COURT FILE NO. D42123/21
ONTARIO COURT OF JUSTICE
B E T W E E N:
TAMEKA LEWIS PAMILA BHARDWAJ, for the APPLICANT APPLICANT
- and -
ORLANDO WILLIS THEODORA OPREA, duty counsel, assisting the RESPONDENT RESPONDENT
HEARD: SEPTEMBER 13, 2022
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
1This trial was about the respondent’s (the father’s) child support obligations for the parties’ 4-year-old son (the child).
2The applicant (the mother) seeks child support retroactive to November 1, 2018 and asks that the father’s annual income be imputed at $43,235 for support purposes. She also asks that the father pay 50% of the child’s swimming expenses, starting on September 1, 2021.
3The father, who was found in default by the court for failing to file responding material, was given permission to make submissions at the trial. He opposed any order for retroactive support and submitted that if retroactive support was ordered that it should start no earlier than July 1, 2020. He further submitted that support should not be ordered from August 1, 2020 until February 2021, when he was in prison. Lastly, he submitted that he has no ability to pay any ongoing child support.
4The court considered two affidavits filed by the mother, her financial statement and her oral evidence given at the trial. The court considered the submissions of the parties.
5The issues for the court to determine are:
a) When should child support start?
b) At what level should the court assess the father’s income for each year that support is ordered? In particular, how much income, if any, should be imputed to the father while he was in prison?
c) Is the swimming expense claimed by the mother an eligible special and extraordinary expense (section 7 expense) pursuant to section 7 of the Child Support Guidelines (the guidelines), and what share of these expenses, if any, should the father pay?
d) What credits should the father receive for support paid?
e) How should any support arrears be paid?
Part Two – Process
2.1 The father’s request for an adjournment and an extension of time to file an Answer/Claim
6At the outset of the trial, the father sought an adjournment of the trial and an extension of time for him to file his Answer/Claim and financial statement. This request was opposed by the mother.
7The mother issued her Application on November 24, 2021 and served the father with it on December 7, 2021.
8The case was adjourned three times at First Appearance Court – on February 4, 2022, April 1, 2022 and June 9, 2022. The father attended court on each occasion but did not file any responding material.
9The mother filed a Form 23C affidavit in support of an uncontested trial, and at a court appearance held on July 13, 2022 asked the court to find the father in default and make final orders. The father indicated that he only wished to contest the support issues. He sought another extension of time to file an Answer/Claim and financial statement.
10The court found the father in default. It made final parenting orders as sought by the mother and ordered the father to pay the mother temporary child support, starting on February 1, 2022 of $397 each month, together with $188 each month for his share of the child’s section 7 expenses.
11The court, based on the primary objective to deal with cases justly, as set out in rule 2 of the Family Law Rules, gave the father one last opportunity to file an Answer/Claim and financial statement on the remaining support issues. The court endorsed that the case would proceed on an uncontested basis on the return date if the father failed to file his responding material by August 15, 2022.
12The father did not serve or file his Answer/Claim and financial statement.
2.2 Legal considerations
13Recently, in paragraphs 23 to 28 of A.B. v. C.D., 2022 ONSC 4933, Justice Mario Faieta faced a similar request to that made by the father. He wrote:
23The consequences for failing to deliver an Answer within the 30-day period provided for by Rule 10(1) of the FLR are clear under Rule 10(5) of the FLR, which states:
The consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a respondent does not serve and file an answer.
24Rule 1(8.4) states:
If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case
25In asking for an extension of time to file his responding materials the Respondent has failed to deliver a notice of motion as required by the FLR.
26Rule 3(5) of the FLR provides that the Court may make an order to lengthen or shorten any time set out in the FLR. No considerations are specified.
27A motion to extend the time for filing an Answer is similar to a request for additional time to file a Statement of Defence on a motion to set aside a noting in default under the Rules of Civil Procedure. In such cases, it is well established that there are several relevant considerations including the length of the delay, the reasons for the delay and the balance of prejudice: See Franchetti v. Huggins, 2022 ONCA 111, para. 9; Wilkinson v. Wilkinson, 2018 ONSC 1864, para. 18, Homanchuk v. Filipowicz, 2010 ONSC 1372, paras. 10-11.
