CITATION: Hergert v. Hergert, 2022 ONSC 723

DIVISIONAL COURT FILE NO.: 1237/21

DATE: 20220201

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kristjanson, Favreau and Nishikawa JJ.

BETWEEN:

Karl Matthew Hergert

Applicant/Appellant

– and –

Cassie Megan Hergert

Respondent

Michael H. Tweyman, for the Appellant

Samantha Brown, for the Respondent

HEARD: September 24, 2021

REASONS FOR DECISION

Overview

1The Appellant, Karl Matthew Hergert, appeals from the Order of Justice Wildman of the Superior Court of Justice (Family Court) dated November 24, 2020, dismissing his motion to change. In his motion to change, Mr. Hergert sought to have income imputed to the Respondent, Cassie Megan Herbert, and to have her pay a proportionate share of his childcare/transportation costs in relation to the parties’ children.

2Mr. Hergert appeals on the basis that the motion judge made palpable and overriding errors in not imputing more than $15,500 in annual income to Ms. Hergert, and in imputing annual income of $65,000 to him. Mr. Hergert further submits that the motion judge made palpable and overriding errors in refusing to order Ms. Hergert to pay a proportionate share of his childcare/transportation costs.

3Both parties were self-represented on the motion to change. At the parties’ request, the motion to change was heard as a summary judgment motion for a final order.¹

4For the reasons detailed below, the appeal is dismissed.

Factual Background

5The Appellant and the Respondent were married in 2006, separated in 2015 and divorced in 2017. They have three children, aged 14, 12 and 10.

6After their separation in 2015, the parties continued to live separate and apart in the matrimonial home until the spring of 2018, when the home was sold. They each moved to separate homes in Wasaga Beach. The parties have an alternating week parenting schedule.

7Pursuant to the order of McDermot J. dated September 11, 2017, Mr. Hergert pays Ms. Hergert $1,115 per month in “set-off” child support, based on his 2016 income of $65,000 and her income of $15,500 (which was based on a bursary). Mr. Hergert pays 75 percent of agreed-upon s. 7 expenses and Ms. Hergert pays 25 percent. Under the order, the parties were to exchange income tax returns and notices of assessment by June 1 of each year and to adjust set-off child support accordingly. However, the parties have not been exchanging this information.

8In 2018, the parties agreed to enroll the children in the school closest to Ms. Hergert’s home in Wasaga Beach. Mr. Hergert’s home is 10 minutes from the children’s school.

9In April 2019, Mr. Hergert moved to Barrie to live with his new partner. His new home was an approximately 35-minute drive from the children’s school. The parties continued their alternating week parenting schedule. At the time, Mr. Hergert was working for his father’s company and was able to drive the children to school in Wasaga Beach during his parenting weeks.

10In October 2019, Mr. Hergert left his father’s company, which he states was because of health and stress issues. Mr. Hergert was then self-employed but did not provide financial disclosure regarding his business income during that period of time.

11At some point in 2020, Mr. Hergert obtained employment earning approximately the same annual salary of $65,000. Mr. Hergert’s new job, however, is in Toronto. As a result, he leaves his home early in the morning and does not return until 7 p.m. in the evening and is unable to take the children to and from school. He has hired a “child care provider” to take the children to and from school during his parenting weeks, and to be available for childcare as needed.

12During the marriage, Ms. Hergert was employed by McLaren Equipment Ltd. for approximately 15 months, earning an hourly wage of $17.00, resulting in an approximate annual income of $31,875. Ms. Hergert was laid off from that position. While receiving employment insurance, she enrolled in a “Second Career” program from January 2017 to July 2018 to upgrade her skills.

13From November 2018 to September 2019, Ms. Hergert worked in a contract position with the Town of Wasaga Beach, where she earned an hourly wage of $18.50. Ms. Hergert initially had a three-month contract, which was extended month-to-month, until she was advised that it would not be extended any further.

14In November 2019, Ms. Hergert obtained a position with the Collingwood Women’s Shelter, where she earned $18 per hour. She received a COVID-related bonus that increased her hourly wage to $24. The motion judge calculated her annual income from this position at $41,600. However, Ms. Hergert was let go in August 2020. Ms. Hergert filed an application with the Ontario Labour Relations Board and did not initially look for work because she hoped to be reinstated. She subsequently began to look for work and sent out 12-14 resumes per week. In June 2021, Ms. Hergert found full-time employment, and is earning $15 per hour.

15Despite the fact that the motion to change related to child support, both parties’ financial disclosure was incomplete. The parties nonetheless consented to the motion proceeding on the record before the motion judge.

