Court File and Parties

Court File No.: FO232-12 Date: 2012-10-12 Ontario Court of Justice

Between:

Brennan Patrick Trottier Applicant

— And —

Sophie Ghyslaine Prud'homme Respondent

Before: Justice L. J. Klein

Heard on: September 28, 2012

Reasons for Judgment released on: October 12, 2012

Counsel:

• Paul Trenker for the applicant(s)
• Wayne Stickland for the respondent(s)

Judgment

KLEIN, J.:

[1] This matter was brought before the Court by the Applicant father, Brennan Trottier, by way of a Motion requesting a Temporary Order for child support and spousal support from the Respondent mother, Sophie Prud'homme.

[2] The parties hereto have never been married to each other but have co-habited since the Spring or Summer of 2001. They have two children as a result of their relationship namely: Maelle Angela Trottier, born 30 March, 2006 and Gabrielle Lyne Trottier, born 09 July, 2004. The parties separated in mid to late April of 2012. The girls are being cared for by the parties on a week about basis. The continuation of that arrangement is very much in dispute but will be determined on another occasion.

[3] The Applicant father has had employment as a building contractor in the past but now alleges that he is unable to work due to medical issues including carpal tunnel syndrome in both hands and a severed ligament in his right arm. He has surgery scheduled to treat his carpal tunnel problem on November 1, 2012 and December 1, 2012 according to his affidavit dated August 24, 2012. As a consequence, he has no income at present and seeks a temporary order for support for himself and for the children.

[4] The Respondent mother is employed full-time as a registered nurse and has an annual income of $83,000. She has remained in the home and has assumed all financial responsibility for payment of the household expenses. Her payment of the debts of the parties including her own debts she alleges creates a significant hardship for her. In her estimate there is no equity in the assets which are under her control and she cannot use them to produce further income for the benefit of the children and herself.

[5] The Respondent mother alleges that the Applicant father has generated income "under the table" during the entire 11 year course of their relationship which was considerably more than what he reports on his income tax returns. As well, she alleges that the Applicant is intentionally underemployed or unemployed and claims that the Court should impute an income to the Applicant based on his ability to earn income from employment as a contractor. Alternatively, she asks that the Court impute an income to the Applicant based on his being able to make claims from Employment Insurance, W.S.I.B. or disability support plans from various levels of government.

[6] Both parties produced various financial scenarios to support the positions that they took at the hearing of the motion on September 28, 2012. To say the least, those scenarios are on a very broad spectrum from combined monthly child and spousal support awards of $2,800 to $543 for child support only. Those positions were supported by the affidavit material filed and by the six exhibits that were received in court during the argument of the motion.

Analysis

[7] In the end result, this matter will be decided on the question of credibility of the parties and the evidence that they present at a full trial of their claims. To attempt to determine the correctness of either party's position at this stage of the proceedings would be virtually impossible. It should best be left to a full airing at a trial where the positions and the supporting evidence of each of the parties could be presented by viva voce evidence and be tested in cross-examination. At this stage of the proceedings, through no real fault of the parties or their counsel, there is very little comprehensive evidence of a financial or a medical nature that would permit a thorough analysis of the issues before the Court. In particular, the S. 10 "hardship" analysis cannot be conducted at this interim stage. It is simply too complicated to be left to a review of written material no matter how well presented.

Imputing Income

[8] Counsel for the Applicant argued forcefully that this Court should not impute income to him at this point in the proceedings. Imputing income is by its very nature an exercise in determining the Applicant's potential for earning an income to support himself and his children. His argument is that this determination is germane to a final order for support and not so much to a temporary order. With respect, I disagree. The issue of imputing income usually arises in the context of a party who is a payor or potential payor of support, both spousal and child support, and not a recipient of support. In many ways this involves an inversion or flipping of the traditional analysis. This does not in any way change the basic principles of imputing income to a party, payor or recipient, in a support claim. The Court would not resist applying these principles were we asked to examine the payor's ability to pay and the Court should not shy away from that same task when it involves the recipient of support.

[9] As a general rule a parent cannot avoid a child support obligation by a self-induced reduction in his or her income. The Court of Appeal in Drygala v. Pauli, [2002] 29 RFL (5th) 293 in setting out a three-part test for courts to determine before imputing income was clear in deciding that there was no need to find that the party in question had a specific intent to evade child support obligations before imputing income. The question is whether the decision itself was voluntary. Then we must look at the reasonableness of that same decision. A party is intentionally underemployed if they choose to earn less than they are capable of earning. By imputing income the Court gives effect to the joint ongoing obligation of the parties to support their children and themselves. In order to meet these obligations the parent must earn what he or she is capable of earning.

