Court File and Parties
COURT FILE NO.: 10-7556M DATE: 20160429
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.B. Applicant Scott C. Vining, for the Applicant
- and -
T.B. Respondent Daniel G. Pole, for the Respondent
HEARD: March 31, 2016 and April 1, 4, 5, 7, 28, 2016
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] Mom and dad, a nice married couple, lived in the Owen Sound area and had two boys. The relationship soured. Litigation ensued, with a Final Order being made in late 2010. Then things got even worse between the parties. Dad commenced a Motion to Change in early 2012. A little more than a year later, Mom moved away to Elmira with the children. Then things got beneath worse.
[2] The parties brought their dispute before me in Owen Sound, and a trial was held commencing March 31, 2016 and lasting six days, though not all consecutive. The last day of trial was April 28, 2016.
[3] At trial, I heard from two witnesses called by the father – himself and a clinical investigator with the Office of the Children’s Lawyer, who prepared a report at the request of the Court. I heard from two witnesses on behalf of the mother – herself and Olivia Perrin, a friend and neighbour of the mother who is also a teacher of special needs students with autism.
II. The Background
[4] The Applicant father, M.B., is 37 years old. The Respondent mother, T.B., is 36 years old.
[5] The two boys, Ts. and Mi., are 13 and 12 years old, respectively. Mi. has some special needs.
[6] The parties were married in August 1999 and separated in December 2008.
[7] In June 2010, the father was charged with assaulting the mother. A no-contact provision of his bail was put in place.
[8] On December 3, 2010, the pending litigation between the parties since their separation actually settled. A consent Final Order was made by Fragomeni J., as per Minutes of Settlement signed by the parties. That Order provided that the children were to reside primarily with their mother; that the mother would be the principal decision-maker but would have to consult with the father on all major decisions respecting the boys; that the father would have specified access to the children (including alternate weekends and one day/evening after school each week); that the father was to pay $902.00 per month in child support based on an imputed gross income of $60,000.00 per annum, plus a lump sum payment of $6300.00 for child support arrears, plus a lump sum payment of $7000.00 for spousal support arrears.
[9] The December 2010 Final Order was precipitated by a Temporary Order (referred to in its body as being interim, interim, without prejudice) made by Kruzick J., also on consent and in accordance with Minutes of Settlement, on April 30, 2010. That Temporary Order stipulated the same monthly child support payable by the father ($902.00) based on the same attributed annual income ($60,000.00).
[10] It should be noted that the father had filed a sworn Financial Statement just prior to the Temporary Order being made by Justice Kruzick which placed his total annual income at higher than $60,000.00. In fact, that figure was shown as $84,000.00, gross.
[11] In November 2011, after a trial, the father was found guilty of the assault charge. The sentence included a no-contact term vis à vis the mother.
[12] On February 28, 2012, the father brought a Motion to Change the said Final Order of Fragomeni J. made on consent in late 2010. He sought authority to make decisions on medical and religious matters involving the children (because he was concerned about the mother’s connection to Jehovah’s Witnesses). And he asked for a shared parenting regime with a week-about residency schedule. Further, neither parent would pay to the other any child support, and they would split evenly section 7 expenses. Finally, because of the mother’s religious faith, the children would spend all special occasions that are not celebrated by the mother with the father.
[13] I reject the suggestion by the mother’s counsel that the father’s Motion to Change was motivated purely by financial concerns. From the outset, he requested relief concerning decision-making for and residency of the children, genuinely so, in my view.
[14] On March 30, 2012, the mother filed her Response. She asked that the Final Order of Fragomeni J. remain undisturbed.
[15] In November 2012, I made an Order appointing independent counsel and a clinical investigator from the Office of the Children’s Lawyer. At the time that I made that Order (which was never formally taken out but which is clear from the wording of my handwritten Endorsement), the mother, about to re-marry in December, was contemplating a move to Elmira with the children. That was the issue before the Court. The purpose of my Order was to gather further information to assist with deciding whether that proposed move was in the best interests of the boys. I directed that the status quo shall remain until the report of the clinical investigator was released and the matter was brought back to Court before me for a determination.
[16] Notwithstanding the mother’s assertions otherwise in her trial testimony, expressly or by implication, there is absolutely nothing ambiguous about my November 2012 Order. The children were not to be moved to Elmira until the matter came back to Court before me, upon the release of the investigator’s report.
[17] I agree with Mr. Vining, counsel for the father, that the mother’s unilateral move of the children to Elmira in May/June 2013, regardless of whether the father had some form of notice of the move, was a gross violation of my November 2012 Order.
