Court File and Parties

COURT FILE NO.: 36803/14 DATE: 2018-07-26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ANGELA WOOFENDEN Applicant – and – DAVID WOOFENDEN Respondent

COUNSEL: Novalea Jarvis, for the Applicant David Woofenden, Self-represented

HEARD: June 12, 13, July 24, 2018

REASONS FOR JUDGMENT

kurz j.

[1] This is an application by Angela Woofenden (“Angela”) for a divorce, custody of the parties’ two children, child and spousal support and equalization of the parties’ net family properties.

[2] Angela and the Respondent, David Woofenden (“David”) have two children, who are both adults at this time. They are:

• Rory James Woofenden born July 17, 1993 (“Rory”) and
• Taylor Maine Woofenden born September 5, 1994 (“Taylor”), collectively referred to as the “children”.

[3] Because Rory and Taylor are adults, a custody and access order is unnecessary. In addition, at the commencement of trial, the parties signed partial minutes of settlement, which resolve the following issues:

a. Non-harassment and communications with the adult children; b. Child support arrears for the period between January 1, 2014 and May 31, 2015, which are fixed at $8,500. No child support is payable thereafter unless one or both of the children return to school; c. Arrears of special and extraordinary expenses under section 7 (“s.7”) of the Child Support Guidelines (“CSG”), fixed at $2,367; d. The payment of post-secondary education expenses (which is really a form of s.7 expense), should the children return to school; e. Future financial disclosure, which is to be provided commencing on May 1, 2019; f. The payment of spousal support arrears, in an amount to be fixed by the court; g. The payment of ongoing spousal support, in an amount to be fixed by the court; and h. The granting of a Divorce Order.

[4] Left unresolved with that settlement are the following:

a. The quantum of retroactive (January 1, 2014 – May 31, 2017) and prospective spousal support. The parties did not leave open the issue of Angela’s entitlement to spousal support. b. The proportionate share that David will pay towards future s. 7 special and extraordinary expenses for the parties’ two adult children, should they return to school to continue their education, and c. The quantum of equalization owed to Angela.

[5] In order to resolve those questions, the court must resolve the deep issue in this case: whether income should be imputed to David because he was and is intentionally underemployed or unemployed.

[6] Shortly after the parties separated, David told Angela that if she sought support from him he would quit his job and not work. Nine months later, he was laid off his job by his ostensible close friend, Joe Donato. David claims to have been unable to find work since then. He is vastly in arrears of payment of the temporary support ordered by this court. His arrears began even before his employment was terminated.

[7] For the reasons that follow, I find that David has been and continues to be intentionally under and unemployed. I impute an income to him based upon his prior work history and his admissions as to the income he could make if he were working. I then fix the amounts that he owes to Angela for retroactive support for the period of time that Angela was also entitled to child support. I leave open the issues of further retroactive and prospective spousal support, pending the determination of whether Angela wishes to seek them based on the Spousal Support Advisory Guidelines (“SSAG”) “without child” formula. I also determine the amount that David owes to Angela for the equalization of the parties’ net family properties.

Background

[8] The parties married on July 23, 1992. They have two children, Rory and Taylor.

[9] The parties do not agree on their date of separation. Their two dates are about three months apart. From the evidence at trial, it is not clear whether the two dates would result in any different equalization obligations. Angela says that the date is December 10, 2013 and David says that it is about February or March, 2014. For reasons set out below, I accept Angela’s date of separation.

[10] The matrimonial home at the time of separation was a house rented from David’s friend and the principal of his employer, Joe Donato. The parties continued to reside together with the children in the matrimonial home until July 1, 2014. At that time. Angela, Rory, and Taylor moved out together and David moved into his own home. Until then, Angela resided in the basement, while David remained upstairs in the home.

Reasons that Rory and Taylor Left School

[11] At the time of separation, Rory was in grade 12, while Taylor was in grade 11. Rory required three compulsory credits, seven elective credits and four community service hours in order to graduate from high school. It was his plan to graduate, attend community college and obtain the credentials to become a skilled tradesperson like his father, David. His goal was to become a licenced plumber.

[12] Taylor needed two credits and forty hours of community service. She had hoped to become a hair dresser.

[13] Taylor suffers from a variety of mental health issues. She has been diagnosed with depression, social anxiety disorder, bipolar disorder, generalized anxiety disorder and panic disorder. She was hospitalized in September, 2013 and October, 2014 for depression and suicidal ideation. Due to her mental health issues, Taylor has at times been unable to attend school and cannot take on a full course load.

