McIntyre v. Garcia, 2021 ONCJ 29

DATE : January 19, 2021

COURT FILE NO. D20773/18

ONTARIO COURT OF JUSTICE

B E T W E E N:

KAMESHA MCINTYRE

CLIFTON LEUNG, for the APPLICANT

APPLICANT

• and -

RHONDELL GARCIA

Not present at hearing

RESPONDENT

HEARD: JANUARY 12, 2021

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This uncontested trial was about the parenting and child support arrangements for the parties’ two children, ages 14 and 16 (the children).

[2] The court struck the respondent’s (the father’s) Amended Answer/Claim on September 4, 2020, due to his persistent failure to comply with court orders. See: McIntyre v. Garcia, 2020 ONCJ 395. On November 9, 2020, the court determined that it would not permit the father to participate at trial because he had made no effort to remedy his breaches of the court orders after his pleading was struck. See: McIntyre v. Garcia, 2020 ONCJ 515.

[3] The applicant (the mother) seeks to finalize the temporary parenting orders for the children. She has temporary custody of the children and the father has parenting time with the younger child on two out of every three weekends and on specified holidays. She also seeks incidents of custody permitting her to obtain government documentation for the children and to travel with the children outside of Canada without the father’s consent. These orders will be made for the summary reasons that will be set out below.

[4] Ordinarily, the court does not provide written reasons for uncontested hearings of this nature and would not have done so if it was only deciding the parenting issues - they are straightforward. The court prepared these reasons to explain to the parties how it determined the support issues.

[5] The mother seeks support for the children, retroactive to June 1, 2015. She asks the court to impute income to the father starting on December 1, 2018 – the date when he claimed that he lost his employment. She asks to set the father’s support arrears at $44,377 as of January 1, 2021. She also seeks costs of $4,535.12.

[6] The mother filed a Form 23C affidavit for the trial. She also gave oral evidence at the hearing. At the conclusion of the hearing, the court asked her counsel to submit a bill of costs in support of her costs claim. The court received this on January 15, 2021.

[7] The issues for the court to determine are:

a) What parenting orders are in the children’s best interests? b) When should child support start? c) Should income be imputed to the father, for the purpose of the support calculation, after December 1, 2018, and if so, in what amount? d) If retroactive support is ordered, what amount of support is payable from December 1, 2018 until September 3, 2019, the period when the younger child resided with the father? e) What costs order should be made?

Part Two – Brief background

[8] The mother is 36 years old. The father is 41 years old.

[9] The parties lived together from 2004 until 2008.

[10] The children lived with the mother after the separation.

[11] The mother issued her application on June 1, 2018.

[12] On November 30, 2018, the mother sought to find the father in default. The court granted the father an extension of time to file his Answer/Claim and ordered him to pay temporary child support of $708 per month. The court also ordered the father to pay $160 costs to the mother.

[13] The father subsequently filed an Answer/Claim.

[14] The younger child lived with the father from December 2018 until September 2019. The older child continued to live with the mother.

[15] On January 9, 2019, on consent, the temporary child support payable by the father was changed to $436 each month, starting on December 1, 2018. The matter was also referred to the Office of the Children’s Lawyer (the OCL). A report was prepared by the OCL, dated July 26, 2019, pursuant to section 112 of the Courts of Justice Act.

[16] On August 26, 2019, the parties consented to an order that the father provide financial and medical disclosure to the mother.

[17] On September 3, 2019, the court heard a contested motion about where the younger child would live. The mother was the successful party. The court found that the child was functioning poorly in the father’s care. He had significant academic and behavioural issues. His school attendance had been erratic. The court found that the father had poor insight into the child’s special needs and had neglected them. The court determined that it was in the younger child’s best interests to have the structure and stability of living in the mother’s home.

[18] The younger child has lived with the mother since this order was made. He has frequent parenting time with the father.

[19] On October 3, 2019, the court ordered the father to pay the mother $3,000 for the costs of the motion. The court permitted the father to pay the costs at the rate of $150 each month with the provision that if he was more than 30 days late in making any payment, the full amount of costs then owing would become immediately due and payable. See: McIntyre v. Garcia, 2019 ONCJ 706.

