ONTARIO COURT OF JUSTICE
DATE: 2022 11 24 COURT FILE No.: D71006/14
BETWEEN:
CAMILLE MONIQUE HUTCHINSON Applicant
— AND —
STEVEN ANTHONY ANDREW CROOKS Respondent
Before Justice Melanie Sager
Heard on November 14, 15 and 16, 2022 Reasons for Judgment released on November 24, 2022
Counsel: Rachel Parry, for the applicant Valarie Matthews, for the respondent
Introduction
1This trial addresses the claims raised in the Respondent's (father) Motion to Change the quantum of child support payable to the Applicant (mother) for the parties' 11 year old son Cameron, as ordered by Justice Stanley Sherr following a trial heard on February 1, 2018.
2Justice Sherr's order dated February 1, 2018, was the result of a Motion to Change brought by the father to reduce the child support he was ordered to pay the mother by Justice Carole Curtis on October 6, 2015, following a two day trial.
Background of the litigation
First trial before Justice Curtis
3On October 6, 2015, Justice Curtis found the father's annual income to be $89,700.00 and fixed his child support in accordance with the Child Support Guidelines at $798.00 per month. The father was also ordered to pay two-thirds of Cameron's special or extraordinary expenses. At the time the father was employed full time by the Toronto Transit Commission (TTC).
4On November 16, 2015, Justice Curtis ordered on consent, the father to pay the mother her costs of the litigation fixed at $29,885.00, payable at the rate of $102.00 per month.
Second trial before Justice Sherr
5In September 2017 the father brought a Motion to Change the child support order of Justice Curtis. He quit his job at the TTC in July of 2017 and was working part time at Cane's Community Care earning $17.67 per hour. He sought to have his child support payments for Cameron reduced to reflect an annual income of $16,963.00.
6The father's evidence at the hearing before Justice Sherr was that he had to quit his job to care for his older son from a previous relationship, who he has custody of and at the time was 11 years old. The father's evidence was that his older son has ADHD and an individual education plan at school and that he was required to be home more to care for his son. The father said that he required a more flexible schedule then the TTC afforded him and as a result had to leave that job.
7Justice Sherr found that as the father did not provide any independent evidence to support his claim that his older son's needs required him to be home more, the father's decision to quit his job with the TTC was not reasonable. Justice Sherr notes that the father made the same claims before Justice Curtis regarding his older son which did not impact her Honour's decision in 2015. Justice Sherr found that there had been no change in relation to the father's older son since the date of Justice Curtis's order.
8Justice Sherr rejected the father's claim that his child support obligation should be fixed on an income of $16,963.00 per year but found that it was unlikely, based on his education and work experience, that the father would be able to secure new employment earning the same income he earned at the TTC. Justice Sherr said it is unrealistic to require the father to pay child support indefinitely on a level of income he is unlikely to earn in the future.
9Justice Sherr found that the father can secure full time work at the wage he was earning part time at Cane's Community Care and imputed an annual income to him of $36,753.00. As the father's decision to quit his job was unreasonable, he received no relief on the arrears of child support and his ongoing obligation based on an annual imputed income of $36,753.00 was reduced to $323.00 per month but delayed to July 1, 2018. The parties were also ordered to share the child's special or extraordinary expenses equally.
The current litigation
10Justice Sherr required both parties to obtain leave of the court before bringing another Motion to Change. After requests by the father for leave to bring a Motion to Change were denied by the Case Management Judge on January 30, 2020, and November 27, 2020, he was ultimately granted leave by Justice Curtis on January 5, 2021, to bring a Motion to Change "regarding support only". On January 25, 2021, the father's Motion to Change was issued. He requested a variation to his child support obligation retroactive to July 1, 2019, and, despite Justice Curtis's order that he only has leave to seek to vary support, he asked that the unpaid amount of the costs order of Justice Curtis dated November 26, 2015, requiring him to pay the mother $29,885.00 "be terminated from the Family Responsibility Office and no longer enforced as support."