[14] Following the separation, Rory and Taylor finished out their next school year (2014 - 15) without graduating. Thereafter Rory went to work because he could not afford college and because David paid very little support. Taylor was unable to return to school because of finances and because of her mental health issues. She has tried to work as well.

Angela’s Employment History and Role During the Marriage

[15] Angela is a former member of the Canadian Defence Forces, who left the military with physical and emotional disabilities. She soon thereafter received a CPP disability pension. She has significant knee injuries that affect her mobility, shoulder injuries that limit her daily functioning, chronic pain and emotional difficulties. She receives an average of just under $11,000 per year in CPP disability income.

[16] Angela has been a stay at home mother for almost the entire period since 1992, when she became pregnant with Rory. She was responsible for the majority of the housework and childcare during the marriage. David does not dispute that he agreed to that arrangement. The only times since 1992 that Angela worked out of the home were for three months in 1999 and six weeks in 2000.

[17] Angela moved with David and the children in June, 1995, from Calgary to Hamilton to assist with his employment. The family moved again to Burlington in August, 2005, when David obtained another job, working for Donato Homes. That company later became Horizon Homes. The principal of both Donato Homes and Horizon Homes was Joe Donato. As I stated earlier, Mr. Donato also became Angela and David’s landlord and David’s friend.

David’s Pre-termination Income

[18] David has been a tradesman and supervisor in the construction industry for about 31 years. He is skilled at many aspects of the construction trades, as both a worker and a supervisor. His income for the years 2010 – 2014 was:

2010 - $62,368 2011 - $71,392 2012 - $83,871 2013 - $104,093 2014 - $83,394.40.

[19] In January, 2014, shortly after their separation, but while still living in the same home, David and Angela argued about money in the presence of Rory and his girlfriend. Rory overheard his father tell his mother that if she pursued him for support, he would quit his job and not work.

[20] David does not deny saying this. However he asserts that he did not mean it. He was just responding in anger to Angela saying that she would rake him over the coals for support.

[21] On June 23, 2014, Gray J. of this court ordered, on consent, that David pay temporary support of $4,000 per month. That figure consisted of table child support of $1,366 per month and spousal support of $2,634 per month. In addition, David was ordered to pay temporary special and extraordinary expenses under s. 7 of the Child Support Guidelines, proportionate to income. David’s income was set at $104,092.72 per year for support purposes and Angela’s income was set at $10,573.56 per year.

[22] In the four following years, David only paid a total of $16,438.76 in support and $521.23 in s. 7 expenses. That is just over four months of support payments as ordered by Gray J. He only made one full payment of support under Gray J.’s temporary order, that being for June, 2014. David then voided his next cheque, for July, 2014 support, even though he was still working. He claims, without corroboration, that he cancelled the cheque at the behest of an employee of the Family Responsibility Office (“FRO”). Considering that FRO’s job is to collect support as ordered by the court, not advise payors to disobey support orders, and the fact that David cannot fully name that FRO worker, let alone call her to testify, his claim is not credible. Most of David’s other support payments were garnished by FRO from his employment insurance benefits.

Termination of David’s Employment

[23] About nine months after making his threat and five months after Gray J.’s order, on or about November 14, 2014, Joe Donato terminated his employment. David says that Mr. Donato explained that Horizon Homes was moving away from residential construction to commercial work. That explanation is, of course, hearsay. Even considering that explanation, David is unable to explain why the change in company focus resulted in his termination. He never called Mr. Donato to testify or produced all of the records related to his termination.

[24] David claims that he was provided with no pay in lieu of notice. He says that he was not entitled to such pay because he was laid off. He fails to explain why that was the case. He attributes the information to his former employer’s secretary.

[25] David is also unable to explain why, if his alleged lay off prevented him from receiving any payments arising from that layoff, he did not request such pay when the employer later said in a notice of employment, that he had been terminated. He should have been entitled to payment in lieu of notice and termination pay under the Employment Standards Act.

[26] Angela insists that this employment termination was really a form of collusion between David and Mr. Donato. She recalls his threat to quit work. She points out that David and Mr. Donato were good friends. She adds that he took a number of vacations after they separated, both before and after his employment was terminated by Horizon Homes. He never took such holidays during his relationship with Angela. In addition, he admitted that he chose not to work during the entire period that he was in receipt of Employment Insurance benefits.

