COURT FILE NO. D91887/16
ONTARIO COURT OF JUSTICE
B E T W E E N:
ALIYA TAHIR
ZAHRA KHEDRI, for the APPLICANT
APPLICANT
- and -
MUHAMMED TAHIR ALI KHAN
Acting in Person
RESPONDENT
HEARD: DECEMBER 29, 2020
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] The respondent (the father) was dismissed by his employer on January 20, 2020. He has not worked since then. He has brought a motion to change the final child support order of this court dated September 23, 2019 (the support order), retroactive to January 1, 2020.
[2] The father also seeks orders:
a) Rescinding a $7,500 costs order made against him.
b) Suspending the enforcement of any support order or costs order.
c) Directing the Director of the Family Responsibility Office (the Director) to change its records to show that there are no support arrears.
[3] The applicant (the mother) claims that it is the father’s own fault that he lost his employment and that he should still be earning his previous annual salary of $42,000. She submits that there has been no change in his circumstances to warrant changing the support order – annual income of $42,000 should be imputed to him and his motion to change should be dismissed.
[4] In the alternative, the mother submits that the father is intentionally unemployed. She claims that he is only applying for jobs that he has no chance of obtaining. She says that the father is capable of earning at least $30,000 annually, based on his health, education and work experience.
[5] The father denies that he was at fault for his dismissal and claims that he has tried very hard to find employment, without success. The pandemic, he submits, has added to his challenge in finding employment.
[6] The issues for this court to determine are:
a) Has there been a change in circumstances that warrants changing the child support terms in the support order?
b) What, if any, child support arrears should be rescinded?
c) In determining whether child support should be changed or how it should be changed, what, if any, income should be imputed to the father? In particular:
Is he at fault for losing his employment?
And, has he been making reasonable efforts to find employment?
d) If child support arrears remain owing, how should they be paid?
[7] The parties agreed that this motion to change would be determined based on their affidavits filed, the financial statements of the father filed, and submissions.
[8] The motion to change was heard by teleconference.
Part Two – Background facts
[9] The mother is 40 years old. The father is 47 years old.
[10] The parties were married in 2005 in Pakistan. The father sponsored the mother to come to Canada in 2007 and the parties have lived in Canada since then.
[11] The parties have five children ranging in age from six to fourteen years old (the children).
[12] The parties separated in May 2016. The children have resided with the mother since the separation.
[13] The mother obtained an MBA degree in Pakistan. She has been a stay-at-home mother in Canada.
[14] The father has a Bachelor’s degree in Civil Engineering and a Bachelor of Science degree in Physics.
[15] The mother issued an application for custody and child support on November 25, 2016. She was granted final custody of the children on July 17, 2017 (the custody order). A final access order was made on April 24, 2018 (the access order).
[16] A final support order was made on October 24, 2017 (the 2017 support order). It was based on the father earning annual income of $20,535. He was ordered to pay the Child Support Guidelines (the guidelines) table amount for 5 children of $454 each month.
[17] The mother issued a motion to change the 2017 support order on January 28, 2019. The father also brought a motion to change the custody and access orders.
[18] A two-day trial was held in September 2019. The mother was successful on her motion to change. The court increased child support and ordered the father to pay her $1,165 each month, starting on October 1, 2019. This was the guidelines table amount, based on the father’s estimated annual income of $42,000. See: Tahir v. Khan, 2019 ONCJ 663.
[19] The court also found that the father owed the mother an additional $10,683 of child support as of September 23, 2019. This was based on adjusting child support in accordance with the father’s actual annual income back to July 1, 2018.
[20] The court ordered that the support arrears created by the order could be paid at $50 each month, starting on September 1, 2021. This was a payment schedule generously suggested by the mother. The court also ordered that the Director was not precluded from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings.
[21] The father’s motion to change the custody and access orders was dismissed.
[22] The father was ordered, on October 29, 2019 (the costs order), to pay $7,500 in costs to the mother arising out of these motions to change. See: Tahir v. Khan, 2019 ONCJ 781. He has paid nothing towards these costs.
