Court File and Parties
Date: June 5, 2017
Court File No.: D71471/14
Ontario Court of Justice
Between:
Monique Malcolm
A. Sam Zaslavsky, for the Applicant
Applicant
- and -
Cal Charles Patrick McGee
Acting in Person
Respondent
Christine Maley, Agent, for the Assignee, City of Toronto
Heard: May 31, 2017
Justice S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial arose out of the respondent's (the father's) motion to change my final order dated January 26, 2015 (the existing order). The existing order required the father to pay ongoing child support of $449 each month to the applicant (the mother), starting on January 1, 2015, for the parties' three-year-old child (the child). This is the Child Support Guidelines (the guidelines) table amount for one child at an annual income of $49,878. The father was also ordered to pay retroactive support to the mother in the sum of $2,450.
[2] The father asks the court to change the existing order, by ordering that he not be required to pay support for the period from October 1, 2016 until March 1, 2017 and by reducing his monthly child support obligation to $227, starting on March 1, 2017, based on an annual income of $25,680. The father also asks that any arrears accumulated under the existing order be reduced in accordance with this request. [1]
[3] The mother asks the court to dismiss the father's motion to change. In the alternative, she asks that the court impute the father's annual income at $37,222 for the purpose of the support calculation. [2]
[4] The mother was in receipt of social assistance from April 1, 2015 until September 30, 2016 (the assignment period). The mother assigned her interest in child support for this period to the City of Toronto (the assignee). The City of Toronto asked the court not to rescind any arrears accumulated during the assignment period.
[5] The court relied on the affidavits and financial statements filed on behalf of the parties, an affidavit filed on behalf of the assignee and heard oral evidence from the father.
[6] The issues for this court to determine are:
a) Has there been a change in circumstances since the existing order was made that warrants changing the child support ordered?
b) In determining whether child support should be changed, what, if any, income should be imputed to the father?
c) What, if any, child support arrears should be rescinded?
d) If child support arrears remain owing, how should they be paid?
Part Two – Facts
[7] The material facts in this case were not seriously in dispute.
[8] The father gave his evidence in a forthright manner. It was apparent that he was in distress due to his financial difficulties. The father acknowledged that these difficulties were due, in large part, to his poor decisions.
[9] The father is 30 years old. The mother is 28 years old.
[10] The parties never lived together.
[11] The child has always lived with the mother.
[12] The father has exercised sporadic access with the child.
[13] The father lives alone. He has an eight-year old child from another relationship, who lives with her mother. The father deposed that there is a court order requiring him to pay child support of $175 each month for her.
[14] The mother issued her original application for custody and child support on August 19, 2014.
[15] The existing order addresses final child support and travel rights. It was made on consent on January 26, 2015.
[16] The mother subsequently brought a summary judgment motion for custody of the child. The father did not attend on the motion and the mother was granted final custody of the child on October 27, 2015.
[17] The father worked from 2012 until 2016 as a sanitation truck driver.
[18] In September, 2016, the father failed an eye test he is required to pass to maintain his AZ driver's licence (AZ licence). [3] This meant that he needed to obtain a new prescription and glasses and retake the test to maintain his licence. The father required the AZ licence to drive the sanitation truck for his employer.
[19] This is when the father began making very poor decisions. He did not take the eye test and lost his AZ driver's licence. The father testified that he could not afford the cost of getting new glasses and applying for a new test (total cost about $650). He did not tell his employer that he lost his licence. He said that he feared losing his job.
[20] The father said he was aware that driving without an AZ licence compromised his employer's insurance coverage. He was also aware that he risked losing his job if his employer learned that he was driving without his AZ licence. He acknowledged, in retrospect, that he should have immediately advised his employer about the failed eye test and have taken steps to restore his AZ licence.
[21] The father's employer subsequently learned that the father had lost his AZ licence (not from the father) and terminated his employment for cause on October 11, 2016.
[22] The father was on social assistance (Ontario Works) from October, 2016 until March, 2017.
[23] With financial help from Ontario Works, the father obtained new glasses and passed his eye test. He also took a course that qualified him to become a bus driver. He has now obtained a BZ driver's licence. [4] The father testified that this is a higher qualification than an AZ licence.