11The father filed an affidavit in support of his Motion to Change sworn January 25, 2021, claiming that he and his son are homeless and have been living in a shelter since September 27, 2019. He also says that he is enrolled in a paralegal program at Humber College which began in September 2020 and which he will complete in May 2022. He deposes that he has applied for OSAP to fund his studies.
12The Respondent amended his Motion to Change twice; once on May 19, 2021, and the last time on August 24, 2021. Ultimately, the twice amended Motion to Change asks that the father's child support obligation be reduced retroactive to October 1, 2019, as opposed to July 1, 2019, the date pleaded in his original Motion to Change.
13In her Amended Response to Motion to Change, the mother asks the court to dismiss the father's Motion to Change and seeks her own variation of Justice Sherr's order retroactive to July 1, 2018, including an order for child support in accordance with his income, including imputed income, and the Child Support Guidelines as well as an order for the sharing of Cameron's special and extraordinary expenses in proportion to the parties' incomes. The mother also requests an order prohibiting the father from bringing any further Motions to Change prior to paying in full the costs order of Justice Curtis dated November 26, 2015, and, paying into the court the sum of $15,000.00 as security for costs.
14On March 1, 2022, Justice Curtis referred this matter to the May 2022 trial sittings to proceed as a motion without cross examinations. The matter was not reached in the May 2022 trial sittings and was adjourned to the July 2022 trial sittings. On July 18, 2022, the motion was to proceed before me. I advised the parties that as pertinent facts were contested and the father was calling his sister as a witness, cross examination was necessary to decide the issues before the court. The case was adjourned to July 21, 2022, but could not proceed due to a family emergency, and was placed on the November 14-25, 2022 trial sittings.
15The trial was heard over three days between November 14-16, 2022. Both parties relied on their pleadings, gave evidence in chief by affidavit and were subject to cross examination. The father’s sister also provided affidavit evidence in support of the father’s claims and was to cross examined.
16Prior to completion of the trial, the parties agreed that there has been a change in the father’s circumstances warranting a review of his child support payments as of 2020 and they agreed on what income the child support payment should be based on in 2020 and 2021. As a result, the court was left to decide the father’s claim for a reduction in his child support obligation from October 2019 to December 2019 and as of January 1, 2022.
The issues to be decided by the court
17The following are the issues to be decided by the court:
(a) Has the father established that there has been a change in circumstances since the date of Justice Sherr’s order entitling him to a reduction in his child support obligation as of October 1, 2019?
(b) If the father demonstrates a change in circumstances as of October 1, 2019, entitling him to a review of his child support obligation, what income should his child support be based on?
(c) What is the father’s income for the purpose of determining his child support obligation as of 2022?
(d) Should there be any change to Justice Sherr’s order requiring the parties to share the child’s section 7 expenses equally?
(e) Can the court make any change to the costs order of Justice Curtis dated November 26, 2015, including removing the costs order from enforcement by the Family Responsibility Office as ordered by Justice Curtis?
(f) Should the father be required to pay the outstanding costs order in full and the sum of $15,000.00 as security for costs before being permitted to bring a future Motion to Change?
Has the father established that there has been a change in circumstances since the date of Justice Sherr’s order entitling him to a review of his child support obligation as of October 1, 2019?
The Law
18Motions to change support are governed by subsection 37(2.1) of the Family Law Act which reads as follows:
37(2.1) 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.
19The court’s authority to make a retroactive support order on a Motion to Change 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;
20As income was imputed to the father by Justice Sherr, the father must start by demonstrating that circumstances have arisen since the date of the previous order such that it is no longer appropriate to impute income to him or at least that it is no longer appropriate to impute income to him in the amount previously determined by the court. [1]
21In paragraph 52 of Trang v. Trang, 2013 ONSC 1980, the court wrote,
A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:
a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before.
Or,
b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.
The father’s evidence and position on this issue
The period of October to December 2019
22The father’s evidence on this issue can be summarized as follows:
(a) After Justice Sherr imputed income to the father of $36,753.00, he continued to work part time as a driver for Cane’s Community Care until approximately late 2018. He left that job as he could not obtain enough hours of work. He began driving for UBER as the flexibility of this work allowed him to care for his older son.
