Court File and Parties
Date: 2016-12-19
Court File No.: D80960-15
Ontario Court of Justice
Between:
Aillen Perada Barrera
Adela Crossley, for the Applicant
Applicant
- and -
Juan Barrera
Theodore Nemetz, for the Respondent
Respondent
Tim Hetherman, for the Assignee, The City of Toronto
Heard: December 9, 2016
Justice: S.B. Sherr
Reasons for Decision
Part One - Introduction
[1] This trial was about the parenting arrangements for the parties' two children, who are 5 and 7 years old (the children), and child and spousal support.
[2] The applicant (the mother) seeks an order for sole custody of the children. She proposes a specified access schedule for the respondent (the father) and seeks several incidents of custody, including orders permitting her to obtain government documentation for the children and to travel with them outside of Canada without the father's consent. She seeks to impute the father's annual income at $100,000 and have him pay child support to her from the parties' date of separation. She also asks that the father pay her spousal support of $950 each month for a period of three years.
[3] The mother is presently on social assistance. She assigned her interest in support to the City of Toronto (the assignee), effective October 1, 2015. Ontario Regulation 228/16, s. 8 amends subsection 54 (1) of Ontario Regulation 134/98, made pursuant to the Ontario Works Act, 1997. This amendment provides that starting on February 1, 2017, any child support payments the mother receives will not be deducted from her social assistance payments. This amendment does not change the current treatment of spousal support. The City of Toronto, by virtue of the assignment in interest, will collect any spousal support awarded, as long as the mother remains on social assistance.
[4] The father also seeks sole custody of the children and child support. In the alternative, he seeks a specified access schedule with more parenting time than proposed by the mother. He opposes the incidents of custody sought by the mother. He asks that her claim for spousal support be dismissed.
[5] Only the parties testified at trial. They provided most of their direct evidence by affidavits. They were both cross-examined. The City of Toronto also filed an affidavit setting out its interest in support and the father's payment history.
[6] The main issues at trial were:
a) What parenting orders are in the children's best interests?
b) What are the incomes of the parties for the purpose of the support calculation, and in particular, should income be imputed to one or both of them?
c) Is the mother entitled to spousal support?
d) If so, what should be the amount and the duration of the spousal support ordered?
e) When should the support orders start?
f) How should support arrears, if any, be paid?
Part Two – Factual Background
[7] The mother is 35 years old. The father is 52 years old.
[8] The mother was born in the Philippines. The father was born in Jamaica.
[9] The mother came to Canada under the live-in caregiver program in 2004. She obtained an open work permit in 2007.
[10] The parties began their relationship in 2007 and married on October 5, 2008. This was the mother's first marriage and the father's second marriage.
[11] The parties do not have other children.
[12] Prior to the birth of the parties' second child, the mother left the workforce. She stayed at home with the children.
[13] The father worked very hard to support the family. He has been steadily employed as an excavator, operating heavy machinery. This work is seasonal. He testified that in the 8 to 9 months each year that he can perform this work, he works very long days (between 10 to 15 hours a day). In 2013, the father worked at two full-time jobs for several months.
[14] The father has also operated a driving instruction school since 2011. He has three employees and two subcontractors to assist him. The father claims that he earns no income from this business. The mother feels that the business is very profitable.
[15] The parties separated on April 15, 2015.
[16] The children have resided with the mother since the separation.
[17] The mother issued this application on June 3, 2015.
[18] On September 14, 2015, the case management judge, Justice Carolyn Jones, made a temporary without prejudice order (the temporary order), on consent. The order provided that the children primarily reside with the mother and see the father on alternate weekends and Wednesday evenings. The father was ordered to pay the mother child support of $921 each month, based on his annual income of $62,000. The father was also ordered to provide financial disclosure to the mother.
[19] Justice Jones made further orders requiring the father to provide financial disclosure to the mother on January 28, April 22, and July 20, 2016.
[20] On June 14, 2016, Justice Jones granted the father leave to bring a motion to change temporary support. He never brought this motion.
[21] The temporary order has not changed.
[22] The parties have complied with the parenting schedule set out in the temporary order.
[23] The mother has not worked since the parties separated. She began attending an Adult Learning Centre in September 2016.
[24] The father is in serious default of the support terms of the temporary order. As of November 14, 2016, he had only paid child support of $1,661 and was $11,242 in arrears.
Part Three – Custody and Access
3.1 Positions of the Parties
[25] The parties both sought sole custody of the children.
[26] The parties agreed that the communication between them is very poor and they cannot co-parent the children. Both parties made allegations against the other of domestic violence that took place during the relationship. Neither party sought an order for joint custody at trial.
[27] The mother testified that the existing parenting schedule is working well for the children and should continue. She had some complaints about the father with respect to his not coming to visits on time, denigrating her to the children and being inflexible in making access arrangements, but she did not feel that these concerns were significant enough to place further restrictions on his parenting time.
