Court File and Parties

Court File No.: Halton 409/11 Date: December 20, 2013 Ontario Court of Justice

Between:

Danielle Lynn Dupuis Applicant

— AND —

Charles Denis Desrosiers Respondent

Before: Justice R. Zisman

Heard on: December 3, 2012, March 13 and 18, May 13 and 14, and September 9, 2013

Reasons for Judgment released on: December 20, 2013

Counsel:

• Novalea Jarvis, counsel for the applicant
• Marc Charrier, counsel for the respondent

Zisman, J.:

Introduction

[1] This trial was with respect to the issues of child support, spousal support and the determination of the respondent's income for support purposes. The parties previously resolved all other issues.

[2] Unfortunately the trial did not proceed on continuous days and became extremely protracted due to several scheduling conflicts. The respondent was initially self-represented but then retained counsel who requested a lengthy adjournment to obtain transcripts of the proceedings.

Background

[3] The parties were in a common law relationship and cohabited from October 2004 until they separated in March 2011. The applicant Danielle Dupuis ("mother") is 38 years old and the respondent Charles Desrosiers ("father") is 34 years old.

[4] There is one child of the relationship, Sophie Anne Noelle Desrosiers ("Sophie") born December 20, 2007. Sophie was born with right hemiplegic cerebral palsy and is disabled.

[5] Since Sophie's birth the mother has not worked and was Sophie's primary caregiver. The father was employed full-time and was the sole financial supporter for the family.

[6] Although the parties separated in March 2011, they continued to reside together in a condominium owned by the father until April 25, 2011 when the mother moved into rental accommodations with Sophie. Sophie remained in the mother's primary care with the consent of the father.

[7] Upon agreement of the parties, the father exercised access to Sophie every week-end from Saturday evening to Sunday evening which was later expanded to every Saturday evening to Monday morning.

[8] The mother commenced court proceedings in August 2012. Both parties were represented by counsel. The parties entered into mediation and on January 31, 2012 entered into a final consent that provided for joint custody.

[9] The parents agreed that the current access arrangement would continue until September 2012 when Sophie began school, at which time Sophie would reside in each parent's care on an alternate week schedule with a mid-week visit with the other parent. It was also agreed that if the mother was not working she would care for Sophie after school until the father could pick her up. If the mother was working then the parents would arrange for after school daycare.

[10] The parents also agreed that on a temporary basis the father pay child support, from February to August 31, 2012 in the amount of $395 per month based on a projected income of $43,840 and that each party contribute to any special expenses in proportion to their respective incomes. The father also agreed to continue to maintain Sophie on his existing medical and dental insurance plan available through his employment.

[11] Both parties agreed that they would advise each other of obtaining any new employment.

[12] The January 31, 2012 order was without prejudice to any claims for spousal support, any arrears of spousal and child support and costs.

[13] A contested motion for temporary spousal support was heard by Justice O'Connell on March 2, 2012.

[14] On April 24, 2012 Justice O'Connell released her written decision and ordered that the father pay temporary spousal support of $800 per month as of January 1, 2012, being the date shortly before the motion was commenced, based on a projected income of $43,600. Temporary arrears were fixed at $3,200 payable at the rate of $250 per month. However, if the father was more than 30 days late in making these payments or in making the ongoing support payments the entire amount of arrears became due and payable. The order was without prejudice to either party providing further evidence regarding the father's income at trial and without prejudice to the mother's claim for retroactive spousal support to the date of the separation. [1]

[15] On July 27, 2012 Justice O'Connell released her decision regarding costs and ordered the father to pay the mother's costs fixed at $8,000 to be paid within 30 days and to be enforced by the Family Responsibility Office.

[16] On August 28, 2012 the father brought a motion, before Justice O'Connell, for a retroactive variation of the spousal support order made on April 24, 2012 on the basis that he had not been working and had been on sick leave since May 2012. The motion was adjourned to September 20, 2012 to provide the mother's counsel with an opportunity to respond.

[17] On September 20, 2012 the parties settled the father's motion on a temporary basis and agreed that the father's obligation to pay spousal support in accordance with the order of April 24, 2012 and the cost order of July 27, 2012 would be suspended from September 20 to December 3, 2012 on a without prejudice basis. Further, the parties agreed that either party could argue for child support and spousal support arrears including from September to December 2012. The father was to provide the mother with any documents he intended to rely upon at trial.

[18] The parties also agreed, on a final basis, to amend to parenting arrangements in the January 31, 2012 order to provide that while either party was unemployed, retraining or attending full-time school that Sophie would be picked up after school by the parent in whose care she was to be. They also agreed that if the mother was not working and the father was working then the mother would care for Sophie after school until 6:00 p.m. during the father's week with her.

[19] Further on a final basis, the parties agreed that Sophie's primary residence would be with the mother. They also agreed that the mother alone would be entitled to claim the Child Tax Credit, Ontario Child Benefit, Child Disability Benefit, National Child Benefit Supplement and all child tax benefits and universal Child Care benefits for Sophie. It was also agreed that the mother would be entitled to receive the Easter Seals subsidy and the subsidy from the Assistance for Children with Severe Disabilities.

