Court File and Parties
Court File No.: Brampton 408/10 Date: 2014-08-29 Ontario Court of Justice
Between: Christine Elizabeth Stewart Applicant,
— AND —
Neill Standon Turner Respondent.
Before: Justice S.R. Clark
Trial of Issue regarding Retroactive and Ongoing Child Support and s.7 Special Expenses
Trial held on: July 23, 2014 Judgment released on: August 29, 2014
Christine Stewart ......................................................... self-represented Neill Turner ......................................................... self-represented
CLARK, J.:
1:0 INTRODUCTION
1This is a case that started out as a contest about custody, but turned out to focus on the quantum of child support and s.7 expenses that should be payable by the respondent father, Neill Turner (the father) both retroactive and ongoing.
2Initially, the parties had joint custody (shared parenting) of Allison (the child), born November 29, 1999, presently age 14.
3However, she has been living exclusively with the applicant mother, Christine Stewart (the mother) since the end of May, 2013.
4The father brought an Application, dated May 27, 2013, seeking sole custody. He filed an amended Application, dated September 11, 2013, offering meaningful access to the mother, but also making a claim that he be paid child support.
5The mother, on the other hand, filed an Answer, dated June 25, 2013, also seeking custody as well as child support.
2:0 THE ISSUES
6The two main issues in this case are as follows:
Should the mother be disentitled to child support based on her alleged actions in denying the father access?
Should the Court impute income to the mother when calculating the quantum of child support otherwise payable by the father?
3:0 BACKGROUND
7The parties entered into a Separation Agreement (the Agreement) on March 10, 2009, which provided, inter alia, for a joint custody shared parenting arrangement. Each parent had physical custody not less than 50% of each year. In addition, to satisfy each party's obligation to pay child support in accordance with the guidelines, they agreed to calculate the table amounts payable by each, and the higher income spouse would pay the lower the net difference.
8At the time of the signing of the Agreement, the father's annual income was $82,256.00. The mother's income was $54,876.00. The differential in table amount ($737.00 vs. $509.00) required the father to pay $228.00 per month. Special expenses were to be paid on a 60% basis by the father. The only relevant special expense at the time was daycare, totalling $3,600.00 per year.
9The mother brought a Motion to Change, dated July 15, 2010, seeking to reduce her child support obligation and her percentage contribution for special expenses.
10After considering the parties' respective financial calculations, Justice Baldock made an order on January 6, 2011, that the set-off child support payable by the father would be $42.00 per month, plus 52% of daycare costs, commencing January 1, 2011. Her Honour also ordered that the parties were prohibited from bringing any new or related proceeding with respect to support issues for a period of 12 months, and thereafter, only after having complied with the dispute resolution provisions contained in the Agreement.
4:0 SUMMARY OF THE PRESENT PROCEEDINGS
11The father's position set out in his Application seeking a change in custody is because he claims the mother has been in contravention of the terms of the Agreement. She has failed to return the child as required. She has denied him access and has alienated the child by repeatedly refusing to encourage respect and affection for him. She has also refused to confer with him on important matters relating to the child. Although he seeks sole custody, he is prepared to allow alternate weekend access to the mother as well as any pre-scheduled events including birthdays and the like.
12The mother, on the other hand, seeks sole custody on the basis that the child refused to return to the father's home for her regular 2-week scheduled residency on May 21, and again on May 24 and May 30, 2013. Furthermore, she claims that the child's health and well-being is at risk if shared parenting continues, in that the child disclosed to police officers that she would hurt herself if forced to return to her father's home. The child has been living with the mother since May 10, 2013. Since May 30, 2013, the child has made 11 requests to spend time with the father outside of his home. However, he has refused to see her.
13The mother asks that the Office of the Children's Lawyer (OCL) be involved.
14She also seeks a retroactive increase in child support from June 1, 2013, to have the father pay $741.90 per month, based on his 2012 income tax assessment. She submits that the s.7 contributions should also be adjusted.
15She filed an amended Answer, dated September 5, 2013, which was substantially the same, merely adding that the child has suffered emotional abuse while living with the father.
16This matter has been case-managed by Justice Pawagi.
17Her Honour made an order at a case conference, on September 6, 2013, requesting the involvement of the OCL, to determine the views and preferences of the child, given her age, and the drastic change in schedule.