[18] On April 29, 2013, the report of the Office of the Children’s Lawyer was issued. Clinical Investigator Todd Perreault recommended joint custody; primary residency of the boys with their mother; and generous access between the children and their father (increased from two to three weekends every month, plus more time, a 50-50 split, during March Breaks, plus more time, an increase from three to four weeks, in the summers on a week-about rotation, plus a rotating Christmas schedule where the father would, every second year, have the boys with him on the 24th, 25th and 26th of December, rather than the status quo which had the children with their father the week of New Year’s Day every year).
[19] The mother currently lives with her husband and the children in Elmira. That move occurred in either May or June 2013.
[20] Ever since the move to Elmira, the father has not exercised all of the access that he has the right to under the terms of the December 2010 consent Final Order, especially regarding each Wednesday after school. That is understandable, in my opinion. The distance involved is the primary reason for that (Elmira is at least a 90-minute drive away from the places where the father has lived since May/June 2013).
[21] In addition, for some reason (the parties disagree as to why), the father went all of the month of August 2015 without seeing the children at all. The father states that was because his regular alternate weekend access in the summer was not intended to be on top of the full weeks that were given in July and/or August; the mother disagrees with that and opines that the father simply could not be troubled to see the children that month.
[22] I doubt that the mother is correct about that. The father has plenty of problems, including a habitual inability or unwillingness to pay child support, however, he is a devoted father.
[23] Ts. and Mi. now have a younger sister (two years old), born to T.B. and her husband, who lives with the family in Elmira. That is a change from when Mr. Perreault wrote his report.
[24] The mother currently works at Elmira District Community Living, earning just shy of $23,000.00 annually, gross ($22,741.92, to be exact, as per her Financial Statement sworn on March 31, 2016). Her current expenses (about $60,000.00 annually according to that same Financial Statement) vastly exceed her current income. Her husband is employed, and the couple has an abundance of family support.
[25] The father currently lives with his common law spouse near Owen Sound and owns and operates two cleaning businesses that are licensed sole proprietorships. The work is seasonal and most busy between May and October each year. The businesses earn some cash income. Some of the expenses claimed by the businesses involve a personal component.
[26] The father’s income is the cause of great disagreement between the parties. What is for certain is that he has never had much luck with managing money. He has declared bankruptcy twice and is currently an undischarged bankrupt.
[27] There is no question that the father has a very poor payment history when it comes to support. He paid nothing at all between the date of Kruzick J.’s Temporary Order, made on consent, and the Final Order, also made on consent, of Justice Fragomeni. He then continued to pay nothing at all until he commenced his Motion to Change in February 2012, amassing more than $25,000.00 in arrears by that date. He never made a single monthly payment of the full $902.00 ordered until May 2015, some five years after the Temporary Order was made. That is simply unacceptable.
[28] The current support arrears total an obscene amount: at least $50,803.56 (see the Family Responsibility Office statement at tab 29 of Exhibit 2), maybe more depending upon whether the father has in fact paid over the last two months.
III. The Issues and the Positions of the Parties
[29] As is commonly the case, the issues as pleaded have now been significantly narrowed.
[30] The issues to be determined are (i) access and (ii) child support, both arrears and ongoing. The latter issue depends on a determination of what the father’s income ought to be for support purposes.
[31] The father is most interested in having more access with the boys. He wants to have Mr. Perreault’s recommendations implemented in that regard. The other things that he pleaded in his Motion to Change are no longer being pressed by him.
[32] The mother opposes one aspect of the proposed increased access – moving from two to three weekends per month that the children would be with their father.
[33] On child support arrears, there is no dispute as to what they are as calculated by the Family Responsibility Office, except for a disagreement as to whether the father has paid over the last couple of months. The father wants the total amount of arrears reduced and fixed. The mother opposes any reduction.
[34] On child support going forward, the father wants it based on a gross annual income of $40,000.00 for him, the payor. The mother wants it based on the same annual income for the father that was used when the December 2010 Final Order was made on consent - $60,000.00.
IV. Analysis
The Preliminary Issue of Whether the Father’s Claims Ought to be Dismissed or Stayed for Reasons Related to his Bankruptcy
[35] During the course of the trial, it became clear that the father is not yet discharged from his recent assignment in bankruptcy, which filing was made by him just five days before the commencement of the within Motion to Change in February 2012.