[20] On November 14, 2012 a trial management conference was held before me. The trial was only scheduled for one day with the only witnesses being the parties. As the father was self-represented it was made clear that if he intended to call any other witnesses, he was to advise the mother's counsel within one week and provide a statement of the proposed evidence. Further, the father was advised that the mother's counsel was not consenting to any medical reports being filed by the father regarding his alleged inability to work unless the doctor was available for cross-examination.

[21] The trial commenced on December 3, 2013 and the mother's direct examination was completed that day and the trial adjourned to March 13, 2013 for the father to cross-examine the mother.

[22] On December 21, 2012 the father filed a Form 14B on notice to the mother's counsel for further disclosure and for an order to continue the suspension of the enforcement of the support and cost orders. The motion was adjourned to the next return date.

[23] On January 30, 2013 I dismissed the father's motion for further disclosure on the basis that the disclosure sought was not relevant and ordered that any other motions were to be heard at trial before me. Costs of the motion were reserved.

[24] The trial then continued on March 13 and 18, 2013. The mother's case was completed and the father's direct examination was completed and his cross-examination had been commenced. The trial was then adjourned for continuation to May 13, 2013.

[25] A Form 14B was submitted by counsel just retained by the father requesting an adjournment of the trial that had been scheduled to continue during the week of May 13th.

[26] On May 1st, in a telephone conference call submissions with respect to the adjournment request were made. The father's counsel sought an adjournment on the basis that he needed to order the transcripts of previous trial dates. The mother's counsel objected to an adjournment. She submitted that the father had been given permission to tape record the proceedings to assist him in preparation and counsel could therefore review those tapes. She also submitted that the father was in the middle of cross-examination and any further delay would prejudice the mother as the father was not paying any support. The father's motion for an adjournment was dismissed.

Evidence regarding Sophie

[27] Sophie is a special needs child who was born with right hemiplegic Cerebral Palsy. Since her birth she has been required to attend at numerous medical and therapeutic appointments with doctors, occupational therapists, speech pathologists, physiotherapists and other specialists. Numerous reports were filed on consent regarding Sophie's condition.

[28] Sophie has been followed and assisted by Dr. Kim, a developmental paediatrician at the Erin Oak Centre for Treatment and Development, since she was 10 months old. Sophie was initially provided community based physiotherapy and then referred for further specific assessment and treatment by physiotherapy, occupational therapy and speech therapy at Erin Oak.

[29] The mother testified that particularly in the first three years of Sophie's life she devoted great deal of time attending to Sophie's needs. She had to do exercises at home to strengthen Sophie's muscles and build up her stamina. As Sophie had problems sitting there were feeding issues as she was prone to gagging and choking due to the paralysis on the right side of her body. In addition, the mother testified that she was the parent responsible for arranging, communicating with and coordinating Sophie's numerous appointments.

[30] The mother compiled a chart that indicated from December 2007 to November 2011 she attended 138 appointments with Sophie and had 61 telephone communications. According to the mother, the father attended only 45 of those appointments and only 8 appointments were without the mother and 3 occurred after the separation.

[31] The father disputed the accuracy of the chart but vacillated in his testimony as to what the errors were and when he attended. The only correction the father made was that he claimed he attended 14 appointments in 2011 and not 9 as claimed by the mother. He did not clarify if he attended more appointments on his own than alleged by the mother. At times he even disputed that the mother attended the majority of the appointments and then finally admitted that he attended when he could namely, if the appointments were on a Monday when he was not working.

[32] In January 2012 Dr. Kim met with the parents to respond to their questions regarding Sophie's diagnosis and long term prognosis. The parents expressed concern that Sophie's language development was not as developed as other children her age. Dr. Kim confirmed that Sophie's language development may have been affected as a result of her cerebral palsy and that she would benefit from ongoing speech therapy. With respect to Sophie's physical limitations, it was Dr. Kim's opinion that it was unlikely that she would walk independently and her self-mobility would be with a hand held mobility device or wheel chair. At the time Sophie was 4 years old and could sit when placed but could only get around a short distance by rolling, creeping or crawling.

[33] In anticipation of Sophie attending Senior Kindergarten Dr. Kim referred Sophie for a psycho educational assessment in order to establish a developmental profile and to identify the special education programs and services that may be required.

[34] The report dated July 18, 2012 confirmed that Sophie had significant physical limitations and her gross and fine motor skills were only at a 1% percentile. Although Sophie's cognitive abilities were within the average age, there was an impact on her verbal skills. It was reported that Sophie spoke little and when she did speak there were articulation difficulties that made it quite difficult to understand her. Her overall performance was assessed to be within the very delayed range. It was recommended that she be deemed to be an exceptional student who required an Individual Education Plan with an alternative curriculum designed to address her physical as well as speech and language needs.

[35] The mother researched and located the proper school placement for Sophie and communicated with the principal to ensure there were proper resources available to meet Sophie's needs.

[36] The father spent a considerable amount of time cross-examining the mother about improvements in Sophie's condition. The mother testified that Sophie still requires physiotherapy and occupational therapy and she is on a wait list through the school for speech therapy. She still attends at Erin Oaks every 3 or 4 months and sees the family doctor for medical issues. The mother agreed that Sophie is enjoying school and doing well but still gets tired and needs breaks during the school day. She is in a regular classroom with extra resources.