18On this same date, a temporary consent order, without prejudice, was made. The father would have access each Tuesday and Saturday.
19On October 21, 2013, the case conference was further adjourned to allow the OCL to conduct its investigation.
20On December 13, 2013, the matter was further adjourned, on consent, to March 3, 2014, for a continuing case conference, and for the OCL position to be presented. Justice Pawagi ordered that the mother serve and file an affidavit by February 7, 2014, setting out proof of rental income and expenses for the years 2011 to 2013, as well as proof of income from part-time jobs, and proof of proceeds of the sale of a rental property.
21On March 3, 2014, a final consent order was made by Justice Pawagi, settling the issues of custody and access (joint custody with primary residence to the mother). The issue of child support, however, was adjourned for a hearing, set for April 4, 2014. Her Honour ordered the parties to serve and file their affidavits, attaching their full income tax returns for 2013, including all attachments.
22On April 4, 2014, Justice Pawagi heard oral submissions by both parties based on their filed materials. She reserved her judgment to an unspecified date.
23Unfortunately, her Honour was unable to complete the matter. Accordingly, it was determined that the parties would have to effectively "re-try" the issue before a newly-constituted Court.
24The parties attended before this Court on July 24, 2014, and made their respective oral submissions based on their filed written materials.
25This Court reserved judgment and advised the parties that the decision would be released by the end of August, 2014.
5:0 THE POSITIONS OF THE PARTIES
5:1 The Mother
26After Justice Baldock's order on January 6, 2011, the parties operated on the basis of child support being paid by the father in the set-off table amount of $42.00 per month.
27However, in October, 2011, the mother lost her job with a marketing company, the Katz Group, due to a corporate restructuring.
28She advised the father of this material change in her circumstances by letter dated December 7, 2011. The letter was sent by her legal counsel at the time, asking the father to make a voluntary child support payment of $450.00 per month, and a 77% contribution toward s.7 expenses. At that time, she believed that her income for the coming year (2012) would be in the range of $25,000.00.
29Furthermore she claims that the father knew of her subsequent enrolment in a re-training school program at Sheridan College, commencing in January, 2013. She has been a full-time student and will be graduating from the paralegal program at the end of August, 2014.
30She set out in her affidavits, dated February 4 and March 30, 2014, that her primary residence from February, 2009 to January, 2012, was at 2035 Asta Drive, unit 47, in Mississauga.
31She then moved to 2384 Nichols Drive in Oakville, so she could rent out the Asta property, which she did for one year, from May 31, 2012 to May 4, 2013.
32The Asta property was then sold on August 21, 2013, which apparently yielded net proceeds in the approximate amount of $56,000.00.
33She continues to reside at the Nichols property.
34Since November 23, 2013 she has held a part-time job as a sales associate for Grafton Fraser (George Richards Clothiers).
35From November, 2011 to the present, she has endeavoured to continue supporting the child by receiving some financial help from her husband, Robert Kozak, his parents, as well as her own. She has also had to cash in some registered retirement savings (RRSP) and has had to use a personal line of credit.
36She now asks the Court to retroactively recalculate the amount of child support owing by the father from the end of 2011 up to and including the end of May, 2013.
37From June 1, 2013, however, since the child started living with her full-time, child support should be calculated only on the basis of the father's income, and not hers. She agrees that s.7 expenses can continue to be calculated on a proportionate share basis in accordance with their respective annual incomes.
38She maintains the position that in good faith, she always made the necessary financial disclosure required by the terms of the Agreement as well as by all Court orders.
39Her income tax returns and all calculations relating to rental income have been prepared by professionals.
40She refutes the father's position that she has been either intentionally unemployed or under-employed, in an effort to avoid her legal obligation to assist in supporting the child.
41She submits that the father has been rigid and uncompromising in his position. As an example, he seems to think that the proceeds of the sale of her primary residence should be taken into her 2013 income, when clearly, according to her financial advisors, this is not a part of any child support calculation. In any event, she queries what the father would do in the future, since he too owns a home. She ventures to say that should it be sold, he will not likely feel obliged to increase his child support once he receives his net proceeds.