[10] Having said that, S. 19(1)(a) of the Child Support Guidelines excuses intentional underemployment/unemployment if it is required by the reasonable education or health needs of the party. In this case, the Applicant could take a job paying less money as long as that decision is reasonable. He could take time off for surgery as long as that decision is reasonable. Once that fact of underemployment or unemployment has been established – and I specifically find that it has been established – the onus shifts to the Applicant to show that he falls within one of the exceptions in S.19 of the Child Support Guidelines and that such an action on his part was reasonable under the circumstance.

[11] The decision of the Applicant not to work at all is unreasonable. He is a skilled tradesperson who can and should earn something to support himself and his children. The medical evidence that was contained in Exhibit "B" of the Applicant's affidavit of August 24, 2012 is dated March 23, 2006 when the diagnosis of carpal tunnel syndrome was made and a course of treatment by elective surgery was recommended. No real up-date to that recommendation was provided other than the Applicant's assertion in his affidavit that he had surgery scheduled for November 1, 2012 and December 1, 2012. It seems strange to me that the Applicant would pick this point in time to deal with this long-standing health issue and the reasonableness of that decision is not supportable. In other words, it is simply too convenient for the Applicant to be without an income at this point in the proceedings. He has not met the onus placed upon him to establish the reasonableness of his decision to remain unemployed in spite of his sixteen years experience as a building contractor.

[12] There is an obligation on the Applicant to show how much he could earn under his present circumstances. Failing to do so opens the door for the Court to impute income.

[13] The Court received evidence as to how to impute income to the Applicant. Statistics Canada provided CANSIM table 281-0030 (Exhibit #3) setting out average hourly earnings for persons in the construction trades with an average hourly rate of $25.20 or $48,384 annual income based on a 40 hour work week and 48 weeks worked. The Financial Services Commission of Ontario in its 2007 Residual Earning Capacity Wage Table (Exhibit #4) listed carpenters as earning $56,194 annually. Finally, Statistics Canada Employment Earnings and Hours – June 2012 Table 4-7 which is an estimate of average weekly earnings in various industries in Ontario showed construction of buildings with a weekly wage of $1,132 or $54,336 annually based on a 40 hour work week and 48 week year. All of those estimates are reliable and have been accepted by courts in Ontario at all levels. Based on those figures I can impute an annual income to the Applicant of between $40,000 and $50,000 even on a part-time basis. I would impute an annual income of $40,000 to the Applicant and will use that figure in the analysis to follow.

Child Support

[14] In shared custodial arrangements the child support calculation is relatively simple using the set-off method of the figures mandated by the Child Support Guidelines tables. The Respondent would be required to pay $1,207 per month for the two children based on annual income of $83,000 and the Applicant would be required to pay $579 per month based on annual income of $40,000. On the simple set-off calculations, the Respondent shall pay the sum of $628 per month to the Applicant as child support for the two children. That support shall commence October 1, 2012 and continue on the 1st day of each month thereafter.

[15] The Respondent argued that this Court should further reduce the monthly child support payable based on a "hardship" claim under S. 10(2)(a) of the Child Support Guidelines. She rightly points out that she now has the debts of a two income household to pay and receives no financial assistance from the Applicant. Recent experience tells us that this is an all too common occurrence and therefore does not cry out for relief from the courts. The debts themselves are not unusually or oppressively high. They are certainly a challenge but not one that would allow the courts to move away from the support mandated by the Child Support Guidelines. I cannot and should not find that a hardship claim has been made out at this point.

Spousal Support

[16] The spousal support claim of the Applicant is rooted in Section 30 of the Family Law Act which states that every spouse has an obligation to support the other spouse in accordance with need, to the extent that he or she is capable of doing so. This is consistent with the concept of a common law marriage as a partnership. There is a presumption that spouses owe one another a mutual duty of support. Models of support are based on compensatory principles and non-compensatory principles. Spousal support, too, has been reduced to Spousal Support Advisory Guidelines (SSAG) which have received conditional approval from all levels of Court as representing a useful tool. They can be used for temporary support orders especially where there is limited financial information. These guidelines must be considered in context and all variables must be considered. The Court of Appeal in the Fisher case [2008] ONCA 11 confirmed that the SSAG are a distillation of case law and are similar to counsel submissions. In the end result they are only a guideline. Both counsel produced Divorce Mate calculations for various scenarios that formed part of their submissions to me. In my analysis the imputing of income to the Applicant of $40,000 per annum would and should provide him with income upon which he could support himself. The Respondent has assumed the full burden of paying the parties' debts which are not insubstantial. By doing so, she is in a reduced position to pay spousal support and the Applicant, in effect, gets the benefit of her making those payments. That financial benefit should be received in lieu of spousal support payments. Therefore, there shall be no temporary order for spousal support.

Costs and Disposition

[17] There shall be no order as to costs given the divided success of the parties.

[18] The usual clauses of SDO/FRO and Interest to be added as part of the temporary order.

[19] This matter shall be returnable before this Court on October 18, 2012 at 9:00 a.m.

Released: October 12, 2012

Signed: "Justice L. J. Klein"