[37] The father questioned that mother as to her assessment that Sophie was "severely disabled" and she agreed that Sophie does not have any cognitive or mental health disabilities but the mother testified that Sophie is 5 years old and cannot walk or run. The mother testified that the prognosis was not hopeful and although she hopes that someday Sophie will be able to walk at the present time she is not able to do so and requires a specialized walker that the mother had arranged to obtain funding for.

[38] In his own testimony the father disputed that extent of Sophie's disability. He agreed in cross-examination that that he had not obtained any other psychological assessments or further tests about Sophie's prognosis. The father testified that doctors make mistakes and he does not agree that Sophie will need assistance throughout her life.

[39] The mother testified about her significant transportation issues for Sophie. The mother does not own a car as the father retained the family vehicle and she does not have the financial resources to purchase a car. The mother does not have any family members who can help her with Sophie. The mother is therefore required to take Sophie not just to her own appointments but she also needs to take Sophie with her if she needs to do any errands. Due to the size of Sophie's walker, she is sometimes refused public transportation and must either pre-arrange a specialized van or pay for taxis.

[40] The father drives and owns a car so it is easier for him to transport Sophie. He also has the assistance of his mother who at various times in the course of the litigation he has indicated can assist him.

Evidence regarding the mother's education, work experience and income

[41] The mother has a Grade 12 education. She worked as a pharmacy assistant from 1997 to 1999. She commenced a pharmacy technician community school program in 2001 but she left the program to care for her ill grandmother and then did not return to complete the program. She held various positions as an invoice clerk, cashier and again in 2004 to 2005 worked as a pharmacy assistant. All of these jobs paid minimum wages.

[42] Prior to Sophie's birth, she was working full-time in the thrift store at the Salvation Army earning minimum wage until she had to only work part-time due to complications with her pregnancy. After Sophie's birth the mother did not return to the work on agreement between the parties.

[43] The mother was a stay at home parent and a full-time caregiver for Sophie and has been out of the workforce since December 2007.

[44] At the commencement of the trial, the shared parenting arrangement had just begun in September 2012. However, the mother was still the parent responsible for caring for Sophie after school regardless of which parent she was residing with as at the time the father was employed.

[45] The mother was considering her employment options but felt they were limited to either returning to school or obtaining part-time employment. Due to her responsibilities for caring for Sophie, the mother testified that she would have to obtain employment that allowed her to be home by 3:30 p.m. each week-day. Due to her inability to drive, the mother testified that she will be restricted to finding employment in the city of Burlington.

[46] The father cross-examined the mother extensively about her employment opportunites and suggested that she could obtain a job as a pharmacist's assistant again but the mother indicated that a college degree is now required for that position.

[47] The mother's current source of income is Ontario Works, the Universal Child Tax benefit and an Easter Seals subsidy. The mother also receives a government supplement called Assistance for Children with Severe Disabilities of $450 per month that is geared to income. It is paid to meet Sophie's extra needs and is not required to be included on her income tax return. The mother is now receiving $833 per month from Ontario Works and then about $604 per month in other benefits. The mother's social assistance payments are clawed back upon receipt of any support from the father.

[48] The father spent an inordinate amount of time cross-examining the mother about what she uses the funds for that she receives due to Sophie's disabilities. The mother explained Sophie's various needs and how the funds were used to purchase items she required.

[49] Based on the financial disclosure filed and the mother's Notices of Assessment the mother's income is as follows:

• 2009 - $1,200 (universal child care benefit)
• 2010 - $1,200 (universal child care benefit)
• 2011 - $6,654 (universal child care benefit and social assistance)
• 2012 - $8,624 (universal child care benefit and social assistance)
• 2013 - $11,691 (estimated based on universal child care benefit and social assistance)

[50] The mother has no assets and has an outstanding student loan of about $4,700 that is in default and has been sent to a collection agency.

Evidence regarding the father's education, work experience and income

[51] The father did not complete high school. He worked for about 12 years for Mid-US that was a motorcycle parts warehouse. He is self-taught and did well in the company and eventually became a parts manager. As the father is bilingual he dealt with customers in Quebec and made some good business connections. He left that position after the owner died as he did not like the way the company was being run by the new owner.

[52] In 2008, the father began to work for Kreater Custom Motor Cycles as a sales manager. According to the mother, the father worked from 6:00 or 7:00 a.m. to 6:00 or 7:00 p.m. or even later and would go out on Friday evenings with his co-workers. He originally worked Monday to Friday but then he re-negotiated his schedule to work Tuesday to Saturday as many of Sophie's appointments were on Mondays.

[53] The mother testified that the parties had a discussion when they were separated but still living in the father's condominium and that the father told her that if he had to pay spousal support he would quit his job.

[54] The mother testified that despite the father taking sick leave on May 26, 2012 she did not find out about this until sometime in August. Between May and August the father continued to pick Sophie up at about 6:00 p.m., being the regular time he was picking her up when he was working and he would be wearing his work t-shirt.

[55] The parties were at a meeting in July about Sophie and a report filed indicates that, "Dad working full-time" at no time did the father correct this misconception. The parties also exchanged a series of emails in July and early August 2012 making arrangements for attending at Sophie's appointments and the father left the impression he was working.

[56] The mother testified that when the father finally told her he left his employment he told her that he was on sick leave because of his depression and the stress of work because his employer was abusive. He did not provide any details.