42She submits that the father continues to "paint" her as either misrepresenting or withholding financial disclosure to the point of being fraudulent. She is well aware of her legal and ethical obligations to be truthful, and claims that she has no reason to lie or to fail to disclose any financial information. She has not intentionally lowered her income to avoid her support obligation to the child.
43Furthermore, contrary to the father's claim, she has never held any other part-time job other than the one already mentioned, nor does she hold any other bank account in ING, (now called Tangerine).
44She has always provided full financial disclosure, and has done so annually, pursuant to the relevant sections of the Agreement (paras. 34, 36 and 38).
45Her decision to return to school was not made lightly. She had had a 20 year career in marketing. However, at the age of 47, she wanted to move forward into a new field. She returned to school to improve her employability and did so in good faith. In fact, she has been in an accelerated program in an effort to complete her studies so that she can get back into the workforce as soon as possible.
46Her position is that the father owes retroactive child support from January 1, 2011, to August 31, 2014, totalling $19,414.06. She arrives at this amount in the following manner:
2011 – She claims the amount owing by the father for this year is $348.00. He acknowledges this.
2012 – She claims the total amount owing by the father for 2012 is $5,892.36. This is based on his annual income of $82,000.00. The table amount for one child is $738.00 per month. Her 2012 income is $25,487.00. The table amount is $204.97. The set-off differential, therefore, is $533.03 per month. This amount, less the $42.00 per month which has been paid by the father leaves a net monthly payment owing of $491.03. This amount multiplied by the 12 months in the year totals $5,892.36.
2013 – The father's income for 2013 is $82,825.44. The table amount is $744.44. Her income is $21,878.00. The table amount is $175.02. The set-off differential is $569.42. This amount less $42.00 per month would equal $527.42 from January to the end of May, 2013. The total amount owing for this period is $2,637.10.
Thereafter, from June 1 (the time when the child came to live full-time with her) to December 31 requires the father to pay $744.44 per month less $42.00 per month, for a net of $702.44. This amount, over 6 months, totals $4,917.08. Therefore, the total owing for 2013 is $7,554.18.
2014 – The father's income for 2014 is $82,825.44. The table amount is $744.44, less $42.00 per month already paid, leaving a net monthly payment of $702.44. The amount owing from January to August 31 is $5,619.52.
Summary of child support owing by the father:
- 2011 - $348.00
- 2012 - $5,892.36
- 2013 - $7,554.18
- 2014 - $5,619.52
Total: $19,414.06
5:2 The Father
47The father's calculations are radically different.
48He agrees that he owes $348.00 for the year 2011, plus a further $33.07 as his proportionate share of s.7 expenses, for a total of $381.47.
49However, for the years 2012, 2013, and 2014, the Court should impute income to the mother on the basis that she made a poor decision to leave the workforce to return to school. Furthermore, she has not secured meaningful or additional part-time employment when she had the capacity to do so, even while attending school. Most important, however is that she has refused or failed to provide full financial disclosure.
50Her actions and behaviours for the relevant years suggest a deliberate attempt to avoid her child support obligation. She should not be rewarded for her conduct or for her intentional attempts to withhold accurate financial information, or in failing to produce same in a timely manner.
51He therefore asks the Court to consider the following calculations for the relevant years:
2011 - He will pay $381.47
2012 – He agrees to pay a total of $3,972.00.
The Court should impute income to the mother in the amount of $45,512.00, which would be fair and reasonable in the circumstances, given that she used to earn $65,000.00 on average in previous years. The figure $45,512.00 is based on the mother's T4 ($4,140.00); her E.I. benefits ($19,188.00); her gross rental income ($10,850.00); and in redeemed RRSP funds ($11,334.00).
He submits that she is highly intelligent and is employable, but chose to be unemployed for this year. Furthermore, she misrepresented her income from rental property. For example, she remained in the subject residence until June, 2012, and yet she claimed expenses for the entire year. This shows that she lowered her income intentionally to avoid paying child support.
His income for 2012 is $82,500.00. The table amount is $742.00. Her imputed income of $45,512.00 would yield a table amount of $411.00. The set-off differential, therefore, is $331.00 per month, which totals $3,972.00. Furthermore, no adjustment would need to be made for s.7 expenses. The total cost for the child's dance lessons was $1,777.20. He paid $920.14, which represents 52% of this cost.