[27] David received Employment Insurance for about ten months after his termination. It ran out by September, 2015. He has not been employed since then, although Angela claims, with some justification, that he has worked “under the table”. David has provided a number of explanations for his failure to obtain employment, a number of which are neither credible nor mutually consistent.

David’s Explanations for his Failure to Find Work

[28] David’s varied explanations for his failure to find work after he was terminated by Horizon Homes, range from his health to his education, to FRO’s suspension of his driver’s licence. Angela rejects David’s explanations. She argues that he has chosen his unemployment in order to carry out his threat not to pay support. She asks the court to find that he was and remains intentionally under or unemployed.

Trial Issues

[29] In considering all of the above, this case raises the following issues:

1. Has David been intentionally underemployed since his employment was terminated?
2. If so what income should be imputed to him for the years 2015 onward?
3. What, if any, retroactive and prospective spousal support does David owe to Angela?
4. What equalization payment does David owe to Angela?

Note about Request to Admit

[30] On March 27, 2017, Ms. Jarvis, counsel for Angela, served a lengthy request to admit on David’s then counsel. Less than two weeks later, on April 6, 2017, Mr. Sheremata successfully moved to have himself removed from the record. He cited a breakdown of his relationship with David. He undertook to Fitzpatrick J. that he would provide the entire file to David, who did not oppose the motion.

[31] David never responded to the request to admit. Under FLR R. 22(4), that failure to respond to a request to admit becomes a deemed admission after 20 days. The sub-rule reads as follows:

RESPONSE REQUIRED WITHIN 20 DAYS

(4) The party on whom the request to admit is served is considered to have admitted, for purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days,

(a) denying that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine; or

(b) refusing to admit that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine, and giving the reasons for each refusal.

[32] Thus David is deemed to have admitted the entire contents of Angela’s Request to Admit. However where the Request to Admit is merely rhetorical or calls for conclusions of law I ignore it. Two such examples are:

• “[Angela] … has a strong compensatory claim, and no ability to earn income” and
• “[David] … is intentionally underemployed or unemployed.

[33] Further, because David became self-represented before the 20 day period of R. 22(4) expired, and has remained so ever since, I am open to ignoring any deemed admission if there is clear evidence to the contrary.

[34] As set out below, I have considered all of the evidence that David tendered at trial to determine whether it overcomes the deemed admission called for in R. 22(4). Little of his evidence accomplishes that task.

Issue No 1: Has David been intentionally underemployed since his employment was terminated?

Law Regarding Imputation of Income

[35] Section 19 of the CSG, allows for the imputation and attribution of income to a spouse. Section 19(1)(a) allows for the imputation of such amount of income to a parent or spouse as the court considers appropriate when

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;

[36] The leading case regarding the imputation of income to a support payor is the decision of the Ontario Court of Appeal in Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731 (C.A.). At paragraph 32 of that decision, the court described the imputation of income as:

... [O]ne method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[37] As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala v. Pauli:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[38] In reviewing the case law, Chappel J. cites at para. 57, seven principles that apply to the imputation of income to a support payor:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.
2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.
3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.
4. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.
5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.
6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.
7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute. [Note: citations in original omitted]

[39] Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a payor, that discretion is not absolute. As the Ontario Court of Appeal stated in Drygala v. Pauli at para. 44:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[40] In Drygala v. Pauli, the Ontario Court of Appeal set out the following three questions which should be answered by a court in considering a request to impute income under s. 19 (1) (a) of the CSG:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by the needs of any child or by the reasonable educational or health needs of the parent or spouse?
3. If not, what income is appropriately imputed?

[41] The Ontario Court of Appeal made clear in Drygala v. Pauli that the test for imputing income is the same for child and spousal support.

[42] The test set out in Drygala v Pauli was recently refined by the Ontario Court of Appeal in Lavie v. Lavie, 2018 ONCA 90. There, Rouleau J.A., speaking for the court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment, (and by extension, unemployment) are not relevant. He wrote:

26 There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

Application of the Principles of CSG s. 19 to the Facts of this Case

[43] David worked steadily in high paying construction work until just months after his separation. He worked for a friend, who happened to fire him just months after he threatened to quit work so that he would not have to pay support. David explains that he did not mean what he said. He was surprised to have been fired by his friend. Angela says that the firing was collusion. There is no doubt that the timing looks very suspicious.

