Toronto (North York) Registry No. D49324/09

DATE: 2012·I·30

CITATION: Aboagye v Sakyi, 2012 ONCJ 56

ONTARIO COURT OF JUSTICE

B E T W E E N:

ROSINA ABOAGYE,

Wiri Kapurura, for the applicant

Applicant

— and —

ERIC SAKYI,

Dorothea Dadson, for the respondent

Respondent

HEARD: 26 January 2012

JUSTICE S.B. SHERR

1: INTRODUCTION

1The respondent (the father) has brought a motion to change child support ordered by this court on 14 January 2010 for the four children of the parties and has asked the court to reduce the support arrears that have accrued under this order.

2The applicant (the mother) asks that the motion to change be dismissed.

3The order of 14 January 2010 (the “order”) was made after a default hearing. The father’s income was assessed at $62,500 per annum and he was ordered to pay the table amount of child support for four children, pursuant to the Child Support Guidelines, O. Reg. 391/97, as amended (the “guidelines”) in the sum of $1,457 per month, starting on 1 November 2009.

4A trial of the issues in this change motion was heard. Both parties testified, as did the father’s new partner.

2: BACKGROUND

5The mother is 35 years old and the father is 42 years old.

6The parties lived together for about thirteen years and are the parents of four children, now ages, 13, 11, 9, and 4.

7The mother started her application for custody and child support on 6 November 2009. The father did not respond to this application.

8The mother was awarded custody of the children and child support. The children have lived with her since the parties separated. The father has lived with his current partner since December of 2010. He has chosen to only occasionally see the children.

9The father worked full-time at two different jobs for at least two years prior to the parties’ separation. He had worked as a forklift operator for one employer since 1996 and as a machine cleaner for a second employer since 2007.

10The father’s notice of assessment for 2009 showed that he earned gross income of $62,500.

11The father left his second job as a cleaner at the end of June of 2010. He continued working as a forklift operator.

12The father did not pay any child support until the fall of 2011. He accumulated over $17,000 in child support arrears.

13In 2010, the father shipped his two cars to his family in Ghana. One of the cars was a Mercedes that he valued in his sworn financial statement at $26,000. The other car was a Hyundai Accent. It was not mentioned in his financial statement.

14The father’s line 150 income in his 2010 income tax return was $50,755.

15The father commenced this motion to change on 8 July 2011.

16The father testified that he continued to work full-time as a forklift operator in 2011 and earned about the same amount as he had made in 2010. He provided a 2010 T4 slip from his employer, showing that he earned $39,924 in 2010. He also testified that he receives tips of slightly less than $1,000 each year.

17The father testified that he was fired on 23 January 2012, three days before the trial. He was given vacation pay, but no severance payment. He says that this dismissal was wrongful and he will be consulting counsel to determine his next step. He testified that he plans to apply for Employment Insurance and to look for work.

3: THE POSITIONS OF THE PARTIES

18The father asks that his support obligations for 2010 and 2011 be adjusted in accordance with his actual income. He testified that he quit his second job in June of 2010 for health reasons. He is also asking that his ongoing child support obligation be suspended as he is no longer working.

19The mother testified that the father is a liar and the court cannot believe a word that he says. It is her position that the father quit his second job to avoid his child support obligations. She believes that he is working at another job under an assumed name. She believes that he is earning cash income buying cars at auctions and selling them in Ghana and also buying clothes in Canada and selling them at a profit in Ghana. She believed that the father’s employer conspired with him in order that he could claim that he had no income at trial. Lastly, she alleged that the father received about $40,000 in 2010 from a motor vehicle accident. She believes that the father should still be working and earning $62,500 per annum.

20The father denied all of these allegations.

4: CREDIBILITY

21I found neither party particularly credible. The father demonstrated bad faith by not paying child support until the fall of 2010. He lost credibility with the court with a long, rambling explanation for his default, blaming the mother and then his employer. He took no responsibility for going into substantial arrears. I also did not accept his explanation that he transferred his Mercedes to Ghana in 2010 so that he would have a car to drive when he visited there. He had not been there since 2006 and he set out no date to return there. The father listed many creditors in his financial statement in addition to the mother. It was pretty clear to the court that he was transferring his assets to avoid his creditors.

22The mother presented (with some justification) as very angry at the father. She made many allegations that quickly fell apart under cross-examination. What she initially presented as definitive evidence often turned out to be speculation or information from a friend of a friend. She had no evidence to support her claim that the father had been in a car accident or had received $40,000. The father produced his bank records, which did not reveal deposits exceeding his declared income. She accused the father’s family doctor of accepting bribes to write his medical reports, but acknowledged that he was well-respected in the Ghanaian community and that she had no evidence to support her accusation that he has ever acted in such a manner. She offered no evidence why the father’s employer would conspire with him to deceive the court.

