Court File and Parties
Court File No.: Brampton 1644-06
Ontario Court of Justice
Between:
Pietro De Fina Applicant,
— AND —
Diana De Fina Respondent.
Before: Justice S.R. Clark
Motion to Change the Final Order of Nelson J. dated January 13, 2010
Motion heard on: April 24, 2012
Ruling on Motion released on: May 8, 2012
Representation:
- Pietro De Fina — Self-represented
- Ms. A. Khadim — for the respondent Diana De Fina
CLARK J.:
1:0 INTRODUCTION
[1] The applicant father, Pietro De Fina, (hereinafter referred to as "the father") brings a motion to change, dated November 22, 2011, the final order of Nelson J., dated January 13, 2010 (hereinafter referred to as "the order").
[2] He seeks to terminate the requirement to pay child support as of December 1, 2011, and to adjust the amount of child support payable between January 1, 2011 and December 1, 2011, according to his income for this period.
[3] He is not presently employed. He has not worked since March, 2009.
[4] His income has been nil since 2009. His income tax returns for 2009 through 2011, filed, reflect this. He is presently receiving social assistance through Ontario Works.
[5] The respondent mother, Diana De Fina (hereinafter referred to as "the mother") asks the Court to dismiss his motion on the basis that he has made no meaningful efforts to secure employment, and there has been no material change in circumstances to trigger same. Accordingly, she submits that the Court should reinstate the terms of the original order of Baldock J. dated January 8, 2008, and arrears should be calculated and fixed accordingly. The salient terms of same are as follows:
- The mother has sole custody of the three children.
- The father shall have no access to the children, at his request.
- He is to pay child support for the three children in the amount of $666.00 per month.
- He is to pay spousal support in the amount of $129.00 per month.
[6] The subsequent order of Justice Nelson, however, sets out the following terms:
He is to pay child support of $1.00 per month, commencing October 15, 2009, for the three children, Marianna, born April 24, 1997, presently age 14, Paolo, born April 19, 1998, presently age 13; and Nicola, born January 7, 2000, presently age 12. This is based on nil income.
As of June 15, 2010, he is to pay child support for the three children in the amount of $158.00 per month, based on imputed annual income of $12,000.00.
As of January 15, 2011, child support will increase to $417.00 per month, on imputed annual income of $20,000.00.
He is also to pay an additional $100.00 per month toward outstanding arrears of child support, commencing June 15, 2011, until paid in full.
As of October 15, 2009, spousal support, pursuant to Baldock J.'s order, dated January 8, 2008, is varied to nil.
[7] His sworn financial statement, dated November 22, 2011, shows no income. However, monthly expenses total $680.00, consisting of $450.00 for rent; $80.00 for telephone and cell phone; $100.00 for groceries; $50.00 for clothing and hair care. He has outstanding credit card balances totalling approximately $13,000.00. Other debts total approximately $92,350.00.
[8] The Director's Statement of Arrears from the Family Responsibility Office, dated January 4, 2011 (note, this should be 2012), filed, shows $18,084.35 owing.
2:0 THE POSITIONS OF THE PARTIES
2:1 The Father
[9] In his affidavit, sworn February 9, 2012, filed at tab 7 of the Motion to Change record, he explains that the imputed income established by Justice Nelson was based on a prediction of his recovery from depression and on his ability to work in the future. Although he was cleared by his doctor to go back to work in 2010, he has been unable to secure employment. His depression and anxiety was more severe, making it difficult to recover. The medication he was taking was making him feel worse. He felt that it was not helping him and so he decided to stop taking it. He also stopped seeing his doctor.
[10] A letter from his former family doctor, Dr. Janet Little, dated December 19, 2011, sets out that he was diagnosed with depression in April, 2008, rendering him with poor concentration and focus, loss of motivation and energy, as well as feeling overwhelmed and suffering excessive fatigue. He was also experiencing anxiety. All of these affected his ability to work with machinery safely. He improved with medication and counselling. By March, 2009, he was cleared to be able to return to work. Unfortunately, his previous work place had experienced layoffs and his position was reportedly no longer available to him. By November, 2009, his mood deteriorated. He had not been attending counselling. He was last seen in April, 2010 and was continuing to improve and be in a position to seek employment again.
