ONTARIO COURT OF JUSTICE DATE: January 5, 2021 COURT FILE No.: Brantford F 331/17
BETWEEN:
SHAWNEE SKYE Applicant
— AND —
BRANDON SILVER Respondent
Before Justice A.D. Hilliard
Heard on December 7, 8, 9, 2020 Reasons for Judgment released on January 5, 2021
Counsel: E. Montour ...................................................................................... counsel for the applicant Brandon Silver............................................................................................. on his own behalf
Introduction
1I want to begin this judgment by taking the opportunity to again thank Ms. Skye, Mr. Silver, and Ms. Montour for working with me, on short notice, to allow this trial to be conducted completely virtually. The completion of this trial through the Zoom virtual platform allowed all participants to maintain the appropriate physical distance and eliminated the risks that close contact in a courtroom setting creates.
2I also wish to acknowledge the very respectful and courteous way in which the parties conducted themselves throughout the course of the trial and in the presentation of their evidence. Too often in family trials separated parents choose to say the worst things they can about the other, in the hopes that it will assist them in getting the order they want from the court.
Overview
3All of the issues in this trial relate to the parties’ one child, Aiden, who is now 11 years old. Ms. Skye and Mr. Silver have been co-parenting Aiden without a formal court order since their separation in 2015.
4Although at the commencement of trial, access was in dispute, by the end of closing submissions, both Ms. Skye and Mr. Silver had made concessions resulting in a general agreement as to what access should be ordered.
5What I was then left with to decide were the issues of custody and child support. For the reasons that follow, I have determined that Ms. Skye should maintain custody of Aiden and that Mr. Silver should pay child support commencing July 1, 2019 based upon an imputed income of $41,889.92 and commencing July 1, 2020 based upon an imputed income of $25,000, while also contributing to 60% of Aiden’s extraordinary expenses.
Custody
6Ms. Skye asks me to make an order that she have sole custody of Aiden. Ms. Skye takes the position that since separation she has been the primary caregiver for Aiden and has made all of the decisions for Aiden regarding his health and education. Aiden does not have any special medical or educational needs.
7Mr. Silver requests that an order be made for joint custody. He argues that he should be able to have a say in major decisions for Aiden. Mr. Silver fairly conceded that Ms. Skye is a good mother and has never made a decision for Aiden that was not in his best interests.
8Another factor that I must consider in determining what order to make regarding whether there should be a sole or joint custody order, is an informal written agreement Ms. Skye and Mr. Silver entered into shortly after separation. The handwritten agreement signed by both Ms. Skye and Mr. Silver sets out that Ms. Skye will have custody of Aiden. Mr. Silver does not dispute that he made that agreement with Ms. Skye and that she has been making the decisions for Aiden since separation.
9Ms. Skye’s evidence was that not only has she made all the custodial decisions for Aiden but that Mr. Silver has not asked for any information about Aiden’s education or medical needs. Mr. Silver does not attend parent-teacher interviews, doctors or dentist appointments, nor does he ask for information from Ms. Skye about Aiden’s progress in school or the results of medical or dental appointments.
10Mr. Silver agreed that he has not attended for any parent-teacher interviews since separation. He also testified that he was comfortable with Ms. Skye attending to Aiden’s medical and dental needs as she has been doing since separation. Mr. Silver’s real concern is being consulted before major medical decisions are made for Aiden.
11Mr. Silver testified that Aiden had started to develop a stutter that Mr. Silver found concerning. [1] Ms. Skye was aware of the stutter and took Aiden to see a doctor. Mr. Silver was notified about the appointment after the fact. His evidence was that on an issue of significance, such as Aiden developing a stutter, Mr. Silver would have preferred that Ms. Skye keep him informed of what steps she was taking to have Aiden assessed.
12Ms. Skye’s position is that Mr. Silver has not taken any initiative to get information about Aiden directly from the school or doctors or dentist and therefore she should not have a positive obligation imposed on her to provide him with that information. Ms. Skye testified that Mr. Silver has contact information for the school and access to web-based apps through which Aiden’s teacher communicates information to parents
13It is not the case that a biological parent must take positive steps to demonstrate that they are interested in their child’s life after separation in order to have the right to be informed about major decisions that need to be made. Mr. Silver is by no means an absent father. Although he concedes that he has not always been as consistent in his access with Aiden as he perhaps should have been, he has been involved and interested in Aiden’s life since he and Ms. Skye separated.