[20] On December 4, 2019, on consent, the court changed the temporary parenting schedule for the younger child and made another disclosure order.

[21] On January 15, 2020, the father filed an Amended Answer/Claim.

[22] The father did not comply with the disclosure order. He did not pay anything towards the three costs orders. He has not paid any child support.

[23] The mother brought a motion to strike the father’s Amended Answer/Claim. There was a delay in hearing this motion due to the pandemic. Despite this delay, the father was still non-compliant with the court’s orders. The court struck the father’s Amended Answer/Claim, but gave him an opportunity to reinstate it if he paid the mother $3,000 and provided his outstanding disclosure.

[24] The father was ordered to pay costs to the mother of $2,400 arising out of this motion. These costs did not have to be paid as a precondition to reinstating his Amended Answer/Claim. See: McIntyre v. Garcia, 2020 ONCJ 439.

[25] The father made no effort to comply with the court orders. He paid no costs or support. He provided no further disclosure. On November 9, 2020, the court ordered that he was not permitted to participate in this hearing.

Part Three – Parenting orders

[26] The court finds that it is in the children’s best interests to grant the custody and access orders sought by the mother, as set out in her Form 23C.

[27] There has never been a dispute about the parenting arrangements regarding the older child. She is doing well in the mother’s care and chooses to live with her. She sees the father when she chooses to.

[28] The OCL report supports the children’s placement with the mother. The existing parenting arrangements regarding the younger child have worked out reasonably well. The child has structure and stability in the mother’s home. He is able to see his father frequently. The mother has always facilitated generous parenting time for the father and does not propose to change this. The younger child has been exposed to less parental conflict since he returned to the mother’s care.

[29] The communication between the parents is virtually non-existent. Any communication between them has been poor. A joint custody order is not warranted in these circumstances. See: Kaplanis v. Kaplanis ONCA. The mother is making reasonable custodial decisions for the children and will be granted sole custody.

[30] Most of the communication difficulties between the parties have been due to the father’s difficult conduct. The court has no confidence that he would reasonably sign consents for government documentation for the children, or for them to travel outside of Canada with the mother. It is in the children’s best interests that this not be obstructed. The mother’s claims for this relief will be granted.

Part Four – Legal considerations for retroactive/historical support claims

4.1 General principles

[31] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.

[32] None of the above factors are decisive or take priority and all should be considered in a global analysis (D.B.S. par. 99). In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility (D.B.S. – par. 133).

[33] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. – par. 97).

[34] In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada made the following comments about retroactive, or as the concurring decision framed it, historical support claims:

a) Today, parents know they are liable to pay support in accordance with the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (par. 130). b) The obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it (par. 79). c) Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (par. 132). d) Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations (par. 25). e) Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their increases in income. At any given point in time the payor has knowledge of what their support obligation should be, while the recipient parent may not (par. 32). f) Given the gender dynamics in child support law, legal rules cannot ignore the realities that shape woman’s lives and opens them up to experiences and risks less likely to be experienced by men: like intimate partner violence, a higher proportion of unpaid domestic work accompanied by less work experience and lower wages, and the burden of more childcare obligations (par. 100). g) Courts must also turn their minds to other forms of marginalization in the courtroom. The gendered dimensions of poverty at different times mirror or obscure its intersections with race, disability, religion, gender modality, sexual orientation and socioeconomic class. The judiciary must take these differences in to account and give them their due weight in considering the tests at issue. In the end, a system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all (par. 101). h) The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121). i) There is nothing exceptional about judicial relief from the miserable consequences that can flow from a payor’s indifference to their child support obligations (par. 31).

4.2 – Delay

[35] Courts should examine whether the reason for delay in bringing the application is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support (Michel – par. 111).

[36] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted (Michel – par. 113).

[37] The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often at the root cause of a delayed application (Michel – par. 116).