[36] At the conclusion of the case for the father, mother’s counsel invited the Court to either dismiss or stay the proceeding on the basis of a lack of capacity on the part of the father due to his status as an undischarged bankrupt.
[37] I declined to do so, for reasons to follow. These are those reasons.
[38] First, few things in life are more important than custody and access of/to children and child support. That the merits of this case would be ignored simply because the father remains an undischarged bankrupt (very likely only because he has not paid the requisite fee, which evidence was given by the father and, having reviewed the bankruptcy papers, seems reasonable to me) would be a shame. It is not a result that I am prepared to endorse.
[39] Second, although counsel for the mother filed case law confirming the general principle that an undischarged bankrupt has no capacity to advance or continue a claim related to property [including Wallace v. United Grain Growers Ltd., 1997 SCC 332], both counsel confirmed that “property” does not include custody/access and child support. Thus, no legislation or jurisprudence that I have been provided with bars the father’s claims from proceeding despite his status as an undischarged bankrupt.
[40] Third, what the mother was most interested in, as candidly acknowledged by Mr. Pole in argument on this preliminary issue, is some protection in knowing that any costs that may be ordered in her favour at the conclusion of the trial would not become unenforceable because of the father’s status as an undischarged bankrupt. There is merit in that submission, thus, I ordered at the time that the father shall obtain the discharge forthwith (specifically, pay the requisite fee and do anything else required as directed by his Trustee). That Order is confirmed herein.
Custody/Access
[41] The father is not making a serious claim for custody of the two boys. What he wants is more time with them.
[42] The mother states that she supports the father having more access time with the children, however, she opposes one of the recommendations made by Mr. Perreault – the increase from the current alternate weekends to three consecutive weekends per month that the boys would be with their father.
[43] The paramount consideration is what is in the best interests of the children. There is a general principle that, insofar as it remains in the best interests of the children, maximum contact ought to be fostered between the children and both of their parents.
[44] These two boys are getting close to the age where they are going to decide the frequency of access with their father for themselves, or at least try to. They will, undoubtedly, start to voice their wishes more strongly.
[45] I do not know what the boys want currently, although Mr. Perreault’s evidence is clear that they wanted to spend more time with their father back when the report was prepared in April 2013.
[46] Much of the trial was spent dealing with alleged misconduct by each parent. For example, the mother complains that the father has been chronically delinquent in his child support obligations. I agree. The father complains that the mother moved to Elmira with the boys in clear contravention of my November 16, 2012 Endorsement. I agree. And I also agree that the said move inevitably frustrated access between the children and their father.
[47] I must decide the access issues, however, based on what is best for the children. As I said to counsel during closing submissions at Court on April 28, 2016, it is inappropriate to conclude simply that either side wins on whether the father ought to have the boys with him three weekends per month because the father has a terrible track record of paying child support or because the mother ignored a Court Order, whichever the case may be.
[48] I must first ask whether the father has established, on balance, a material change in circumstances affecting the children. Gordon v. Goertz, [1996] 2 S.C.R. 27, 1996 SCC 191, at paragraph 49.
[49] Yes he has. I agree with Mr. Pole, counsel for the mother, that there may not have been any material change as of the date that the father first brought his Motion to Change, in February 2012, but there certainly is now.
[50] In light of the mother’s concession at trial that the access between the father and the boys ought to change in accordance with most of Mr. Perreault’s recommendations, it would be highly unfair for the Court to entirely dismiss the father’s Motion to Change regarding access on the basis that, although there was a material change affecting the children in the spring of 2013, there was none as of the date that the father’s Motion to Change was commenced. That interpretation might please a technocrat but would be contrary to the best interests of the children.
[51] So what was the material change that occurred in the spring of 2013? It was the mother’s relocation with the boys to Elmira.
[52] Mr. Pole is correct that a relocation of the residential parent and the children will always be a change but is not always a material one. It depends on the individual circumstances and whether the relocation materially affected the circumstances of the children and the ability of the parents to meet them. Gordon v. Goertz, supra, at paragraph 14.
[53] Here, the move to Elmira made the Final Order of Fragomeni J. unworkable, to some extent. In particular, the relocation materially hampered the boys’ ability to be with their father every Wednesday after school until Thursday morning (the parties were living at least a 90-minute drive apart), as ordered in December 2010. Further, as a second example, the relocation materially frustrated the exchanges of the children; they were to take place under the December 2010 Order at a business parking lot in Owen Sound, which made little sense after the move to Elmira.