[28] The mother described herself as the primary caregiver for the children, responsible for looking after their physical and emotional needs. She deposed that she has responsibly made all major decisions for them.
[29] The mother said that the children enjoy being with the father and she wants them to have a good relationship with him.
[30] The mother described in detail in her trial affidavit how the father was abusive and controlling towards her during their relationship. She wants to limit her direct involvement with him. She said that the father continues to hold the children's passports, even though they live with her. She believes that if the father's consent is required to permit her to travel with the children outside of Canada, or to obtain government documents for them, he will use this consent to control and frustrate her.
[31] The father deposed that it is in the best interests of the children to live with him. He said that he has larger and more comfortable housing for the children. He believes that he is better suited to facilitate their education, primarily due to his better English. He claimed that the mother was a lazy and selfish parent when they lived together, who spent her days watching television. He said that despite his long work hours, he had to do most of the parenting and housework when he was home. He expressed concerns that the mother is neglecting the children's medical and academic needs.
[32] The father claimed that the mother was the aggressor when they fought and would often taunt him to hit her.
[33] The father asked for more parenting time if he wasn't granted custody of the children. He asked that the children spend two evenings each week with him, increasing to three evenings each week in the months that he is not working as an excavator. He asked that the children spend March Break and one-half of the two-week winter school break with him. He wants to be able to travel with the children, but opposes any order permitting the mother to take them to the Philippines. He believes that the mother would not return the children to Canada.
3.2 Legal Considerations
[34] Subsection 24 (1) of the Children's Law Reform Act (the Act) provides that the merits of a custody or access application shall be determined on the basis of the best interests of the children.
[35] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making this determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court will review these considerations below.
[36] The court also considered subsection 24 (4) of the Act which reads as follows:
Violence and Abuse
24 (4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child.
[37] Children should have maximum contact with both parents if it is consistent with their best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[38] A court may restrict access if a parent uses access as an opportunity to denigrate the other parent. See: J.M. v. M.M., [2000] O.J. No. 142 (SCJ); Frost v. Allen, [1995] M.J. No. 111 (Man. QB).
[39] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe (see my comments in I.A. v. M.Z., 2016 ONCJ 615).
[40] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.
[41] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).
3.3 Assessment of Parties' Evidence
3.3.1 The Mother
[42] The court treated the mother's evidence with some caution. She had a tendency to exaggerate her evidence. For example:
a) In support of her request to impute annual income of $100,000 to the father, the mother claimed that the parties led a lifestyle consistent with this level of income while they lived together. On cross-examination, it became apparent that this was not the case. The parties initially lived in an apartment. They were able to buy a house, but had to sell it within a year because they couldn't maintain the mortgage payments. They then moved back to an apartment. The parties rarely traveled and had little savings on separation.
b) The mother deposed that the father had two highly successful driving school businesses. She knew that this was not the case. The father started a driving school in Sarnia in 2013 and closed it within a year because he could not meet his expenses.
[43] The mother denied that the father had ever asked her for more parenting time during the court case. She submitted, "all he had to do was ask". This evidence was not credible, as the record was clear that the father had sought more parenting time. The court granted him leave to bring a motion for this relief and his request for more time was clearly set out in his trial affidavit. The mother continued to resist any significant increase in parenting time at trial.
[44] The mother gave inconsistent evidence about her education plan. She appeared to be uncertain about what would be required of her to complete it.
[45] The mother also had unrealistic expectations of the father. The father had worked for several months in 2013 at two full-time jobs to support his family. He described an exhausting work schedule. When asked if she expected the father to do that now, the mother answered, "yes, he has two children to support".
3.3.2 The Father
[46] The father was a poor witness who lacked credibility.
[47] The father frequently attempted to evade difficult questions. He tried to control the cross-examination by giving tangential answers that did not answer the questions put to him, but rather attempted to further his own agenda.
[48] Despite several specific orders, the father's financial disclosure was seriously deficient. At trial, he maintained that he was in compliance with these orders and had given the necessary documentation to his lawyer. This was not credible.
[49] The father claimed that he has not earned any money from his driving school since 2011. This is unlikely. The father employs several persons at this business. By his self-report, the business annually grosses over $120,000. It is improbable that the father would continue to operate the business at a loss for this length of time.
[50] The father could not explain how he was able to maintain his monthly expenses set out in his personal financial statement, when they significantly exceeded his monthly income. He testified, "I keep moving money around". However, he provided no evidence of this, despite the financial disclosure orders.
[51] The father is alarmingly in default of the support terms of the temporary order, without justification. This suggests a lack of integrity and disrespect for his family.