[24] The father immediately looked for work and quickly obtained a part-time job driving a truck. He was paid $16.85 an hour. He worked for this employer until the middle of May, 2017. The father earned $4,367 over about 2 months. This projects to an annual income of $26,202.
[25] On May 4, 2017, the father obtained a new job as a courier, driving a truck for a major delivery company. He will start at 30 hours a week and be paid $17.90 an hour. The father testified that he is hopeful this job will be made full-time (40 hours a week) by the end of 2017.
[26] The father testified that his employer offers many opportunities for its employees. He plans to take courses offered by his employer for career advancement.
[27] The father said that he will also look for part-time work to supplement his income until he is made a full-time employee.
[28] The father said that he has also applied for jobs as a bus driver, without success, with the Toronto Transit Commission and Vaughan Transit.
[29] The parties accepted the accuracy of a Statement of Arrears prepared by the Director of the Family Responsibility Office, filed by the father. This statement set out that as of October 11, 2016, there were minor support arrears of $68.88. The parties agreed that these arrears are owed to the assignee.
[30] The father acknowledged that he has not made any child support payments since October 11, 2016. This means that a further $3,143 of support arrears had accumulated ($449 each month x 7 months) as of the date of the trial. [5] The total arrears accumulated under the existing order are presently $3,211.88 (this includes the prior $68.88 of support arrears).
Part Three – Legal Considerations
[31] The father's motion to change support is governed by subsection 37 (2.1) of the Family Law Act which reads as follows:
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
[32] The mere accumulation of arrears without evidence of a past inability to pay is not a change in circumstances. Present inability to pay does not by itself justify a variation order. It should only be granted if the payor can also prove a future inability to pay. Otherwise, the option is to suspend, or order repayment of arrears. See: Haisman v. Haisman, 1994 ABCA 249, 157 A.R. 47 (C.A).
[33] Section 19 of 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.
[34] 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.).
[35] The court in Drygala stated 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.
[36] 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.
[37] 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.).
[38] 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.
[39] Many courts have held that where underemployment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations should not be reduced or cancelled. (Luckey v. Luckey, [1996] O.J. No. 1960 (SCJ); Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood).
[40] Courts have also refused to reduce support where an employer was justified in firing a payor. See: Baldini v. Baldini, [1999] B.C.J. No. 1426; Aboagye v. Sakyi, 2012 ONCJ 56.
[41] In Samaroo v. Monasar, 2016 ONCJ 47, where a payor had unjustifiably quit his job in 2014 and had not found comparable employment by the time of trial, this court decided to maintain the payor's support obligation from the time he quit his job, and only reduce it beginning in February, 2016. This was determined to be a fair balancing of the consequences of the payor's decision to quit his job.
[42] 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.
[43] It is worth noting that the father is not seeking a retroactive reduction in child support. He issued his motion to change support in October, 2016. He asked at that time to change his prospective support obligation. The support arrears (except for the $68.88 owed to the assignee) have accumulated since he brought his motion to change. The legal considerations for a downward retroactive change of support set out in the leading case of Gray v. Rizzi, 2016 ONCA 152, are not applicable. [6]
Part Four - Analysis
[44] There has been a change in circumstances since the existing order was made. The father lost his job in October, 2016 and went on Ontario Works. He is earning far less income at his present job.
[45] There is no issue that the father's reduction of income since 2016 is due to his misconduct.
[46] There are several victims of the father's poor decisions. The mother and child have not received child support since October, 2016. The father said that he is in default of his other child support order. The father has also suffered. He had to go on Ontario Works and lost an excellent job. He is now in arrears of two support orders and struggling to meet his obligations.
[47] The court must determine how to allocate the consequences of the father's poor decisions. The mother argues that the father should bear the entire cost of these decisions – the child should not receive any less support.
[48] The court agrees with the mother to some extent. However, at a certain point, an existing order can become unrealistic and unjust due to a payor's changed circumstances – no matter if those changed circumstances were caused by the payor's misconduct. The court should conduct a contextual examination of all the circumstances in determining the support amounts it should order.