(b) Working for UBER did not allow him to earn enough income to meet his financial responsibilities and in September 2019 he became homeless and moved to a shelter with his older son for a few weeks. From there he lived with friends and family until he moved in permanently with his mother who needed help with her day-to-day needs given her physical ailments.
(c) The father says he looked for other jobs but could not find one that would accommodate his need for a flexible schedule. Between late 2018 when he left Cane’s Community Care and March 2020 when the pandemic began, he says he applied for 8 to 10 jobs but was unsuccessful in securing employment better than his work with UBER. Other than a position with Canada Post, he could not recall what other jobs he applied for during this period.
(d) The father says that he was able to support himself by accessing his line of credit and credit card. As well, family and friends have assisted him in reducing his debt at various times.
23As a result of his inability to secure appropriate employment following Justice Sherr’s order, the father says there has been a change in circumstances resulting in a reduced income in 2019 of only $8174.00. He asks the court to fix his child support at zero in accordance with the Child Support Guidelines for the months of October to December 2019.
Was the father’s alleged inability to obtain employment after the date of Justice Sherr’s order a change in circumstances justifying a review of the father’s child support obligation?
24The starting point for the assessment of the father’s alleged change in circumstances is Justice Sherr’s order and why income had to be imputed to him in the first place.
25On February 1, 2018, after quitting his job with the TTC, the father was working part time as a driver for Cane’s Community Care. Justice Sherr found that the father was “intentionally under-employed without a justifiable excuse”. Justice Sherr further found that based on the father’s age, health, job skills and work experience, “he should be earning more than a minimum wage income and would be if he made a reasonable effort to look for full-time work.” Justice Sherr concluded that the father is capable of finding full time employment earning $17.67 per hour (the amount he was earning working part time) or $36,753.00 per year and fixed his child support obligation on income imputed at that level.
26The father’s evidence at this hearing discloses no change in circumstances in October 2019, as he claims. His evidence demonstrates that he made no serious effort to secure employment in 2019, admitting to only applying for eight to ten jobs between late 2018 and March 2020. As a result, by October 2019, nothing changed in the father’s circumstances since Justice Sherr made his findings on February 1, 2018. The father provided no evidence of a comprehensive job search since the date of Justice Sherr’s order. Therefore, there has been no change in the father’s circumstances since Justice Sherr found that he is underemployed as he should be working full time and would be if he made efforts to find full time employment.
27In October 2019, the father continued to be underemployed due to his failure to take reasonable steps to find full time employment. Making eight to ten job applications between late 2018 and October 2019, does not amount to reasonable efforts to find full time work.
28Without having made serious and persistent attempts to secure employment between 2018 and 2019, the father cannot demonstrate a change in circumstances warranting a review of his child support obligation as of October 2019 based on his claim that he was unable to secure appropriate employment. Therefore, his Motion to Change child support as of October 2019 cannot succeed on this basis.
Is the father’s claim that he was homeless in September 2019 a change in circumstances justifying a review of his child support obligation?
29The father argues that his apparent homelessness in September 2019 is a change in circumstances justifying a review of his child support. He says his inability to find a job earning a reasonable income resulted in his being homeless.
30As set out above, the court finds that the father did not make reasonable efforts to find adequate employment. For this reason and the reasons set out below, the court rejects his argument that he was homeless and that this was a change in circumstances triggering a review of his child support payment.
31The father’s claim that he was homeless in September 2019 is extremely suspect due to the inconsistencies in his evidence. In his affidavit sworn January 25, 2021, filed in support of his Motion to Change, the father says that he and his son were “admitted to the Shelter Support & Administration Program on September 27, 2019 and have been clients since this date ”. (emphasis mine)
32The father’s affidavit incorrectly states that at the date of his affidavit he had been residing in a shelter with his son since September 27, 2019, almost a year and a half, when in fact he resided in a shelter for one week between September 27, 2019 and October 3, 2019, as evidenced by a letter attached as an exhibit to the father’s affidavit sworn March 17, 2022.