[54] Having established a material change in circumstances affecting the children, I must embark on a fresh inquiry into what access regime is in the best interests of the children, taking into account the following direction at paragraph 49 of the Gordon v. Goertz, supra decision (beginning at item number 2).
49 … 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[55] On consent, all of the following recommendations made by Mr. Perreault shall be implemented, commencing immediately: clause 4 on page 15 of Mr. Perreault’s report (long weekends and professional development days at school); clause 7 on the same page of the same report (Christmas holidays); and clauses 8 and 9 on the same page of the same report (Father’s Day and Mother’s Day).
[56] For ease of reference, those sections of Mr. Perreault’s report, Exhibit 5 at trial (located at tab 7 of the Amended Trial Record), are set out below (the 8:00 p.m. time referred to below appears as 7:00 p.m. in the report, however, for reasons outlined below, I am amending that time to 8:00 p.m.).
Long Weekends, PD Days a. It is recommended that if there is an arranged off day at school or long weekend, the parent who has the children for the weekend keeps the children for the weekend. b. If M.B. has Mi. and Ts. on his scheduled weekend and there is a scheduled day off school or long weekend on the Monday, M.B. will keep the children on the Sunday overnight and return the children to T.B. on Monday at 8:00 p.m. c. If the scheduled day off is on the Friday then M.B. will pick up the boys on Thursday after school and return them to T.B.’s home on Sunday at 8:00 p.m.
Christmas Holiday a. It is recommended that the first half of the Christmas Break include Christmas Eve, Christmas Day and Boxing Day and the second half of the Christmas Break include New Year’s Eve and New Year’s Day. b. It is recommended that beginning in 2013 on even years M.B. have the first half of the Christmas Break and T.B. have the second half of the Christmas Break. c. In odd years it is recommended that T.B. have the first half of Christmas Break and M.B. have the second half of the Christmas Break.
Father’s Day a. It is recommended that the children spend every Father’s Day with M.B. regardless of the regular access weekend.
Mother’s Day a. It is recommended that the children spend every Mother’s Day with T.B. regardless of the regular access weekend.
[57] Comforted by the consent of both parents and the recommendation of Mr. Perreault, I am satisfied on balance that the items outlined above are in the best interests of the two boys.
[58] I am not satisfied, however, that having the children with their father three consecutive weekends per month is in their best interests. I was impressed with the evidence of Mr. Perreault, and I place considerable weight on his recommendation, however, I also acknowledge his candour that his recommendation is quite unusual and is based on a dated assessment of the situation. I also conclude that the said recommendation would prevent the boys from seeing much of their mother on “fun-time” (my term), the weekends. The mother would effectively become “the heavy”.
[59] Thus, the father shall continue to have access with the two boys on alternate weekends, from Friday after school until Sunday evening at 8:00 p.m.
[60] Mr. Perreault had recommended that the alternate weekend access end at 7:00 p.m. on Sundays, however, that was three years ago. The boys are old enough now to be with their father an extra hour.
[61] Even if the boys are picked up by their mother at or near the father’s home on Sundays at 8:00 p.m., they will still be home in Elmira by about 9:30 p.m. That is not too late for children of these ages.
[62] The specified weekday access that was included in the December 2010 Final Order is terminated, on consent of the father. It is simply untenable given the distance between the homes of the parents.
[63] In terms of access exchanges, the father shall pick the boys up directly from school. The mother shall pick the boys up at the father’s home, or at some other location mutually agreed upon by the parties.
[64] I encourage the parties to think about what the children perceive during access exchanges. They would like to see their parents act like grown-ups. Most grown-ups can sit in the driveway of a former partner to pick up the children, for their sake.
[65] I accept the compromise by the mother during her evidence at trial: rather than three weekends per month, the children shall have extra time (on top of what was recommended by Mr. Perreault) with their father during March Breaks and in the summertime. In my view, that would be more in keeping with their best interests.
[66] Regarding March Breaks, Mr. Perreault recommended the following at page 15 of his report (clause 6).
- March Break a. It is recommended that the March Break be split between both parents.
[67] As suggested by the mother during her trial testimony, that will be amended to provide that the boys shall be with their father for all of every March Break.
[68] Regarding summers, Mr. Perreault recommended the following at page 15 of his report (clause 5).
- Summer Holidays a. It is recommended that the children spend equal time with both parents during the summer holidays on a week about basis.
[69] Consistent with the mother’s trial testimony that the father could have extra time with the boys during the summertime instead of three weekends each month, the said recommendation will be amended to provide that the boys shall be with their father one extra week during each summer (the week-about rotation as suggested by Mr. Perreault shall be implemented, however, the parties will adjust it so that the father has the boys a total of one week more than they are with their mother, each summer).