28In a family law proceeding, the discretion under the FLR, including under Rule 3(5), is also informed by Rules 2(2)-2(5) of the FLOR:
Primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly.
Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
Duty to manage cases
(5) The court shall promote the primary objective by active management of cases …
14Justice Faieta wrote about the balance that courts need to strike between maintaining the adversarial nature of a proceeding and the public interest in the timely adjudication of family disputes and the expectation that parties shall comply with the law. He wrote at paragraph 30:
…The deadline provided in the FLR for the filing of an Answer is not a guideline. Nor will the breach of the deadline to file an Answer always be cured. If family law proceedings are to be made timelier and more efficient, then the breach of mandatory requirements under the FLR, whether filing deadlines or disclosure obligations, must be afforded greater respect.
15Justice Faieta dismissed the respondent’s request to extend the time to file an Answer, found him in default and proceeded with an uncontested hearing.
2.3 Analysis
16There is far less merit to the father’s request than to the request that was made in A.B. In A.B., the father had delayed in filing his Answer/Claim for just over three months – the delay has been over nine months in this case. Further, here, on July 13, 2022, the father was found in default. The court had already exercised its jurisdiction under subrule 1 (8.4) of the Family Law Rules and permitted the father to participate at the case conference. It also granted him an extension of time to file an Answer/Claim and financial statement. The father was expressly told by the court that it would be his last extension. He was also advised that if he failed to meet the timeline ordered the court would proceed on an uncontested basis. [1]
17The father submitted that he could not prepare his responding material because he had COVID-19 during the summer. This does not explain his delay of over nine months. He also provided no medical evidence of any illness and how it might have affected his ability to comply with a court order.
18The father did not contact the mother or her counsel before the court date to explain his delay. He did not seek an adjournment or another extension order to file his responding material prior to the court date. He just did what he had done for the previous four court appearances – attend at court without having filed any court material and ask for an adjournment and an extension.
19It was not just to grant the father another extension of time to file his Answer/Claim and financial statement. His request was dismissed and the court indicated that it would proceed with an uncontested trial on the remaining support issues.
2.4 The father’s participation at the trial
20Subrule 1 (8.4) of the Family Law Rules grants courts the discretion to determine what level of participation, if any, a person in default may have in a case.
21In Mullin v. Sherlock, 2018 ONCA 1063, the court wrote at paragraph 47:
47If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.
22The court invited submissions from the parties about what level of participation, if any, the father should have at the trial to achieve a just outcome
23The father asked to provided oral evidence about his income and to respond to the mother’s evidence. The court found that request was too expansive and would be unfair to the mother. The father had over nine months to provide his evidence on the support issues and had failed to do so, despite being granted multiple opportunities. Financial evidence should be provided well in advance of a hearing so that the other party can process, analyze and properly test it. The mother shouldn’t be expected to do this for the first time during a trial.
24The court permitted the father to make oral submissions at trial. He was not permitted to call evidence or cross-examine the mother.
25The court thanks duty counsel who made helpful submissions on behalf of the father regarding the evidence and how it related to the legal principles that the court had to consider.
Part Three – Brief background
26The mother is 33 years old. The father is 38 years old.
27The parties started their relationship in 2017. They never cohabited.
28The mother is presently unemployed. She has worked in the past as a law clerk and is looking for work in that field.
29The child has always lived with the mother.
30The father has chosen to have nominal involvement with the child for the past two years.
31The child has special needs. He has been diagnosed with Autism Spectrum Disorder and requires special services. The mother has been the parent who has exclusively attended to the child’s needs.
32The mother has a child from another relationship who lives with her and the child. She said that the father of that child does not pay any child support despite a court order.
33The mother testified at trial that she was involved in a relationship with the father until September of 2019, although they always lived apart. She said that they were then in a lingering relationship until July of 2020. She said that the father took her and the child out to dinner on occasion and she slept with the father a couple of times during this latter time frame.