33In cross examination the father attempted to explain the serious mistake in his January 25, 2021 affidavit stating that he simply quoted the letter which was written by the shelter services worker on September 30, 2019 which said that the father and his son reside at Family Residence, a City of Toronto operated shelter and “The Crooks family were admitted into our program on Sept 27, 2019 and have been clients of our program since this date.” The court does not accept this explanation and finds that the father’s affidavit is at best misleading and at worst untruthful.
34In his affidavit sworn January 12, 2022, the father states that he became homeless around September 2019 and lived in a shelter with his son “for a few weeks”. He then says around December 2019 his mother allowed him and his son to move in with her. In his oral testimony, the father explained that he deposed that he had been in the shelter for a few weeks even though it had only been one week because it felt like a few weeks.
35In his oral evidence, the father said he lived with his sister before going to live with his mother around December 2019. His sister says in her affidavit sworn on March 17, 2022, that “when Steven was homeless in 2019, I welcomed him into my home until he was able to secure alternate accommodations.”
36The father provided no explanation for why he had to spend a week in a shelter with his older son when he was welcomed in his sister’s home and ultimately his mother’s home.
37The father’s claim that he was homeless is not believable. While he may have spent a week in a homeless shelter he did not adequately explain why. He did not explain how he was able to meet his expenses and avoid homelessness in 2018 when he claims his entire income that year was $420.00. He did not explain how he managed to avoid homelessness between January and August 2019 when he claims his income in 2019 was $8174.00. The father’s sister’s evidence contradicts his evidence. She says she welcomed the father and his son into her home when he was homeless. She did not say he was living in a shelter.
38The veracity of the father’s evidence on this issue is undermined by the fact that a residential property registered in the father’s name in Mississauga, Ontario was sold in September 2019. In or around April 2017, the father purchased the property in Mississauga for $355,000.00. It was sold in September 2019, the month the father says he was homeless for a week, for the sum of $447,900.00.
39The father’s evidence is that the Mississauga property was purchased in his name for his sister at her request and that he had no interest in the property. He says she was fleeing an abusive relationship and wanted her house to be in his name so that her former abusive partner could not locate her.
40The father’s sister gave evidence that the father had registered her house in his name so that her former abusive partner could not find her and that he had no interest in the property. She produced a copy of a bank draft from her payable to the father for $35,000.00 representing the down payment on the purchase of the property.
41The father’s sister said that when the property in Mississauga was sold the net proceeds belonged solely to her. The father says that when the house was sold his sister received the net proceeds and “generously provide[d] me with some financial support, which I used to pay down debt including child support.” Neither the father nor his sister could remember how much money she gave him.
42The court has serious reservations about the evidence of the purchase and sale of this property that negatively impacts the father’s credibility on all of the issues before the court.
43Despite the fact that the father could have produced more persuasive documentary evidence to corroborate his position on this issue, he did not. He did not obtain any documents from the real estate lawyer that substantiates his claim that he purchased the house for his sister and that she retained all the proceeds of sale. He did not produce any bank records to support his claims. Rather, the only evidence provided to the mother and the court to corroborate this story is a copy of the bank draft for $35,000.00 payable to the father from his sister in August of 2016. The problem with this evidence is that the house the father says he purchased for his sister closed in April of 2017, eight months after the date of the bank draft. Furthermore, the evidence before the court is that the initial mortgage was for $329,404.50 which accounts for a $25,600.00 down payment, not $35,000.00.
44No believable explanation was provided by the father or his sister for the discrepancies in their evidence, specifically why she would give him a bank draft for $35,000.00 eight months prior to purchasing the house in Mississauga and why he would live in a shelter for a week if he was welcomed in her home.
45The reliability of the father’s evidence was weakened further by his sister’s disclosure of funds she receives from what appears to be a structured insurance settlement as a result of a car accident when she was a child. She refused to answer several questions about this issue but did say that over the years she has received at least $500,000.00. This is extremely relevant information seeing as she provided the father with $35,000.00 in 2016 and both the father and his sister gave evidence that over the years, they have both helped the other out financially when needed. In fact, the father gave evidence that his sister’s car is registered in his name because “my sister in [sic] unable to afford the insurance premiums given her driving history”.
