Toronto (North York) Registry No. D45549/08

DATE: 2012·I·30

CITATION: Caine v. Ferguson, 2012 ONCJ 139

ONTARIO COURT OF JUSTICE

B E T W E E N:

GALENE CAINE

Applicant

Marcia Chambers, agent for the assignee, the City of Toronto, assisting the applicant

— AND —

DAVID FERGUSON

Respondent

Herman W. Pat, duty counsel assisting the respondent

HEARD: 25 January 2012

JUSTICE S.B. SHERR (endorsement):—

1: INTRODUCTION

[1] The respondent has brought a motion to change child support ordered by this court on 15 May 2009 for the child Ashanti (now age 9), and to rescind or reduce the child support arrears that have accrued under this order.

[2] The applicant asks that the respondent’s change motion be dismissed. She has assigned her child support to the City of Toronto, who assisted her on this motion.

[3] The order of 15 May 2009 (“the order”) was made after a default hearing. The respondent had appeared at the first appearance court. However, he did not comply with orders (made on consent) to obtain DNA testing and to provide financial disclosure. He did not file an answer or attend at court on the return date. The case proceeded in his absence.

[4] The court imputed income of $35,580 per annum to the respondent and required him to pay the table amount of child support, pursuant to the Child Support Guidelines, O. Reg. 391/97, as amended (“the guidelines”) of $332 per month, starting on 1 September 2008.

[5] The respondent immediately went into child support arrears. He did not pay any child support until May of 2011, after the Family Responsibility Office began enforcing the order. He is currently in arrears of $11,802.[^1]

[6] The respondent commenced this motion to change on 17 August 2011.

[7] The respondent also asked to set aside the order on the basis that he did not receive notice of the original application. This request was quickly disposed of on 18 November 2011, when it was pointed out to the respondent that he had actually attended at court on 13 February 2009 and consented to an order. He clearly had notice of the support application.

2: RESPONDENT’S EVIDENCE

[8] The respondent is 29 years old. He deposed that he was working as a baggage handler at the airport, earning about $18,000 per annum, until he was injured in a car accident in 2008. He said that he lost this job as he could only perform light duties because of injuring his shoulder in the car accident. He provided no evidence from his employer that he lost the job for this reason.

[9] The respondent deposed that he is married and has two young children with his wife. He said that they agreed that he should stay at home and look after the children, so that she could first complete school and then subsequently work part-time. He said that he is now working part-time on his music career when not looking after the children. He stated that he is a talented musician and that he is writing, performing and producing his own music. He showed the court his recent CD. He says that he is not making any money yet, but he is giving away the CD at no cost and performing at shows for free in order to become better known. He said that his music is being played on music stations. He also has made some music videos that are on the internet.

[10] The respondent filed tax returns showing the following line 150 income:

2007

$18,152

2008

$3,922

2009

$5,328

2010

$0

[11] The father did not provide any documentary evidence of his income in 2011. He claims that he did not earn any income.

[12] The respondent received a personal injury settlement of $10,000 arising out of his car accident in July of 2011. He quickly went through this money, travelling to St. Maarten with his wife (at least once) and making music videos.

[13] The respondent has made only nominal efforts to seek work since 2008.

3: ANALYSIS

3.1: Change in Circumstances

[14] This motion is governed by subsection 37(2.1) of the Family Law Act, R.S.O. 1990, c. F-3, as amended, that reads as follows:

(2.1) Powers of court: child support.— In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a)

discharge, vary or suspend a term of the order, prospectively or retroactively;

(b)

relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c)

make any other order for the support of a child that the court could make on an application under section 33.

[15] I am satisfied that there have been changes in circumstances that warrant changing the order as follows:

(a)

The respondent has established to my satisfaction that he does not have the ability to earn the income that was originally imputed to him.

(b)

The respondent has some medical limitations that limit his employability.

(c)

The respondent has child-care responsibilities for his two other children that could affect his ability to maximize his income.

3.2: Assessment of Ongoing Support Obligation

[16] The next step is to determine the appropriate amount of ongoing support. The respondent argues that he does not earn sufficient income to pay any child support pursuant to the guidelines.