[70] Further, unopposed by the mother, the children shall have reasonable telephone and electronic access with their father. The boys shall be free to telephone or communicate electronically with their father as they choose (remember that they will both be teenagers by the end of this year). The father shall be free to purchase electronic devices for the boys for that purpose and pay the expenses therefor. The father shall be free to telephone or communicate electronically with the boys as he chooses, however, he must respect their obligations regarding school, extra-curricular activities, Church, family meals and any other reasonable request made by the boys and/or their mother.
[71] Finally, apart from all of the above, the father shall have other reasonable access with the children, or either one of them, as agreed to between the parties.
[72] I expect that to actually happen. For example, there may be times when the father is working closer to Elmira and may wish to see the boys. There may be times when the father wants to take one or both of the boys to some sporting event or a concert. Accommodation of reasonable requests by the father is good for the children.
[73] These parents are going to have to talk with each other. I am not making any Order that limits their communication to some “Family Wizard” program or emails or texts.
[74] Otherwise, the father’s Motion to Change regarding custody and access is dismissed.
[75] A final word to the mother. I am very disappointed that she ignored my Order made in November 2012. My Endorsement is not capable of any misunderstanding. I am convinced that she knew, or at least suspected, that she was not permitted to move until the matter came back to Court. Otherwise, there is no explanation for her trial testimony that she immediately went to the housing authority to plead that she be allowed to stay. I also think that she needs to be more flexible with the father. She needs to be more open to communicating with him directly.
[76] The mother has done a tremendous job with the boys. She should be commended for that, along with her new husband and the entire family. But she has shown a distaste and distrust for the father that, although perhaps warranted in some respects, is getting in the way of their relationship with their father.
[77] The father has not helped the situation. His flagrant disobedience of the child support Orders is unfair to the boys and unfair to their mother. They deserve better.
Child Support – Arrears and Ongoing
[78] The current Court Order in effect obliges the father to pay child support in the amount of $902.00 monthly. That figure is based on an attributed annual income to the father of $60,000.00, gross.
[79] The father submits that the said income figure is too high and has always been too high since the Orders, on consent, were made in 2010. Thus, he wants the arrears reduced and fixed and the ongoing monthly award to be reduced. He suggests using an income figure for himself of around $40,000.00 annually.
[80] The mother opposes any reduction in the arrears and any change in the monthly award going forward.
[81] So the issue is what income ought to be used for the father, currently and since the December 2010 Final Order was made.
[82] The objective of determining what a payor’s actual, true income is can, in many cases, be achieved without much difficulty. We look to the person’s most recent income tax return and find the line 150 amount (better still if we have a Notice of Assessment from the revenue authorities confirming that figure), and then we supplement that information with the person’s most recent sworn Financial Statement.
[83] It is not always quite that simple, however. In cases of a self-employed payor, like this father, the income tax figures can be misleading. For example, the payor, like this father, may have claimed expenses through a business that involved a personal component to them, thereby resulting in a gross income figure for tax purposes that is lower than what ought to be reflected for child support purposes.
[84] The father concedes that the said conundrum applies here. He has indeed claimed expenses through his businesses that involve a personal component to them, such as utilities, telephone, entertainment, vehicle and accounting.
[85] Further, the father accepts some cash payments for work done through his businesses. In cross-examination at trial, he estimated that those amount to approximately $200-$300.00 per month currently (more in the past). He states, however, that, as best as possible, those cash payments have been reflected in his income tax filings.
[86] The test for attribution or imputation of income is well-settled and is set out at paragraph 23 of the decision of the Court of Appeal for Ontario in A.M.D. v. A.J.P., [2002] O.J. No. 3731, 2002 ONCA 41868, as follows.
[23] In my view, in applying this provision, the trial judge was required to consider the following three questions. [page718]
- Is the spouse intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
- If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[87] Regarding support arrears, the father’s Motion to Change is dismissed. There shall be no retroactive decrease in his monthly child support obligations. There shall be no reduction in the total amount of support arrears as calculated by the Family Responsibility Office.
[88] Counsel disagree on whether this Court can go back beyond the date that the father commenced his Motion to Change, in February 2012, in light of the notice analysis set out by the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231, 2006 SCC 37.