[52] The father claimed that the older child had been suspended and missed school for 20 days for not being properly vaccinated by the mother (in his affidavit he actually deposed, inaccurately, that both children had been suspended). This was not the case. The mother explained that she had been told to have the child vaccinated and promptly did this. However, she only advised the school of the vaccination and not the Ministry of Health, so a suspension notice was sent to her. She said that she cleared the matter up immediately and the child did not miss school. The father took no steps to ascertain that the child had not missed school, assumed the worst and made an inaccurate allegation meant to impugn the mother's parenting.
[53] The father made several unfair allegations about the mother's parenting. He accused her of neglecting the older child's educational needs. His report card, however, indicated that he is doing very well in school. His attendance has been excellent. He has some reading and speech issues, but the mother has been proactive in obtaining extra programming for him at school. The mother was a bit sloppy about notifying the Ministry of Health that he had been vaccinated, but the evidence indicated that she does a responsible job of attending to the children's medical needs.
[54] The father initially denied that he and the mother had agreed she would stay at home with the children while he worked. This was contradicted by a text message he wrote to the mother after the separation that confirmed this had been agreed to. The father's response was, "we agreed to this for a certain time, yes". He felt that the mother had given him no choice other than to go along with this arrangement.
[55] The court did not find the father's evidence about his level of involvement with the children during the relationship to be credible. He worked extremely long hours and spent little time at home.
[56] The court found the mother's evidence about domestic violence more credible than the father's. The court observed that the father became easily upset during cross-examination. It also observed that he tried to control the questioning and became frustrated when he was unsuccessful. He denigrated the mother in his affidavit and in his oral evidence. Early in his questioning, he related an incident where he told the mother "how stupid can you be"? He demonstrated little respect for the mother.
3.4 Best Interest Factors
[57] The following is the court's analysis of the best interest factors set out in subsection 24 (2) of the Act.
Factor #1: The Love, Affection and Emotional Ties
The love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing.
[58] The children love the parents. The mother has been the children's primary caregiver. She was able to describe her relationship with the children in considerable detail. The children have their closest connection with her. The father continued to question at trial whether he is the older child's biological father. He feels that the child does not look like him. He was asked why he didn't obtain a DNA test. He answered that it was too expensive. However, the father proposed during the case to pay between $5,000 and $10,000 for an assessment under section 30 of the Act – clearly the expense of the DNA test was not the real issue.
Factor #2: The Child's Views and Preferences
The child's views and preferences, if they can reasonably be ascertained.
[59] The Office of the Children's Lawyer did not accept a referral order made by Justice Jones. The court heard no independent evidence about the children's views and preferences.
Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment
The length of time the child has lived in a stable home environment.
[60] The children have lived in a stable home environment with the mother since the parties' separation. They are doing well in her care. She has attended to all their physical and emotional needs. She has provided the children with stability and security.
Factor #4: The Ability and Willingness to Provide Guidance and Education
The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child.
[61] The mother is a responsible parent. She supports the children's academic needs and works closely with the school. She ensured that the older child obtained special help with his reading. The children are healthy, happy and well-adjusted.
[62] The father has had minimal involvement with the children's school and doctor. He claimed that the teacher will not provide him with information.
[63] The father has failed to meet the children's needs by his inadequate payment of child support. The father demonstrated no insight into the impact his actions have had on the children. The mother and children have lived in a constant state of financial stress since the separation. The father even attempted to use the mother's financial distress against her and claim that he could provide better accommodation for the children than her. It is telling that the father was willing to spend $5,000 to $10,000 for the assessment, but paid a small fraction of the child support ordered.
Factor #5: Any Plans Proposed for the Child's Care and Upbringing
Any plans proposed for the child's care and upbringing.
[64] The mother set out in detail in her trial affidavit how she cares for the children. It is a child-focused plan that is working.
[65] The father provided very little detail about how he would care for the children in his trial affidavit. This was important as the father works long hours for most of the year. He only provided some detail about his plan, for the first time, in cross-examination (none of this evidence being mentioned in his direct examination). He claimed that family members would assist him with the children. He provided no detail about how this plan would actually operate and did not provide any evidence from these family members. The father's plan was not well-thought out and appeared to have been, for the most part, formulated on the spot.
Factor #6: The Permanence and Stability of the Family Unit
The permanence and stability of the family unit with which it is proposed that the child will live.
[66] The mother has provided a stable and permanent family unit for the children. The father has shown stability by consistently exercising access.
Factor #7: The Ability of Each Person to Act as a Parent
The ability of each person applying for custody of or access to the child to act as a parent.
[67] The evidence established that the mother is a good parent who is attuned to the needs of the children. The mother has facilitated access by complying with the temporary order. However, she should have been more flexible and agreed to some of the access increases proposed by the father.
[68] The father loves his children and expresses that he wants good things for them. However, he has been irresponsible in his financial support of the children. One of the fundamental aspects of being a parent is to financially support your children. The father has failed to do this. This failure demonstrates that the father will put his own interests ahead of those of the children.