14The real question is whether there is any evidence on which I could find that the previous agreement that Ms. Skye and Mr. Silver reached, by which Ms. Skye has custody of Aiden, should now be changed. I find that there is no such evidence. Mr. Silver agrees that Ms. Skye has made good decisions for Aiden in his best interests. Therefore, I find that Ms. Skye should continue to have custody of Aiden.
15That does not mean, however, that Mr. Silver should not be consulted about major decisions regarding Aiden’s health and education. We live in an age of instant communications – text messages, emails, social media, and instant messaging. I find that it is not a significant imposition upon Ms. Skye to require that she notify Mr. Silver when issues arise at school, or specialist appointments are made. It will then be up to Mr. Silver to follow up with Ms. Skye on the information he receives in order to become involved in any decisions that need to be made.
Access
16Ms. Skye does not dispute that Mr. Silver should continue to have access with Aiden. She is, however, asking that Mr. Silver give her advance notice if he plans to take Aiden for a weekend visit. Mr. Silver concedes that he has not always been very good about giving Ms. Skye notice and he should be doing so on a regular basis.
17Ms. Skye is also requesting that Aiden have some say in whether he goes for an access visit with Mr. Silver. In closing submissions, Mr. Silver agreed that at his age, Aiden should be able to make decisions about whether he wants to come for a visit and Mr. Silver said that he would abide by Aiden’s wishes should Aiden decide he does not want to go.
18Mr. Silver was requesting that his access be flexible. Although that was initially resisted by Ms. Skye, by closing arguments, Ms. Skye’s position was that Mr. Silver’s access could be flexible so long as he gave her advance notice. Ms. Skye’s position is completely reasonable on this issue and was agreed to by Mr. Silver.
19I find that there is no evidence that Ms. Skye would ever unreasonably deny Mr. Silver access visits with Aiden. Ms. Skye has attempted to be accommodating and flexible with Mr. Silver, despite Mr. Silver not usually giving her notice as is required by the current temporary order. I am therefore of the view that the access order to be made should reflect both the need for flexibility and predictability desired by both Ms. Skye and Mr. Silver, while also taking into account the views and preferences of Aiden.
Child Support
Income Determination
20The most difficult issue on this trial is the determination of what Mr. Silver’s income is for the purposes of child support. Ms. Skye asks that I impute Mr. Silver’s annual income at $72,000, while Mr. Silver maintains that his actual annual income was somewhere in the range of $30,000.
21The reason that Mr. Silver’s income cannot be easily determined is because from September 2016 to May 2019 Mr. Silver was self-employed running a sub-contracting business. Even Mr. Silver agrees that his total income shown on his Income Tax Returns and Notices of Assessment for the years 2016 to 2019 is far less than the amount of income on which he should be paying child support.
22Mr. Silver is a roofer by trade. By the end of his relationship with Ms. Skye, Mr. Silver had approximately 20 years of experience in the roofing industry. Despite his many years of experience, Mr. Silver’s annual income in 2014 was $19,539 and $16,435 in 2015. His income in those years was a combination of employment income and employment insurance (EI) benefits. Mr. Silver’s evidence, confirmed by Ms. Skye, was that he worked for approximately 8 – 9 months out of the year and then collected EI during the winter months. Ms. Skye actually testified that Mr. Silver, as a roofer, could not work during the winter months. Mr. Silver agreed with Ms. Skye’s evidence that during the relationship he had jobs for which he earned cash that was not reported on his Income Tax Returns.
23In 2016, Mr. Silver got married to his current wife. Mr. Silver’s new father-in-law, Carl (Ted) Robertson, was also in the roofing business. Mr. Robertson was operating a sub-contracting business that had a contract with Robdel Roofing to install roofing on new houses. Mr. Robertson had a team of sub-contractors who worked for his company on the Robdel Roofing contract.