[44] However I note that David consented to the $4,000 per month temporary order just months before he was laid off. He was represented by counsel at the time that he consented to the Gray J. order. If he wanted to avoid paying any support, he would not have agreed to a hefty support order.

[45] If David wanted to arrange with his friend to be laid off, he could have arranged the scheme earlier, not nine months after the argument and threat. He certainly does not strike me as a crafty fellow who would be able to sit on a scheme to get himself fired for nine months. For that reason, suspicious as the circumstances of his firing are, I do not find that his firing was part of a scheme that he entered into with Mr. Donato.

[46] But what is even more suspicious than his firing is the fact that David has been unable to find any employment since he was terminated. Nor did he even seek pay in lieu of notice or termination pay under the Employment Standards Act.

[47] David has offered a number of explanations for his three and a half plus years of unemployment after 31 years of steady work in the construction industry. Few of those explanations are either convincing or consistent with each other.

[48] He argues that he has been unable to find work because:

1. His physical and mental health prevent him from working;
2. FRO suspended his driver’s licence for non-payment of support, meaning that he cannot drive to work or drive a truck provided by his employer;
3. He requires a grade 12 diploma to find employment.

[49] David has offered little evidence of his efforts to find employment. He has not obeyed disclosure orders. He admitted that he did not try to find work in the first nine months after he was terminated. He turned down a number of job leads, opportunities, and offers.

[50] Those facts alone allow for the finding, in the absence of evidence to the contrary, that he is intentionally under or unemployed. The onus then shifts to him to disprove such a finding. I find that he failed to do that for the following reasons.

[51] First, his very limited medical evidence is not convincing. I say that because:

1. While David claims that his health prevents him from working, he provided the court with scant evidence of any physical or mental condition that prevents him from working. This paucity of evidence stands in the face of the August 28, 2015 order of Miller J. that required him to produce his updated medical records. He failed to do so. He only provided two medical documents, one week before trial.
2. I am entitled to draw a negative inference and impute income to David because of his breach of any disclosure order (see CSG s.19(1)(f), Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196 (O.C.A.) at para. 64, and Moore v. Fernandes, 2001 ONSC 28263, [2001] O.J. No. 5192 (S.C.J.) at para. 5).
3. The only medical records of any kind that David produced prior to trial were provided to Ms. Jarvis only about one week prior to trial. Those records consisted of a three sentence note from his family doctor, Dr. Asifa Saleem, and a medical report form that Dr. Saleem prepared for Service Canada (presumably in support of an application for CPP disability benefits) (“the report”). Mr. Woofenden failed to provide Dr. Saleem’s complete records or records of his hospitalization in November, 2017.
4. Despite David’s late production, breaches of a disclosure order regarding his records and failure to offer notice under the Evidence Act, I allowed Dr. Saleem’s note and report into evidence. That admission does not mean that I am required to place any particular weight on the documents.
5. The first of David’s medical documents is a “To whom it may concern” note by Dr. Saleem, dated January 23, 2018. It states that David: …suffers from chronic anxiety and depression and insomnia and chronic shoulder muscles pain. He is on Cymbalta, trazadone and clonazepam prn. He can do any work with modification, for example no heavy lifting more than 5 kg.
6. In other words that letter does not say that David is unable to work. To the contrary, it says that he “… can do any work with modification ...” [emphasis added] The only limitation in that work is that he cannot lift over five kilograms at a time. Since David previously worked as a supervisor, that limitation should not be a problem if he were to look for supervisory work. The fact that he has been offered supervisory work is proof of that statement.
7. The second document is a four page “medical report” form that Dr. Saleem filled out for Service Canada on April 10, 2018 (“the report”). The report was written about two and a half months after Dr. Saleem authored his brief note. The report offers the following diagnoses for David: a) Chronic anxiety, depression b) Multiple pain & L shoulder rotator cuff, disease, planter fasciitis, cervical/neck pain. c) Left distal radius fracture from fall in Apr. 2018. David offered the court no evidence regarding the fall and fracture.
8. The report focused on David’s emotional problems, referring to his baseline anxiety, which can lead to shaking and tremor if exacerbated. It can also worsen his “multiple pains”. The report speaks to a hospitalization for depression from November 10-16, 2017. It speaks to supporting evidence for David’s condition from laboratory reports, X-ray reports and consultant’s opinions. None of those have been produced.
9. While the report emphasizes David’s emotional condition, it does not say that there had been recent changes to that condition. Presumably Dr. Saleem was aware of the depression and even the hospitalization when he prepared his note four months earlier. At that time, he wrote of David’s ability to perform “… any work with modification …”
10. David failed to call Dr. Saleem to testify. That means that Angela’s counsel was unable to cross-examine Dr. Saleem. I am entitled to draw a negative inference from his failure to call Dr. Saleem.
11. Dr. Saleem is a treating physician, not an independent expert. He is what the Ontario Court of Appeal referred to in Westerhof v. Gee Estate, 2015 ONCA 147 at para. 59-64 as “participant expert”. Such experts derive that description because of their participation in or observation of the underlying facts that are the basis of their opinion. Such experts are not subject to R. 20.1 and need not fill out the acknowledgement of expert’s duty form (Form 20.1). But they must still limit their opinions to areas within their expertise. The court exercises a gatekeeper role to ensure that they do not stray outside the bounds of their expertise.
12. Here Dr. Saleem did not testify. He was not qualified as an expert. I know nothing of his expertise in diagnosing psychological maladies or opining on a patient’s fitness for work. I also know nothing of the source of his opinions, whether they come from the mouth of David alone, or are based on independent and objective investigations.
13. I only have two parts of Dr. Saleem’s larger file, his January 23, 2018 note and the report. To the extent that his opinions derive from outside sources of information, those sources have not been articulated, let alone produced. Those sources presumably include the undisclosed hospital records, X-rays, and consultation notes cited in the report. Accordingly, I cannot place a great deal of reliance on the report.
14. David has written to Angela’s lawyer, Ms. Jarvis, three times, saying that he could get a job if only he could get his driver’s licence back. In the following emails, he made no reference to his medical condition holding him back from getting a job: i. On November 9, 2017 he wrote “I’ve had some job offers but they are out of town and my licence is suspended so it’s kinda hard to except one I need it back so I can make money foir Angie and I”. ii. On January 27, 2018, he wrote “[m]ore applications but like I said before if I had my licence back I could have a job now.” iii. Then just days before this trial began, on June 5, 2018, he wrote “I also need my licence back iv’e had job offers out of town”. [note: spelling and syntax in each email unchanged]
15. In addition, David testified that at home, he does cleaning and yard work. He does this work despite any physical limitations.