[69] The court also accepts the mother's evidence that the father denigrates her to the children. This finding is consistent with the disrespect he showed to her in his evidence. This is concerning to the court as it threatens to undermine the children's sense of safety and security with their primary caregiver. The father appears to have no insight into the negative impact such behaviour can have on the children.
Factor #8: The Relationship by Blood or Through an Adoption Order
The relationship by blood or through an adoption order between the child and each person who is a party to the application.
[70] This is a neutral factor.
3.5 Analysis
[71] It was surprising that the father continued to seek custody of the children at trial. The evidence was overwhelming that it is in the best interests of the children that the mother be granted sole custody of them. The children are in a stable and secure home and functioning well. The mother has responsibly made decisions for them. The father's plan to care for the children was vague and ill-considered. He demonstrates little respect for the mother and has disregarded the children's financial needs.
[72] The father sought modest changes to the access schedule if the mother was granted custody. The children enjoy their time with the father. It will benefit them to spend more time with him during the months he is laid off as an excavator (usually mid-December until early April), provided that he can control his criticism of the mother in front of them. The children will be given an additional evening each week to spend with the father during this period. The court will not increase access during the months when the father is working full-time as he has little available time to see the children. He already struggles to come to his weekly visits on time.
[73] It is also in the children's best interests to spend extended holiday time with both parents. The court, as requested by the father, will make an order for specified holiday access. The winter school break and March Break will be divided between the parties, as will other holidays. The father acknowledged in closing submissions that he is unavailable to take extended holiday time during the summer due to his work schedule.
[74] Both parties will be permitted to travel with the children outside of Canada. This will benefit the children. They will be enriched by learning about their cultural heritage and meeting their extended family members in both Jamaica and the Philippines. The mother stated no objection to the father traveling, "as long as he brings them back". There is no evidence to suggest that the father would fail to bring the children back to Canada.
[75] Due to the long distance to the Philippines, the mother will be permitted to travel there with the children every other year, for up to 6 weeks, during times that the children are not in school. This would be during the time the father is busiest at work.
[76] There was no credible evidence that the mother would refuse to return the children to Canada if she was permitted to take them to the Philippines.
[77] The court is concerned about the history of the father's domestic violence and his controlling behaviour. There is a real risk that the father would use his consent to travel to control and frustrate the mother. The court will make orders that:
a) The father is to deliver all the children's documents to the mother within 7 days.
b) The mother may obtain or renew all government documentation for the children, including passports, without the father's consent.
c) The mother may travel with the children outside of Canada, for vacation purposes, without the father's consent.
d) Access exchanges shall continue to take place at the neutral location designated in the temporary order, or such other location agreed upon by the parties.
[78] The parties will be required to give the other notice of planned vacations and provide the other with complete itineraries and contact information.
[79] The father will be provided the rights of information set out in subsection 20 (5) of the Act, which reads:
20 (5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.
Part Four – Incomes of the Parties
4.1 Legal Considerations
[80] Section 19 of the Child Support Guidelines (the guidelines) permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
[81] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).
[82] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:
a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.
b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.
c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
[83] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
If not, what income is appropriately imputed?
[84] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
[85] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
[86] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
[87] When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453 (Ont. Fam. Ct.); Drygala, supra, paragraph 39.
[88] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
[89] A 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 taken into account in the calculation of income for support purposes. See: Whelan v. O'Connor, [2006] O.J. No. 1660 (Ont. Fam. Ct.). This principle also applies where the person's employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184.
[90] The self-employed persons have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade, 31 R.F.L. (5th) 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur the expense to understand it. See: Reyes v. Rollo.
[91] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616 (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140 (Ont. S.C.).
[92] The Ontario Court of Appeal recently wrote about the importance of providing financial information in paragraph 13 of Manchanda v. Thethi, 2016 ONCA 909 as follows:
….after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.
[93] A person's lifestyle can provide the criteria for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.
4.2 The Mother's Income
[94] The mother's income needs to be determined for the purpose of the spousal support analysis.
[95] The mother has been in receipt of social assistance since October 1, 2015.
[96] The mother admitted that she is capable of working, but has chosen not to. When asked why she did not look for work before September 2016 (when she started attending school), the mother answered it was because she wanted to remain at home with the children.
[97] The mother is intentionally unemployed. The father seeks to impute a minimum wage income of $23,700 per annum to her.
[98] The first issue for the court to determine is whether the mother's unemployment is by virtue of her reasonable educational needs.
[99] The mother worked at several jobs after coming to Canada. She started as a live-in caregiver. She worked at restaurants, fast-food outlets and at a factory. She has been out of the workforce since 2011.
[100] The mother began attending the Adult Learning Centre in September 2016. She hopes to upgrade her education and then enter the Practical Nursing program at George Brown College. She believes that it will take her 3 years to become a Practical Nurse. She said that she wants a job that will give her medical benefits.