[57] In cross-examination, the father testified that he did not tell the mother he left his employment as he did not discuss personal matters with her.

[58] The mother testified that prior to the separation and prior to the order dated April 24, 2012 requiring him to pay spousal support, the father never complained about being stressed out or upset at work or that his employer was abusive. He never complained about problems with working overtime or about his rate of pay.

[59] The father testified that when he was initially hired at Kreater in 2008 he was promised $55,000 for a 40 hour week but that shortly thereafter his employer changed the terms of employment to $27 per hour and then to $26 per hour. He testified that his employer began to abuse him in June 2010. However, in cross-examination he stated the abuse started in January 2012.

[60] The father testified that his employer forced him to work overtime and began to insist on paying him by the hour as he was missing too many days of work for court attendances and to attend Sophie's appointments. The father testified that in June 2010 his employer did not pay him vacation pay and his vacation days were just gone. He testified that they had an argument in July or early August 2010 when his employer insisted he sort out the parts room but the father did not have the time to do this.

[61] He then testified that in February 2011 he renegotiated with his employer to work 2 extra hours for 5 days and have Mondays off so he could go to Sophie's medical appointments. He gave another example of a disagreement with his employer in 2011 because he gave a customer a $50 refund. But the father agreed that he was not fired as a result of this or any other incident. The father then testified that in September 2011 the employer wanted to change his terms of employment to an hourly rate although he had previously testified that his employer did this in 2010.

[62] In April 2012 the father testified that his employer threatened that his extended medical and dental insurance would be cut off. At another point in his examination he stated that his employer had cut off the benefits and this was the last straw.

[63] The father testified that it just became too much for him and he was stressed out and burnt out because of his financial situation, his bankruptcy, Sophie's diagnosis and the abuse at work. The father testified that on May 25, 2012 he was at his sister's home and he had chest pains and could not speak and had to be rushed to the hospital.

[64] As of May 26, 2012 he took sick leave and received employment insurance. The father filed a form that indicated he was relieved from looking for employment from October 2012 to February 2013 due to his depression. As of February 2013 he has been in receipt of Ontario Works.

[65] When cross-examined about why he had not complained to any government agency or taken any legal action regarding his employer's treatment of him, the father intimated that he was afraid of his employer due to his connections to bikers.

[66] In cross-examination, the father was shown a letter he provided to the court dated November 8, 2011 indicating that his work hours were reduced from 50 to 40 hours as a result of the father completing a special project. The father agreed that he had relied on this letter at the temporary motion in support of his position that his income in 2012 would be less than in 2011 but he explained that the letter was a "farce". He then testified that his employer wrote this letter on his behalf at his request and although the reference to a reduction of hours due to a special project was not true the reduction of his hours was true.

[67] When it was pointed out that his benefit statement from February 1, 2008 to May 31, 2012 indicated that Sophie had received dental coverage as late as May 14, 2012 the father testified that his employer had only hinted at cutting off benefits and that he had received an email to this effect but could not find it.

[68] Mother's counsel produced into evidence and played in court a promotional video of the father's work place that included an interview with the father. The father states on the video that that working at Kreater is like working for family. The video shows a laid back and friendly work environment. The father testified that the video was taken in 2010 not 2011 as alleged by the mother and no weight should be put on it.

[69] When questioned about what steps the father had taken to obtain employment since May 2012, the father only provided a job search in October 2012 and testified that he "threw his resume around". The father confirmed that he had not looked for any employment since November 2012. He testified that in order to obtain a job he needed to obtain his high school graduation certificate but he had not taken any steps to do so. He testified that he couldn't wrap his head around furthering his education and he was planning to speak to an employment counsellor.

[70] The father was cross-examined about several conflicting affidavits he had filed that either indicated he would not be returning to work at Kreater or that he was still undetermined if he would return. The father testified that he had not officially terminated his employment but he had no intention of returning to work there.

[71] The father's income based on his financial statement and his Notices of Assessment is as follows:

• 2007 - $55,494
• 2008 - $52,959
• 2009 - $55,494
• 2010 - $54,080
• 2011 - $51,309
• 2012 - $27,901 (employment income and employment insurance)

[72] Although the father's income tax return for 2012 indicates earnings of $27,901 he also was cross-examined on various spreadsheets that he had previously provided with calculations that indicated his 2012 income was $30,530, $31,106, $24,349, or $23,556.

[73] The father also testified that he is in debt to his mother as she had loaned him $53,689.95 to pay for living expenses and to pay approximately $47,000 in legal fees for counsel who represented him until the contested temporary motion for support. He has a joint account with his mother that he testified he used for emergencies. When cross-examined about discrepancies between his income and his expenses he testified that he had used the money in the account to cover the shortfall but that his mother no longer had the financial resources to help him.

[74] The father agreed that prior to filing for bankruptcy in April 2011 he had transferred his car into the joint names of himself and his mother and took about $4,000 out of the parties' joint bank account and transferred it to his mother. He did not agree that this was done to defraud his creditors but rather he did it to "survive". He then testified that he used the money for first and last month's rent and his mother then returned $2,200 to him and he gave the mother half. The father did agree that when he was discharged from bankruptcy in June 2012 he was relieved of about $55,000 in debts.