34The mother deposed in her affidavit that the father disappeared in August 2019. She said that she later learned that he had gone to Jamaica. When he returned, he stopped regularly seeing the child until November 2019. The mother said that the father saw the child more frequently from November 2019 until July 2020, when their relationship broke down due to ongoing emotional abuse by the father towards her.
35The mother deposed that she learned in March 2020 that the father had been married while having his relationship with her and had separated from his wife in November 2019, when his wife learned about his relationship with her.
36The mother said that the father lived in his mother’s home for four to five months after separating from his wife, but subsequently reconciled with his wife. She believes that they still live together.
37The mother said that she is aware of the father having two other children. She testified that she knows of one court order requiring the father to pay child support of $250 each month for one child. She does not know if the father pays this support.
38The mother deposed that the father was incarcerated from August 2020 until February 2021 due to an assault charge regarding the mother of one of his children and for breaching release conditions.
Part Four – The start date for support
4.1 Legal considerations
39The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:
Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
…….(f) requiring that support be paid in respect of any period before the date of the order;
40Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.).
41In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows:
a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [2] continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
42This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.
43In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.
44Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: D.B.S., par. 12.
45Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.
46Retroactive child support is a debt. There is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel, par. 132.
47Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.
48In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.
49In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.
50A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.
51Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.
52Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
53Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.
54Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.
55The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.
56If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award. See: Michel, par. 120.
57There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child. See: Michel, par. 123.
58If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.
4.2 Analysis
59The mother deposed that she began asking the father for child support shortly after the child was born in October 2018. The court found the mother to be a credible witness. She answered questions directly and corrected her answers, at times, to ensure their accuracy.
60The court finds that the mother gave the father effective notice of her claim for child support in October 2018.
61Colucci sets out that the presumptive start date of support should not be more than three years before the date of formal notice. Formal notice was given to the father on the date that he was served with the application – December 7, 2021. Accordingly, the presumptive start date of support is December 7, 2018 – three years before.
62The court must next determine whether it should deviate from the presumptive start date of support.
63The mother provided a partially understandable reason for her delay in bringing the matter to court. The mother did not proceed to court at the outset because she was still in a romantic relationship with the father.
64The mother explained that she did not proceed to court after their relationship ended because she feared that this would result in the father choosing not to see the child. This is one of the “understandable reasons for delay” set out by the court in Michel. [3] The father continued to see the child regularly until he was incarcerated.
65The father stopped regularly seeing the child once he was released from jail in February 2021. The mother said that the father’s wife forbade him from having a relationship with the child. The mother frequently asked the father for child support and he refused to pay it. She said that once she accepted that the father had chosen not to have a relationship with the child, it was in the child’s best interests for her to seek court orders for decision-making responsibility and support.
66The father engaged in blameworthy conduct. The mother testified that he paid about $1,000 for food, clothes and diapers while he had his relationship with her– far less than his child support obligation under the guidelines. [4] He then failed to pay the mother any child support after July 2020.
67The father’s poor attitude towards his child support obligations was evident in text exchanges provided by the mother. In February 2020, the mother complained to the father about his lack of child support. He responded that government money should be used instead. The mother subsequently sent the father several text messages seeking child support. In May 2020, the father sent the mother a text message stating that he was content that the mothers of his children support the children themselves.
68The father engaged in blameworthy conduct by not providing the mother with financial disclosure. The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often at the root cause of a delayed application. See: Michel, supra, par. 116.
69The father was deceitful with the mother – he was married and lived with his wife and child without the mother’s knowledge while carrying on a relationship with the mother that she thought was exclusive. This false belief also explains, to some extent, her delay in seeking support from the father.
70The circumstances of the child have been disadvantaged by the father’s failure to pay adequate child support. The mother explained that she cannot afford to pay for a Speech and Language Pathologist or behavioural management services. She said that she is presently on long waitlists for less expensive services.
71A retroactive support claim might cause the father some hardship. He has other children to support, although it is unknown if he meets those obligations. He is not a high income earner. The court must balance this consideration with the hardship that not making a retroactive support order would cause the mother and the child.