[101] The mother's evidence about her career path was unclear and inconsistent. She had difficulty explaining why it took her so long to start school. She gave different answers about the length of time that she needs to attend the Adult Learning Centre before going into the Practical Nursing program. She was unclear about the grades she needed to achieve to get into this program. This lack of clarity could partly be due to English being the mother's second language (and her nervousness testifying), but the court also finds it was partly due to the mother not having a clear understanding of this educational path.
[102] The mother acknowledged that it is very difficult to get into the Practical Nursing program and only a limited number of applicants will get in. She said that her present marks are not good enough to get into the program. When asked what marks are required to get into the program, the mother said an 80-85 average, but appeared unsure of this.
[103] The mother only claimed spousal support for three years, but on cross-examination said that she would want spousal support for 4 years and then for 5 years, if that is how long it took her to complete her schooling.
[104] The court finds that the mother has not met her onus in establishing that her unemployment is required by virtue of her reasonable educational needs. The mother delayed, without any real explanation, in starting her education. Her education plan has too many uncertainties. She is already struggling in school. Her marks are too low at this stage to get into the Practical Nursing program. The mother said that she missed many days of school in the first term for a variety of reasons.
[105] Every spouse has an obligation to do their best to become self-supporting. The mother's educational path does not meet that obligation.
[106] The next issue is how much income the court should impute to the mother for the purpose of the spousal support calculation.
[107] The court does not agree with the father's request to impute a full-time minimum wage income to the mother.
[108] The court finds that it is reasonable for the mother to attend school on a part-time basis to upgrade her English. This will make her more economically competitive in the future. However, it will also limit her ability to earn income in the short-term.
[109] The court also recognizes that the mother is the parent who has always been available for the children when they need to be taken to appointments and activities. She is the parent who attends school meetings. This will likely continue and hamper the mother's ability to work full-time.
[110] The mother has no health limitations. The children are in school and she already has a friend who looks after them after school. The mother is able to work part-time. She has experience working at fast food outlets. She can work on the weekends that the children are with the father and take work shifts when the children are in school. The court will impute an annual income to the mother of $16,000 (about two-thirds of a full-time minimum wage income) for the purpose of the support calculation.
[111] The imputation of income to the mother recognizes her obligation to use her best efforts to become financially self-sufficient pursuant to subsection 33 (9) of the Family Law Act. See: paragraph 99 of Wharry v. Wharry, 2016 ONCA 930, referencing sections 9.7 and 13.2 of the Spousal Support Advisory Guidelines (SSAG).
[112] These findings do not preclude the mother from pursuing her chosen education path. However, the court finds that it would be unreasonable to require the father to financially subsidize this decision by having him pay a much higher amount of spousal support.
4.3 The Father's Income
[113] There was no dispute about the income earned by the father as an excavator as he is a T4 employee (the father will often work for several employers over the course of a year). The father's annual line 150 income in his notices of assessment are as follows:
2012 - $44,426
2013 - $62,973 (this is the year that he worked at two full-time jobs for several months)
2014 - $44,969
2015 - $42,305
[114] The father provided no evidence of his 2016 income.
[115] The main source of contention was the income earned, or not earned, from the father's driving school business.
[116] The father testified that he started the driving school in 2011. The business is incorporated. The father is the sole shareholder of the corporation and the person who operates it.
[117] The father started this business with one location in Toronto. He expanded the business and opened a location in Sarnia in 2013. He said that this expansion failed and he closed the Sarnia location within the year.
[118] The parties cleared about $67,000 from the sale of their family home in 2013. The father testified that most of this money went into the Sarnia operation and is now gone. He provided no accounting of this money.
[119] The father claims that his driving school has lost money each year. He stated that he employs one driving instructor, one class teacher and a receptionist and subcontracts work to two other driving instructors.
[120] The father provides driving instruction himself for the business. He teaches part-time while he works as an excavator (mostly on weekends) and full-time in the other months.
[121] The father did not provide meaningful financial disclosure about the business despite multiple court orders to do so.
[122] The father has never filed a corporate tax return for the business. This is unacceptable, particularly when he was aware throughout this case that his income from this business was in issue. The father claimed that he could not afford to have the corporate tax returns completed – yet offered to pay significant monies for an assessment.
[123] The father did not provide proper financial statements or ledgers for the business. He provided no invoices to verify revenue. He provided no HST remittances. The bank statements he eventually provided to the mother did not match the income and expenses figures he self-reported, leading to inferences that either the bank records were incomplete or he was earning unreported cash income. His sworn financial statements did not list bank accounts or assets he owned.
[124] The father provided a handwritten statement (that he had prepared himself) setting out his business revenue for 2015 and expenses for 2014 and 2015. The business' revenue for 2014 was left blank on the statement. In the court's view, the father feigned ignorance at trial about his financial disclosure obligations, claiming he thought that providing this sparse statement was all the court required from him to establish how much money he earned from the business. The court orders were clear about what disclosure was required. The father is an experienced businessman (he claimed to have made over a million dollars in an employment agency business that he ran prior to meeting the mother). He knew what he had to produce and deliberately did not provide it.