46Given the father’s sister’s evidence about the insurance monies she has received and continues to receive, why would she need any financial help from her brother especially given that he is before the court because he says that he has failed to earn a sufficient income to support himself and his children since at least 2018? In the circumstances, the court does not believe the father provided financial assistance to his sister or that she could not afford to pay her own car insurance premiums.
47The father’s sister was called as a witness to corroborate his evidence. She failed miserably in her attempt to do that especially given that she refused to answer several questions put to her by the court and counsel for the mother. What she did do by disclosing the existence of a structured settlement that has paid her at least $500,000.00 to date is raise new questions about the father’s evidence around his financial affairs and how they are intertwined with hers. More specifically, the father’s sister’s evidence makes the father’s evidence, which was already highly questionable on its own, even less convincing.
48The existence of yet another property previously registered in the father’s name, which he also claims to have no interest in, intensifies the court’s distrust of the father’s evidence.
49The father’s evidence is that in August 2016 he purchased another property in Brampton, Ontario for $505,000.00 with his cousin which was sold in May 2017 for $660,000.00. The father says that he assisted his cousin in purchasing the property as she was unable to qualify for a mortgage on her own. The father was still working at the TTC at that time and agreed to co-sign the mortgage for his cousin. He says he had no interest in the house and that it was owned solely by his cousin who received 100% of the net proceeds when it was sold.
50Once again, despite the fact that the father could have easily obtained the documents necessary to corroborate his evidence regarding the property in Brampton, he provided no documentary evidence at all.
The Father’s Credibility
51At the commencement of this trial, credibility of the parties appeared to be a significant issue. Much of the father’s cross examination centred on this issue. As the parties agreed to the quantum of child support for 2020 and 2021 after the evidence was heard, credibility becomes less relevant to the determination of the remaining issues before the court.
52While credibility ended up not being a significant factor, the court finds that the father’s evidence was not believable. The explanations he provides for serious errors in his sworn affidavits and financial statements and how he met his expenses on nominal income between 2018 and 2020 were illogical. He provided no evidence of the gifts of money or loans he says he received to pay down his debts, and his sworn financial statements disclose no debts to third parties. As discussed above, the father also failed to provide documents that are either in his possession or readily available to him to support several of his claims regarding property and cars registered in his name.
53The father’s significant memory lapses, illogical explanations for serious errors made under oath in his court documents, and, his failure to provide documentary evidence readily available to him to substantiate many of his claims, results in his having very little credibility with the court.
54For these reasons, the court does not believe that the father was homeless and therefore, his claim that his homelessness in late 2019 is a change in circumstances warranting a review of his child support obligation fails.
Child Support payable as of 2020 due to the change in the father’s circumstances
What is the father’s income in 2020 and 2021 for child support purposes?
55The parties agree that as a result of the pandemic, the father’s decision to return to school and the impact of both of these factors on the father’s income, there has been a change in the father’s circumstances as contemplated by the Child Support Guidelines as of January 1, 2020.
56In 2020 and 2021 the father’s income was comprised of government pandemic benefits, self-employment income from driving for UBER and OSAP grants the father received while attending Humber College. The parties agree that the father’s income in 2020 and 2021 in accordance with the Child Support Guidelines was $41,218.00 and $43,758.00 respectively. His child support shall be adjusted for those years based on the applicable child support table.
What is the father’s income in 2022 for child support purposes?
The law
57The court must determine the father’s income as of 2022 is accordance with the Child Support Guidelines (the Guidelines). Section 2 of the Guidelines provides that “income” means the annual income determined under sections 15 to 20. Where the parties do not agree on what the payor’s income is, section 16 of the Guidelines states that “Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.”
58If relying on a payor’s most recent personal income tax return would not be the fairest way in which to determine their income, the court must take a step-by-step approach to determining income by following sections 17-20 of the Guidelines. As sections 17 and 18 of the Guidelines are not applicable in this case, I will move to consider section 19.
59Section 19 of the Guidelines provides that the court may impute to a parent or spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:
19.(1) Imputing Income – The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following:
(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines.
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so.
(g) the parent or spouse unreasonably deducts expenses from income.