24According to Mr. Silver, Mr. Robertson was not a very good businessman and found himself in financial troubles by 2016. Mr. Robertson approached Mr. Silver to take over the business, which essentially consisted of the contract with Robdel Roofing and the team of sub-contractors who had been working for Mr. Robertson. The deal that was struck between Mr. Silver and Mr. Robertson was that Mr. Silver would take over the contract with Robdel Roofing using the same team of guys who had been working for Mr. Robertson, and in return Mr. Robertson would get sub-contracting fees at the rate of a master roofer. Mr. Robertson was not doing any of the work installing the roofing, but was assisting the team of subcontractors who were performing the installation by going to get supplies and providing assistance on jobsites.
25Mr. Silver’s evidence was that he was trying to help out his father-in-law by taking over the business and agreeing to continue to pay Mr. Robertson. He did clearly indicate in his evidence that Mr. Robertson was not just getting a pay cheque without doing any work. Although Mr. Robertson was not getting up and actually installing shingles, he was providing essential assistance for the team of subcontractors who were performing tasks necessary to complete the contract with Robdel Roofing. Mr. Silver was also clear that but for Mr. Robertson giving his contracts and team of subcontractors to Mr. Silver, the business Mr. Silver ran from 2016 to 2019 would not have existed.
26There is no real dispute that Mr. Silver’s business significantly increased his income from what it had been during his relationship with Ms. Skye. However, Ms. Skye argues that Mr. Silver had the potential to earn more than he actually did from the business, specifically by not paying Mr. Robertson. Ms. Skye would have me include in Mr. Silver’s income all of the monies paid to Mr. Robertson.
27In addition to being a roofer, Mr. Silver is a musician. Mr. Silver plays in a band called “Silverado” which is successful to the extent that they got paid for most of the shows they played. Mr. Silver’s evidence was that for each show he will receive cash amounts ranging from $75 to $150. The number of events Silverado plays will vary from year to year.
28Ms. Skye argues that income should be imputed to Mr. Silver based on his earning potential. She urges the court to find that Mr. Robertson handing over his business to Mr. Silver should be viewed as a “windfall” which Mr. Silver was obliged to utilize to its maximum potential.
29Mr. Silver takes the position that he has been honest and forthcoming about his business and the money he actually made from that business. His evidence was that he would not even have had the business but for Mr. Robertson. Any income paid to Mr. Robertson was a justified business expense, according to Mr. Silver, and should not be deemed an add-back to Mr. Silver’s income.
30The law is clear that the decision to impute income is discretionary. Even where a parent is found to be underemployed, a court may still exercise its discretion not to impute income where a parent has established that the choices they made leading to their underemployment were reasonable in the circumstances. [2] The onus is on Ms. Skye to prove that Mr. Silver is underemployed. There must be some evidence to support a finding of underemployment. [3] I cannot find on the facts before me that there is any basis for me to find that Mr. Silver was earning less money than he was capable of for the years 2016 to 2019.
31Mr. Silver’s business venture provided more income for him in 2017 than he earned in 2014 and 2015 combined – the last two years of his relationship with Ms. Skye. I accept that Mr. Silver would not have had the opportunity to make the money that he did without having been given a fully operational subcontracting business by Mr. Robertson. I find that the payments made by the business to Mr. Robertson, a non-arm’s length third party, were reasonable in all of the circumstances. In handing over his business contracts and subcontractors to Mr. Silver, Mr. Robertson was justified in requiring payment in return. I find that the subcontracting expenses paid by Mr. Silver to Mr. Robertson were reasonable in the circumstances and should not be added back into Mr. Silver’s income.
32In considering whether to impute income to Mr. Silver, I must also consider whether he has unreasonably deducted expenses from his income. The reasonableness of expense deductions is not solely determined by whether those expenses are permitted for income tax purposes. [4] I find, as Mr. Silver agreed, that there were expenses deducted from Mr. Silver’s income for tax purposes that are unreasonable when considering his income for the purpose of child support. Therefore, I find that I can and should impute income to Mr. Silver beyond his taxable income as reported on his Income Tax Returns and Notices of Assessment.
33In reviewing the financial documents provided by Mr. Silver, I note that there is a difference between the amount paid out to his subcontractors and the amount claimed as subcontractor expenses on his Income Tax Returns. Mr. Silver has provided all of the T5018s that he issued from his business to his subcontractors, all of which were made exhibits at trial. There are also differences between the amount of money he received for accessories and the amount paid out for accessories. In my determination as to what Mr. Silver’s income actually was for the years 2017 to 2019, I calculated his gross profit by subtracting his actual payroll and accessories expenses from the monies he received for payroll and accessories, net HST. I have prepared a chart setting out my calculations which is Appendix “A” to this judgment.