[17] Clause 19(1)(a) of the guidelines reads as follows:

19. Imputing income.—(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a)

the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[18] 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 or unemployed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli, 2002 CanLII 41868, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Cars­well­Ont 3228 (Ont. C.A.).

[19] The court in Drygala v. Pauli sets out a three-part test to determine whether income should be imputed. The first part of the test is to ask whether the payor is intentionally under-employed or unemployed. The court stated 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 they are capable of earning. The court must look at whether the act is voluntary and reasonable.

[20] The onus is on the applicant to establish that the respondent 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, 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Cars­well­Ont 2068 (Ont. C.A.). However, persistence in unremunerative employment may entitle the court to impute income. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. See DePace v. Michienzi, 2000 CanLII 22560, 5 R.F.L. (5th) 40, [2000] O.J. No. 453, 2000 Cars­well­Ont 425 (Ont. Fam. Ct.).

[21] The respondent offered several reasons for not earning income, including:

(a)

His child-care responsibilities.

(b)

His desire to concentrate on his music career.

(c)

The suspension of his driver’s licence by the Family Responsibility Office.

(d)

Residual pain from his motor vehicle injury.

[22] The respondent said that he would be willing to pay child support if he knew for sure that the child was his.[^2] However, he said that he had no money to obtain DNA testing and when asked, would not give the court a clear indication of when he might obtain such testing if an adjournment was granted for this purpose.

[23] The respondent also felt that it was unfair to expect him to work and to pay child support when the applicant was not working and was collecting social assistance.

[24] I find that the respondent is deliberately under-employed. He is choosing to earn less income than he is capable of earning. He is choosing to pursue a speculative music career at Ashanti’s expense. He has no desire to pay child support for Ashanti and appears quite content with the status quo (provided that he can get his driver’s licence back).

[25] The respondent completely failed to comply with the order and as a result, had his driver’s licence suspended. He cannot use his own misconduct as a shield against a support claim or as a justification to reduce support arrears. See: Luckey v. Luckey, 1996 CanLII 11217, 63 A.C.W.S. (3d) 495, [1997] W.D.F.L. 146, [1996] O.J. No. 1960, 4 O.T.C. 306, 1996 Cars­well­Ont 2237 (Ont. Fam. Ct.); Maurucci v. Maurucci, [2001] O.J. No. 4888, 2001 Cars­well­Ont 4349 (Ont. Fam. Ct.); Sherwood v. Sherwood, 2006 CanLII 40795, 153 A.C.W.S. (3d) 661, [2006] O.J. No. 4860, 2006 Cars­well­Ont 7750 (Ont. S.C.). The consequences of his actions should be borne by him and not his dependants. See Baldini (Connolly) v. Baldini, 1999 CanLII 6717, 46 R.F.L. (4th) 407, [1999] B.C.J. No. 1426, 1999 Cars­well­BC 1370 (B.C.S.C.).

[26] The second part of the test in Drygala v. Pauli, supra, is: “If the payor is intentionally under-employed, is this by virtue of his or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs?” Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness.

[27] In both Cook v. Burton, 2005 CanLII 1063, 136 A.C.W.S. (3d) 504, [2005] O.J. No. 190, 2005 Cars­well­Ont 178 (Ont. Fam. Ct.), and Stoangi v. Petersen (Johnson), 2006 CanLII 24124, 150 A.C.W.S. (3d) 171, [2006] O.J. No. 2902, 2006 Cars­well­Ont 4375 (Ont. Fam. Ct.), the courts set out that cogent medical evidence in the form of a detailed medical opinion should be provided by the payor in order to satisfy the court that health needs justify his or her decision not to work. The medical evidence provided by the respondent was very dated — nothing more recent than 2008 — and lacked any detail. Although the respondent may have some minor medical limitations that will affect the amount of income that he can earn, he has not established that they preclude him from working full-time.