72The court considered whether it should deviate from the presumptive start date due to the parties having continued a relationship until September 2019. It chose not to do so. The father’s blameworthy conduct has been egregious. The circumstances of the child have been significantly disadvantaged due to the father’s conduct. And, the reason that the mother stayed in a relationship with the father until September 2019 and accepted inadequate support was due in large part to the father not disclosing that he was married and living with his wife and their child.
73The court will make a minor deviation from the presumptive start date, as requested by the mother, and start child support on November 1, 2018.
Part Five – The father’s income
5.1 The mother’s evidence
74The mother asked the court to impute the father’s annual income at $43,235. She asked that the court draw an adverse inference against the father due to his failure to provide complete financial disclosure. The father submitted that this level of income imputation is too high. He also submitted that no income should be imputed for when he was incarcerated or on an ongoing basis.
75The mother testified that the father was working full-time as a forklift operator when she first met him in 2017. She said that he earned between $20 and $22 per hour. She said that he lost this job in 2019, but shortly after found similar employment in Durham.
76The father lost this job when he was incarcerated in August 2020. The mother said that the father told her that he received Employment Insurance while he was in prison.
77The mother conceded that she had much less information about the father’s income after he was released from jail in February 2021, as she had little communication with him.
78She said that the father told her in 2021 that he was working in construction as a general labourer. She understood from him that he was working full-time, as he sometimes used work as a reason to not visit the child.
79The mother said that the father told her in August 2022 that he was working in security a couple of nights each week. She said that they did not discuss his construction work.
80The mother testified that the father has no health issues that would limit his ability to work.
81The mother said that the father has a grade 12 education and a certificate as a personal support worker.
5.2 Legal considerations for imputing income
82Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
83The jurisprudence for imputation of income sets out the following:
a) 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. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).
b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
(i) Is the party intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
(iii) If not, what income is appropriately imputed?
c) The onus is on the party seeking to impute income to the other party to establish that the other party 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, [2009] O.J. No. 1552. (Ont. C.A.). 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.
d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.).
f) 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 enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
g) The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. See: Charron v. Carriere, 2016 ONSC 4719.
h) 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 might not be reduced or cancelled. See: Luckey v. Luckey, [1996] O.J. No. 1960 (SCJ); Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ)); Sherwood v. Sherwood (2006), O.J. No. 4860 (SCJ). This misconduct extends to a payor’s criminal behaviour which results in imprisonment. See: S.H. v. R.A.A., [2016] O.J. No. 2344 (OCJ); F.K. v. M.C., 2017 ONCJ 181. However, the imputation of income to a payor who is earning less income due to their own misconduct or reckless behaviour is not automatic. It remains an exercise of discretion for the court. See: Sheridan v. Cupido, 2018 ONSC 5817.
i) The court is also not bound to impute income at the payor’s previous income level if it decides to impute income due to the payor’s reckless behaviour or misconduct. It can impute income in an amount different than what the payor had been earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. See: Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773.
5.3 Evidentiary issue – wage surveys
84In support of her request to impute income to the father, the mother attached wage surveys for construction labourers from the internet. These were from the websites, Indeed.com, Glassdoor.com, Talent.com and the Job Bank published by the Government of Canada. These publications showed an average annual salary wage for construction labourers of between $40,000- $45,000.
85Are these wage surveys admissiable? They are hearsay. The information is being adduced for the truth of the contents.
86The court finds that the evidence from the Government of Canada Job Bank website falls within the public records hearsay exception and is presumptively admissible. This common law hearsay exception applies to publications from all levels of government. [5]
87In Rodrigues v. De Sousa, 2008 ONCJ 807, this court relied on the case of Scholes v. Scholes, 2003 O.J. No. 3432 (SCJ) and permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However, citing Isakhani v. Al-Saggaf, 2007 ONCA 539, this court expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination. In the specific circumstances of the payor in Rodrigues v. De Sousa, the court did not apply the wage range set out in the government publications.
88The evidence from the other wage surveys provided by the mother do not fall within the public records hearsay exception. This means that they must fall within the principled hearsay exception to be presumptively admissible – they must achieve both threshold necessity and threshold reliability. See: R. v. Khan, [1990] 2 S.C.R. 531.