[38] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.

a) Fear of reprisal/violence from the other parent. b) Prohibitive costs of litigation or fear of protracted litigation. c) Lack of information or misinformation over the payor parent’s income. d) Fear of counter-application for custody. e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent. f) Illness/disability of a child or the custodian. g) Lack of emotional means. h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement. i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation. j) The deliberate delay of the application or the trial by the payor.

These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger (Michel – par. 86).

[39] It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier (Michel – par. 87).

[40] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S. – par.123).

4.3 Blameworthy Conduct

[41] Courts should apply an expansive definition of blameworthy conduct (D.B.S. – par. 106).

[42] Blameworthy conduct is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. (D.B.S. – par. 106).

[43] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty (Michel – par. 34).

[44] A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it. (D.B.S. – par. 65).

[45] Courts should not take a subjective approach to blameworthy conduct and try to ascertain intention. Intent can be a basis on which to increase blameworthiness, but the primary focus needs to be on the payor’s actions and their consequences (Michel – par. 118).

[46] Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award (Michel – par. 119).

4.4 Circumstances of the children

[47] If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award (Michel – par. 120).

[48] Any kind of hardship is not a necessary antecedent to making a retroactive support award. A payor’s support obligation does not disappear when the child no longer requires support. If this factor were to tip the balance against making a retroactive award, then, in essence, the payor will have profited from “holding off” on paying increased child support (Michel – par. 122).

[49] 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 (Michel – par. 123).

[50] The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope (Michel – par. 123).

[51] The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support (Michel – par. 123).

4.5 Hardship

[52] 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 (Michel – par. 125).

[53] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship (Michel – par. 124).

[54] It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle or the very purchase of property which may now need to be sold (Michel – par. 125). This is a crucial part of the equation (Michel – par. 126).

[55] 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 (Michel – par. 126).

[56] In all cases, hardship may be addressed by the form of payment (Michel – par. 124).

4.6 Start date for support

[57] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S. – par. 5). An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given.

[58] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S. – par. 121).

[59] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel – par. 36).

[60] The court in Michel questioned whether it is now time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. Today, parents know they are liable to pay support in accordance with the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (pars. 130 and 131).

Part Five – When should support start in this case?

[61] The mother asks that child support start on June 1, 2015 – this is three years prior to her starting her application.

[62] The mother provided understandable reasons why she delayed in bringing her support application, taking into account a generous appreciation of the social context in which her decision to seek child support was made. These reasons include:

a) She had limited financial means to obtain legal advice. She has often lived near the poverty line due to the lack of child support from the father. She returned to an adult learning program in 2016 to upgrade her education and earning capacity. She deposed that she was unaware of Legal Aid Ontario until 2018. b) She was a victim of domestic violence by the father. She was reluctant to engage with him in litigation. This is understandable given their power imbalance and how difficult the father has proven to be in this litigation. c) The father did not disclose his income to her in a timely manner. d) The father was very hard to contact. His phone was regularly off, or he blocked her number. He refused to give her an email address until the summer of 2019 at a disclosure meeting held by the Office of the Children’s Lawyer. e) The father constantly threatened to quit his job if she sought child support from him. He told her that he would never pay her any support. She focused on raising the children.

[63] The father’s blameworthy conduct is the dominant consideration in this matter. He has not paid the mother any child support since June 2015. He has not made timely or adequate disclosure, despite court orders. His conduct was so bad that his Amended Answer/Claim was struck, and he was not permitted to participate at this hearing. He has selfishly preferred his own interests to those of his children.

[64] The financial circumstances of the mother and the children have been disadvantaged by the father’s failure to pay support. The mother testified that “it has been very hard”. She has had to support the children with very little income. At times, the mother and children had to live in shelters and have lived close to the poverty line. They have been on social assistance. The mother has not been able to afford tutoring for the younger child, who has a learning disability.

[65] There is no evidence that the father would suffer hardship if support starts on June 1, 2015. The mother testified that the father has inherited his grandmother’s home. She believes he is working or capable of working full-time and that he rents out rooms in his home. Any hardship he might have from this order pales in comparison to the hardship he has put the mother and the children through for many years and the hardship to her and the children if retroactive support is not ordered. He has had the benefit of the unpaid child support and has lived a much better lifestyle than the mother and the children for many years. If there is any hardship to the father, the court will disregard it due to his blameworthy conduct.