Issues

16This appeal raises the following main issues:

(a) Did the trial judge err in failing to impute income to Ms. Hergert for the period 2018 to 2020?

(b) Did the motion judge err in failing to order Ms. Hergert pay a proportionate share of Mr. Hergert’s childcare/transportation costs?

Analysis

Standard of Review

17The Appellant acknowledges that deference is owed to judges on decisions regarding support. As the Supreme Court held in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10, family law trial judges “must be given considerable deference by appellate courts.” However, an appellate court may overturn a support order where “the reasons disclose an error in principle, a significant misapprehension of the evidence or [where] the award is clearly wrong.” Hickey, at para. 11.

18The parties agree that the appeal involves questions of mixed fact and law, and that the applicable standard of review is palpable and overriding error. A “palpable” error is an error that is plainly seen. An “overriding” error is an error that is sufficiently significant to vitiate the challenged findings of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 1 and 6. Examples of palpable errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference: Waxman v. Waxman, 2004 39040 (ON CA), 186 O.A.C. 201, 44 B.L.R. (3d) 165, [2004] O.J. No. 1765, at para. 296.

Did the Motion Judge Err in Failing to Impute Income to Ms. Hergert?

The Parties’ Positions

19The Appellant submits that the motion judge made the following palpable and overriding errors in failing to impute income to Ms. Hergert:

(a) The motion judge erred in applying step 1 of the test articulated by the Court of Appeal in Drygala v. Pauli, 2002 41868 (Ont. C.A.) in that she misapprehended the requirements for a party to be considered intentionally unemployed or under-employed;

(b) The motion judge reversed the onus at step 2 of the Drygala test, finding that Ms. Hergert’s employment decisions were reasonable in the absence of documentary evidence; and

(c) The motion judge erred in imputing income to Mr. Hergert and not Ms. Hergert when both parties were underemployed.

20The Respondent submits that the trial judge made no palpable and overriding errors and that her findings of fact are entitled to deference.

The Applicable Principles

21The parties agree that the test for the imputation of income is the following three-part test as set out in the Ontario Court of Appeal’s decision in Drygala, at para. 23:

(i) Is the spouse intentionally under-employed or unemployed?

(ii) If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs?

(iii) If the answer to question #2 is no, what income is appropriately imputed in the circumstances?

22As the Court of Appeal stated in Drygala, in order to impute income, no specific intent to evade child support is required. A person is intentionally unemployed or under-employed when they earn less than what they are capable of earning. Whether that choice is justified or reasonable is part of the second part of the test: Drygala, at para. 28.

23Imputing income is one method by which the court enforces the parents’ joint and ongoing obligation to support their children. Both parents “must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed”: E.D. v. J.S., 2020 ONSC 1474, at para. 162. Once it is established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of their reasonable educational needs: Drygala, at para. 38. A court must also consider whether the under-employment is required by the needs of a child or by the health needs of the spouse: Lavie v. Lavie, 2018 ONCA 10, at para. 28.

The Principles Applied

24In my view, the motion judge made no palpable and overriding error in finding that Ms. Hergert was not intentionally unemployed or under-employed.

25Mr. Hergert failed to meet his burden to demonstrate that Ms. Hergert was intentionally unemployed or under-employed. The evidence before the motion judge was scant and consisted mainly of Mr. Hergert’s affidavit evidence that Ms. Hergert earned an annual income between $45,000 to $53,000 during the marriage. Mr. Hergert also submitted that the median salary of a social service aide in Barrie is $47,400 per year. The motion judge did not have to accept Mr. Hergert’s evidence, which was unsupported by documentary evidence.

26Ms. Hergert disputed that she ever earned $45,000 per year, and gave evidence that she had never earned more than the $15,500 attributed to her when the order was made. While the motion judge observed that this was hard to reconcile with the income earned in her previous positions, she found that Ms. Hergert had only worked short-term, part-time, minimum-wage type jobs throughout the marriage and after the parties separated.

27The motion judge also found that during the 24-month period at issue, Ms. Hergert was unemployed for only six months. She noted the impact of the COVID-19 pandemic on the availability of employment and the fact that Ms. Hergert could not work outside of the home while the children were attending school virtually.

28In addition, Mr. Hergert sought to have income imputed to Ms. Hergert from June 2018 to November 2020 even though he did not bring his motion to change until November or December 2018. The motion judge’s reasons indicate that Mr. Hergert agreed that he had not given notice to Ms. Hergert that he would be seeking a change. The reasons also set out that in the course of oral argument, Mr. Hergert “agreed to make December 2018, the date of the MTC, the effective date for an adjustment of child support and s. 7 expenses.” As noted above, Mr. Hergert did not file transcripts of the motion to change. In light of his concession, the motion judge made no error in respect of the time period for the motion to change.

