Court File and Parties

Court File No.: D49616/09 Date: 2012-07-18

Ontario Court of Justice

Toronto North Family Court

In the Matter of the Interjurisdictional Support Orders Act

Between:

Kathie Murrell The Applicant, only participating in writing

- and -

Nadia Winfield Respondent

Nancy Chaves, duty counsel, assisting the Respondent

Heard: January 10, March 8, May 3 and July 6, 2012

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The applicant is the godmother and caregiver of D.O. (the child), born on August 6, 2001. The applicant resides with the child in North Carolina and has brought an application pursuant to the Interjurisdictional Support Orders Act, 2002 (Ontario) (the Act), seeking child support from the respondent, who is the child's mother.

[2] The respondent filed an answer to the application and asked that her support obligation be reduced, due to undue hardship, pursuant to section 10 of the Ontario Child Support Guidelines (the guidelines).

[3] The respondent requested and was granted an oral hearing of this application pursuant to sub-rule 37(9) of the Ontario Family Law Rules.

[4] The oral hearing began on January 10, 2012 and the respondent began her testimony. The case was adjourned as further documentary evidence was required from her to properly assess her support obligation. A specific financial disclosure order was made. The respondent was ordered to provide a complete copy of her 2010 income tax return, her record of employment from her last employer in 2011, her last 2011 pay stub, proof of employment insurance received in 2011, a job-search list since the start of 2011, documentation from Ontario Works breaking down payments made to her and for her child since 2009 (and particulars of an alleged overpayment made by Ontario Works), medical evidence setting out her prognosis, treatment and any limitation on her ability to work, and proof of support payments and gifts sent to the child and the applicant since 2009.

[5] The matter returned to court on March 8, 2012. The respondent sought and was granted a further adjournment to provide the necessary financial disclosure.

[6] The respondent did not attend at court on the return date of May 3, 2012. The matter was adjourned peremptorily on her.

[7] The respondent once again did not attend at court on the return date of July 6, 2012. She had not filed any of the financial disclosure ordered on January 10, 2012. I completed the hearing. This is my decision.

[8] The issues for this court to decide are:

a) What should be the start date for child support?

b) What income should be attributed to the respondent for child support purposes?

c) Is there undue hardship to the respondent as defined in section 10 of the guidelines, and if so, what adjustment should be made to the respondent's support obligation?

Part Two – Background

[9] The respondent is 30 years old.

[10] The child began living permanently with the applicant, at the respondent's request, in December of 2008, when the respondent moved to Ontario from North Carolina. The respondent testified that she was leaving a relationship fraught with domestic violence and wanted to make a fresh start in Canada. The child has been living with the applicant in North Carolina since then.

[11] The respondent is a single mother. She has a four-year-old son, from another relationship, who lives with her. She receives $50 per month child support from that child's father.

[12] The applicant started her support application in North Carolina on March 9, 2009. In her application, she sought ongoing support for the child.

[13] For reasons unknown to the court, the application was not filed in this court until December 4, 2009. The Notice of Hearing was issued at that time, but not served on the respondent.

[14] The court issued a second Notice of Hearing on August 19, 2011. The respondent was finally served with the court documentation on September 23, 2011.

Part Three – What is the Appropriate Start Date for Child Support?

[15] There is no dispute that the child is entitled to support. It is the amount of support and when that obligation should begin that the respondent contests. The respondent asked the court to start her support obligation as of August 1, 2012.

[16] Paragraph 3 of section 13 of the Act provides that Ontario law is to be applied when assessing the amount of support. This paragraph reads:

Section 13:

3. In determining the amount of support for a child or for the claimant, the Ontario court shall apply Ontario law.

[17] Ordinarily, once ability to pay child support has been established, child support is payable, at a minimum, from the date on which the application is served and is based on the actual income of the payor, in accordance with the guidelines. To do otherwise will only provide parties with an incentive to delay the final hearing. See Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).