60The above is a non-exhaustive list and as such, the court has discretion to impute income based on other circumstances.
61Where a party fails to comply with his disclosure obligations as provided for in s. 21 of the Guidelines and provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. [2]
62The failure of the payor to disclose their income will mitigate the obligation of the recipient to provide an evidentiary basis to impute income. [3]
63A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be considered in the calculation of income for support purposes. [4]
64Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. Clause 19(1)(a) of the Guidelines is perceived as being a test of reasonableness. [5]
65The determination to impute income is discretionary as the court considers appropriate in the circumstances of the case. In exercising discretion, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. [6]
The father’s position
66The father’s evidence is that in 2022 his income should be calculated as follows:
(a) $8179.00 in employment income working as a legal secretary between October and December 2022 at an annual income of $30,750.00;
(b) $4500.00 in net self-employment income from working for UBER; and,
(c) $9417.00 in government grants received through OSAP grossed up for income tax.
Total income = $23,482.00 $188.00 per month in child support for 2022
Mother’s position on the father’s income for 2022
67The mother says given the father’s lack of disclosure regarding his income for 2022, the court should maintain the father’s child support payment at $323.00 per month for 2022 based on an imputed annual income of $36,753.00 and the Child Support Guidelines, as ordered by Justice Sherr. She also questions why the father could not have increased his hours with UBER while in school in order to increase his income given that his school schedule allowed for him to work more than he did.
Analysis of the evidence regarding the father’s income for 2022
68While the father provided evidence of his employment income from the law firm that has employed him as of October 2022, and the income he received in 2022 in the form of a government education grant, he provided no evidence at all of his self-employment income from driving for UBER in 2022. The father’s evidence of his income in 2022 is therefore grossly deficient.
69The father came to trial not having sworn a Financial Statement since March 2022. He did not provide any evidence of his income from UBER between March and November 2022, his main source of employment, nor did he disclose his assets and debts as of the date of trial.
70On his financial statement sworn on March 17, 2022, the father discloses current gross self-employment income from UBER of $683.67 per month and $584.35 net. This would amount to net income of $7012.22 annually.
71In oral evidence when asked how much he earned working for UBER in 2022 he said he was not sure and estimated between $10,000.00 and $15,000.00. He did not indicate if that was a gross or net figure.
72The endorsement record in this matter contains an endorsement of Justice Roselyn Zisman dated July 26, 2022, when her Honour heard a refraining motion brought by the father against the Family Responsibility Office. In her endorsement Justice Zisman writes that the father advised her he was earning $1000.00 per month driving for UBER.
73The Divorcemate calculations prepared by counsel for the father for the year of 2022, provided yet another estimate of the father’s income from UBER in 2022 at $4500.00. No evidence was provided to support this estimate.
74The mother says that if the father only earned $4500.00 from UBER in 2022, he should have worked more than he did. She relies on the father’s school schedule as support for her position. The father’s evidence on this issue was inconsistent. He said that his school was all online which provided him with the flexibility he needed to help his son and mother but then said that the 2021-2022 school year was hybrid, both in person and online. The school schedule he attached as an exhibit to his affidavit sworn January 25, 2021, shows large periods of time during the week when he was not in school and could be working including all day Wednesday up until 4:15 p.m. at which time he had a class until 6:55 p.m., Thursdays after 1:25 p.m. when his only class that day finished, and, all day Friday as no classes were scheduled.
75When questioned about his ability to work more given his school schedule, the father said that the schedule attached to his January 25, 2021 affidavit was not his final schedule and that he later added two classes. He acknowledged that he did not provide evidence to the mother or the court of the changes he claims to have made to his schedule after a copy was provided with his affidavit in January 2021.
76The mother says that as the father did not provide a reasonable explanation for why he could not work more in 2022 given his work schedule, he should not be given a reduction in his child support obligation for 2022 and income should be imputed to him in the same amount as Justice Sherr ordered in 2018.
Conclusion regarding the father’s income in 2022
77The court has reliable evidence of the father’s income from employment at the law firm that has employed him since October 2022. The court also has sufficient evidence of the value of the grants the father received from OSAP in 2022. The court has no reliable information upon which it can determine the father’s income from UBER in 2022.