34Based upon my calculations, I have determined that Mr. Silver’s income for the purposes of child support should be imputed as follows:
2017 - $40,947.25 2018 - $38,393.29 2019 - $41,889.92
35In assessing whether or not to increase Mr. Silver’s income to include money he has received from playing shows with his band, Silverado, I have considered Mr. Silver’s evidence that he incurs expenses associated with playing each show, such as gas and food. There was no evidence from Ms. Skye that Mr. Silver’s income from playing in his band, something he did during the relationship, was significant enough to result in any meaningful change to their standard of living. Ms. Skye did not provide any evidence as to additional household income provided by Mr. Silver’s musical pursuits during the relationship. I accept Mr. Silver’s evidence that the expenses that he incurs to play shows with his band generally off-set the money that he earns. I find that Mr. Silver’s band is a net zero endeavour and I decline to impute any additional income to Mr. Silver on account of the shows he plays with Silverado.
36The determination as to whether income should be imputed to Mr. Silver for 2020 is more complex. Mr. Silver earned minimal income this year due to a number of factors. Ms. Skye argues that I should impute income to Mr. Silver based upon his earning potential as an experienced roofer who previously operated a successful business.
37Mr. Silver stated that he decided to close down his business in 2019 as a lifestyle choice. His evidence was that he no longer wanted the burden of running his own business, which required more time and energy than being an employee or subcontractor. After closing his business, Mr. Silver entered into an arrangement with a company, operating as Bassindale Bros, to provide various labour services for a good rate of pay. Mr. Silver’s evidence was that he expected to be called back to work in the Spring of 2020 after being laid off for the winter. For reasons unknown to Mr. Silver, he did not receive the call to return to work in 2020 as anticipated.
38Mr. Silver’s employment with Bassindale in 2019 allowed him to claim EI once he was laid off for the winter. After he did not receive the expected call to come back to work, nor any response to his calls to his contacts at Bassindale about returning to work, Mr. Silver applied for an received the Canada Emergency Response Benefit (CERB) and Canada Recovery Benefit (CRB), payments that were made available after the onset of the COVID-19 pandemic.
39Mr. Silver has had a few jobs for which he earned money, evidence of which he provided by way of proof of e-transfers received. He testified that he has been searching websites such as Kijiji for jobs without any success. Mr. Silver did concede that he can and should do more to find employment.
40I find that it was reasonable in the circumstances for Mr. Silver to decide to close his business in 2019. I accept Mr. Silver’s testimony that running his business was more work than he thought at the outset. Mr. Silver also testified that between the amount of paperwork that had to be completed for the business, the stress of keeping the necessary business records, and the HST audit he had enough by 2019. I accept his evidence that he was concerned about getting into the same financial difficulties that had led Mr. Robertson to hand him over the business in the first place. Given Mr. Silver’s HST audit and debt, his fears in this regard, I find, were not unreasonable in the circumstances.
41I have also taken into consideration that Mr. Silver had come to an arrangement with Bassindale that would have provided him with subcontracting income equal or greater than the income he had earned from the business. In 2019 alone, Mr. Silver had employment income with Bassindale in the amount of $25,598.56, and subcontracting income in the amount of $11,490.80. Had Bassindale called Mr. Silver back to work in 2020 as anticipated, I find that Mr. Silver would likely have not seen a significant change in his income from 2019. Given the arrangements Mr. Silver made to find alternate employment prior to shutting down his business, I find that Mr. Silver’s decision to close his business did not result in him being underemployed.
42Mr. Silver received a total of $17,400 in combined CERB and CRB payments in 2020. He also earned income totaling $1,403.05. As of the trial, Mr. Silver’s total income in 2020 was $18,803.05. This income is largely in keeping with his income in the last years of his relationship with Ms. Skye – 2014 and 2015.
43The question remains, however, whether Mr. Silver should have additional income imputed to him for 2020. Ms. Skye’s position is that Mr. Silver had a positive obligation to seek employment throughout the pandemic as the work Mr. Silver is qualified and capable of performing was not significantly affected by the pandemic. I accept that Mr. Silver should have made more of an effort to find employment in 2020. However, there is no evidence upon which I can find that income should be imputed to Mr. Silver equal to his income in 2018 or 2019. Mr. Silver’s employment with Bassindale, I accept, was a unique opportunity that could have provided him with an hourly rate of pay greater than any he had ever made in the past. There is no evidence that Mr. Silver had other contacts or employment opportunities that would have resulted in him earning the rate of pay - $36.50 per hour – that Bassindale had paid him in 2019.