[18] The applicant did not seek retroactive support from the respondent (which would be support prior to the date that the application was issued) in the application. But what about the period from March 9, 2009 (when the application was issued) until September 23, 2011 (when the application was served)? Should the start date for support be set at any point during this lengthy period?

[19] If the evidence had shown that the applicant had broached the subject of child support with the respondent during this period I would have given strong consideration to starting support as of the date that the subject was broached. It would be unjust for the child to be deprived of child support, if the respondent was on notice that support was being sought, just because there was a delay in service of the application, a delay that was beyond the control of the applicant.

[20] However, I found credible the respondent's evidence that she was totally unaware that there was an outstanding application for support until she was served with the application on September 23, 2011. The respondent testified that she was shocked when she received this application. She felt that she had a good relationship with the applicant, who had never mentioned to her that she was seeking child support. I believed the respondent's evidence that the applicant had told her that she was content that the respondent could just send presents and money that she could afford from time-to-time. I accept the respondent's evidence that the applicant had never complained to her about her financial contribution. The respondent testified that she called the applicant when she received the application and was told by the applicant that the Department of Social Services in North Carolina had required her to bring the application. I also accept the respondent's evidence that the applicant always knew where she was residing in Ontario. The respondent described in detail how she has been in constant communication with the applicant and the child since she left North Carolina.

[21] I find that the respondent was not avoiding the application, that the applicant never broached the topic of child support with her and that the respondent was unaware of any claim for child support until she was served with the Notice of Hearing on September 23, 2011.

[22] I find that the respondent's child support obligation should begin on September 1, 2011, the month that she first became aware of the support claim. It would be unfair to create a significant debt burden for the respondent (which would be the result of setting an earlier start date for support), when she was under a reasonable belief that no further support was being sought from her and she is already struggling to support herself and her other child, with little financial assistance from the father. It isn't unfair to order her to pay support from the time that she was served with the application as she should have structured her affairs to account for the table amount of child support (as provided for in the guidelines) from that time. However, an affordable repayment arrangement will be made for the support arrears created by this order, to ameliorate the strain that the arrears will place on her fragile financial situation.

[23] The respondent provided no evidence that she has paid any child support to the applicant since September 1, 2011, despite the case having been adjourned several times to provide this and other evidence. She will not be credited with any monies sent to the applicant after September 1, 2011. In the event that she did send some money to the applicant after September 1, 2011, any unfairness in not giving her credit for these payments is more than offset by her failure to pay the table amount of support to the applicant before then.

Part Four – What Income Should Be Attributed to the Respondent?

[24] The respondent testified about her employment history from the time she came to Canada from the United States in 2008. She said that in 2009 she worked for a collection agency and earned $18,892. The respondent said that she worked for a different collection agency in 2010 and earned income of $26,542. The respondent testified that she continued at this job until July of 2011 when she was laid off by her employer. She did not comply with the court's order to produce her separation slip from her employer, evidence of employment insurance received or a job-search list.

[25] The respondent testified that she could not find work and chose to go back to school, at York University, in September of 2011. She said that she plans on taking a four-year course focusing on either child psychology or communications. However, she had to first complete a transition year of studies to qualify for these programs.

[26] The respondent testified that she received a student loan of $18,480 for the 2011/2012 school year and that $10,214 of this loan was for the non-educational component.

[27] The respondent projected that she would earn $18,724 in 2011, being $11,400 from her employer, $299 from a part-time job and $7,025 from social assistance. The respondent did not provide the documentary disclosure for 2011 ordered by the court.

[28] 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;

[29] 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] O.J. No. 3731 (Ont. CA).

[30] The court in Drygala v. Pauli, supra, set 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 what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable. Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, [2008] O.J. No. 417 (Ont. S.C.).