[75] In cross-examination the father agreed that he has the following skills and abilities:

• he can speak French but he is not good at writing in French
• he can do basic repairs to motor cycles and cars
• he can maintain and control large inventories
• he can manage special projects
• he can conduct internet research for technological parts for highly sophisticated and expensive motorcycle parts
• he can type and transcribe from an audio tape
• he can use emails and texts
• he can use Excel and Word and prepare spreadsheets
• he prepared many affidavits, financial statements, charts, requests to admit, a trial document brief and researched the law for this court proceeding

[76] When the father was cross-examined about his reaction to the order of Justice O'Connell on April 24, 2012 that he was required to pay spousal support, he denied that he was angry but did state that it hit him "in the pants", "made no sense" and "disappointed" him. He testified that he prepared a spreadsheet of all of his expenses and no matter what he did he needed all his earnings for his own living expenses and to pay child support.

[77] The father confirmed that he had referenced the mother, who suffered a short bout of depression, when he made a comment about how lots of people suffer from depression and are able to work. The father explained he only made the statement as a general comment. He denied that he threatened to quit his job if he had to pay spousal support. He did not deny that he sent the mother an email stating that maybe he should be a "stay at home dad".

[78] The father confirmed that he had not applied for CPP disability or any disability benefit under social assistance but was only in receipt of Ontario Works benefits.

ANALYSIS

1. Spousal Support

[79] Subsection 33(8) of the Family Law Act provides that the objectives of a spousal support order are as follows:

Purposes of order for support of spouse

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[80] In Bracklow v. Bracklow [2] the Supreme Court of Canada established that there are three kinds of entitlement to spousal support:

1. Compensatory: based on a spouse's education, career development or earning potential being impeded as a result of the role in the relationship

2. Non-compensatory: based on need

3. Contractual: based on an agreement between the parties.

[81] In this case, I find that the mother has an overwhelming case for entitlement on both a compensatory and non-compensatory basis. The mother has been out of the workforce since 2007 and devoted herself to caring for a severely disabled child. She has been economically disadvantaged as a result of her child care responsibilities and the breakdown of the relationship and she has a compelling need for support.

[82] The father initially took the position, in his opening statement, that the mother was not entitled to any spousal support. It was his position that the mother was able to find employment based on her education and employment history, that she had not used her best efforts to become self-sufficient and that Sophie was not severely disabled and that the mother could have worked. The father sought an order to vary the order of Justice O'Connell requiring him to pay spousal support.

[83] However, in the closing submissions by his counsel, it was conceded that the mother was entitled to spousal support from the time of the separation up to September 2012 when the parties began a shared parenting arrangement.

[84] The father's counsel submitted that subsequent to September 2012, the mother should not be entitled to any spousal support as she has not met her obligation to become self-supporting. He further submitted that if spousal support is ordered that income should be imputed to the mother.

[85] It is undisputed that the mother stayed home full-time to care for Sophie and that she has not worked since 2007. The mother only has a high school education and limited work experience. Whatever skills she obtained working as a pharmacy assistant, for only minimum wages, are now outdated and the mother testified a college degree is now required for such a position.

[86] It was always anticipated that despite the shared parenting arrangement the mother would be responsible for caring for Sophie after school. Further, Sophie had just started school when the mother testified in this case and it was too soon to assess how she would adjust and what other supports she might need that would require the mother's time. The mother is also limited by her child care responsibilities even on a shared parenting basis as she must still be available before and after school and on alternate week-ends to care for Sophie and has no one to assist her.

[87] Although the mother is young and in good health, she will require support for a transitional period of time to return to school to upgrade her education and skills so she will be able to obtain a well-paying job or in the alternative, she will be relegated to obtaining employment for a minimum wage. I have also considered that length of the relationship was relatively short namely 6 years.

[88] I find that it would be reasonable for the father to be required to pay spousal support for a further 3 years with a review thereafter. It is not clear at this time how long it will take the mother to become self-supporting or what alternate arrangements can be made for Sophie's care before and after school to enable the mother to have more opportunities to find employment or how much additional time, if any, will be necessary to meet Sophie's ongoing needs.

[89] The mother has the need for spousal support as she is currently surviving on income below the poverty line. I do not accept the father's submissions that the benefits the mother received for Sophie should be attributed to her income. I find there is no basis in the evidence to find that the mother personally benefits from these funds. The mother explained in great detail that she used the funds to meet Sophie's many needs and the father benefits from the equipment and other items that are purchased from these funds.

2. Imputing income

[90] The quantum of spousal support will then depend on the income attributed to the father or the mother.

[91] It is the mother's position that the father has either already returned to work, is working for cash or that he should return to work. Based on any of these scenarios, the court is requested to impute income to the father. The mother's counsel submits that the father's evidence was evasive, contradictory and adverse inferences should be drawn based on his lack of full and complete disclosure.

[92] The father's counsel submits that any order for child support or spousal support should be based on the father's actual income. He submits that any discrepancies in the father's financial documents or affidavits should be attributed to his lack of legal counsel. He further submits that it was just coincidental that the father left his job after he was ordered to pay spousal support. He also submits that income should be imputed to the mother as of September 2012 when the shared parenting regime commenced as the mother was then relieved of full-time care for Sophie and could have obtained some employment.