2013 - S. 7 expenses totalled $599.18 for 2013. He paid $311.57, based on a 52% split. However, if the Court imputes income to the mother, this will also have to be adjusted.
Regarding child support, he confirms his 2013 income as $82,825.00. However, the Court should again impute income to the mother, but in the amount of $81,259.00, on the basis that this is not out of line with her historical earnings.
The amounts from her T4 ($1,597.00); her gross rental income ($7,200.00); her capital gains from the sale of the house ($56,768.00); and her RRSP proceeds ($15,697.00) total $81,262.00.
He maintains that the mother has made extreme efforts to hide income. Furthermore, her actions are contemptuous because she has continued to disobey financial disclosure requirements and has repeatedly filed inaccurate, incomplete financial information, or withheld from filing same. The Court should note, for example, that on March 3, 2014, Justice Pawagi ordered that the mother should file her income tax return with all attachments. However, she did not do so, and only brought further materials to Court on the day of this hearing.
In the result, he submits that no amount of child support is owed by him from January to the end of May, 2013.
Furthermore, notwithstanding that the child returned to live with the mother on May 25, 2013, he submits that her custodial rights should be suspended since she breached s.3 of the Agreement. She deliberately withheld access and refused to return the child to him. Therefore, she should not be rewarded for her actions. She perjured herself by falsely accusing him of abusing the child, and yet the OCL representative made no such finding.
6:0 ANALYSIS
52This has been a very difficult case to reconcile.
53The parties are both highly intelligent and articulate individuals. Their respective presentations in Court were detailed, organized and forcefully presented.
54The difficulty the Court has had is in having to consider all the calculations and permutations at a level of sophistication that almost requires the expertise and input of a forensic accountant.
55The Court can't help but be left with the impression that both parties have spent much time looking for "loopholes" or have made their own subjective interpretation of the terms of a very detailed Separation Agreement. Unfortunately, this has been an impediment to their being able to accept and live with their differences, and still keep the best interests of their daughter at the forefront of their concerns, both financial and personal.
56There is no doubt, after having heard the oral presentations, that the parties continue to "snipe" at one other. While the father maintains that the mother is still running a "campaign" to alienate the child from him, the mother takes the position that she is merely following the wishes and preferences of an adolescent with her own personal views.
57There has been a rather fluid dynamic over the last few years, having regard to both parties having new partners; the mother selling her primary residence; the mother making a conscious decision to re-train; and a determination now being made that there will no longer be any form of set-off formula in having to take into account the respective incomes of both parties, since the child is now residing exclusively with the mother full-time. Hopefully, the ultimate order to be made by this Court will facilitate the parties' ability to move forward without further litigation.
6:1 Issue 1 – Should the mother be disentitled to child support based on her actions re access?
58It is a principle of family law, although often misunderstood by many parties, that the issues of custody/access, and child support are mutually exclusive. In other words, simply put, a party cannot make a claim that because custody or access rights are being denied by the other party that there is no requirement to continue to pay child support. This principle is not absolute, however. There are always special circumstances, for example, where one party might ignore custody or access rights in such an egregious and contemptible manner that the Court can make an order that child support be either adjusted, reduced or not paid at all in an effort to "correct" a party's behaviour. The facts and circumstances of the present case, however, come nowhere close to this being a viable consideration.
59The Court ordered the involvement of the OCL to determine the custody and access issues. This was done. This resulted in a final order being made, on consent, reflecting the current circumstances of joint custody, with primary residence to the mother and a meaningful access regime also agreed to by the parties.
60Therefore, that part of the father's position that he should no longer be required to pay child support from June, 2013, going forward until the parties settled the custody and access issues by way of a final consent order on March 3, 2014, is without merit. Neither is the part of his claim that the mother has demonstrated such egregious behaviour in denying him access that she should be disentitled to receive child support from him.
6:2 Issue 2 – Should the Court impute income to the mother?
6:2.1 General Principles
61Under s.19 of the Child Support Guidelines, the Court may impute such amount of income to a parent as it considers appropriate in the circumstances, which may include the following non-exhaustive list of factors:
If the parent is intentionally under-employed or unemployed.
If it appears that income has been diverted which would affect the level of child support to be determined.
If the parent has failed to provide income information when under a legal obligation to do so.
The Court can also consider the reasonableness of any expenses, which is not solely governed by whether the deduction is permitted under the Income Tax Act.