[28] I considered the respondent’s obligations to his second family — in particular the child-care obligations that he has assumed. In both Loscerbo v. Loscerbo, 2008 MBQB 183, 57 R.F.L. (6th) 186, [2008] M.J. No. 246, 2008 Cars­well­Man 362 (Man. Q.B., Fam. Div.) and Terracol v. Terracol, 2010 ONSC 6442, 195 A.C.W.S. (3d) 494, [2010] O.J. No. 5134, 2010 Cars­well­Ont 8959 (Ont. S.C.), the courts imputed income to parents for decisions to reduce work hours to care for children in a second family. I find that it would not be appropriate, in the circumstances of this case, to accept the respondent’s submission that his second family obligations should insulate him from his support obligation to Ashanti. The court must look at whether his decision to stay at home is reasonable in the context of his existing child support obligation. In this case, his choice was not reasonable. The respondent was aware of his support obligations when he chose to marry and have more children. There was no evidence that his choice to remain at home would improve the financial circumstances of the second family. In fact, the respondent’s evidence is that his wife first had to go back to school and is now only working part-time. He offered no evidence why it has been necessary for him to stay at home with the children. Although I acknowledge that the respondent will have child-care responsibilities that might affect his ability to maximize his income earning potential (such as earning overtime income), these obligations should not preclude him from working full-time and supporting all of his children.

[29] The respondent did not meet his onus with respect to the second part of the test in Drygala v. Pauli, supra.

[30] The third part of the test in Drygala v. Pauli 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 earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.

[31] The agent for the City of Toronto submitted that the respondent could be earning $35,000 per annum as a musician. In support of this argument, she attempted to introduce internet articles from two websites from the United States, called Payscale and Musician Wages.com.

[32] In Rodrigues v. De Sousa, 2008 ONCJ 807, 69 R.F.L. (6th) 449, [2008] O.J. No. 4541, 2009 Cars­well­Ont 8979 (Ont. C.J.), I relied on the case of Scholes v. Scholes, 2003 CanLII 2349, 125 A.C.W.S. (3d) 313, [2003] O.J. No. 3432, 2003 Cars­well­Ont 3299 (Ont. S.C.) and permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However, citing Isakhani v. Al-Saggaf, 2007 ONCA 539, 226 O.A.C. 184, 40 R.F.L. (6th) 284, [2007] O.J. No. 2922, 2007 Cars­well­Ont 4805 (Ont. C.A.), I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination. In the specific circumstances of the payor in Rodrigues v. De Sousa, I did not apply the wage range set out in the government publications.

[33] The documents sought to be introduced here are much more problematic. There was no evidence led that the documents were from reputable sources, such as was the case in Scholes v. Scholes or Rodrigues v. De Sousa. No foundation was provided as to the qualifications of the writers of the documents. The articles were both from the United States. The author of the Musician Wages.com article is an associate conductor of a Broadway play. There was no evidence indicating that he would have any knowledge about what level of income a freelance musician could earn in Toronto. The articles were from 2007 and 2008 respectively. I did not admit the documents into evidence as they did not come close to achieving threshold reliability.

[34] I did consider the following factors in assessing what income to impute to the respondent:

(a)

Until 2008 he worked steadily.

(b)

He earned, at least, a minimum wage income.

(c)

He only has a grade X education.

(d)

He is 29 years old and very personable.

(e)

He may have some minor medical limitations in finding work. He likely cannot perform work that requires heavy lifting.

(f)

He will have some child-care obligations that may limit his ability to maximize his income. He should not be expected to work overtime.

(g)

He states that he is a talented musician. If so, he should be able to obtain work as a freelance musician.

[35] I find that the respondent should be earning at least a minimum wage income ($21,300 per annum). This amount shall be imputed to him for the purpose of assessing his child support obligation on an ongoing basis.

[36] The next step is to determine what, if any, child support arrears should be rescinded.

3.3 Treatment of Arrears

[37] The decision to reduce arrears is discretionary. In assessing this issue, many courts are now relying upon the criteria set out in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars­well­Alta 976. See: Galloway v. Cassino (Barrett), 2008 ONCJ 577, 172 A.C.W.S. (3d) 444, [2008] O.J. No. 4525, 2008 Cars­well­Ont 6740 (Ont. C.J.); Fornal v. Fornal, 2007 ONCJ 170, 170 A.C.W.S. (3d) 584, [2007] W.D.F.L. 3891, [2007] O.J. No. 1498, 2007 Cars­well­Ont 2487 (Ont. C.J.); Grala v. Grala, 2008 ONCJ 556, 170 A.C.W.S. (3d) 828, [2008] O.J. No. 4395, 2008 Cars­well­Ont 6496 (Ont. C.J.); Corcios v. Burgos, 2011 ONSC 3326, [2011] O.J. No. 2422, 2011 Cars­well­Ont 3910 (Ont. S.C.). The four primary factors for the court to consider are:

(a)

The reason for the delay in bringing the motion to change.