44Balancing the fact that Mr. Silver is an able-bodied skilled labourer against the realities of trying to make new contacts to obtain employment or subcontracting opportunities during a global pandemic, I find that Mr. Silver’s income for 2020 should be imputed at $25,000 for the purposes of child support. In coming to this income amount, I have also considered Mr. Silver’s pattern of income for 2014 and 2015, which was less than $20,000 in both years.
Arrears
45Ms. Skye is seeking child support arrears back to the date of the temporary order of Edward, J. dated April 10, 2018. Mr. Silver’s position is that child support should commence January 1, 2020 based upon his actual income earned, acknowledging that will result in some child support arrears owing to Ms. Skye.
46I have the discretion to vary an existing order retroactively if the amount of support previously ordered is determined to be inadequate. However, in making a determination as to whether I should exercise my discretion to award retroactive child support, I must consider whether any hardship will be endured as a result.
47The temporary child support order of Edward J. is based upon an income lower than what I have determined Mr. Silver’s income for the purposes of child support was for the years 2018 and 2019. Mr. Silver’s business was fully operational in 2018 and part of 2019. He prepared and filed income tax returns with the assistance of his friend, Michael Peets. I find that by June 2019, Mr. Silver knew or ought to have known that his income was more than the income amount used to set child support in the consent order of April 10, 2018.
48In considering whether a retroactive support order would cause hardship to Mr. Silver, I note that his most recent financial statement shows minimal credit card debt. The largest debt Mr. Silver has is his HST arrears, which he testified are approximately $8,500. [5] Although Mr. Silver has been unemployed for most of 2020, I note that Mr. Silver testified that his wife has been employed throughout the pandemic. Mr. Silver pointed out on more than one occasion throughout the trial that he does not live a lavish lifestyle. He did, however, concede that he and his wife have been managing financially despite his lack of employment in 2020. I find that Mr. Silver’s resources were such that he has not had to incur significant debt simply to meet his day-to-day needs.
49Given all of the foregoing, I find that child support should be adjusted retroactively back to July 2019. As this matter was on track for trial in the Fall of 2019, I find that it is unlikely that a motion brought by Ms. Skye to change the temporary child support order would have been entertained by the court pending trial. Mr. Silver had an obligation to not only provide financial disclosure to Ms. Skye but also to consent to an increase in his child support payments when it became clear he was paying less than he should have been.
Section 7 expenses
50Ms. Skye is requesting that I order a set amount payable by Mr. Silver on a monthly basis for Aiden’s section 7 expenses. Ms. Skye justifies her somewhat unusual request by indicating that she has often had to ask Mr. Silver for his contribution to Aiden’s extracurricular expenses on multiple occasions and there have been times when he has not paid his share at all. Ms. Skye’s evidence is that Aiden had to be withdrawn from the karate classes he had been enrolled in when Mr. Silver failed to pay his share and Ms. Skye could not afford the karate fees on her own. I note, however, that Ms. Skye did not make a claim for retroactive section 7 expenses.
51Mr. Silver agrees that he should be responsible for 60% of Aiden’s section 7 expenses, but requests that he pay his contribution after receiving a receipt for the expense from Ms. Skye. He does not agree with Ms. Skye’s evidence that he has not always paid what he should have for Aiden’s expenses.
52One of the difficulties with Ms. Skye’s position is that there is no evidence before me to justify the request that Mr. Silver be ordered to pay $100 on account of Aiden’s section 7 expenses. Ms. Skye testified that Aiden used to be involved in soccer and karate. Soccer was cancelled this year due to the pandemic. Karate fees, both Ms. Skye and Mr. Silver agree, were approximately $100 per month. Ms. Skye did not testify as to any other ongoing extraordinary or extracurricular expenses for Aiden.
