimed that he had applied for several laminator jobs, but couldn't name one company that he had applied to. He testified: "It was so long ago, I've got so much on my mind, I couldn't tell you names, dates and numbers". The respondent couldn't provide names of other employers that he had applied to or the dates of such applications. It appears that all he has done is put his name in with two employment agencies (whose names he struggled to remember) who have not called him. He testified, "If they can't get me a job, what can I do"? The respondent has not been reasonably proactive in looking for work.
[31] The respondent was asked if he had applied for any minimum wage work, such as at McDonald's or Tim Horton's. The father screwed-up his face when answering the question and said, "You know what, my credentials are above that". The father testified that he wants a career, not just a job.
[32] The second part of the test in Drygala v. Pauli, supra, is: "If the payor is intentionally unemployed or under-employed, is this by virtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs"? The onus to establish the reasonableness of the excuse is on the payor.
[33] The respondent deposed in his affidavit sworn on October 27, 2011, that he would be going back to school in January of 2012 to take a two-year course to become a computer technician. He testified that he did not start school in January as his counselor didn't submit the necessary paperwork. He testified that he had planned to start the course in March of 2012, but that this plan was derailed when he was charged with breach of probation in February of 2012. The father claimed that his counselor told him to defer going to school until the criminal case ended. The father said that it might take some time for the case to be resolved. He testified, "You never know how long the court case will go". The father testified that he was not very employable while he had to go to court dates and attend anger management (a term of his probation). He added that he did not want to jeopardize his funding for school by missing classes due to these commitments.
[34] It became clear that the respondent had no intention of going to school or seriously looking for work while his criminal charge is outstanding. This is not a reasonable position.
[35] The respondent's plan to eventually go back to school and not pay child support for two years is also not reasonable. He has not established that the time it would take to complete this program (and where his children would not receive support) is justified by an increase in earning capacity that he would attain by completing this course. His children need support now. See: Hanson v. Hanson; Gobin v. Gobin, 2009 ONCJ 245. Further, based on the evidence to date, the court is skeptical that the respondent would follow through with and complete this educational program. He deposed that he was late in registering for an automotive program in the fall of 2011. He has not attended the computer technician program that he claimed he would start in January of 2012 (blaming his counselor), and didn't appear to be prepared to begin it anytime soon.
[36] I also do not accept the respondent's argument that his ability to earn income is compromised by having to make criminal court appearances and attend anger management courses. In any event, he cannot reduce his support obligations due to his own misconduct. See: Luckey v. Luckey; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood. The consequences of his actions should be borne by him and not by his dependants. See: Baldini v. Baldini.
[37] The respondent did not establish a reasonable excuse for being unemployed.
[38] The third part of the Drygala test is: "If there is no reasonable excuse for the payor's unemployment or under-employment, what income should properly be imputed in the circumstances"? The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.
[39] The applicant's position that the respondent is capable of earning $25,000 per annum is very reasonable. The respondent was steadily employed for 20 years and was the financial provider for the family. He has a variety of work experience and skills working with his hands. His age is not an obstacle to obtaining employment. He also has no health issues that would affect his ability to earn this level of income.
[40] The applicant seeks a start date for child support of November 1, 2011. This is also a reasonable request. Arrears of support will automatically be created by the terms of this order. The order will provide for a reasonable repayment agreement for these arrears. The start date will be deferred for a brief period of time to enable the respondent to start working.
Part Five – The Order
[40] The respondent shall pay child support to the applicant in the sum of $375 per month for the months of November and December of 2011, based on an imputed income of $25,000 per annum. This is the guideline table amount for two children. Starting on January 1, 2012, the monthly amount of support shall change to the new guideline table amount of $373 per month.
[41] The respondent may pay the child support arrears created by this order at the rate of $75 per month, starting on June 1, 2012.
[42] A support deduction order shall issue.
[43] Nothing in this order precludes the Family Responsibility Office from enforcing arrears from any government source (such as income tax or sales tax refunds) or lottery or prize winnings.
[44] If either party seeks costs, they are to serve and file written submissions with the trial coordinator's office no later than April 20, 2012. The other party will then have until April 30, 2012 to provide a written response. The written submissions should not exceed two pages, not including any offer to settle or bill of costs.
Justice Stanley B. Sherr
Released: April 10, 2012