23It very well might be that the father earned a little money on the side. However, there is no evidence supporting a finding that this was a significant amount. A review of the father’s banking records reveals a fairly conservative lifestyle.

5: ANALYSIS

5.1: Change in Circumstances

24This motion is governed by subsection 37(2.1) of the Family Law Act that reads as follows:

(2.1) Powers of court: child support.— In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a)

discharge, vary or suspend a term of the order, prospectively or retroactively;

(b)

relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c)

make any other order for the support of a child that the court could make on an application under section 33.

25The father’s income was significantly reduced when he left his job in June of 2010. I have found, in reasons that will be set out below, that he was justified in taking this step. I find that this was a change in circumstances that warrants changing the order.

5.2: Assessment of Ongoing Child Support Obligation

26The next step is to determine the appropriate amount of ongoing support. The respondent asks that no support be ordered until he obtains Employment Insurance or employment.

27Clause 19(1)(a) of the guidelines reads as follows:

19. 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;

28Imputing 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. See Drygala v. Pauli, 2002 41868, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Cars­well­Ont 3228 (Ont. C.A.).

29The court in Drygala v. Pauli sets out a three-part test to determine whether income should be imputed. The first part of the test is to ask whether 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.

30The 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. See Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Cars­well­Ont 2068 (Ont. C.A.). As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. See DePace v. Michienzi, 2000 22560, 5 R.F.L. (5th) 40, [2000] O.J. No. 453, 2000 Cars­well­Ont 425 (Ont. Fam. Ct.).

31The second part of the test in Drygala v. Pauli, supra, is: “If the payor is intentionally 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?” Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness.

32The mother argues that the father was not justified in leaving his second job in 2010 and is intentionally under-employed.

33The court must determine whether the father’s choice to leave his second job was reasonable in light of all circumstances. It must consider his age, health, child-care commitments, his work history (has he historically worked two jobs?), the stress associated with working at two jobs and his motivation for leaving the job. See: Poulin v. Poulin, 2002 BCSC 1374, 117 A.C.W.S. (3d) 269, [2002] B.C.J. No. 2206, 2002 Cars­well­BC 2242 (B.C.S.C.); Blagdon v. Blagdon, 2003 NSSF 27, 124 A.C.W.S. (3d) 143, [2003] N.S.J. No. 245, 2003 Cars­well­NS 248 (N.S.S.C. Fam. Div.); S.A.J.M. v. D.D.M. (1998), 1998 28006 (MB KB), 127 Man. R. (2d) 78, 40 R.F.L. (4th) 95, [1998] M.J. No. 173, 1998 Cars­well­Man 178 (Man. Q.B., Fam. Div.); Houghton v. Houghton, 2000 MBQB 86, 146 Man. R. (2d) 308, 7 R.F.L. (5th) 330, [2000] M.J. No. 298, 2000 Cars­well­Man 331 (Man. Q.B.).

34I find that the father’s decision to leave the second job was reasonable. He worked a gruelling schedule. Between the two jobs, he was working sixteen hours each day and travelling an additional three hours each day. He was only sleeping a few hours each night. He is 42 years old. It is no surprise that he claimed that he was always exhausted. He has high blood pressure and is on medication. He testified that he now has kidney problems and is on medication for this as well. He provided medical letters from his doctor confirming that he has been diagnosed with hypertension and kidney problems, that his health could not tolerate this type of work schedule and recommended that he only work at one full-time job. While avoidance of child support might have been one of the factors in the father’s decision to leave the second job, I find it was not the dominant factor and his decision was reasonable.

35The loss of the second job is more problematic. According to the father’s employer, he was warned twice about poor performance and dismissed for cause. They listed reasons for his dismissal that included:

(a)

Not following company policy for signing loading lists/work orders.

(b)

Using his cell phone during company time.

(c)

Using his cell phone in the loading area and inside loading containers.

(d)

Being frequently late and absent.

(e)

Accepting money from customers to perform additional services during company time.

(f)

Damaging company property.

36If the employer was justified in firing the father, then the father cannot use his dismissal as grounds for reducing support. Where the under-employment or unemployment is the result of one’s own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. See: Luckey v. Luckey, 1996 11217, 63 A.C.W.S. (3d) 495, [1997] W.D.F.L. 146, [1996] O.J. No. 1960, 4 O.T.C. 306, 1996 Cars­well­Ont 2237 (Ont. Fam. Ct.); Maurucci v. Maurucci, [2001] O.J. No. 4888, 2001 Cars­well­Ont 4349 (Ont. Fam. Ct.); Sherwood v. Sherwood, 2006 40795, 153 A.C.W.S. (3d) 661, [2006] O.J. No. 4860, 2006 Cars­well­Ont 7750 (Ont. S.C.). This situation is similar to the one in Baldini (Connolly) v. Baldini, 1999 6717, 46 R.F.L. (4th) 407, [1999] B.C.J. No. 1426, 1999 Cars­well­BC 1370 (B.C.S.C.), where the court imputed income to the payor because he had been fired for doing personal work on company time and using company material without permission. The court found that the consequences of the payor’s actions should be borne by him and not by his dependants.