[66] The mother says that she has regularly asked the father for child support since their separation. She said that for the first few years after the separation he would give her $100 every couple of months. However, these payments stopped by 2015.

[67] The court finds that the mother gave the father effective notice of her request for support as early as 2008. However, even if effective notice had not been given to the father, this degree of blameworthy conduct by him eliminates the need for effective notice.

[68] The father was very aware that he had an obligation to support the children. He made a choice not to do so, at the expense of the children and the mother.

[69] The father is very fortunate that the mother has only sought support from June 1, 2015. This is a very reasonable request on her part and will be ordered.

Part Six – Support payable from 2015 to November 30, 2018

[70] It is not difficult to calculate the father’s child support obligations from June 1, 2015 until November 30, 2018, as the children were living with the mother during this time and the father was a T4 employee.

[71] The father’s income in 2015 was $40,208. The Child Support Guidelines (the guidelines) table amount for two children was $614 each month. The total support accrued from June 1, 2015 to December 31, 2015 was $4,298 (7 months at $614 each month).

[72] The father’s income in 2016 was $24,473. The guidelines table amount for two children was $366 each month. The total support accrued in 2016 was $4,392 (12 months at $366 each month).

[73] The father’s income in 2017 was $47,554. The guidelines table amount for two children was $723 each month, until the end of November, when the guidelines table amounts changed. In December, the guidelines table amount changed to $718. The total support accrued in 2017 was $8,671 (11 months at $723 each month plus $718).

[74] The father’s income in 2018 was $55,029. The guidelines table amount for two children was $839 each month. The total support accrued from January 1, 2018 until November 30, 2018 was $9,229 (11 months at $839 each month).

Part Seven – Imputing the father’s income after December 1, 2018

7.1 – Positions of the parties

[75] The father claimed that he lost his job in December 2018 due to an injury. He said that he received disability benefits and employment insurance. In his January 12, 2020 financial statement, he deposed that he was receiving $24,104 annually.

[76] The mother claims that the father followed through on his promise to quit his job if she sought support. She asked to impute annual income to him of $58,000, submitting that this is the income he would be earning if he had remained at his job. At the hearing, she modified this submission for the year 2019 only, and asked the court to impute 2019 income of $34,000 to the father.

7.2 Legal considerations

[77] 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.

[78] 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).

[79] 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:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of the party’s reasonable education or health needs?
3. If not, what income is appropriately imputed?

[80] 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.).

[81] 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.

[82] 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.

[83] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.).

[84] 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.

[85] The payor must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ.). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton and Stoangi v. Petersen.

[86] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

[87] 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.

[88] 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; Maimone v. Maimone. The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719.

[89] A person’s lifestyle can provide the basis 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.

[90] This court recently reviewed the law about imputing income to support payors who are unemployed or underemployed due to their own misconduct or fault in Tahir v. Khan, 2021 ONCJ 1, at paragraphs 42 to 59. In short, the case law gives the court considerable discretion about how much income to impute to such payors. In exercising that discretion courts must decide how to allocate the consequences of the payor’s poor decisions. The children and the recipient are the innocent victims. 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 their misconduct or fault. The court should conduct a contextual examination of all the circumstances in determining the support amounts it should order.

7.3 Analysis

[91] The father made this analysis difficult by failing to comply with the disclosure orders. He did not provide a Record of Employment which would have set out why he is no longer working with his employer. He did not provide a comprehensive medical report setting out the nature of his injuries, his diagnosis and prognosis and what type of work he could and could not perform. He did not provide a job search list. He did not provide his 2019 income tax return and notice of assessment, or any documentation showing the income he received in 2020. He last filed a financial statement one year ago.

[92] The court draws an adverse inference against the father for this non-disclosure.