29Further, I reject Mr. Hergert’s submission that the motion judge reversed the burden at step 2 of the Drygala test in finding that Ms. Hergert’s employment decisions were reasonable in the absence of documentary evidence. The motion judge did not reverse the onus. Ms. Hergert’s evidence was that she enrolled in a government-funded program to upgrade her skills and that she completed it on a compressed schedule. Ms. Hergert gave evidence of her subsequent employment and job search efforts.

30Moreover, the motion judge made no palpable and overriding error in finding that it was reasonable for Ms. Hergert to upgrade her qualifications to try to find better employment. The motion judge specifically noted that Mr. Hergert was able to advance his skills and career during the marriage, while Ms. Hergert was the primary caregiver to their three children and took only part-time jobs.

31Finally, I reject Mr. Hergert’s contention that his consent to an imputed annual income of $65,000 was conditional on income being imputed to Ms. Hergert. The motion judge’s reasons do not indicate that Mr. Hergert’s consent to have income imputed to him was conditional. There is nothing in the record on appeal to support that it was conditional. Moreover, Mr. Hergert did not request a transcript of the hearing for the purposes of his appeal.

32The motion judge made no error in principle in declining to impute income over $15,500 to Ms. Hergert. The reasons disclose no significant misapprehension of the evidence or that the award is clearly wrong.

Did the Motion Judge Err in Failing to Order Ms. Hergert to Pay a Proportionate Share of Childcare/Transportation Costs?

33On the motion, Mr. Hergert’s position was that Ms. Hergert ought to be required to pay an equal share of s. 7 expenses relating to childcare costs incurred by him in relation to the childcare provider that he has hired to take the children to and from school. Mr. Hergert now asks this court to order that Ms. Hergert pay a proportionate share of the expenses.

34Because Mr. Hergert commutes from Barrie to Toronto for work, he is no longer able to take the children to school in Wasaga Beach. He has contracted with a childcare provider to provide childcare services from 7:00 a.m. to 4:00 p.m. daily during his parenting weeks. Under the contract, the childcare provider is compensated at a rate of $1,200 per month plus 0.50 cents per kilometre, for a total of $1,570 per month.

35In my view, the motion judge made no palpable and overriding error in finding that the childcare costs were not necessary in relation to the children’s best interests. Because the children are in school for most of the day, the childcare costs relate mainly to having them driven to and from school. As the motion judge observed, Mr. Hergert leaves for work very early in the morning and does not return home to Barrie until 7 p.m., which means that he cannot take the children to and from school and that he only sees them for a couple of hours in the evening. It was Mr. Hergert who decided to move to Barrie and to obtain employment in Toronto, despite the fact that the children attend school in Wasaga Beach.

36Mr. Hergert still owns the home in Wasaga Beach, where he could stay during his weeks with the children. Ms. Hergert has also offered that the children return to her home after school until Mr. Hergert can come pick them up, even during his weeks. The older two children have also taken courses in staying home alone so that they are able to take care of themselves and their younger sibling after school or for short periods of time. Ms. Hergert does not have the children in childcare during her parenting weeks. But for the fact that Mr. Hergert is unable to drive the children to school, they would not need a childcare provider/driver.

37Similarly, the motion judge made no palpable and overriding error in finding that the expense was not reasonable in relation to the financial means of both parents. The expense of a driver, at approximately $19,000 per year is simply not reasonable given the modest income of each parent. If Ms. Hergert were required to pay a proportionate share of the expense, this would constitute a substantial portion of her annual net income. Given that the children are with Mr. Hergert for two weeks each month, the expense is disproportionate.

38The motion judge made no error in finding that the childcare costs were not necessary or reasonable and in refusing to order Ms. Hergert to pay a share of those expenses.

Costs on the Appeal

39The Respondent’s costs of the appeal were approximately $17,000. The Appellant submits that the amount is excessive, given that his costs of the appeal were $7,000.

40I agree that based on the issues on appeal, $17,000 is excessive. I fix costs of the appeal in the amount of $7,000, an amount I find to be proportionate and reasonable.

Conclusion

41Accordingly, the appeal is dismissed.

42The Appellant shall pay costs of $7,000 to the Respondent within 30 days.

Footnotes

1. 1Ms. Hergert also brought a motion to change in relation to parenting issues, which was not heard. The motion judge made an order requesting the assistance of the Office of the Children’s Lawyer in relation to the parenting issues.