[93] Section 19(1) of the Child Support Guidelines permits the court to impute such income as it considers appropriate in the circumstances, which 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;

[94] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. The test for imputing income applies equally in spousal support cases. [3]

[95] The Ontario Court of Appeal in Drygala v. Pauli [4] set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage or reasonable health needs?

3. If not, what income is appropriately imputed?

[96] In Drygala v. Pauli, supra, the court interpreted section 19(1)(a) by stating that "intentionally" means a voluntary act and that a parent is intentionally under-employed if that parent choose to earn less than he or she is capable of earning. The court does not need to find a specific intent to evade child support obligations or bad faith.

[97] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally under-employed or unemployed. Once under-employment is established, the onus shifts to the payor to prove that his decision was reasonable.

[98] If the payor is intentionally under-employed, the court must consider if this is by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs.

[99] If a court finds a payor is intentionally under-employed or unemployed, a court cannot arbitrarily allocate an imputed income. There must be an evidentiary basis for the chosen income. Factors such as age, education, experience, skills, health and availability of job opportunities must be considered.

[100] I find that the father has not met the onus on him to establish that the mother is intentionally unemployed. Even if he had met that onus, I would still find that income should not be imputed to her. Based on the same factors relating to her entitlement to spousal support, I find that based on her childcare responsibilities and number of years she has been out of the workforce that it is unrealistic to expect that she is in a position to earn any income at this time.

[101] I find that the mother has met the onus to establish that income should be imputed to the father.

[102] The father was employed and earning over $50,000 and then he left his job due to "sick leave". I find that the father's reasons for leaving his employment to be entirely fabricated. The father's evidence with respect to the various "abuses" by his employer, even if they are truthful, would not justify him leaving a well-paid job with benefits without any prospects for new employment in light of his obligations to support his disabled child and his spouse. The father contradicted himself many times regarding the timelines when these alleged abuses by the employer took place. The father tried to convince the court that he had to leave because his hours were reduced and his medical benefits were terminated.

[103] However, the father's income from 2010 to 2011 was only reduced by less than $3,000. The father also testified that he had never complained to any government agency about his treatment because he was afraid of repercussions by his employer. Yet his employer in November 2011 prepared a false letter regarding the father's reduction in work hours that the father used to persuade the mother and the court that any support order should be based on a reduced income of only $43,600. Despite his alleged fear of his employer, he was able to re-negotiate his days of work so he could not work on Mondays.

[104] I also reject the father's inability to work due to stress. The father testified that he was under stress and depressed because of Sophie's diagnosis but that diagnosis was known shortly after her birth. Further, the father spent a great deal of time cross-examining the mother and testifying on his own behalf as to how Sophie's condition had improved and how well she was adapting to school. He then testified that he was overcome with stress because of financial issues but as of April 2012, he had been discharged from bankruptcy and he was relieved of all of his outstanding debts. He also had the financial support of his mother.

[105] I found that mother was a credible witness. She gave her evidence in a straightforward manner without exaggerations or embellishments and her version of events did not waiver or change in cross-examination. I find that her evidence is credible that prior to the separation the father never complained about being abused by his employer, never complained about how he was treated, never complained about feeling stresses and never complained about being intimidated by his employer.

[106] The mother provided a detailed description of the conversation she had with the father shortly after the separation when the father stated that if he had to pay spousal support he would quit his job. He did just that. I find it was not mere coincidence that about a month after the order that he pay spousal support the father took a sick leave. Several months later the father was ordered to pay costs and then continued on sick leave and collected employment insurance and when his benefits ran out he went on social assistance and he is still in receipt of such assistance.

[107] I do not accept the submission made by father's counsel that I should draw the inference that the father was unable to work because he was in receipt of social assistance through Ontario Works. No evidence was presented to establish the criteria for receiving Ontario Works or why the father was alleviated from his obligations to seek employment from October 2012 to February 2013.

[108] I also reject counsel's submission that because the father was self-represented he did not know he needed to have his doctor present to testify and that he would be prevented from simply filing his doctor's letter. The requirement to have his doctor present was made very clear at the trial management conference and given the skill with which the father conducted his own case up to retaining present counsel. I do not accept that he misunderstood this requirement.

[109] I also reject the submission of father's counsel that since the father is now sharing the child care responsibilities that the father is now hampered in his ability to work due to Sophie's disability. Firstly, the father took the position that Sophie is not so severely disabled that it was an impediment to the mother seeking some employment. Secondly, the father has a car and therefore it is much easier for him to transport Sophie to any needed appointments. Thirdly, the father has the assistance of his mother. The father had previously presented a plan of care asserting that his mother was readily available to assist him when he was seeking shared care of Sophie but then he was not able to adequately explain why she would not be available now. Finally, the agreement the parties entered into assumed that if the father was working and if the mother was not working that Sophie would be in the mother's care from after school until he was able to pick her up.

[110] I found the father's explanation of why he did not tell the mother he was on sick leave and continued for several months to act as if he was still working bizarre. What the father hoped to gain from this cover up is unclear and simply added to concerns about his lack of credibility.

[111] Having found that income should be imputed to the father and that his inability to work is not due to either his child care responsibilities or his heath needs, the court is required to determine what income should be imputed based on the evidence presented.