[93] The father only provided a few of the bank statements ordered – from September to December 2019 (he was ordered to provide them from 2015). The bank statements produced were revealing. Despite his claim that he was not working, the statements showed over $14,000 of expenses, including expenses of several hundred dollars for on-line gambling and on-line purchases. The father did not deny or explain these expenses while he was participating in this case.

[94] The father provided a payment statement from the City of Toronto indicating that he received public assistance in July 2019 in the amount of $733.

[95] The father also provided a medical certificate, on a Service Canada form (in support of his employment insurance claim), that appears to have been completed by a Dr. Thai from the North Kipling Health Centre on September 29, 2019. It states that the father has a bunion knee strain and had limited capacity to do light work from (indistinguishable) to June 17th and that he was capable of modified duties after June 17th. Boxes completed on the form indicate that the father was unable to work from February 3, 2019 until June 17, 2019.

[96] The father provided a similar second form, completed by the same doctor, dated September 6, 2019, stating that he couldn’t work until September 11, 2019.

[97] This evidence wasn’t very helpful. It was sparse and contradictory. One form said that the father could do modified duties, the other said that he couldn’t work. The forms were signed within a week of each other. The earlier dated form stated that the father couldn’t work until September 11, 2019 – the later dated form said that he couldn’t work until June 17, 2019.

[98] The start date of the father’s inability to work is stated as February 3, 2019 on one form – contradicting the father’s evidence that he lost his job in December 2018 due to an injury.

[99] It is puzzling why the father was only applying for employment insurance in September 2019 (10 months after allegedly losing his job). There may be some explanation for this, but the father did not provide it. It lends credence to the mother’s submission that the father quit his job in December 2018 and had to wait to become eligible for employment benefits.

[100] The last document provided by the father was an ultrasound report dated January 14, 2019. It sets out that the father had knee joint pain for one year, on and off. It found that he had a bunion at one joint and mild degenerative change. It did not set out a significant impairment.

[101] The court’s challenge is what to do with this limited evidence.

[102] The court finds that it is more likely than not that the father quit his job in December 2018. It is unlikely a coincidence that after threatening to quit his job if the mother sought support, he stopped working immediately after the first support order was made on November 30, 2018. His failure to pay any child support reinforces the mother’s evidence that he would threaten to never pay her any support if she started a court action.

[103] The court will accept that the father was unable to work from February to September 2019, due to medical issues, and will accept the income he stated that he was earning ($24,104) for this period.

[104] The father was able to work after September 2019, albeit at modified duties. His ability to earn income was likely somewhat reduced.

[105] The father spent over $14,000 during the last four months of 2019. The court finds that the father was earning income to support this lifestyle from September 2019.

[106] The father has considerable work experience. His resume sets out that he is a trained forklift operator, skilled in packaging furniture and that he has experience working in shipping and receiving and window installation. He is certified to operate counterbalance, reach and electric pallet trucks. He is trained and certified in propane storage.

[107] The court recognizes that the father may not be able to earn income at the same level he earned with his previous employer. However, it finds that he has been capable of earning $45,000 annually since September 2019, based on his age, health, earning history, skills and work experience.

[108] This imputed income is consistent with the father’s lifestyle as reflected in his bank statements from September to December 2019.

Part Eight – Support payable from December 1, 2018

[109] The parties had split custody of the children from December 1, 2018 until September 3, 2019.

[110] Section 8 of the guidelines states that where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

[111] The mother earned $12,000 in 2019. She worked part-time while she was attending school. This was a reasonable career path. She certainly couldn’t rely upon the father to pay any child support. She is now starting a full-time job as a nurse.

[112] No child support is payable by the mother at this income level pursuant to the guidelines.

[113] Based on the father’s annual income of $55,029 at the time, he is to pay the guidelines table amount for one child in December 2018 and in January 2019 of $507 each month, for a total of $1,014.

[114] Based on the father’s annual income of $24,104, he is to pay the guidelines table amount for one child from February 1, 2019 until August 30, 2019, in the amount of $193 each month. This is a total of $1,351 (7 months x $193).

[115] Based on an imputed annual income of $45,000, the father is to pay the guidelines table amount for two children from September 1, 2019, in the amount of $674 each month. This is a total amount owing of $11,458 (17 months x $674) up to and including the January 2021 payment.