[23] The father agreed to a termination package that paid his salary until February 8, 2020. The father then went on Employment Insurance (EI). He said that these payments expired at the end of October 2020.
[24] The father was given leave by the court to bring his motion to change on August 24, 2020. The Director’s Statement of Arrears show that the father was in arrears of $20,192.65 at that time.
[25] The father proposes to pay child support of $635 each month starting on January 1, 2020. This is based on an annual income of $26,000. He calculated this figure by combining his employment income up until February 8, 2020 and his EI benefits. He asks that no support be ordered starting on November 1, 2020. He says that he is now only earning annual income of $12,000 from the Canada Recovery Benefit.
Part Three – Legal considerations
3.1 Changing support orders and rescinding arrears
[26] 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.
[27] Section 1 of the guidelines sets out the objectives of the guidelines as follows:
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
[28] In Gray v. Rizzi, 2016 ONCA 152, the Ontario Court of Appeal set out the considerations for the court to apply when determining a retroactive downward variation of child support by a payor.
[29] The court set out that where a payor seeks a retroactive decrease in support, the D.B.S. factors [1] – such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support – remain relevant (par. 51). Although those factors require some minor alteration to suit circumstances where the payor’s income has gone down, not up, the fundamentals still apply (par. 54).
[30] The court applied the process set out in Corcios v. Burgos as follows:
[56] First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, “Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.”
[57] Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due.
[58] A payor’s request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.
[59] Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: “[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly.”
[31] In paragraph 60 of Gray, the court stated that the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:
The nature of the obligation to support, whether contractual, statutory or judicial;
The ongoing needs of the support recipient and the child;
Whether there is a reasonable excuse for the payor’s delay in applying for relief;
The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.:
“Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears”;
Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;
Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:
[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.
[32] The court considered how the retroactive award should be calculated once it is decided that there should be an adjustment in paragraphs 61-64 as follows:
[61] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.
[62] Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide “reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately.” As put by Chappel J.:
A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred.
[63] This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor’s financial situation. A payor’s failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.
[64] Finally, “with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating.”
[33] The Supreme Court of Canada addressed the issue of retroactive support claims by support recipients in Michel v. Graydon, 2020 SCC 24. While this court is dealing with a request for a downward retroactive variation of child support, it finds that many of the principles set out in Michel are applicable, such as:
a) The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).
b) There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child (par. 123).
c) In all cases, hardship may be addressed by the form of payment (par. 124).
d) While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid (par. 125).
e) If children have gone without the appropriate level of support it often means that the recipient parent has been forced to go into debt themselves or spend all their monies, not on property, but on the child (par. 126).
3.2 Imputing income
3.2.1 General principles for imputing income
[34] 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.
[35] 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. CA).
[36] The Ontario Court of Appeal in Drygala v. Pauli 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 the party’s reasonable education or health needs?
If not, what income is appropriately imputed?
[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] 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.
[40] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. 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.
[41] 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 enjoyed 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.
4.2.1 Imputing income to someone who has lost their employment due to their own fault
[42] Courts have refused to reduce support where an employer was justified in dismissing a payor. See: Baldini v. Baldini, [1999] B.C.J. No. 1426; Aboagye v. Sakyi, 2012 ONCJ 56.
[43] Justice Alex Pazaratz reviewed the legal considerations for imputing income to a person who, due to their own fault, is not earning what they are capable of earning in Rogers v. Rogers, 2013 ONSC 1997. Excerpts from this decision are as follows:
- Section 19 of the Child Support Guidelines allows the court to impute such income to a spouse as it considers appropriate in the circumstances, which circumstances include:
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
(b) the parent or spouse is exempt from paying federal or provincial income tax;
(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;
(e) the parent's or spouse's property is not reasonably utilized to generate income;
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;
(g) the parent or spouse unreasonably deducts expenses from income;
(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
The list of categories set out in section 19 is not exhaustive. The court has the discretion to impute income in circumstances that are not only analogous but also those in which imputation would be consistent with legislative intent. Bak v. Dobell (2007) 2007 ONCA 304, 86 O.R. (3d) 196 (C.A.)