89The court finds that threshold necessity is met here. It is unrealistic to expect litigants at the mother’s income level to call expert evidence regarding average occupational wage rates. This is particularly the case when the other party does not comply with their financial disclosure obligations.
90The leading case on threshold reliability is now R. v. Bradshaw, 2017 SCC 35. Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance. See: Bradshaw, par. 39.
91Bradshaw sets out that threshold reliability can be established through either procedural reliability or substantive reliability.
92Procedural reliability is established when there are adequate substitutes for testing the evidence, given that the declarant has not “stated the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. See: Bradshaw, par. 28.
93Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. See: Bradshaw, par. 28. In the family law context substitutes for traditional safeguards may include the ability to cross-examine a professional regarding child statements made to them. See: Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124.
94None of those safeguards are present in this case. Procedural reliability is not an available route to admit the wage surveys as there are no adequate substitutes for testing the evidence.
95Substantive reliability is established if the statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement. See: Bradshaw, par. 30.
96The court finds that the non-government wage surveys have sufficient substantive reliability to admit them - threshold reliability is established and the surveys are admissible. The court makes this finding for the following reasons:
a) These are well known and frequently used websites for employers and job applicants that set out wage rates for a wide variety of occupations.
b) The websites provided consistent wage ranges for construction labourers and were consistent with the government’s Job Bank wage range.
c) These wage surveys provide courts with a rough evidentiary basis to assess income that can be adapted to a person’s individual circumstances.
d) Evidence from these wage surveys have been admitted in many cases. Indeed.com wage surveys were admitted in Harry v. Moore, 2021 ONCJ 341; Corbett v. Corbett, 2021 ONSC 5022 and in Byrne-McLean v. Beaudin, 2021 ONSC 4440. A wage survey from Glassdoor.com was admitted in McNeil v. Dunne, 2019 ONSC 2528 and a wage survey from Talent.com was admitted in Rahman v. Islam, 2022 ONSC 353.
97In assessing the weight of this evidence, the court considered that these are unsworn statements, the authors of the documents are unknown and there was no cross-examination of the documents. Further, they are just estimates of wage ranges and the court must look at the individual circumstances of the person before it.
98However, the court also considered that the father put the mother in a position where she had to rely on this evidence. He did not meet any of his financial disclosure obligations which would have permitted her to properly assess his income. As set out in Graham v. Bruto, supra, this mitigates the obligation of the mother to provide an evidentiary basis to impute income to the father. In these circumstances, the court is prepared to take a more expansive approach to the admissibility of the wage surveys.
5.4 Analysis
99The court finds that the father has been earning or has been capable of earning annual income of $42,000 since November 1, 2018.
100The court makes this finding for the following reasons:
a) The father is an experienced forklift operator and was earning, or was capable of earning, this level of income from November 1, 2018 until his incarceration in August 2020. He was earning $21 per hour working full-time. This equates to an annual income of $42,000, based on working 50 weeks each year.
b) The father was put on notice that the mother was seeking to impute income to him in this range and he led no evidence to rebut it.
c) The father filed no financial disclosure. An adverse inference is drawn against him.
d) The father has a certificate as a personal support worker. He has worked as a construction labourer and in security. He has several job skills.
e) The wage surveys show that the average wage of a construction labourer in Ontario falls within the range imputed to the father.
f) The father provided no evidence that he could not work as a construction labourer or a forklift operator.
g) The father provided no evidence of making any job searches. If he is not working full-time, the court finds that he is deliberately unemployed or underemployed without a valid excuse.
h) The father provided no evidence of health limitations that would preclude him from earning this level of income. The mother testified that the father had no medical limitations affecting his ability to work.