(b)

The conduct of the party seeking to retroactively rescind arrears.

(c)

The circumstances of the child, both past and present.

(d)

Any undue hardship.

[38] Where the child support payor can establish a change in circumstances during the time that arrears were accumulating, which rendered them unable for a substantial period of time to make the full amount of the child support payments, the court may provide relief to the payor in a later proceeding to vary the child support order or rescind arrears. See: Corcios v. Burgos, supra. I have taken into consideration that it is more probable than not that the respondent was only capable of earning in the range of a minimum wage income from the time that support began to accrue. I also considered that he had the opportunity to provide the court with this information during the initial application and chose not to do so.

[39] The respondent did not bring his motion to change until 17 August 2011. He offered no reason for his delay in bringing his motion. Based on his non-payment of support and his statements that he did not feel that he should have to support Ashanti, it is clear that he had no intention of complying with the order and would have been content to ignore it if not for the suspension of his driver’s licence.

[40] The respondent’s behaviour has been blameworthy. He refused to pay child support and completely ignored the order. He has financially abandoned this child. When he received his settlement of $10,000 in 2011, he went on vacations and depleted the settlement within a few months. He has not come to this court with clean hands. The court cannot condone such behaviour and needs to send a clear message that there are consequences for acting this way.

[41] The child’s circumstances have not been affected by the respondent’s lack of support, as the applicant’s social assistance entitlement has remained unchanged. It has been the taxpayer who has had to subsidize the respondent’s financial neglect of Ashanti.

[42] Although repayment of the arrears may be difficult for the respondent, any hardship can be ameliorated by a reasonable repayment arrangement. I will allow the respondent to repay the arrears at $50 per month. Although this means that it will likely take a very long time before the arrears are repaid, I find that such an order balances considerations of the respondent’s behaviour and Ashanti’s right to be appropriately supported with the respondent’s economic realities. It is an amount that the respondent can afford to pay. However, this consideration for the respondent shall only continue if he keeps both his ongoing and arrears payments in good standing. Otherwise, the full amount of arrears will become enforceable by the Family Responsibility Office.

[43] Balancing all of these factors, I will retroactively adjust the respondent’s support obligation based on the imputed income of $21,300 per annum, but only from 1 August 2010 (one year prior to the commencement of the motion to change).

4: CONCLUSION

[44] A final order will go on the following terms:

(a)

The order of 9 May 2009 is changed to provide that, commencing on 1 August 2010, the respondent shall pay child support to the applicant in the sum of $182 per month, based on an imputed income of $21,300 per annum, being the guideline table amount for one child, and that, commencing on 1 January 2012, the monthly amount of support be changed to the guideline table amount of $170 per month.[^3]

(b)

The arrears of child support shall be adjusted by the terms of this order. No other arrears shall be rescinded.

(c)

The respondent may repay the child support arrears in the sum of $50 per month, commencing on 1 March 2012. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears shall immediately become due and payable.

(d)

If the respondent obtains employment that pays him in excess of $28,000 per annum, the applicant may move to increase the monthly repayment of arrears.

(e)

Nothing in this order precludes the Family Responsibility Office from enforcing arrears from any government source (such as income tax or sales tax refunds) or lottery or prize winnings.

(f)

The respondent shall provide the applicant with complete copies of his income tax returns and notices of assessment by 30 June of each year.

(g)

The respondent shall immediately advise the applicant about the details of any employment that he obtains, including the name and address of his employer and his rate of pay.

[45] I thank both Ms. Chambers and Mr. Pat for their able assistance in this matter.

Released: 30 January 2012 (revised)

Justice Stanley B. Sherr

[^1]: The statement of arrears was filed as exhibit 2. [^2]: The respondent signed the statement of live birth as the child’s father and failed to obtain DNA testing when given the opportunity during the initial application. [^3]: The guidelines table amounts changed as of 1 January 2012.