The wording of section 19 of the Guidelines is open-ended (“which circumstances include”), indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can and should be imputed. Riel v. Holland (2003) 2003 3433 (ON CA), 67 O.R. (3d) 417 (C.A.).
Many cases have held that where a payor quits his or her employment, their previous level of income will continue to be imputed to them, irrespective of whether they have become unemployed or employed at a lower wage. At the other end of the continuum, the caselaw has generally held that where a payor loses employment through no fault of their own, the resulting change in income will generally constitute a material change in circumstances, justifying adjustment of the support order.
In some cases, it is difficult to determine if a payor is a victim of unfortunate financial circumstances, or whether he or she is the author of their misfortune.
But in the Applicant’s case, there is no uncertainty as to cause and effect. He may not have quit his job. But he created and controlled the circumstances under which his job was terminated. He made conscious decisions to do things – illegal things – with the full knowledge that his reckless and anti-social behavior would make him unavailable (let alone, unacceptable) for employment. The net result is the same as if he’d handed in his resignation.
[44] In Rogers, Justice Pazaratz found that the father was intentionally unemployed due to his own reckless behaviour, without reasonable excuse. He imputed the base income that the father had previously earned for support purposes.
[45] Many courts have taken a similar approach.
[46] In Luckey v. Luckey, the court did not reduce a support order when the payor lost a job for assaulting a co-worker.
[47] In Sherwood v. Sherwood, the court did not reduce a support order when a payor was fired for his own misconduct.
[48] In Costello v. Costello, 2012 ONCJ 399, Justice Roselyn Zisman did not reduce the payor’s income for support purposes when he lost his job due to impaired driving charges.
[49] In Billingsley v. Billingsley, 2010 ONSC 3381, the court chose not to reduce the payor’s support obligation when he was sentenced to 22 months in jail.
[50] In Stoodley v. Klein, 2013 ONSC 3058, the court did not reduce the payor’s support obligation when he lost his employment due to criminal convictions related to assaulting his wife.
[51] This court took a similar approach and did not reduce the payor’s support obligation during his eight-month incarceration for assaulting his wife in S.H. v. R.R.A., 2016 ONCJ 255.
[52] However, the imputation of income to a payor who is earning less income due to their own misconduct, reckless behaviour or other fault is not automatic. It remains an exercise of discretion for the court.
[53] In Cote v. Taylor, 2013 ONSC the court rescinded child support arrears accumulated during the five years the payor was in prison. The court wrote at paragraph 23:
[23] I fail to see any rational basis to impute income to Mr. Taylor while he was incarcerated for five years. There may be situations where a payor is convicted of an offence against his spouse or a family member, or of an offence to defeat creditors, where it would offend public policy to allow an incarcerated person to avoid his support obligation because of his crime. (see Bernard v Bernard, [2208] A.J. No. 302 (A.B.Q.B.) at para 42 and 43). However, the matters for which Mr. Taylor was incarcerated, during which time his support arrears accrued, had no connection with his support obligations. I am not prepared to find that although Mr. Taylor had no ability to pay the support ordered to be paid on December 21, 2000, public policy demands that he not be relieved of his obligation because he is benefitting from his criminal act.
[54] In S.M. v. M.T., 2018 ONSC 6011, Justice P. MacEachern chose not to impute income to a payor who had been incarcerated for 18 months and would not be able to earn the same level of income after his release from jail. She wrote the following at paragraphs 44 and 45:
[44] This matter is not a situation, in contrast to some of the other decisions, where the Respondent’s present incarceration is related to conduct that was motivated by an intention to evade his child support obligation. Although the law in Ontario, under the Drygala v. Pauli decision of the Ontario Court of Appeal, is that there is no need to find a specific intention to evade child support obligations before income can be imputed, the lack of such an intention may still form part of the circumstances the court may consider in determining whether it is appropriate to impute income.