62Imputing income is one method by which the Court gives effect to the joint and ongoing obligation of parents to support their children.
63The Court can consider failure to report income actually earned, and an adverse inference due to one's failure to provide financial disclosure.
64There are a number of other basic principles which must be considered. Among them is the imperative that parents must not arrange their financial affairs so as to prefer their own interests over those of their children. Furthermore, a parent is required to act responsibly when making financial decisions that may affect the level of child support available.
65Imputing income does not incorporate a requirement for proof of bad faith. However, the word "intentionally" in this context means that the provision does not apply to situations beyond one's control.
66Even where a parent may be found to be under-employed, the Court may still exercise its discretion not to impute income where that parent establishes the reasonableness of the decision.
67However, a parent will not be excused from his or her child support obligation in furtherance of unrealistic or unproductive career aspirations or interests, or in taking a job merely because it suits his or her purposes.
68It must be noted that s.19 of the Guidelines is not an invitation for the Court to arbitrarily select an amount as imputed income. Rather, the Court's discretion must be granted on the basis of evidence.
69An adverse inference should not, in and of itself, support imputing any income that one party requests. There should be a proportionate connection between the extent of the adverse inference that the Court is being asked to draw and the evidence provided.
70The Court should consider the payor's age, education, experience, skills and health, as well as the availability of job opportunities, including the number of hours that could be worked in light of other obligations.
71As a practical matter, it is not always easy to determine when a parent is a victim of unfortunate financial circumstances, or the author of them.
72The Court must also be careful not to impute income merely to punish a parent. Rather, income should be based on what a party should or could reasonably be earning in the circumstances.
73The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally under-employed or unemployed. Once this has been established, however, the onus shifts to the payor to prove that his or her decision was reasonable.
74A situation which commonly arises is one where one of the parents involuntarily loses his or her employment (layoff) followed by a lengthy period of unemployment. The argument is that the individual should have been able to find substitute employment if he or she or he had looked hard enough. The Court can also consider, as an alternative, the pattern of income, usually, over the last 3 years to employment being terminated, to determine an amount that is fair and reasonable.
75Sometimes, the Court can also give consideration to scenarios where there is an obvious motive to avoid support, or scenarios where a parent is simply lazy and self-centred, or does not view his or her lack of ambition as an intention to avoid child support.
76Consideration can also be given to whether a parent makes a voluntary choice to earn less money than his or her capability, in which case the Court will assess whether the choice was reasonable given the particular circumstances.
77The Court can also properly consider whether a parent was merely content or resigned to continue to receive minimal income because he or she has been able to reduce living expenses. In other words, the Court may find that an individual is able to languish in unemployment because his or her needs are being otherwise met by a lowering of lifestyle, or by receiving support from another family member or a new partner.
6:2.2 The Principles Applied
78Applying the above-noted principles, the Court finds as follows:
The mother has done nothing here to demonstrate that she has intentionally tried to evade her legal support obligation.
She was a legitimate victim of a corporate restructuring which effectively forced her out of the workforce. This is not altogether unusual or surprising given the current economic times in which we live.
Thankfully, she had an alternative network support, through her new partner, his parents, as well as her own resources.
This allowed her to make a conscious and realistic decision to decide to retrain, and take a different career path by seeking higher education. Indeed, she has chosen a field where she ought to be quite employable, and should be able to earn a salary in the imputed range suggested by the father ($45,512.00).
The Court is satisfied that the mother has not been an "artful dodger" in failing to file complete or accurate financial documentation. The evidence points to her taking reasonable and prudent steps to engage the services of skilled professionals to prepare her income tax returns, and any expense calculations for the rental property, and the sale of same.
Furthermore, the Court does not find that she was contemptuous or that she flouted the spirit or intent of any financial disclosure orders made by Justice Pawagi.
All of that said, and in an effort to balance out the competing interests and positions of both parties, and without delving into a sophisticated analysis and breakdown as to whether RRSP redemptions, rental property expenses, and net proceedings from the sale of a primary residence, should be considered in the calculus, there does appear to be some room to impute a certain level of income to the mother for purposes of the calculations in the years 2012 and 2013.