[52] I also reject David’s non-medical arguments regarding his inability to find work since November, 2014 for the following reasons:

1. David admitted that he did not even bother to seek employment for the ten months following the termination of his employment because he felt stressed and needed a break. In the absence of meaningful medical evidence, that is just another way of saying that he did not want to look for work.
2. His disclosure of evidence of his post-termination income and the reasons for his termination is spotty at best. On February 10, 2015, Fitzpatrick J. ordered him to provide full disclosure of the records of his Employment Insurance file, all of his pay statements from November, 2014, a copy of his Record of Employment, his bank records and his Visa records. As set out above, I am entitled to draw a negative inference from his failure to obey that and any other disclosure order.
3. From the evidence provided at court, which is less than crystal clear, it appears that David’s driver’s licence was only suspended in the last year or so. In other words, the licence suspension did not prevent him from working for at two to three years after the termination of his employment. Based on the trial evidence, David first raised the claim that his licence suspension affects his ability to find work in his email of November 9, 2017, cited above.
4. David failed to prove that he is unable to get a job without a driver’s licence. The only reason that he lost his licence is his disobedience of Gray J.’s temporary support order of June 23, 2014, one he never attempted to vary. Yet he went into arrears just a month after that order was made. Those arrears arose while he was still working at a well-paying job.
5. David applied for a number of jobs despite the absence of a driver’s licence. He stated in his testimony that he told Mr. Hall, a potential employer, that he does not have a licence but would try to get it back. Mr. Hall remained interested in hiring him until David offered a story about being busy with other work.
6. If David obtained a job, he would be paid well. He could afford an uber. His common law partner drives and she does not have a job. She could drive him to work. He could ask a co-worker for lifts. There is always public transit.
7. It was and is possible for David to try to work with FRO to get his licence reinstated if he had a solid work offer. But there is no evidence that he attempted to do that. He did claim to have jobs available in November, 2017 and June, 2018, had he obtained a licence. He even told Hall Construction that he did not have a licence and would work to get it back.
8. David’s lack of interest in employment was manifested by his dealings with Hall Construction. He applied for a supervisory job with Hall Construction. The employer was interested in him. But he put it off, saying “I’m finishing up a couple of small jobs, a basement and some drywall repairs …”. He explained that he was just trying to let the employer believe that he was busy. But that explanation rings hollow. Why would he have to give such a story to the employer if he was in the process of being offered a job?
9. On the other hand, if he was willing to lie to this prospective employer to suit his ends, what prevents him from lying to the court when it suits his interests? Either way he is neither credible nor attempting to use his best efforts to find employment.
10. I add that David stated in his testimony that six months earlier, that is, in early 2018, he had been offered two jobs in Cambridge and another in Stoney Creek. He chose not to take them.
11. If David needs a grade 12 diploma, why was he able to work for over 31 years without one? Why was Hall Construction interested in hiring him, why did he get three job offers earlier this year, and why did Dan Mar Homes offer him a job without one in 2017 (which was withdrawn for reasons unrelated to David’s ability to work)?
12. If David really needed a grade 12 diploma, why has he only obtained one credit (grade 11 English) towards that diploma despite over 3 ½ years of unemployment?
13. David claimed to have signed up for the Indeed work search engine website, which sets out available jobs. But he is unable to provide any proof of any job searches through that search engine, offering lame excuses for the absence and even destruction of that evidence.
14. David sold his work tools some time ago. They are presumably necessary to his ability to work. Why would he sell them if he intended to continue working? He does not adequately explain this.