[45] Based on all of the circumstances before me, I find that it is not appropriate to impute income to the Respondent for the purpose of paying child support. The Respondent has no ability to pay child support at this time. The consequences of making a child support order that the Respondent has no means of paying exposes the Respondent to further enforcement measures due to non-payment, which ultimately exposes him to the risk of further incarceration. Such a result does not serve the interests of justice, does not provide a fair and just result, and does not assist the best interests of K.
[55] Even if the court decides to impute income due to the payor’s reckless behaviour or misconduct, it is not bound to impute income at the payor’s previous income level. It can impute income in an amount different than what the payor had been previously earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. See: Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773.
[56] 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.
[57] In Malcolm v. McGee, 2017 ONCJ 357, where a payor was fired from his job due to his misconduct, this court wrote at paragraphs 46 and 47:
[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.
[58] In Malcolm, the court balanced these factors by maintaining support at the father’s prior income level for seven months before reducing it to reflect his actual income.
[59] In Gordon v. Wilkins, 2020 ONCJ 115, on a temporary child and spousal support motion, this court found that the father had likely been earning about $200,000 annually as a lawyer. However, his licence had been suspended due to his misconduct. The court balanced the consequences to the mother and the children arising from the father’s misconduct against the reality that the father was no longer earning $200,000, by imputing annual income to him of $150,000 for 6 months and then reducing the imputation of income to $100,000 for the purpose of the temporary support calculations.
Part Four – Analysis
4.1 The father’s termination
[60] The father gave conflicting reasons for his dismissal from his job in January 2020.
[61] The father claimed that he was dismissed by his employer in January 2020 without cause. He deposed in his November 26, 2020 affidavit, “it was as per job contract/agreement clause between them. Verbally, they informed father that they are restructuring the office”. He also deposed in this affidavit:
The father’s last job was just a survival job and does not match with his qualification. The requirements of last employment were below bachelor level, i.e. School Technical Diploma with 2-4 years experience and also, there was not match with Civil Engineering field, whereas father has Bachelor degrees in Civil engineering and in Physics.
[62] During submissions, the father submitted that one of the reasons he was dismissed was because his employer had learned about his support arrears. He also wrote in his November 26, 2020 affidavit, “also they were not aware of his marital status/issues at the time of the hearing”. [2]
[63] The father’s explanations are confusing. Was he terminated due to his contract ending? The restructuring of the office? Due to his being over-qualified? Was it because his employer learned about his marital status and support arrears? Was it some combination of these factors or was there a completely other factor at play?
[64] The father was put on notice by the mother early in this proceeding that the reason for his dismissal was a critical issue on this motion to change. She alleged that he had lost this job, as he had lost previous jobs, due to getting into a dispute with his employer. She alleged that this was part of a pattern where the father has been frequently dismissed, goes on EI, then waits until the EI runs out before looking for his next job.
[65] On October 15, 2020, the court ordered the father to produce his Record of Employment (ROE) and any documentation from his employer setting out the reasons for his dismissal. The father produced the ROE and a letter from his employer regarding the termination package. However, he did not provide any other evidence from his employer regarding the reasons for dismissal – in particular, he provided no evidence that supports the causes he set out for his dismissal.
[66] The father’s ROE indicates the M code. This means that the father was “dismissed” from his employment. This contradicts the father’s evidence about a contract ending or that there was an office restructuring. If the father had a contract that had ended or if he had been laid off due to a shortage of work the ROE code would have been A. If there had been a workforce reduction the ROE would have shown a G code.
[67] The father’s claim that one reason his employer dismissed him was because it became aware of his marital status and support arrears makes little sense. He provided no evidence to support this contention.
[68] The father, as will be set out in paragraph 75 below, acted unreasonably during his last motion to change and has acted unreasonably towards the mother and the children since the support order was made. The court is not willing to accept his explanations about his dismissal at face value.