53I find that there is no basis for me to make an order for a set monthly amount to be paid by Mr. Silver for section 7 expenses. The concern about Mr. Silver failing or refusing to pay his contribution to Aiden’s extraordinary expenses can be alleviated by an order that Mr. Silver pay a certain percentage of all receipts provided by Ms. Silver for Aiden’s extraordinary expenses within a certain time. If Mr. Silver fails or refuses to do so, an order setting out what percentage Mr. Silver is to contribute can be enforced by the Family Responsibility Office so long as Ms. Skye provides the receipts for expenses incurred.
54Ms. Skye’s income in 2019 was $26,818. Mr. Silver’s income for 2019 was $41,889.92. Based upon these incomes, I find that Mr. Silver should be responsible for 60% of Aiden’s extraordinary expenses as he concedes.
Conclusion
55Both Ms. Skye and Mr. Silver were fair in their assessment of the other’s conduct and did not exaggerate or over-emphasize the faults of the other in order to bolster their position. Mr. Silver was open and forthright about his faults and shortcomings. Ms. Skye was able to demonstrate flexibility and understanding in a child-focussed manner. For all of this I commend them both.
56It is my hope that with this judgment, years of involvement in family litigation can be put to rest and left behind, with both Ms. Skye and Mr. Silver looking only to the future to find ways to cooperate and communicate so they never again have to resort to a court to resolve their disputes. As I reminded them at the end of trial, there are no winners and losers in family litigation. Often, as in this case, there is divided success and parents come away believing that it was all for nothing. I hope that rather than feel that way, Ms. Skye and Mr. Silver will see the end of the litigation as an opportunity for a new beginning, a fresh start to their relationship that will continue for years to come as Aiden navigates his way through his teenage years.
Order
57The following final order shall issue:
(1) The Applicant, Ms. Shawnee Skye, shall have custody of the child, Aiden.
(2) The Applicant shall ensure that the Respondent is notified in advance of all specialist appointments for Aiden, including but not limited to orthodontist, speech therapist, pediatrician, third-party educational providers, and tutors or other in-home service providers.
(3) The Respondent, Mr. Brandon Silver, shall have access with Aiden as arranged between the parties with a minimum of one (1) week’s advance notice, taking into consideration the views and preferences of Aiden.
(4) The Respondent shall pay to the Applicant child support as follows: (a) Commencing July 1, 2019, the sum of $380 per month based upon an annual income of $41,889.92; (b) Commencing July 1, 2020, the sum of $199 per month based upon an annual income of $25,000.
(5) The Respondent shall contribute 60% of the cost of all extraordinary expenses incurred by the Applicant for Aiden within 30 days of being provided a receipt for that expense.
(6) If the parties wish to make written submissions on costs, they shall submit them to the judicial secretary no later than January 29, 2021.
Released: January 5, 2021 Signed: Justice A.D. Hilliard
Appendix A
| Year | Receivables | Expenses | Net |
|---|---|---|---|
| 2017 | Payroll: $229,325.10 Accessories: $51,046.47 HST: $32,255.09 | Payroll: $185,347.92 Accessories: $48,999.90 HST: $27,178.68 | Payroll: $43,977.09 Accessories: $2,046.57 HST: $5,076.41 Income: (Payroll + Accessories – HST) $40,947.25 |
| 2018 | $221,793.84 | $189,128.72 (claimed on income tax return) T5018s paid to subcontractors: $176,483.64 Difference: $5,728.17 | Income: $32,665.12 (gross profit) + $5,728.17 (difference between claimed and actual subcontractor expenses) = $38,393.29 |
| 2019 | $61,341.97 | $55,237.33 (claimed) $48,571.08 (actual based on T5018s) Difference: $6,666.25 | Business income: $6,104.64 (gross profit reported) + $6,666.25 (difference between claimed and actual subcontractor expenses) = $12,770.89 Total income for 2019: $41,889.92* *Calculated by adding Income Tax Returns Line 101, 104, 119, 130, and substituting business income as calculated for Line 135 |
1There was no evidence as to when Aiden’s stutter developed, but it appears that it was in the recent past.
2D.B.S. v. S.L.J., 2006 SCC 37, [2006] 2 S.C.R. 231.
3Homzi v. Zaya, 2009 ONCA 322.
4Child Support Guidelines (Ontario), O. Reg. 391/97, s. 19(2).
5The amount of HST arrears listed on Mr. Silver’s financial statement filed at trial is $8,000.