[89] It is not necessary for me to resolve that disagreement. Assuming, without deciding, that the said decision can be distinguished on the basis that it involved support recipients (rather than payors) seeking retroactive increases (rather than decreases) in monthly child support, a submission made by Mr. Vining as counsel for the father, I still decline to make any retroactive adjustment to the father’s child support obligations.
[90] First, the father does not come to this Court with clean hands. He ignored the Temporary Order of Kruzick J. He then ignored, for a long time, the Final Order of Fragomeni J. Both of those Orders were made on consent, with the father being represented by counsel. He racked up tens of thousands of dollars in arrears, all to the detriment of the boys.
[91] Second, the father waited more than a year to even bring this Motion to Change. There is no explanation for that delay. None. Then he prosecuted his claims with little dispatch after February 2012. In fact, it was the mother, not the father, who set the matter down for trial.
[92] Third and finally, the evidence at trial does not persuade me, on balance, that the father’s true income was anything materially less than $60,000.00 per year, gross, since the Final Order was made in December 2010.
[93] For tax purposes, it certainly has been less (from almost nil in 2012 to about $32,000.00 in 2015). But the father acknowledged at trial that those numbers are understated, or he at least acknowledged generally that he makes more money than what his line 150 tax returns show.
[94] How much more? I really do not know. But the best evidence is what the father earned just before the two consent Orders were made in 2010 - $84,000.00 (according to his own sworn Financial Statement at the time).
[95] Even accounting for a significant reduction in his capacity to earn income because he lost his driver’s licence in early 2011 (even as much as one-third), Mr. Baker’s gross annual income still would have been not much lower than the $60,000.00.
[96] Thus, to date, the support arrears are what they are. I am not reducing them.
[97] On a go-forward basis, I note that even the father’s reported annual income for tax purposes is steadily rising (from less than $15,000.00 in 2013 to almost $25,000.00 the next year and nearly $32,000.00 last year). His feet are back on the ground. He has a common law partner and business employees. He is driving again. He has his most recent bankruptcy behind him (almost).
[98] I am satisfied, on balance, that the father continues to meet the test for having income attributed to him, that test outlined above. He does not disagree with that.
[99] The father’s suggestion of $40,000.00 as a reasonable gross annual income to attribute to him is, with respect, a guess on his part. It is nothing more than that. In cross-examination at trial, he made a series of admissions regarding business expenses claimed that involve a personal component that could bring that figure up to the mid-40s or even a little higher.
[100] For the sake of the children, we all want the father to continue to improve his finances. It is not in the interests of anyone that he struggle to meet his child support obligations from this day forward. He largely ignored them previously. I think that his tune has changed. But we have to be realistic.
[101] On account of cash payments received by the business that may not always be reported for tax purposes, and on account of business expenses claimed that involve a personal component to them, and recognizing the rights of the boys to be supported financially by their father and the objective of giving Mr. Baker an incentive to continue to improve his financial situation (without accumulating support arrears), I will accede to the father’s request and decrease the quantum of his imputed income for child support purposes going forward from today.
[102] $40,000.00 is too low, however, even on the father’s evidence in cross-examination at trial. On the totality of the evidence, I find that a more accurate figure to use for attributed income is $50,000.00.
[103] Effective immediately, the father shall pay support for the two children in the monthly amount provided for by the Guidelines and based on an imputed income to the father of $50,000.00, gross, annually.
[104] I am not sympathetic to any complaint by the father that I have not gone low enough. I agree with Mr. Pole that the father, up until retaining Mr. Vining not that long before the trial started, had been less than diligent in providing financial disclosure. He can blame himself for not providing more cogent evidence to substantiate his claim that his annual gross income for support purposes ought to be reduced to $40,000.00.
V. Conclusion
[105] A Final Order shall issue in accordance with these Reasons.
[106] The father’s Motion to Change is allowed in part in that he is granted expanded access to the children and a reduction in monthly child support on a go-forward basis.
[107] There shall be no change in custody. There shall be no retroactive change in child support and no reduction in arrears.
[108] Counsel for the mother asked that the Judgment be stayed until the father discharges his bankruptcy. I have already ordered that he do that forthwith. I expect that he has already done so. If not, then I will entertain that request further when counsel make submissions on costs.
[109] If the parties cannot resolve the issue of costs between themselves, I will accept written submissions. Either party seeking costs shall file within thirty days of the date of these Reasons (limited to two pages, excluding attachments such as offers to settle and dockets). The other side shall have fifteen days thereafter to file a response (limited to two pages, excluding attachments). No reply is permitted by either side.
Conlan J.
Released: April 29, 2016