[69] This is the father’s motion to change. He has been in court many times over the past four years. He has litigation experience. He was aware that the reason for his dismissal was a pivotal issue in this case. It was incumbent on him to provide evidence from his employer explaining why the M code was used in the ROE and to provide a supportable explanation about why he lost his job. He did not do this.
[70] The court draws an adverse inference against the father for his failure to provide reliable evidence about the reasons for his dismissal, rejects his explanations for his dismissal and finds that he was terminated due to his own fault.
4.2 Is the father making reasonable efforts to maximize his income?
[71] The court accepts the father’s submission that the pandemic is making it more challenging for him to obtain employment at the income level that he had earned prior to his dismissal.
[72] However, the court also agrees with the mother’s submission that the father is not making reasonable efforts to maximize his income.
[73] A review of the father’s job applications indicates that he has only applied for jobs in senior managerial positions. He has applied for positions as a civil engineer, senior project manager, commercial management coordinator, senior policy advisor and design track engineer. The father may believe that he is qualified for these jobs, but he has never held any of these senior positions. A review of his annual income returns since 2012 indicates that the $42,000 he earned at his last job was the most he has earned. Many of the returns show income between $20,000 and $30,000 annually – hardly indicative of senior positions in his field.
[74] The father’s efforts to find work have been unrealistic. He has children who need support and he has an obligation to apply for jobs where he has a realistic chance of being hired. He has experience working as a general labourer and in more junior positions in his field. He has not applied for these jobs or for any retail jobs.
4.3 Findings of fact
[75] The court makes the following findings of fact:
a) The father was dismissed from his employment due to his own fault.
b) The father has not made reasonable efforts to maximize his income. He is intentionally unemployed without reasonable excuse.
c) Given his work history and the pandemic, it is unlikely that the father is capable of earning the same level of income that he earned prior to his termination. This is a change in circumstances that warrants changing the support order.
d) The children need to be supported and the father has failed to meet his support obligations to the children for several years.
e) In the court’s reasons for decision dated September 23, 2019, it found that the father had engaged in blameworthy conduct.
f) The father is establishing a pattern of unreasonable behaviour. In its costs decision dated October 29, 2019, at paragraphs 24 and 25, the court wrote about the parties’ respective behaviour during the previous motion to change as follows:
[24] The mother acted reasonably. She tried very hard to resolve this matter without bringing it to court and she then made a reasonable offer to settle.
[25] The father acted unreasonably by:
a) Failing to meaningfully respond to the mother’s requests to resolve this matter out of court.
b) Delaying in providing the mother his financial disclosure.
c) Taking an unreasonable position on custody and access. He did not even meet the threshold of showing a material change in circumstances.
d) Not making a reasonable offer to settle. He should have offered some compromise and increase in child support. It was not reasonable to maintain support based on an annual income of $20,535.
g) The father exercised blameworthy conduct in this case by failing to pay support in accordance with the support order, even before he lost his job. After October 1, 2019, the father paid the much lower level of child support set out in the 2017 support order ($454 each month). He attempted to justify this by stating that the support order was not taken out until March 2020. This is not a valid excuse. He was obligated to pay child support of $1,165 starting on October 1, 2020 and chose to pay a much lower amount.
h) The father exercised blameworthy conduct by failing to pay any support for four months (from March to June 2020) after he lost his job, despite receiving employment insurance.
i) The father did not notify the mother that he lost his job until August 7, 2020. This is the date of effective notice of his request to reduce child support.
j) The father paid nothing towards the costs order – even before he lost his job. Again, he justified this by saying that the costs order wasn’t entered and issued until after he had lost his job.
k) The father’s behaviour needs to be contrasted with the mother’s behaviour. The mother took the extremely reasonable position of permitting the father to pay his support arrears at the rate of $50 each month starting on September 1, 2021. This would have permitted the father over 18 years to pay the support arrears to the mother. The father repaid the mother’s generosity by treating her and the children very poorly. His actions are selfish.