[112] Although the father does not have a high school education, he has over 16 years of experience working in sales mostly in a managerial position. Even though his experience is related to expensive motor cycle parts, his managerial and sales experience could certainly be utilized in other areas. He has computer skills as demonstrated in this trial in his preparation of financial documents, Word documents and Excel spreadsheets. He was able to prepare and present his case in an orderly fashion and to organize a great deal of documentary evidence. He was articulate and well-spoken and is also able to speak French.

[113] There is the further consideration that the father is still on sick leave. He has not been fired nor has he terminated his job and therefore his position at Kreater is still available to him.

[114] Mother's counsel submits that a negative inference should be drawn as the father has not disclosed all of his financial documents and those that have been disclosed are not clear with respect to his income and assets. Further, counsel submits that an adverse inference should be drawn as the father did not call his mother as a witness and did not disclose her bank accounts.

[115] These are significant gaps in the father's case as he testified about the vast sums of money his mother lent him and that she has assisted him financially in meeting his expenses and that he has a joint bank account with her. I have already expressed concerns about the father's lack of candour in these proceedings. I also agree that a negative inference should be drawn as the father did call the paternal grandmother as a witness in view of the intermingling of their finances and with respect to what supports she can provide to the father.

[116] On the other hand, there were many requests made from the father for financial disclosure and as he is self-represented I do sympathize with him in feeling overwhelmed by the sheer volume of the requests and the trial process. I do not find it necessary to draw a negative inference due to the lack of financial disclosure based on my other findings.

[117] I find that the father is able to return to his employment and if he chooses not to do so, then I find that he is capable of earning the same income that he has earned over the last several years when he was employed full-time. The father has made no attempts whatsoever to find employment since May 2012. I find that he purposely took sick leave to avoid his spousal support obligations. I find that the father's income should be imputed to be $51,309 being the income he earned in 2011 when he was employed full-time.

[118] It was submitted or rather implied by father's counsel that any order made by the court will have no practical effect as the Family Responsibility Office will not take any steps, as I understand it, to enforce this order while the father is in receipt of social assistance. Nevertheless I expect that either the father will recognize his obligations to obtain employment or there will be some scrutiny of the father's eligibility to continue to receive social assistance. The evidence is unclear as to whether or not the father may have been entitled to an inheritance from his father's estate or if the father has some undisclosed assets or source of income. I am not satisfied that I can draw such an inference from the evidence.

[119] I do find that the father misled the court, the mother and her counsel regarding his estimated earnings when the parties entered into a consent child support order on January 31, 2012 based on $43,600 and then when the same income was attributed to him when the spousal support order was made on April 24, 2012. Both orders were only temporary orders and therefore are subject to change based on the evidentiary findings at this trial and the orders were specifically made without prejudice to claims for retroactive support or support based on the father's actual income.

3. Child support

[120] With respect to child support, section 9 of the Child Support Guidelines provides that in determining the amount of child support in a shared parenting arrangement, the court should take into account the amounts set out in the applicable tables, the increased costs of shared custody and the condition, means, needs and other circumstances of each parent and of the child.

[121] The father did not present any evidence regarding any increased costs as a result of the shared parenting arrangement for Sophie. But I assume that there are some increased costs. Sophie should be entitled to the same lifestyle at both of her parents' home. The mother is currently only receiving social assistance and the father has the ability to earn an income in the range of $50,000. In view of the lack of evidence on this issue, I find that it is appropriate to simply set off the applicable table amounts for each parent to determine an appropriate amount of child support payable by the father to the mother. As the mother is presently unemployed and income is being imputed to the father, he will be required to pay the full table amount of support currently. However, in the future when the mother is employed his child support payments will be reduced.

[122] With respect to any section 7 extraordinary expenses, the mother currently receives various subsidies and benefits for Sophie that covers many of these expenses. Any future expenses should be shared in proportion to the arties' respective incomes after taking into consideration any benefits received by the mother.

4. Medical, dental and life insurance

[123] The mother's counsel seeks an order that the father obtain medical, dental and life insurance if such is not available through his employment. The jurisdiction of the Ontario Court of Justice is limited pursuant to section 34(2) of the Family Law Act with respect to requiring a party to obtain such insurance and requiring a party to designate a dependent on such a policy except if such a provision is for necessities or to prevent the dependent from becoming or continuing to be a public charge.

[124] I have no evidence that the father has such policies currently in existence. On the contrary, since he left his job there is evidence that he currently does not have an extended medical or dental plan or life insurance through his employment. In these circumstances, I am unable to make the order sought by the mother's counsel except to the extent that if the father does obtain employment with such benefits that the mother and child should be provided coverage.

5. Calculations

[125] Several support calculations were presented to the court based on various income levels. [5] The mother's income has been based on the funds she receives from social assistance which is clawed back by any support received. However, I noted that in the calculations mother's counsel submitted she included in mother's income the $1,200 she receives as the universal child tax credit. I suspect she did this because the software program automatically divides that credit between the parents in a shared parenting arrangement. I have used only the mother's social assistance income. But in comparing the calculations, the net effect is not different due to the low amount of the mother's income.

[126] The parents have agreed that the mother, despite the shared parenting arrangements, will be designated the primary parent and receive all of the applicable tax credits. However the software program automatically calculated and allocated those tax credits in accordance with the requirements of the income tax legislation. It may be that despite the wording of the agreement between the parties Canada Customs Revenue Agency may not be prepared to permit the mother to benefit from all of these credits.

