Court File and Parties
Ontario Court of Justice
Date: April 25, 2018
Court File No.: Toronto DFO 14 11838
Between:
Fanny Aracely Pimentel Applicant
— And —
John Kavaratzis Respondent
Before: Justice E.B. Murray
Heard on: April 18, 2018
Reasons for Judgment released on: April 25, 2018
Counsel:
- Ms. Ermelinda Nogueira — counsel for the applicant
- Mr. John Kavaratzis — on his own behalf
Decision
MURRAY, E.B. J.:
Overview
[1] This is my decision on a motion by the Applicant Mother Fanny Pimentel and cross-motion by the Respondent Father John Kavaratzis. The issues in the motion are:
Whether the temporary order for child support for E. made on consent on November 7, 2017 should be changed.
Three issues are a subset of the issue above:
- Is E. now living on a "shared custody" schedule as defined by the Child Support Guidelines?
- Has John's income changed since the date of the order?
- If this is a shared custody case, what is Fanny's annual income? Should income be imputed to her?
Is Fanny entitled to spousal support? A subset of that issue is whether income should be imputed to Fanny.
If Fanny is so entitled, what is the appropriate amount of support?
Child Support
[2] At the time of the November 7, 2017 order, John agreed on a temporary basis to pay full table amount of support of $611/month for E. to Fanny. Although E. had been living equal time with each parent up to June 2017, after that time she lived primarily with Fanny.
[3] John now says that the shared custody regime of s. 9 of the Guidelines applies. S. 9 provides as follows:
- Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared custody arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
[4] The onus is on John to establish that E. has been in his care for more than 40% of the time "over the course of a year". Caselaw establishes that this period should be contiguous—in other words, a party cannot just pick and choose among months.[1]
[5] The parties agree that since January 2018, E. has spent more time with John. He says that she is spending at least 50% of her time with him. Fanny says that since January E. has spent most weekends, from Friday after school until Sunday evening or Monday morning, with him. This is not 40% of the time.
[6] Fanny's lawyer says that she is willing "for settlement purposes" to have the shared custody regime apply on this motion, even though her client's evidence is not that E. lives with John 40% of the time. Counsel says that Canada Revenue Agency (CRA) is looking to have almost $2,000 in child tax credit payments repaid by Fanny, because John is asserting that E. lives equal time with him. Counsel does not want her concession to prevent her from asserting to CRA that E. lives primarily with Fanny.
[7] This is not a settlement negotiation; it is a motion in which the court is required to apply the law. There is some conflict in the evidence as to how much time E. has lived with John over the past 4 months. However, even if John's assertions are accepted, the evidence does not establish that E. has lived at least 40% of the time with John over the past 12 months. I do not find that the shared parenting regime of s. 9 should apply on this motion.
[8] I find that there has been a decrease in John's income since the November 7, 2017 order. That order was made based on his 2016 income. John's combined T4's establish that his income for 2017 was $63,963. That is the most recent evidence with respect to his annual income. I see no basis to continue support in an amount based on his somewhat higher 2016 income, as argued by Fanny.
[9] John shall pay support for E. on a temporary basis in the amount of $594 monthly based on an annual income of $63,963 commencing May 1, 2018. A support deduction order shall issue.
[10] I add an observation. E.'s mental health is fragile. Both parties are aware that her residential pattern can have an effect on financial issues between them. I am concerned about the pressure either may exert on her with respect to her schedule, and I urge them to take the opportunity to address financial issues with a qualified mediator.
Spousal Support
Entitlement
[11] Fanny is unemployed. She claims spousal support.
[12] John submits that Fanny should not be entitled to spousal support. He says that she has a college education and is employable, and points out that she worked outside the home during much of the marriage. As for Fanny's medical reports suggesting a restriction on her ability to perform certain types of work, John says that he has health problems too, and he gets up every day to go to work; Fanny should do the same. John says that Fanny could earn at least $35,000 annually.
[13] At a threshold level and for the purposes of this motion, I find that Fanny is entitled to spousal support.
[14] There is entitlement on a compensatory basis. Fanny and John had a long marriage. They lived together from 1995 to 2016; there were 3 earlier periods of separation during the marriage totaling about 2 years. Fanny was primarily responsible for household management and childcare during the marriage, in addition to working at secondary jobs after 1998 to supplement John's income. John was primary financial support for the family.
[15] There is also a needs-based entitlement. Fanny says that her annual income is $13,847. This was her income in 2017, reflecting minimum wage compensation from her Value Village job and Ontario Works payments. Fanny has continued to receive OW, which was adjusted for the month of February 2018 in which she received income from a temporary assignment.
[16] John says that annual income of $35,000 should be imputed to Fanny. Even if John's assertion is accepted, based on the disparity of their incomes and the length of the marriage, there is a needs-based entitlement.
Quantum
[17] I turn to the issue of quantum of temporary support payable.