[116] The father is to pay ongoing child support of $674 each month starting on February 1, 2021.

Part Nine - Calculation of arrears and payment

[117] The father has paid no child support.

[118] The support owing today is $40,413, calculated as follows:

2015 – $4,298, as set out in paragraph 71 2016 – $4,392, as set out in paragraph 72 2017 – $8,671, as set out in paragraph 73 2018 – $9,229, as set out in paragraph 74, plus $507 as set out in paragraph 113, for a total of $9,736. 2019 – $13,316, as set out in paragraphs 113 to 115

[119] Due to his flagrant disregard of court orders and of his support obligations to his children, the court will not make a periodic payment order for the arrears. The father will have to negotiate directly with the Director of the Family Responsibility Office. If, as the mother suspects, the father inherited his grandmother’s property, a writ of execution can be registered for the arrears and costs outstanding.

[120] The mother has been put through an unnecessarily complicated procedure because of the father’s conduct. It is just in these circumstances to make an order requiring that the father must first seek leave of the court prior to starting any future court proceeding. See: Tiveron v. Collins, 2016 ONSC 2451. The court will likely require evidence of good faith efforts to make child support and costs payments before granting leave.

Part Ten – Costs

[121] The mother seeks her costs of $4,535.82.

[122] Costs against the father have already been ordered as follows:

a) $160 on November 30, 2018, when the court gave him an extension to file his Answer/Claim. b) $3,000 on October 3, 2019, for the contested temporary custody hearing. c) $2,400 on September 29, 2020, for the motion to strike his Amended Answer/Plan of Care.

[123] The father has made no payments towards these costs.

[124] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[125] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71, paragraph 25.

[126] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[127] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

[128] Subrule 24(1) creates a presumption of costs in favour of the successful party.

[129] Subrule 24 (12) reads as follows:

24 (12) In setting the amount of costs, the court shall consider, a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle including offers that do not meet the requirements of rule 18, iv) any legal fees, including the number of lawyers and their rates, v) any expert witness fees, including the number of experts and their rates, vi) any other expenses properly paid or payable; and (b) any other relevant matter.

[130] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih pars. 7-13). Those who can least afford litigation should be the most motivated to avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3238.

[131] The mother was the successful party. The presumption that she is entitled to costs was not rebutted.

[132] The case was important for the parties. It became protracted, more difficult and complex than it needed to be due to the father’s unreasonable behaviour.

[133] The mother acted reasonably in this case. The father acted so unreasonably that his Amended Answer/Claim was struck and he was not permitted to participate in the case.

[134] The rates and time claimed by the mother are reasonable.

[135] The mother restricted her costs claim for time spent preparing for this trial.

[136] The court considered the father’s financial circumstances. However, he needs to be held accountable for how he has treated the mother and the children in this matter.

[137] It is appropriate in these circumstances that the father pay close to full recovery costs.

[138] The father shall pay costs of $4,200 to the mother, inclusive of fees, disbursements and HST. This is in addition to the $5,560 costs presently outstanding.

Part Eleven – Conclusion

[139] An order shall go on the following terms:

a) Final custody and access orders shall go on the terms set out in paragraph 5 and in subparagraphs 1 to 7, of paragraph 7 of the mother’s Form 23C. b) The father shall pay the mother the sum of $40,413 for past support, calculated from June 1, 2015, as explained in this decision. c) Based on an imputed annual income of $45,000, the father shall pay the mother the guidelines table amount of child support for two children, in the amount of $674 each month, starting on February 1, 2021. d) The father shall provide to the mother, by June 30th each year, complete copies of his income tax returns and notices of assessment. e) A support deduction order shall issue. f) The father shall pay the mother’s costs fixed at $4,200, inclusive of fees, disbursements and HST within 30 days. This is in addition to the costs of $5,560 previously ordered. g) The father may not bring any further court proceedings in this court without first obtaining leave of the court.

Released: January 19, 2021

Justice S.B. SHERR