[125] The court draws an adverse inference against the father and finds that he deliberately failed to disclose his financial information so that neither the mother nor the court could determine what he actually earns from the business. He clearly expected the court to take him at his word that he earns no income from it.
[126] It does not make sense that the father would continue to operate his business if it was losing money every year. The father would not continue to pay salaries to multiple persons, year after year and earn nothing himself. The same conclusion was made in similar circumstances in Smith v. Pellegrini, supra (see: par. 42). Also, the father renewed his business lease for another 3 years in April 2016. It defies logic that the father would do this if he was really losing money in this business every year.
[127] This leads to the difficult question of ascertaining what unreported income the father is actually earning from the driving school.
[128] For the reasons set out in paragraph 42 above, the court finds that the mother's imputation request of $100,000 per annum is excessive. The parties never lived a lifestyle commensurate with that level of income. The father already has a full-time job 8 to 9 months each year, and it is not reasonable to expect him to spend extensive time operating the driving school during these months.
[129] The father stated that the business had revenues of about $121,000 in 2015. The father provided no reliable documentation verifying this, despite the court orders.
[130] The father reported an annual income of $78,618 in his first personal financial statement sworn on July 6, 2015. He was represented by counsel when he completed the financial statement.
[131] The father next consented to the terms of the temporary order that required him to pay child support based on an income of $62,000 per annum (his 2013 income). Again, he was represented by counsel when he agreed to this.
[132] The father was asked how much money he would earn if he was an employee at someone else's driving school, instead of putting in these hours at his business. The father said that he could gross $2,000 each week, but would only clear about $500 each week. Given the father's lack of credibility, he was likely understating what he was capable of earning.
[133] The court finds that the father is likely earning between $15,000 to $20,000 of annual income from his business. This is a level of income that would make it worthwhile for him to continue it and appears consistent with the lifestyle he has lived.
[134] Combined with his income as an excavator, the court finds that the father is annually earning income of about $60,000. The income analysis does not end there. It is appropriate in these circumstances to gross-up the father's income, as he is declaring and paying tax on substantially less income than he is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (SCJ). For the purpose of this calculation, the court will use the gross annual employment income the father claims that he is earning as an excavator ($42,305), less his annual union dues of $621, leaving a balance of $41,684 as his employment income. This leaves a balance of $18,316 ($60,000 – 41,684) as his unreported business income that needs to be grossed-up.
[135] A software analysis reveals that the father's annual income is $67,652 after his income is grossed-up. This is the income that will be imputed to him for support purposes. It is also an income figure consistent with the lifestyle he has lived both during his relationship with the mother and after they separated.
[136] The table amount of child support for two children at this level of income, pursuant to the guidelines is $1,005 each month.
Part Five – Spousal Support
5.1 – Entitlement
5.1.1 Legal Considerations
[137] Section 30 of the Family Law Act states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
[138] Subsection 33 (8) of the Family Law Act sets out the purposes of spousal support as follows:
Purposes of Order for Support of Spouse
(8) An order for the support of a spouse should,
(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
[139] Subsection 33 (9) of the Family Law Act sets out considerations for the determination of the amount, if any, and duration of spousal support as follows:
Determination of Amount for Support of Spouses, Parents
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant's and respondent's current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant's capacity to contribute to his or her own support;
(d) the respondent's capacity to provide support;
(e) the dependant's and respondent's age and physical and mental health;
(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent's career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
[140] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.
[141] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the SSAG, entitlement to support must first be established.
[142] On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement. See: Lee v. Lee, 2014 BCCA 383; R.L. v. L.A.B., 2013 PESC 24. However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User's Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.
5.1.2 Analysis
[143] The mother established an entitlement to support on both a compensatory and non-compensatory basis.
[144] The mother's compensatory claim for spousal support is based on the roles she assumed during the marriage. The parties agreed that the mother would stay at home after the birth of the second child, raise the children and manage the household. This delayed the mother from upgrading her education or possibly being promoted at work. The mother continues to be the primary caregiver for the children. This role will compromise her ability to earn income in the future. She will be the parent who needs to be available to meet with teachers, take the children to medical appointments and arrange their activities. It will likely affect the jobs she can take and the hours she can work.
[145] The mother also has a non-compensatory claim for spousal support based on her need for support and the father's ability to pay it. The father stated at one point, "she depended on me for everything". The mother is on social assistance. She has a limited ability to earn income at this time. Her standard of living has been reduced because of the breakdown of the relationship. She has been unable to afford more than a bachelor apartment for the children, while the father lives alone in a two-bedroom apartment. She will likely continue to suffer an economic disadvantage from the breakdown of the marriage.