[18] At the outset, I note that s. 19 of the Guidelines permits the court to impute income to a parent if that parent is intentionally unemployed or under-employed, with certain exceptions, including the reasonable health needs of the parent. Caselaw establishes that the court may impute income to a party in cases involving spousal support as well as child support.[2]
[19] The onus is on the party seeking to impute income to establish that the other party is intentionally unemployed or under-employed.[3] Fanny's evidence establishes that she quit her job and is not seeking employment in any position that requires much standing.
[20] I find that Fanny is intentionally unemployed or under-employed. The onus is on Fanny to establish that her reasonable health needs require this restriction in employment.[4]
[21] During the marriage and after separation, Fanny held a variety of jobs: mailroom clerk, receptionist, accountant payable clerk, translator, lunch time school supervisor, and cashier.
[22] In 2017 Fanny lost her receptionist position, a job she had worked at for 5 years. The evidence is that she has applied for a variety of positions since that time. Out of 29 applications, she was invited to 3 interviews. She was hired as a sales person at Value Village in May 2017.[5] She says that pain in her feet caused her to quit in July 2017. She is registered with an employment agency, and got a month-long job as a translator in February 2018. She continues to look for work.
[23] John argues that Fanny should be submitting more applications, and be registered with more than one agency.
[24] Fanny says that her job opportunities are limited by her health. She is not seeking any position that requires much standing.
[25] Fanny filed letters from 2 specialists reporting that she has suffered from pain consistent with plantar fasciitis since 2015. Dr. Rosenfeld recommended that Fanny avoid work that required her to do a lot of standing. He provided orthotics and prescribed anti-inflammatory medication for her in 2015. More recently, Dr. Stoller recommended a series of exercises, attendance at a chiropractor for treatment, and use of orthotics. Dr. Stoller did not seem to be aware that Fanny already had orthotics.
[26] Fanny did not address in her evidence what of any of these recommendations she has followed. The court does not know if she used orthotics, took the medication, and complied with the recommended exercise routine, and, if she did, the result.
[27] Fanny also says that her anxiety also limits her possibilities for employment. I have evidence that she has suffered from and sought treatment for anxiety for at least 5 years. I do not have evidence from any treating professional as to how this condition might limit her ability to work.
[28] Fanny says specifically that she was abused by John, physically, financially and emotionally, throughout the marriage and after separation. She says that this abuse damaged her self-esteem. She thinks that she performs poorly in job interviews for this reason. John denies any abuse, and points out that he was acquitted on the criminal charges instigated by Fanny some years ago.
[29] I cannot make a determination of whether such abuse took place based only on the competing assertions before me. If it did, I can accept that this could contribute to Fanny's anxiety. However, even if there was such abuse, as I state above, I have no evidence that Fanny's anxiety prevents her from obtaining employment. Fanny's CV indicates that she maintained employment consistently from 2006 to 2017. During at least 5 years of this period Fanny suffered from anxiety.
[30] I find that in most respects Fanny has been making reasonable efforts to find employment. Fanny is not someone who has a history of avoiding work. Her CV shows that. Since losing her job in 2017, she has made applications for many types of jobs. This is not the case of an individual who refuses to widen her job search after a period of unemployment.
[31] However, Fanny voluntarily left her employment with Value Village in July 2017 and she since has avoided applications for any position involving much standing. This excludes many positions in the retail and service sectors. In my view it is not reasonable for Fanny to have left her Value Village position and to exclude any position that requires much standing unless she has followed medical recommendations to alleviate that condition, without satisfactory result. Fanny gave no evidence that she has done so.
[32] I find that Fanny has not established that her reasonable health needs require that she restrict her job search to exclude any positions that require prolonged standing.
[33] It is reasonable at the present time to impute income to Fanny. The position she left paid minimum wage. Like many retail positions, it was not full-time. I impute annual income of $24,000 to Fanny, a quantum representing part-time work at minimum wage. I order that commencing May 1, 2018, John shall pay Fanny spousal support of $188 monthly. As the attached Divorcemate calculation demonstrates, this is the mid-range figure in the Spousal Support Advisory Guidelines.
[34] If Fanny consistently follows medical recommendations with respect to her plantar fasciitis over a significant period of time—say 4-6 months—and her doctor finds that she is unable to work in positions that require standing for long periods, then this would be a factor that could justify a change in this order.
Costs
[35] Without seeing any offers to settle, it appears to me that success has been evenly divided and that no costs are in order. If, however, either party wishes to claim costs of the motions, written submissions of no more than 6 pages with offers to settle shall be served and filed within 15 days. Any response of no more than 15 days, with offers to settle, shall be served and filed within a further 15 days.
Released: April 25, 2018
Signed: Justice E.B. Murray
Footnotes
[1] Gautier v. Hart, 2011 ONSC 815, O.J. 1169 (S.C.)
[2] Jendruck v. Jendruck, 2014 BCCA 320
[3] Homsi v. Zaya, 2009 ONCA 322
[4] Jackson v. Mayerle, 2016 ONSC 72
[5] Fanny says she submitted more than 29 applications in the past years, but only has records of 29.