[53] As stated above, many of the explanations that David has offered are mutually contradictory. He variously blames his health, education, and his loss of a driver’s licence for being unable to work. But he had the same lack of education and presumably the same mental state while he worked for 31 years (he has offered no evidence to the contrary).

[54] If David is emotionally unable to work, why is he looking for work? He testified that, despite applying for a CPP disability pension (which he has yet to receive), he would take a job if it is offered to him.

[55] If David requires a grade 12 diploma to work, why has he done so little to get that diploma over the past three and a half years? There is no evidence that he is unable to attend school. And why, despite the lack of a grade 12 credential, were five different employers interested in offering him work in the past year and a half?

[56] If David’s driver’s licence status prevents him from working, why is he applying for jobs that require driving? Recall that he still had his driver’s licence (and his job) when he decided to stop paying any support.

Conclusion Regarding Intentional Under or Unemployment

[57] For all of the reasons set out above, I do not accept David’s explanations for his failure to find employment following his termination. Whether or not his termination was part of a scheme to avoid paying support, his failure thereafter to find employment was unreasonable and unacceptable. His explanations for his failure to find work are not credible. His present unemployment is the result of a series of conscious decisions that he made.

[58] Accordingly, in the terms of the Ontario Court of Appeal in Drygala v. Pauli, I find that David is intentionally under or unemployed. Based on the evidence before me, that intentional under or unemployment is not required by his reasonable educational or health needs.

Issue No. 2: What income should be imputed to David for the years 2015 onward?

[59] Angela asks me to impute an income of $83,394 per year to David. She argues that this is the amount that he earned in 2014, despite his termination six weeks before the end of the year. At trial, David testified that if he worked in Toronto or Oakville, he could make $80-100,000 per year.

[60] Angela also claims that David earns cash “under the table” in an unknown amount. She cites David’s email to Mr. Hall about being busy with other work, to support that claim. She also made that claim in her Request to Admit. By failing to respond, David is deemed to have admitted the allegation.

[61] However even if I find that David earns cash, I am in no position to say how much he is earning. He exhibits few indices of a man earning any sizable income, let along one that approximates his previous income. I cannot find that David earns a substantial cash income.

[62] Under CSG s. 19(1)(a), I am not required to find that a support payor actually earns a certain income in order to find him or her to be intentionally under or unemployed. To the contrary, it is just that, in the words of Rouleau J.A. in Lavie, David “… is earning less than she or he could be.”

[63] Here it is apparent that David could have a job if he wanted one. He does not appear to want one. He has failed to find employment when he was capable of doing so, as the episode with Mr. Hall demonstrates. He also had the motivation not to work, as his threat to quit work and his decision to stop paying support even while he was working, demonstrate.

[64] I have not been provided with evidence of what David would have earned as supervisor with Hall Construction, but David admits to a potential income of $80,000 - $100,000 per year. He earned in that neighbourhood before his employment termination.

[65] Based on the best evidence available to me at trial, including David’s own admissions, he should be able to earn an income similar to his 2014 income of $83,394 per year as a construction supervisor. I impute that income to him.