5.2 Duration and Amount
5.2.1 Legal Considerations
[146] The Court of Appeal in Fisher, supra, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote at paragraph 103:
[103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.
[147] Amount and duration are interrelated parts of the SSAG formula. See: Domirti v. Domirti, 2010 BCCA 472. Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10) or a finding that the facts of the case require an exception (see SSAG Ch. 12). See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7.
[148] In Mason v. Mason, supra, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis. It wrote in paragraph 122:
[122] Further, in The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs "is the problem of unsophisticated use." The authors continue by stating:
For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.
[149] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry, 2016 ONCA 930, paragraph 95.
[150] In general, awards in highly compensatory cases tend to be at the longer end of the durational range and those in many non-compensatory cases (e.g. where the purpose of the award is to provide a transition from the higher, marital standard of living) at the shorter end of the duration range. See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7.
[151] In Wharry, supra, the court did not set a termination date for support when the SSAG set a durational range between 7 and 14 years. The court found that it was not possible to assess on the record when the appellant would have had a reasonable opportunity to recover from the economic disadvantage resulting from the role she played during marriage, and resulting from the breakdown of the marriage. The court stated that it would have to deal with the termination date by a variation application at some future point which would take into account the duration of support suggested by the SSAG, and the amount of support paid (see: paragraph 103).
[152] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75.
5.2.2 Analysis
[153] The mother's time-limited claim for spousal support (3 years) was premised on her receiving $950 each month. The SSAG calculations, based on the incomes imputed to the parties, did not come close to generating this monthly amount. The court does not consider the mother bound by her durational request. Her claim was for total spousal support of $34,200 ($950 x 36 months).
[154] A software analysis based on the mother's annual income of $16,000 and the father's annual income of $67,652, reveals that the SSAG low range of support is $0 per month. The mid-range of support is $67 per month and the high range of support is $260 per month. This range of support is for an indefinite (unspecified) duration, subject to variation and a possible review, with a minimum duration of three years and a maximum duration of 13 years from the date of the separation.
[155] Although this was only a 6-year marriage, the mother has a strong compensatory claim for support due to her childcare obligations. In a shorter marriage, with young children, most of the primary caregiver's disadvantage lies ahead of her, not behind her, namely the labour market consequences for the parent of ongoing child care. This is a strong consideration in ordering support towards the higher end of the SSAG ranges. It is also an important factor in not time-limiting support on an original application for spousal support. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.
[156] The court will order spousal support of $200 each month (towards the higher end of the SSAG range) and will not time limit the order for the following reasons:
a) The mother has a strong claim for compensatory support.
b) Most of the mother's economic disadvantage lies ahead of her, not behind her. She will continue to be disadvantaged in the labour market due to her ongoing child care obligations.
c) There is a significant disparity in the parties' incomes.
d) The father has failed to meet his support obligations to date.
e) The father has been living a much better lifestyle than the mother and the children due to his failure to pay adequate support.
[157] The software analysis shows that a spousal support order of $200 each month will leave the mother with 54.8% of the parties' total net disposable income and the father with 45.2%. This is a fair distribution, considering that there are three persons in the mother's household. The software analysis reveals that the father will still enjoy a higher standard of living than the mother.
[158] The court recognizes that any spousal support award will belong to the City of Toronto as long as the mother is on public assistance. This has no impact on the court's decision. The taxpayer should not be assuming any portion of the father's legal responsibility to the mother (or the children).
[159] The spousal support order will be indefinite, but will be subject to review (with respect to both entitlement and amount of support) at the request of either party after five years from this date. This is similar to the approach taken in Zivic v. Zivic, [2014] O.J. No. 6272 (SCJ); Dupuis v. Desrosiers, 2013 ONCJ 720, [2013] O.J. No. 6014 (OCJ) and by this court in Kuznetsova v. Flores, 2016 ONCJ 203, which were cases of shorter marriages with young children. There is a real issue as to whether the mother will take reasonable steps to meet her obligation to try and become self-supporting. An examination of such efforts will be part of any court review. The court, on any review, will consider if the mother is still entitled to spousal support or may impose a time limit for her support.
Part Six – Start Date for Support
[160] The mother and the assignee both asked that spousal support start on December 1, 2016. That is a very fair request.
[161] The mother and the assignee both asked that child support start from April 15, 2015 – the date the parties separated. This constitutes a very modest claim for retroactive support, as the mother issued her application on June 3, 2015 and support from that day forward is prospective, not retroactive. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).
[162] The court finds it appropriate to make a retroactive child support order. The mother did not delay in bringing her application. The father failed to pay adequate support and did not provide proper financial disclosure. This was blameworthy conduct. The circumstances of the children were disadvantaged by the inadequate payment of support as they are living in a small bachelor apartment. A small retroactive order will not cause the father hardship (these are the four main factors for the court to consider in determining retroactive support as set out in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37).