l) The mother and the children live in a two-bedroom apartment with one bathroom for the six household members. She has no savings and no vehicle. The mother is living on government benefits and child support. She is responsible for raising five children. The mother and the children’s financial circumstances have been disadvantaged and they have suffered hardship due to the failure of the father to pay appropriate support.
m) The father has his own apartment and owns a vehicle. He has RRSP’s (locked-in) of $24,000. He has no other support obligations. His remaining debt after bankruptcy is a student loan incurred after the parties separated. He appears to be meeting his expenses. His financial circumstances are much better than the mother’s. An order dismissing his claim to retroactively reduce his support payments may cause him some hardship, but it pales in comparison to the hardship of the mother and the children.
4.4 Final analysis
[76] Balancing these considerations, the court will make no change to the support order prior to November 1, 2020. This is when the father’s EI payments stopped. This means that the father’s claim to retroactively reduce the support order is dismissed and that annual income of $42,000 is being imputed to him until the end of October 2020.
[77] The court finds that the father’s dismissal, combined with his inability to obtain comparable employment by the end of October 2020, is a change of circumstances that warrants changing the support order starting on November 1, 2020.
[78] The court finds that the father could have obtained employment by November 1, 2020, if he had made reasonable efforts. However, given the impediments posed by the pandemic and his work history, the court finds he is only able to earn part-time work at a minimum-wage income. The court will impute the father’s annual income at $22,000 for support purposes, starting on November 1, 2020. The guidelines table amount for 5 children at this amount is $470 each month.
[79] The father will be required to immediately notify the mother if he obtains employment and the details of that employment.
[80] The father requests an order directing the Director to change its records to show that there are no support arrears. He claimed that there are no support arrears because he does not have to start paying them until September 1, 2021. This is wrong. The support order created arrears – the mother just generously agreed to defer how they are paid. The support order also did not preclude the Director from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings. The court finds that the Director’s statement of arrears is accurate. The court will not make the order sought by the father.
[81] The mother did not ask to change the payment terms for the arrears ($50 each month) that were previously fixed at $10,682 as of September 23, 2019. The father should consider himself very fortunate that she did not make this request.
[82] The father has accumulated additional arrears since September 23, 2019. Due to his poor conduct, the court will not make a monthly payment order for these arrears on the terms that had been set out in the support order. The father will have to negotiate with the Director about how these additional arrears will be paid.
[83] There is absolutely no merit to the father’s request to rescind or reduce the $7,500 costs order made on October 29, 2019, or to suspend enforcement of the support or costs orders. The costs order was made because the mother was successful on the previous motions to change and the father had engaged in unreasonable behaviour. He has unreasonably chosen to pay nothing towards outstanding costs. It may take some time to pay these costs but they will remain owing and should be enforced by the Director.
Part Six- Conclusion
[84] A final order shall go changing the support order as follows:
a) The father shall pay the mother the guidelines table amount of support for five children, based on an annual income of $22,000, in the amount of $470 each month, starting on November 1, 2020.
b) A support deduction order shall issue.
c) The Director is asked to amend its records in accordance with this order.
d) The Director may enforce any arrears in excess of $10,682 as it deems fit.
e) The father is to immediately notify the mother if he obtains employment. He is to provide her with the name, address and phone number of the employer, a copy of any employment contract, his rate of pay and work hours and copies of his first three pay stubs.
f) The balance of the father’s motion to change the support order is dismissed. The portions of the support order not changed by this order shall remain in full force and effect.
[85] The father’s motion to change the costs order dated October 29, 2019 is dismissed.
[86] If either party seeks their costs of this motion, they shall serve and file their written costs submissions by January 14, 2021. The other party will then have until January 28, 2021 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.
[87] The costs submissions should be either personally delivered or emailed to the trial coordinator’s office on the second floor of the courthouse.
Released: January 4, 2021
Justice S.B. Sherr
[1] D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 SCR 231.
[2] This was in reference to the September 2019 hearing.