[49] The court has considered the following factors in addition to those discussed above:
a) The father had a good payment history until he lost his job. He expressed pride at court that he had previously met his financial responsibilities.
b) The father did not lose his job to avoid his support obligations. He felt pressured to support both of his children, feared losing his job after failing his eye test, and as a result, made the series of poor decisions.
c) The father acknowledged and regretted his misconduct that led to the loss of his job and default in his support obligations.
d) The father did not delay in bringing his motion to change when his circumstances changed.
e) The father immediately took steps to improve his employability after losing his job. He completed the bus driving course, took and passed the eye exam and obtained his BZ driver's licence.
f) The father actively looked for work and obtained a part-time job upon completing his bus driving course. Shortly after, he found a better job with the courier company.
g) The court finds that the father has taken reasonable steps to maximize his income earning ability since he was terminated.
h) The father has another child to support.
i) The father expressed pride in his work ethic and abilities as a driver. He has been consistently employed and has an excellent driving record. He is ambitious and hopes to one day becoming a driving trainer.
j) The father has a realistic opportunity to obtain full-time employment with his present employer and advance in the organization.
k) Even if the father does not obtain full-time employment with his employer, he is capable of obtaining part-time employment to supplement his current income within the next few months. The court has the expectation that he will do this. The father has experience in construction, moving, landscaping, maintenance, working in hotels and as a server, in addition to his driving experience.
l) The father was on pace in 2016 to earning close to $54,000 before he was terminated. The mother did not move to retroactively increase support, but the father was slightly advantaged in 2016 paying child support lower than the guidelines table amount for his actual income.
m) The father did not pay any support to the mother after he was terminated from his job, even after he started working in March, 2017. The father should have made efforts to pay some child support after March, 2017.
[50] Taking into consideration all of these factors, the court finds that it wouldn't be just to indefinitely impute the father's income at the level he was earning prior to his termination. Instead, the court will order that:
a) The existing order will not be changed for the period prior to the date of the trial (May 31, 2017). This recognizes that the father's reduced income was due to his own misconduct. This means that the father's request to rescind arrears accumulated pursuant to the existing order is dismissed.
b) For June, July, August and September of 2017, the father's annual income will be assessed at $27,924 for support purposes. This calculation is based on the father earning $17.90 an hour, for 30 hours a week. The monthly guidelines table amount at this income is $227.
c) Starting on October 1, 2017, the father's annual income will be imputed at $37,232. This calculation is based on the father earning $17.90 an hour for 40 hours a week. The court finds that the father should be earning this level of income by October, 2017. The monthly guidelines table amount at this income is $327. [7]
[51] This order will result in there being support arrears of $3,211.88, as set out in paragraph 30 above. The sum of $68.88 is owed to the assignee – the balance of arrears ($3,143) is owed to the mother. The court will give the father an opportunity to get his financial situation stabilized before it orders him to pay the arrears. It will also give him a lengthy period of time to pay the arrears to reduce the immediate financial pressures on him. The order will provide that the father may pay the arrears at the rate of $125 each month, starting on January 1, 2018. The order will not preclude the Family Responsibility Office from collecting arrears from any government source, such as income tax or HST returns, or lottery or prize winnings.
Part Five – Conclusion
[52] A final order shall go on the following terms:
a) The father's request to rescind child support arrears accrued under the existing order is dismissed.
b) The existing order is changed to provide that the father shall pay child support to the mother for the child in the sum of $227 each month, starting on June 1, 2017. This is the guidelines table amount for one child based on an imputed annual income to the father of $27,924.
c) Starting on October 1, 2017, the father shall pay child support to the mother for the child in the sum of $327 each month. This is the guidelines table amount for one child based on an imputed annual income to the father of $37,232.
d) The father may pay the support arrears at the rate of $125 each month, starting on January 1, 2018. Arrears of $68.88 are owed to the assignee. The balance of arrears of $3,143 are owed to the mother.
e) Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as HST or income tax refunds) or from any lottery or prize winnings.
f) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year, starting in 2018.
g) The father shall immediately notify the mother of any new employment he obtains or if he obtains full-time employment with his current employer. He is to provide the mother with copies of any employment contract and his first 3 pay stubs.
h) If the father obtains employment that pays him annual income in excess of $45,000, the mother may move to accelerate payment of the arrears.
i) A support deduction order shall issue.
[53] If either party seeks costs, they shall serve and file their written costs submissions by June 19, 2017. The other party will then have until June 30, 2017, to serve and file any written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs.
[54] The court thanks everyone involved for their efficient and civil presentation of this case.
Released: June 5, 2017
Justice S.B. Sherr