[31] I find that the respondent has been intentionally unemployed since at least January 1, 2012. She has historically been able to work. She failed to provide a job-search list despite the court's order to produce one. The respondent has chosen to go to school instead of working. Her plan is to remain in school for at least four more years.

[32] 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?"

[33] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations. See Hanson v. Hanson; Gobin v. Gobin, 2009 ONCJ 245, [2009] O.J. No. 2191 (OCJ). Similarly, it is not reasonable for a payor to return to school and not pay support, unless it is justified by a sufficient increase in earning ability that will benefit the child. See: Carter v. Spracklin, 2012 ONCJ 193, [2012] O.J. No. 1533 (OCJ).

[34] I find that the respondent's decision to return to school, as opposed to working at this time, is not reasonable. She has an obligation to support D.O. to the best of her ability, and has been on notice about this obligation since September of 2011. She provided no evidence to the court that her ability to earn income would be significantly enhanced by her schooling. She was not even certain about what field she wished to enter. The possible benefit of the proposed schooling does not justify the time out of the workforce (five years), particularly when there was no credible evidence that she has paid any meaningful support to the applicant since 2009.

[35] The respondent provided no evidence that the circumstances of the child living with her are limiting her ability to work.

[36] The respondent claimed in her answer that her ability to work is impaired because she suffers from depression. A payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ). The case was adjourned to give the respondent the opportunity to provide medical evidence to support her claim. She failed to provide any such evidence. The respondent did not prove that she was medically impaired from finding work.

[37] The third part of the test in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's unemployment or 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. See: Lawson v. Lawson. The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See Smith v. Pellegrini, [2008] O.J. No. 3616 (SCJ); Maimone v. Maimone, [2009] O.J. No. 2140 (SCJ).

[38] I draw an adverse inference against the respondent for her failure to provide the financial disclosure ordered as well as her failure to attend the remainder of this hearing. I accept that it might have taken her a short period of time to find work after she lost her job in July of 2011. However, given her age, intelligence (that was apparent in her presentation to the court) and work experience, she should have been able to find work by January 1, 2012 at a rate of at least $24,000 per annum. Income will be imputed to her starting January 1, 2012 at this level.

[39] The respondent failed to provide the ordered documentation to prove her 2011 income. In addition to the income she states that she earned, she should have been eligible to receive employment insurance. This likely would have been comparable to the non-educational component of the student loan that she actually received in 2011. Her income will be fixed at $21,000 for 2011 for support purposes.

Part Five – Undue Hardship

[40] The respondent asked that her support obligation be reduced because paying the table guideline amount would cause her undue hardship as set out in section 10 of the guidelines.

[41] Undue hardship claims are governed by section 10 of the guidelines which reads as follows:

Undue hardship

10. (1) On the application of either spouse or an mother under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.

[42] It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. There are three parts to the test:

1. The person making this claim must show that there are circumstances that could create undue hardship.

2. If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party's.

3. If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.

See: Matthews v. Matthews, [2001] O.J. No. 876 (SCJ).

[43] The respondent must prove more than hardship. She must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. Hanmore v. Hanmore, 2000 ABCA 57.

[44] The respondent has the onus of providing adequate supporting documentation to prove her undue hardship claim. See Van Gool v. Van Gool.

[45] The court recognizes that it is difficult for the respondent to support herself and the child living with her, let alone having an obligation to support her child in North Carolina. However, she failed to meet her onus to show that her hardship is exceptional, excessive or disproportionate. Further, despite being given several opportunities, the respondent did not provide evidence that would establish on a balance of probabilities that her household had a lower standard of living than that of the applicant.[1]

[46] The respondent's claim of undue hardship pursuant to section 10 of the guidelines is dismissed.

Part Seven – The Order

[47] A final order shall go on the following terms:

a) The respondent's income for support purposes is imputed at $21,000 for 2011. She shall pay the applicant the guideline table amount for one child starting on September 1, 2011 in the sum of $180 per month. Accordingly, the support arr