Issue No 3: What if any retroactive and prospective spousal support does David owe to Angela?

[66] The parties’ minutes of settlement include the implicit notion that Angela is entitled to spousal support. She was engaged in a long term marriage. She was a stay at home parent. She moved a significant distance at least once for David’s career benefit.

[67] On the other hand, she did not give up a career to be a stay at home parent because she was virtually totally disabled from working when they married. She was unemployed at least from the time of her pregnancy.

[68] Thus she is entitled to some element of compensatory support, but her claim is equally needs based. In reviewing the SSAG calculation provided by Ms. Jarvis at exhibits V and W of Angela’s trial affidavit, the range of support payments is Low: $1,915/mo., Mid: $2,095/mo. and High $2,274 per month. However those figures are based on the “with child” formula. Based on the parties’ evidence and the terms of the minutes of settlement, that formula applies for the period between January, 2014 and May, 2015, inclusive. For that period I order support at the mid-range, of $2,095 per month.

[69] Over seventeen months, David should have paid $35,615. Whatever payments he made during that time were used to calculate his child support arrears in the parties’ partial minutes of settlement. Accordingly he has spousal support arrears of $35,615 for that seventeen month period. As David is not entitled to a tax deduction for any lump sum retroactive payment, I offer him a notional 25 per cent deduction, to make the total owing for that period at $26,711.25.

[70] Thereafter the children were out of school. In accord with the parties’ agreement, David was not required to pay child support. That makes this a “crossover case” as defined by s. 14.5 of the SSAG. That is because s. 15(3) of the Divorce Act requires the courts to give primacy to the obligation to pay child over spousal support. When the child support obligation ends, more money is available to meet the spousal support obligation. (see s. 14.5 of the SSAG and s. 14 of the SSAG Revised Users Guide).

[71] Here I do not have any SSAG calculations based on a without child formula. If requested, I can calculate the quantum under the with-child formula or I can await further calculations from Ms. Jarvis. This applies to both retroactive support commencing June 1, 2015 and ongoing spousal support.

Issue No 4: what Equalization Payment does David owe to Angela?

[72] With regard to Angela’s claim for an equalization payment, David has provided little evidence. His financial statement for trial is unsworn. He has provided little financial disclosure.

[73] Starting with the appropriate valuation date, until trial, David always accepted Angela’s valuation date, December 10, 2013. At trial, he claimed that it was sometime in February or March, 2014. He offers no evidence but his word to support this assertion.

[74] I do not accept David’s valuation date because he previously admitted to the December 10, 2013 date. As set out below, I see no reason to allow him to withdraw that admission.

[75] Starting with the pleadings, Angela cites the date of separation as December 10, 2013 at page 3 of her Application. David accepts that date at para. 5 of his Answer. That pleading was prepared by his counsel. This is an admission. He made a similar admission in his lone financial statement sworn before trial, on June 16, 2014. That too is an admission.

[76] Similarly, David admitted to the December 10, 2013 date by failing to respond to Angela’s Request to Admit that cited the date. That is a deemed admission.

[77] Under FLR R. 22(5), an admission that a fact is true can only be withdrawn on consent or with leave of the court. Consent has not been granted and leave has not been requested. Had it been, it would not have been granted for two reasons.

[78] First, allowing David to withdraw his admission as to the date of separation would have prejudiced Angela. She prepared her case based on an agreed upon valuation date.

[79] Second, there is not a shred of independent evidence that contradicts Angela’s date. David cannot even offer a concrete alternate date. On the other hand, the weight of evidence shows that the December 10, 2013 date makes logical sense.

[80] I cite two examples:

1. David never went on a holiday during all of the 21.5 years of his marriage to Angela. Yet he chose to go on holidays without Angela and the children after that December 10, 2013 date. He went to Cuba for ten days, commencing January 20, 2014, before his alleged separation date, but after that of Angela. He then went to Nashville for a further ten days in July, 2014. But he bought the tickets just before Christmas, 2014.
2. David’s threat to quit work if he had to pay support was made in January, 2014, after Angela’s date but before his. It makes sense for them to argue about support after separation rather than before.

[81] For all of the reasons set out above, I accept that December 10, 2013 is the proper valuation date for the parties.

[82] The remaining issues involve particular valuations on the date of separation regarding the value of David’s tools, the amount that David had in the bank and the amount of credit card debt that Angela carried.