37As a fifteen-year employee, if the father is correct that he was wrongfully dismissed, he will likely receive a significant income-replacement award and child support should not be adjusted.

38In either scenario, I find that income should be imputed to the father at the same level that he was earning at the time of his dismissal by his employer.

39The third part of the test in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” This is not a difficult determination. The father’s T4 in 2010 indicated that he earned $39,924. This did not include the close to $1,000 in tips that the father says he earned. While I suspect that the father may have earned a little more income on the side, I will fix his income at $41,000 per annum for child support purposes.

40The next step is to determine what, if any, support arrears should be rescinded.

5.3 Treatment of Arrears

41The decision to reduce arrears is discretionary. In assessing this issue, many courts are now relying upon the criteria set out in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars­well­Alta 976. See: Galloway v. Cassino (Barrett), 2008 ONCJ 577, 172 A.C.W.S. (3d) 444, [2008] O.J. No. 4525, 2008 Cars­well­Ont 6740 (Ont. C.J.); Fornal v. Fornal, 2007 ONCJ 170, 170 A.C.W.S. (3d) 584, [2007] W.D.F.L. 3891, [2007] O.J. No. 1498, 2007 Cars­well­Ont 2487 (Ont. C.J.); Grala v. Grala, 2008 ONCJ 556, 170 A.C.W.S. (3d) 828, [2008] O.J. No. 4395, 2008 Cars­well­Ont 6496 (Ont. C.J.); Corcios v. Burgos, 2011 ONSC 3326, [2011] O.J. No. 2422, 2011 Cars­well­Ont 3910 (Ont. S.C.). The four primary factors for the court to consider are:

(a)

The reason for the delay in bringing the motion to change.

(b)

The conduct of the party seeking to retroactively rescind arrears.

(c)

The circumstances of the child, both past and present.

(d)

Any undue hardship.

42Where the child support payor can establish a change in circumstances during the time that arrears were accumulating, which rendered them unable for a substantial period of time to make the full amount of the child support payments, the court may provide relief to the payor in a later proceeding to vary the child support order or rescind arrears. See Corcios v. Burgos, supra. I have taken into consideration that the respondent was earning income at the rate of $41,000 from 1 July 2010 and that he was justified in leaving his second job.

43The father did not provide an explanation for waiting until July of 2011 to bring his change motion.

44The father has engaged in blameworthy behaviour. He did not pay any child support until the Family Responsibility Office finally caught up with him in the fall of 2010. His blaming of his wife and employer for his delinquency was sheer nonsense. He has transferred assets outside of the jurisdiction to avoid support enforcement. He has not come to the court with clean hands. The court cannot condone such behaviour and needs to send a clear message that there are consequences for acting this way.

45The children’s circumstances were adversely affected by the father’s failure to pay support. The mother had to struggle to provide for the children on her own.

46The father is in considerable debt. He owes substantial support arrears and money to credit card companies and to Revenue Canada. He clearly has been irresponsible with his personal finances. I find that any financial hardship created by the support arrears can be addressed through a reasonable repayment agreement. The father could make a good start at paying his debts by selling his Mercedes.

47Balancing all of these factors, I will adjust child support to a date after the father finally began paying appropriate child support. Starting on 1 January 2011, the father’s child support will be changed to the guideline table amount based on an income of $41,000 per annum. I will permit him to pay the support arrears at the rate of $250 per month, provided that he keeps all ongoing and arrears payments in good standing.

6: CONCLUSION

48A final order shall go on the following terms:

(a)

The order of 14 January 2010 is changed to provide that commencing on 1 January 2011, the father shall pay child support to the mother in the sum of $939 per month, based on an income of $41,000 per annum, being the guideline table amount for four children. Commencing on 1 January 2012, the monthly amount of child support shall change to the 2012 guideline table amount of $947 per month.

(b)

The arrears of child support shall be adjusted by the terms of this order. No other arrears shall be rescinded.

(c)

The father may repay the support arrears, as adjusted by this order, at the rate of $250 per month, commencing on 1 March 2012. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears shall immediately become due and payable.

(d)

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.

(e)

The father shall immediately advise the mother about the details of any employment that he obtains, including the name and address of his employer and his rate of pay.

(f)

The balance of the 14 January 2010 court order shall remain in force.

If either party seeks costs, they are to serve and file written submissions with the trial coordinator’s office no later than 10 February 2011. The other party will then have until 20 February 2012 to provide a written response. The written submissions should not exceed two pages, not including any offer to settle or bill of costs.

49I thank counsel for their professional presentation of this case.