[11] He explained that he was also dealing with stress relating to his own mother being diagnosed with breast cancer. She underwent a mastectomy in 2010.
[12] After suffering through a period of withdrawal and sleep deprivation, with the assistance of his family members, he recovered sufficiently by November, 2011, to be in a position to look for work.
[13] Historically, he had worked for Malpack Ltd. as a machine operator for 19 years. He stopped working in April, 2008, due to his depression and thereafter, a company layoff in 2009.
[14] He indicated that he had a job prospect for mid-April, 2012. He was not sure, however, what his salary would be, but was told that he would have the use of a vehicle with the position.
[15] He was also considering returning to his old position at Malpack Ltd., however the company is located in Ajax, Ontario, and he has no vehicle. It would be too expensive for him to take public transit daily.
[16] He presently resides with his parents who have been helping him with his finances. He has attached, as Exhibit "E" to his affidavit, a child support arrears calculation. It is his position that, as of December 31, 2011, arrears of child support totals only $7,783.00. He is, therefore, asking the Court to fix arrears in this amount as at that date. He submits that, on the basis of Justice Nelson's endorsement on January 13, 2010, support arrears were rescinded between May 1, 2008 and April 15, 2009. However, the Family Responsibility Office did not adjust the arrears. They should have been reduced by $9,083.27 to the stated amount of $7,155.86, as of April 15, 2009.
[17] In his supplementary affidavit, sworn April 18, 2012, he has attached, as Exhibit "A", a letter dated April 11, 2012 from Mr. Shane H. Nisble, indicating that he had a premature conversation with the father in August, 2011 regarding a potential job opportunity with Mr. Nisble's driveway sealing company, with an anticipated commencement date in May, 2012. However, the company is not a going concern as yet. The father is unable to advise the Court when work with this company and this individual may be available.
[18] He has also provided a letter, dated April 8, 2012, confirming that he presently has no bank accounts, or access to any bank accounts. The last one he had was a joint account with the mother.
[19] In his oral submissions, he indicated that the job with Mr. Nisble could still be available by the end of May of this year. Mr. Nisble is his best friend's wife's brother.
[20] He acknowledged that he has not made any other efforts relating to job searches. He explained that he is spending most of his time trying to deal with the Family Responsibility Office by calling them on the phone to try to determine the appropriate amount of arrears of child support.
[21] He insists that once he is back to work he will resume paying his fair share of child support.
[22] Quite frankly, he thought that a representative from the Family Responsibility Office would be in Court on April 24th, to straighten this matter out with him.
2:2 The Mother
[23] Her written materials, set out in the form 15B Response to Motion to Change, at tab 5 of the record, sets out her position. She does not agree with the father's claim that there has been a change in circumstances. Accordingly, the Motion to Change should be dismissed. Furthermore, the father should be responsible for costs. She is also asking the Court to order that he must seek leave of the Court before bringing any future motions to change regarding child support and/or support arrears.
[24] Historically, any support paid by the father has been sporadic, at best. He has provided no information in his financial statement as to how he maintains personal expenses of $680.00 per month and claims that he has no bank accounts whatsoever.
[25] His documentation regarding his alleged depression is also lacking, in that he was last seen by Dr. Little in April, 2010. At that time, her assessment was that he continued to improve and was able to seek employment.
[26] Furthermore, he provides no evidence, whatsoever, of his efforts to seek employment. He has made no effort to find even the most basic employment.
[27] She submits that she and the children have been greatly prejudiced by this repeated litigation. Since September, 2009, she has been receiving an average of only $62.00 per month.
[28] In oral submissions on her behalf, Ms. Khadim submits that the father has provided no independent verification that he does not have any bank accounts. Furthermore, she submits that Justice Nelson's order properly took into account his circumstances and gave him ample time to get his affairs in order. It is her position that the father has not met the onus that there has been a material change in circumstances. There does not appear to be any new evidence now that was not available when Justice Nelson's order was made. He was effectively given an 8 month respite from having to pay child support. Furthermore, spousal support was terminated altogether. Even when a term of the order took effect, requiring him to pay $417.00 per month, this was still on the basis of an annual income below minimum wage standards.
[29] The father maintains that he is still recovering from, or affected by depression. However, there is no updated professional opinion or letter in this regard.