101The court considered whether it should exercise its discretion and reduce the income imputed to the father during the time he was imprisoned. The court finds that it would not be just to do so for the following reasons:
a) The father was in jail due to his misconduct and violent behaviour towards the mother of one of his other children. The child should not bear the consequences of this conduct.
b) The father’s blameworthy conduct in this case has been significant.
c) The father has neglected the child’s special needs and the child’s circumstances have been severely disadvantaged as a result.
d) The duration of the father’s imprisonment was not long (about 7 months). If this had been a longer term, the court might have made some adjustment to the imputation of income while he was imprisoned.
e) The father led no evidence that his income earning capacity has been compromised by his imprisonment.
f) The father earned Employment Insurance while he was in prison.
102The guidelines table amount for one child at an annual income of $42,000 is $381 each month. The father shall be required to pay this amount to the mother starting on November 1, 2018.
Part Six – The child’s swimming expenses
103The mother asks that the father pay 50% of the child’s swimming expenses. These expenses started in September 2021. The mother is paying $376 each month for these expenses.
104The court finds that the swimming expense is an extraordinary extra-curricular activity expense as defined in subsection 7 (1.1) of the guidelines. It is more than the mother can reasonably cover given her income and the table amount of support.
105The court agrees with the mother that the expense is both reasonable and necessary for the child – a requirement for an extra-ordinary extracurricular expense to be eligible under subsection 7 (1) of the guidelines. The child requires private lessons due to his behavioural challenges. The mother deposed that he would not be able to go to cheaper group swimming lessons through the City of Toronto. The mother deposed that the swimming is a tool to manage the child’s behaviour.
106The mother should explore whether she is eligible for any tax credits or benefits for this expense. At this point, she is not claiming this expense on her income tax returns. In the absence of more information, the court is not prepared to discount the expense for any tax credit or benefit at this time.
107Since the mother is not working, she is being very reasonable in asking that the father just pay 50% of this expense and not his proportionate share of the expense, which is the guiding principle under subsection 7 (2) of the guidelines.
108The father will be ordered to pay $188 each month towards the child’s section 7 swimming expense, starting on September 1, 2021.
Part Seven - Support credits and payment of arrears
109The court accepts the mother’s evidence that the father has made payments of approximately $1,000 for the support of the child. He shall receive credit for this.
110Subject to any further payments made by the father, but only as reflected in the records of the Family Responsibility Office, the father’s present support arrears are $14,779, calculated as follows:
Table support 35 months @ $381 each month = $13,335 Section 7 expenses 13 months @ $188 per month = $2,444 Less support paid
- $1,000 Balance of arrears = $14,779
111The father’s neglect of his child’s financial needs informs the court that it should not make any order permitting him to pay support arrears over time. He will have to negotiate payment directly with the Family Responsibility Office.
Part Eight – Conclusion
112A final order shall go on the following terms:
a) Based on an imputed annual income of $42,000, the father shall pay the mother monthly child support of $381 each month, starting on November 1, 2018. This is the guidelines table amount at this income.
b) The father shall pay the mother 50% of the child’s swimming expenses, starting on September 1, 2021, in the amount of $188 each month.
c) The father shall be credited with support payments made to date of $1,000.
d) The father’s arrears are fixed at $14,779, as calculated in this decision. This is subject to any credit for any further support payments made by the father, but only as reflected in the records of the Family Responsibility Office.
e) A support deduction order shall issue.
f) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.
g) The father shall immediately notify the mother when he obtains any employment, the name and address of his employer and provide her with his first three pay cheques from the employer within 14 days of receipt.
113The court finds that the mother is entitled to her costs. She may serve and file written submissions by September 29, 2022. The father will then have until October 14, 2022 to serve and file his written response. The submissions are not to exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator’s office.
114It was apparent to the court how committed the mother is to the child. She is doing an excellent job raising the child on her own. While collection of support will likely continue to be a challenge for her, the court hopes that this judgment will provide the mother with some comfort that her experiences and efforts have been recognized and appreciated.
Released: September 16, 2022
Justice Stanley B. Sherr
[1] This is set out in the court’s endorsement that was sent that day to the father.
2The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the four factors that a court should take into account in dealing with retroactive applications. Briefly, they are:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
3See: Michel, paragraph 86.
4This was the period from November 1, 2018 to July 2020.
5Also see: Section 25 of the Ontario Evidence Act.