[83] Angela says that David’s work tools should be valued at $12,000 on the date of separation. She asserts that they cost about $30,000, new. She purchased many of those tools and claimed to know their cost, generally. She says that many were expensive like air compressors and other power equipment. She offers the following list of tools that he does not deny:

1. air compressors;
2. gas powered mobile generator;
3. table saws (compound miter saw and a table saw);
4. numerous nail and staple guns;
5. drill press;
6. several ladders;
7. clamps;
8. rotar table;
9. numerous basis hand tools (hammers, drivers, ratchet sets, chisels, files, screw drivers, wrenches);
10. several drills;
11. hammer drill;
12. jig saw;
13. concrete saw;
14. portable welding machine and safety equipment;
15. a sawsall;
16. circular saws;
17. shovels;
18. jointers;
19. plainer; and
20. a cookie machine.

[84] David says that he sold all of his tools for $1,500 in a garage sale. He provides no proof. The onus is on him to prove the value of his tools. Because he sold them without notice to Angela, she did not have the opportunity to value them on her own.

[85] All of the tools were well used by David at work. I cannot assume that they were in anything but a less than ideal condition. However the value on December 10, 2013 was likely not as low as $1,500. There is no dispute that they were good tools and were purchased for far more than $1,500. But David has offered no explanation for why he sold his tools, and why he did so for so little money. I have said above that the sale of his tools is an indication of his lack of desire to work. That may explain the low price.

[86] Used tools, like all used goods, rapidly depreciate in value soon after they leave the store. That is even more the case when they are used daily for work. In the absence of any better evidence, I find that the value of David’s tools on December 10, 2013 was 20 per cent of their original price, or $6,000.

[87] With regard to David’s bank accounts, he had two of them, each from TD Bank. He was ordered to produce the relevant bank statements. He produced one for the account that ended with 9114. According to the bank statement for that account, the balance on December 9, 2013 was $11,392.61. He had no transactions the following day. Thus I accept that his bank balance on the date of separation was $11,392.61.

[88] With regard to the other account, the one whose account number ends with 8138, David produced no date of separation account statement. He produced a statement that showed that on January 31, 2014, he had $3,501.24 in the account. In light of David’s disclosure obligation and the fact that that statement is the best evidence available, I accept that figure.

[89] With regard to Angela’s credit card balance, the best evidence is a Visa statement issued on February 3, 2014. It states that the previous balance was $8,258.67 as of January 2, 2014, 23 days after separation. As that is the best and really the only evidence, I accept it, but with a notional deduction of $150.00 for accumulated interest. Thus I find that the proper figure is $8,108.67.

[90] Based on the figures set out above, and accepting the remainder of the figures in Angela’s net family property statement, which are not contested, I find that David owes Angela an equalization payment of $10,149.26.

Order

[91] For the reasons set out above, I order that:

1. David will pay to Angela arrears of spousal support in the lump sum of $24,735.75 for the period between January 1, 2014 and May 30, 2015.
2. Ms. Jarvis will advise the court whether she wishes to file further Divorcemate calculations based on David’s income of $83,394 per year, calculated on the SSAG “without child” formula. If so, I will hold a further hearing to determine David’s retroactive support obligations from June 1, 2015 onward as well as ongoing spousal support. If not, I will make the calculation on my own.
3. Should either child return to school, any spousal support calculation based on the without child formula will be revisited without the need to prove a further material change in circumstances;
4. Should David obtain any employment (presumably but not as a construction supervisor or a similar position), he will immediately inform Angela of the details of his employment, including salary and benefits. At that point, either party may apply to review the ongoing spousal support terms and any terms of payment of retroactive support. I will be seized of such an application. At that time, new payment terms may be determined that would allow for the reinstatement of David’s driver’s licence.
5. Having said that, I would be reluctant to lower David’s support obligation unless he proves that the reasons that I imputed income to him no longer exist (see Trang v. Trang, 2013 ONSC 1980 (SCJ (FC)) at par. 50-60 and Ruffolo v. David, 2016 ONSC 754, 2016 CarswellOnt 2151 (Ont. Div. Ct.)).
6. David will pay Angela an equalization payment of $10,149.26, which sum shall be paid to Legal Aid Ontario. Legal Aid Ontario is entitled to enforce the payment of this amount.
7. Until further order, David shall pay 88.4 per cent of any s. 7 educational expenses for either Rory or Taylor.
8. I may be spoken to as to costs of this proceeding.

Kurz J.

Released: July 26, 2018