[30] She submits further that the father has not demonstrated good faith. He has provided no evidence of any job searches. He has provided no further or better information regarding his personal expenses and how he pays for them. In fact, he has not made any effort whatsoever to even find basic employment. He claims that his former job at Malpack in Ajax is still available to him and yet he has made his own "executive" decision that it would not be worth it to take this job because of the costs for public transportation to and from work, since he does not drive.
[31] The father has been given a substantial number of breaks and indulgences. However, he has consistently wasted valuable Court time on each occasion because he has never provided verifiable information.
[32] Accordingly, Ms. Khadim is asking the Court to order that he bring no further motions to change, unless he seeks leave of the Court, and unless and until he provides complete financial disclosure.
[33] Finally, Ms. Khadim asks the Court to fix costs for today's proceedings in the amount of $2,000.00 plus HST. This amount includes fees for the time to prepare a response to his Motion to Change, to attend the case conference, and to attend today's proceedings.
3:0 ANALYSIS
[34] Simply put, a parent must work to his or her income potential and is not entitled to either continue unremunerative employment, or choose not to work at all.
[35] On the other hand, the Court should not impute income just to punish a payor. Only income that he could reasonably earn in the circumstances should be considered.
[36] What militates against giving favourable consideration to the merits of the father's Motion to Change is that it seems that he has made an "executive decision" not to go back to the job that he held for 19 years, merely on the basis that travel costs would be prohibitive. He has not even bothered to make inquiries as to whether the job would be available to him. Assuming it was, he has made no other inquiries, whatsoever, as to whether he could make arrangements with other employees who live in his area, for example, to see if a car pooling arrangement could attenuate the travel expenses.
[37] Furthermore, his case has been made extremely difficult by the fact that he has not provided adequate financial disclosure, or at least an explanation as to how he meets his monthly expenses.
[38] Additionally, one's work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or a job where the necessary skills can be learned. This may mean that job availability is at the lower end of the wage scale. However, the father has not even made any inquiries about same.
[39] The Court cannot sanction the refusal, or unwillingness of a parent, to take reasonable steps to support his children, simply because he cannot obtain interesting or highly paid employment.
[40] Furthermore, a parent cannot avoid child support obligations by a self-induced and "self-diagnosed" determination that no work is available to him.
[41] Accordingly, notwithstanding that the Court has some sympathy for the father's medical challenges, the evidence in this case demonstrates that his unemployment and debt circumstances were avoidable.
[42] Where a payor who has the onus comes to Court asking for consideration based on fragmentary information, while suppressing other information, his credibility is compromised. In the final analysis, the Court finds that the father has not taken all steps necessary to either maximize his income, or even to find a part-time job to demonstrate his sincerity and earnest in addressing his obligation to pay child support.
[43] Simply "giving up" in the face of his ongoing personal health circumstances, the status of which has not been recently updated, is simply not an acceptable option when he clearly has some ability to support himself and his children. Not making any job search efforts is unacceptable. It is sheer folly on his part to maintain the position that he is spending most of his time trying to contact the Family Responsibility Office, to the exclusion of using this time more constructively in seeking and securing any job. He is not entitled to arrange his financial affairs so as to prefer his own interests over those of his children.
4:0 CONCLUSION
[44] For the above-noted reasons, the father has not met the threshold onus, on a balance of probabilities, that there has been a material change in circumstances.
[45] In the result, the Motion to Change is dismissed. The Court makes the following order:
The Motion to Change the final order of Nelson J., dated January 13, 2010, is dismissed.
The applicant father, Pietro De Fina, shall not bring any further motions to change, or other proceedings in relation to this file without leave of the Court.
5:0 COSTS
[46] On the face of things, the quantum of costs sought by Ms. Khadim on behalf of the mother seems quite reasonable. The Court must give consideration, however, to the realistic ability of the father to pay any costs order.
[47] Although the Court can declare that any costs order be enforced as the equivalent of child support through the Family Responsibility Office, it still represents another onerous layer of financial responsibility to the father.
[48] To leave him with at least some incentive to rearrange his personal circumstances and affairs in such a manner as to secure employment to meet his current and ongoing financial obligations, the Court fixes costs in the amount of $1,000.00 inclusive of HST and expenses. This amount shall be enforced as child support through the Family Responsibility Office.
Released: May 8, 2012
Justice S.R. Clark