It is laudable that the mother has decided to return to school. However, without appearing harsh or critical, this is a decision that cannot be made necessarily without impacting on her ongoing obligation to continue to contribute to supporting the child. Thankfully, as indicated, she had an ongoing network of financial support which helped her make this decision.
Accordingly, when the Court considers all of the circumstances, and the context of what was going on in the lives of both parties in the years 2012 and 2013, it would not be unfair to impute income to the mother in 2012 at $45,512.00, and not $25,000.00 as she has claimed.
For the year 2013, however, the Court is not prepared to impute income to the mother at the level suggested by the father, which is $81,000.00. Proceeds of the sale of the primary residence is not something that is ordinarily taken into account for calculation of child support purposes. However, at the same time, it represents the fact that the mother did have funds from which she could address her child support obligation in a reasonably meaningful way. Accordingly, the Court attributes income to her in 2013 of $45,512.00, which will apply to calculations of child support for this year up to the end of May.
Thereafter, from June 1, 2013, the evidence is clear that child support obligations will be made on the basis of the father's income alone.
7:0 CONCLUSION
79On the totality of all the evidence, and after careful consideration of the oral submissions made by both parties, the Court views the issues of child support and s.7 expenses as follows:
For 2011, on consent, the father agrees to pay $381.47 to the mother on behalf of the child for both child support and s.7 expenses.
For 2012, neither party owes the other any money for s.7 expenses. Regarding child support, the father's income is $82,500.00. The mother's income is imputed to be $45,512.00. The set-off table amount is $742.00 against $411.00, leaving a net of $331.00 per month payable by the father. The total amount for the year is $3,972.00. He has paid $42.00 per month for this year, totalling $504.00. The net amount owing, therefore, is $3,468.00.
For 2013, neither party owes the other for s.7 expenses. Regarding child support, from January 1 to May 31, the Court imputes income to the mother at $45,512.00. The father's income is $82,500.00. The set-off table amount is $331.00 per month. Therefore, the total from January 1 to May 31, is $1,655.00. The father has paid $42.00 per month over this same period which totals $210.00. The net amount owing is $1,445.00. From June 1 to December 31, the father shall pay $744.00 per month less $42.00 per month for a net of $702.00 per month, totalling $8,424.00.
For 2014, from January 1 to August 31, neither party owes the other any money for s.7 expenses. Regarding child support, the father shall pay $702.00 per month, totalling $5,616.00.
Commencing September 1, 2014, the father shall pay child support in the amount of $744.00 per month on annual income of $82,500.00.
Commencing September 1, 2014, the father shall pay an additional minimum amount of $300.00 per month toward the outstanding arrears until such time as they have been paid in full.
To avoid future unnecessary and time-consuming discrepancies, the parties shall evenly split any s.7 expenses for activities agreed upon in advance and upon being presented with proper receipts or invoices for the costs of same.
Each party shall be required to serve the other with annual financial disclosure, including a copy of an income tax return and any notice of assessment or reassessment, as well as a sworn financial statement by June 30, commencing in 2015.
All monies owing shall be paid through the Family Responsibility Office. A support deduction order shall issue.
8:0 ORDER
80The Court makes the following final order:
The respondent father, Neill Turner, shall pay retroactive child support to the applicant mother, Christine Stewart, on behalf of the child, Allison Turner, born November 29, 1999, totalling $19,334.47, as follows:
- 2011 - $381.47
- 2012 - $3,468.00
- 2013 - $1,445.00 plus $8,424.00 = $9,869.00
- 2014 - $5,616.00 (January 1 to August 31)
Commencing September 1, 2014, the father shall pay child support in the amount of $744.00 per month on annual income of $82,500.00.
Commencing September 1, 2014, the father shall pay an additional minimum of $300.00 per month toward the outstanding arrears ($19,334.47) until such time as the said amount has been paid in full.
Commencing September 1, 2014, the parties shall evenly split any s.7 expenses for activities agreed upon in advance and upon being presented with proper receipts or invoices for the costs of same.
Each party shall serve the other with annual financial disclosure, including a copy of an income tax return and any notice of assessment or reassessment as well as a sworn financial statement by June 30, commencing in 2015.
All monies owing shall be paid through the Family Responsibility Office. A support deduction order shall issue.
9:0 COSTS
81As both parties have been partially successful, no order will be made for costs.
Released: August 29, 2014
Justice S.R. Clark