78The father has given several different figures for his income from UBER in 2022. He has failed to provide any evidence of this income. In the circumstances and considering the comments made above about the father’s lack of credibility, it is appropriate to use the highest figure he provided in his oral evidence for his income from UBER in 2022; $10,000.00 to $15,000.00. Therefore, in addition to the income sources set out above, $15,000.00 will be attributed to the father in 2022 in self-employment income.
79As a result, the court calculates the father’s income for 2022 for the purpose of child support at $37,218.00. [7] As the mother is only asking for the father to pay child support in 2022 on the income imputed to him by Justice Sherr, that amount will be maintained for 2022.
Calculating the father’s income for 2023
The father’s position and evidence on this issue
80The father’s position is that the child support order he is requesting for 2022 at $188.00 per month should continue until such time as he completes his licensing requirements and secures employment as a paralegal. He anticipates being able to secure employment at $55,000.00 a year provided he obtains his license following the exam he expects to write in March 2023. He says child support should not be fixed on $55,000.00 per year until he is actually employed as a paralegal and earning that level of income.
81The father does not know whether the law firm he currently works for will hire him as a paralegal once he passes his licensing exam.
The mother’s evidence and position on this issue
82The mother says that her research suggests the father can earn $65,000.00 a year as a paralegal. She says he should be required to pay child support on an income of $65,000.00 as of June 1, 2023. This gives him three months to find employment after completion of his licensing exam in March 2023.
Conclusion regarding father’s income as of 2023
83The father has graduated from his paralegal program at Humber College. He is working as a legal secretary. Based on his age, health, education and work experience I find that as of June 2023, the father can and should be earning at least $45,000.00. He will be required to pay the mother child support on this amount as of June 1, 2023, but he will be required to notify the mother immediately upon obtaining more lucrative employment and cooperate to adjust his child support accordingly.
In what proportion should the parties share Cameron’s special or extraordinary expenses?
84The father is seeking to change Justice Sherr’s order requiring the parties to share Cameron’s section 7 expenses from equally to in proportion to the parties’ incomes.
85The mother’s evidence is that currently Cameron does not have any special or extraordinary expenses.
86Justice Sherr exercised his discretion under the Child Support Guidelines to depart from the presumptive rule that parents share section 7 expenses incurred for their children in proportion to income. He ordered the parties to share section 7 expenses equally despite the mother’s income being greater than the father’s income.
87In 2017, the father quit his well-paying job at the TTC that enabled him to pay far more child support then he has paid since July 2018. Since July 2018, the father has not attempted to find employment that would result in him earning even half of what he earned at the TTC. His behaviour and choices result in Cameron receiving less child support.
88The mother’s most recently sworn financial statement discloses that she is employed by the City of Toronto and earns $77,000.00 per year.
Conclusion regarding the sharing of Cameron’s special or extraordinary expenses
89In all of the circumstances of this case, it is appropriate for the court to exercise its discretion yet again to depart from the presumptive rule in the Child Support Guidelines and order the father to share Cameron’s section 7 expenses equally. Given the negative impact of his choices to date on the amount of child support Cameron receives, it is fair and appropriate in the circumstances for the father to pay 50% of Cameron’s future section 7 expenses.
Can the court grant the relief requested by the father in relation to the costs order of Justice Curtis dated November 26, 2015?
90On November 26, 2015, on consent, the father was ordered to pay the mother’s costs of the hearing of the original Application before Justice Curtis fixed at $29,885.38, payable at the rate of $102.00 per month.
91In his Motion to Change the father asks that the costs order of Justice Curtis no longer be enforced as child support by the Family Responsibility Office. At trial the father asked the court to reduce the amount of the costs order to a fair amount to be decided by the court.
92The father argues that as the costs were ordered enforceable by the Family Responsibility Office as child support, this court has authority to vary the amount of the costs order in the same manner it can vary child support. Counsel for the father was unable to provide the court with caselaw to support her interpretation of the law.
93I should note here that the father was not given leave to bring a Motion to Change the costs order and as this matter was already decided by Justice Sherr in 2018, this amounts to an abuse of process.