[163] The child support order shall begin on May 1, 2015. The father will be credited with any support payments he has made that are reflected in the records of the Family Responsibility Office.
Part Seven – Support Arrears
[164] The father is already in considerable arrears of support under the temporary support order. This decision will increase those arrears. The court has little sympathy for the father, as he had the ability to pay support under the temporary order and selfishly chose not to.
[165] The court will permit the father to pay the arrears at the rate of $300 each month, starting on January 1, 2017. However, this indulgence is strictly based on the father complying with the terms of this order. If the father is more than 30 days in default of any ongoing or arrears support payment, the entire amount of the arrears shall immediately become due and payable.
Part Eight – Conclusion
[166] A final order shall go on the following terms:
a) The mother shall have sole custody of the children.
b) The mother may obtain or renew all government documentation for the children without the father's consent.
c) The father shall deliver to the mother, within 7 days, all the children's government documentation in his possession, including their passports.
d) The father shall have rights to information about the children as set out in subsection 20 (5) of the Children's Law Reform Act.
e) The father shall have access to the children as follows:
i) Alternate weekends from Fridays at 7:30 p.m. until Sundays at 6 p.m. This access shall extend to Mondays at 6 p.m., if it is a statutory holiday weekend and the father is not working on the Monday.
ii) During the period of April 16th to December 15th, every Wednesday from 6 p.m. to 8 p.m.
iii) During the period of December 16th to April 15th, every Tuesday and Thursday from 6 p.m. to 8 p.m.
iv) In odd-numbered years, starting in 2017, the children shall spend March Break with the father. In even-numbered years, starting in 2018, the children shall spend March Break with the mother.
v) In even-numbered years, starting in 2016, the children shall spend the first week of the winter school break with the mother and the second week with the father. In odd-numbered years, starting in 2017, the children shall spend the first week of the winter school break with the father and the second week with the mother.
vi) The children shall spend Father's Day with the father from 10 a.m. to 6 p.m., if it would otherwise be the weekend they spend with the mother and shall spend Mother's Day with the mother starting at 10 a.m., if it falls on a weekend they would otherwise spend with the father.
vii) Holiday access, as set out above, takes priority to the regular access schedule.
viii) The access exchanges shall take place at the Maria Shchuka Library on Eglinton Avenue West, or such other place as agreed to in writing between the parties.
f) The mother will be permitted to take the children to the Philippines for up to 6 weeks every other year when they are not in school. The father's access will be temporarily suspended during such vacations.
g) The mother may travel with the children outside of Canada (including trips to the Philippines), for vacation purposes, without the father's consent.
h) The father may travel with the children outside of Canada, for vacation purposes, with the mother's consent, such consent not to be unreasonably withheld.
i) The mother shall provide the father with 30 days notice if she plans to take the children on any vacation outside of Ontario for more than 4 days. This notice shall be increased to 60 days if she plans to take the children to the Philippines. She shall provide the father with a complete itinerary of where the children will be staying during the vacation and contact numbers to enable the father to communicate with them.
j) The father shall provide the mother with 30 days notice if he plans to take the children on any vacation outside of Ontario. He shall provide the mother with a complete itinerary of where the children will be staying during the vacation and contact numbers to enable the mother to communicate with them.
k) The father shall not denigrate the mother to the children.
l) The father shall pay the mother child support in the amount of $1,005 each month starting on May 1, 2015. This is the guidelines table amount for two children, based on the father's imputed annual income of $67,652.
m) The father shall be credited with any support payments he has made, as reflected in the records of the Family Responsibility Office.
n) The father shall pay the mother spousal support of $200 each month, starting on December 1, 2016. This is based on the mother's annual income being imputed at $16,000 and the father's annual income being imputed at $67,652.
o) Either party is entitled to review the spousal support award, both with respect to entitlement and quantum after 5 years from this date, without the need to establish a material change in circumstances.
p) The father may pay his support arrears at the rate of $300 each month, starting on January 1, 2017. However, if the father is more than 30 days in default of making any ongoing support or arrears payment, the entire arrears owing at that time shall immediately become due and payable and shall bear interest in accordance with the Courts of Justice Act.
q) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source, such as income tax or HST returns, or any lottery or prize winnings.
r) The Director of the Family Responsibility Office is asked to amend its records in accordance with this order.
s) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year. The father shall also provide the mother with his complete corporate tax returns by June 30th each year.
t) A support deduction order shall issue.
[167] If either party, or the assignee, finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by December 30, 2016. The other party and the assignee will then have until January 9, 2017 to serve and file a written response. Any submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.
[168] If either party or the assignee seeks their costs, they shall serve and file their written costs submissions by January 16, 2017. The other party will have until January 30, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.
[169] The court thanks counsel for their professional presentation of this case.
Released: December 19, 2016
Justice S.B. Sherr