94The costs order made by Justice Curtis was a final order. It can only be changed on appeal. The enforcement mechanism available through section 1(1) of the Family Responsibility and Support Arrears Enforcement Act does not act to convert the costs order into child support for the purpose of a variation. I have no authority to vary this order.
Should the father be required to pay the costs order of Justice Curtis in full and pay $15,000.00 into court as security for costs before he can bring another motion to change?
95This family has been in court proceedings on and off since May of 2014. This is due mostly to the father’s conduct. The father has now had three trials in this court. One family should not be allowed to abuse their right to access the justice system when doing so is at the expense of another family who needs the court’s attention and assistance.
96This Motion to Change proceeded despite the father being in arrears of child support and not having paid the mother the costs ordered in her favour as per the terms of Justice Curtis’s November 26, 2015 order. Courts cannot ignore a party’s failure to comply with court orders as doing so this makes the order meaningless which sends the wrong message to the public. The father should not be permitted to proceed with another Motion to Change without having complied with this court’s orders unless there are extremely compelling circumstances.
97Before the father will be permitted to bring another Motion to Change before this court, he will have to demonstrate that he has complied with the payment terms of Justice Curtis’s costs order. If he is in arrears of child support, he will have to make clear in his motion for leave why he is in arrears. Otherwise, he will not be granted leave to bring a Motion to Change.
98I am not prepared to make an order for the father to pay $15,000.00 as security for costs in advance another Motion to Change. The mother may raise this issue should the father seek leave to bring a Motion to Change in the future.
Order to go as follows:
99The father shall pay the mother child support for Cameron of $372.00 per month for the period of January 1, 2020 up to and including December 1, 2020, based on his 2020 income of $41,218.00 and the Child Support Guidelines with credit for amounts paid through the Family Responsibility Office.
100The father shall pay the mother child support for Cameron of $403.00 per month for the period of January 1, 2021 up to and including December 1, 2021, based on his 2021 income of $43,758.00 and the Child Support Guidelines with credit for amounts paid through the Family Responsibility Office.
101Commencing January 1, 2022 and up to and including May 1, 2023, the father shall pay the mother child support for Cameron of $323.00 per month based on an imputed annual income of $36,753.00 and the Child Support Guidelines with credit for amounts paid through the Family Responsibility Office.
102Commencing on June 1, 2023, and on the first of each month thereafter, the father shall pay the mother child support for Cameron of $418.00 per month based on an imputed annual income of $45,000.00 and the Child Support Guidelines.
103The father shall immediately notify the mother of the outcome of his paralegal licensing test results each time he writes the exam upon receiving his results until he obtains his certification.
104If the father obtains employment that pays him in excess of $45,000.00, he shall immediately notify the mother and cooperate to immediately adjust his monthly child support payment to reflect his actual income.
105The parties shall share the after-tax cost of Cameron’s section 7 expenses equally.
106The father shall require leave of the court to bring another Motion to Change. The father must demonstrate in his motion for leave that he has complied with the payment terms of the order of Justice Curtis dated November 26, 2015, requiring him to pay the mother her costs fixed at $29,885.38 at the rate of $102.00 per month.
107If either party is seeking costs of the Motion to Change, they shall file written submissions of up to 5 pages not including a Bill of Costs and any Offers to Settle with the trial coordinator’s office within 20 days of the date of this Judgment. The responding party shall have 20 days from the date of receipt of the submissions from the party seeking costs to serve and file responding submissions of up to 5 pages not including a Bill of Costs and any Offers to Settle with the trial coordinator’s office.
Released: November 24, 2022 Signed: Justice Melanie Sager
[1] Trang v. Trang, 2013 ONSC 1980 [2] Gray v. Rizzi, 2016 ONCA 494, Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583. [3] Graham v. Bruto, 2008 ONCA 260 [4] MacKenzie v. Flynn, 2010 CarswellOnt 3450 (Ont. C.J.). [5] Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. CA). [6] Bak v. Dobell, 2007 ONCA 304. [7] See attached Divorcemate calculations prepared by the court.