[127] I also point out that intuitively one would assume that the mother should receive less spousal support when there is a shared parenting arrangement as, in view of the disparity in incomes between the parents, the father is still required to pay the mother table child support and he has the added expense of caring for his daughter for half of the time. However, a review of the calculations indicate that when the mother was the full time caregiver and the father is required to pay both child and spousal support, the mother received tax credits of almost $8,715 a year and the father received tax credits of only $726 per year. But based on a shared parenting arrangement, at mid-range spousal support of $1,250 per month the mother's tax credits are reduced to $4,364 per year and the father's credits are increased to $3,008 per year. As a result the mother's spousal support is increased to compensate for this loss to the mother and for the gain in benefits to the father.

[128] I find that it would be appropriate to use the low range of spousal support of $1,102 to compensate for the fact that the Divorcemate calculations do not precisely represent what the parties agreed upon. However, if either parent is re-assessed by CCRA and the mother is not permitted to claim all of the tax credits and receive all of the benefits, then spousal support should be at the mid-range of the calculations. I find that an order in the low-range of the SSAG calculations can meet the mother's needs and provides that the parties' net disposable income is approximately equal if the mother receives the extra tax benefits and credits.

[129] Father's counsel did not dispute that the mother was entitled to spousal support or child support as of the date of separation. The mother through counsel attempted to negotiate a settlement prior to initiating court proceedings and I would have found that a retroactive claim was appropriate in any event. It was agreed that from May 15, 2011 up to and including December 15, 2011 the father paid the mother $3,902 and he paid $395 in January 2012 and he should be given credit for these amounts. Thereafter, any support paid was enforced through the Family Responsibility Office in accordance with the temporary support order.

[130] I therefore find that from the date the parties began to live in separate accommodations on April 25, 2011 up to August 2012, the mother is entitled to spousal support and child support based on the father's 2011 income of $51,309 and the mother's income from social assistance of $6,654 in 2011 and $8,625 in 2012. I find that as of May 1, 2011 up to and including August 1, 2012 the father shall pay the mother child support of $463 per month and spousal support of $847 per month. I find that it is appropriate to use the mid-range of the SSAG calculations during this time period as the mother was the full time custodial parent.

[131] As of September 1, 2012 based on an imputed income of $51,309, the father will pay spousal support of $1,102 per month. Such amount to be reviewed as of September 1, 2015 without either party having to prove a change in circumstances and with the expectation that the mother will have taken steps to become self-supporting.

[132] As of September 1, 2012 based on the father's income of $51,309 and the mother's income of $8,624 and based on a shared parenting arrangement, the father will pay the mother $463 per month in child support.

Order as follows:

1. Based on the respondent's income of $51,309 and in accordance with the Child Support Guidelines, the respondent shall pay to the applicant, as of May 1, 2011 up to and including August 1, 2012 $463 per month as child support for Sophie Anne Noelle Desrosiers born December 20, 2007. The respondent shall be credited $4,297 on account of direct payments made to the applicant.

2. Based on the respondent's income of $51,309 and the applicant's income in 2011 of $6,654 and in 2012 of $8,624, the respondent shall pay spousal support of $847 per month as spousal support from May 1, 2011 up to and including August 1, 2012.

3. As of September 1, 2012, based on an imputed income of $51,309 the respondent shall pay to the applicant child support of $463 per month.

4. As of September 1, 2012, based on imputed income of $51,309 the respondent shall pay spousal support of $1,102 per month subject to a review of spousal support as of September 1, 2015, with respect to both ongoing entitlement and amount, at the instance of either party without the necessity of proving a material change in circumstances and based on the expectation that the applicant will use her best efforts to become self-supporting.

5. The applicant and respondent will share, in proportion to their respective incomes, the cost of extraordinary expenses of the child, taking into consideration any applicable subsidy or benefit received by the applicant. For purposes of this calculation, the applicant's income shall be based on her actual income and the respondent's income shall be based on an imputed income of $51,309 or his actual income whichever is higher.

6. The parties shall exchange their income tax returns with all attachments and their Notices of Assessments as of June 30th, 2013 and each year thereafter. The amount of child support and the proportionate sharing of any section 7 extraordinary expenses for the preceding year shall be adjusted accordingly. For purposes of this calculation, the applicant's income shall be based on her actual income and the respondent's income shall be based on an imputed income of $51,309 or his actual income whichever is higher.

7. The respondent shall maintain the applicant and the child on any medical, dental insurance coverage available through his employment as long as he is required to pay child and/or spousal support and in accordance with the terms of any such policies.

8. For clarity, this order supersedes the respondent's support obligations in the court orders of January 31, 2012 and April 24, 2012. Any amounts paid by the respondent pursuant to those orders are to be credited to the respondent. The order of September 20, 2012 suspending enforcement is no longer in effect.

9. For further clarity, this order supersedes the order of September 20, 2012 suspending the payment of costs of $8,000 pursuant to the order of July 27, 2012. The payment of costs by the respondent is to be enforced by the Family Responsibility Office as a support order.

10. Support Deduction Order to issue.

11. Approval of this Order as to form and content by the respondent is dispensed with.

[133] If the applicant is seeking costs, brief written submissions as to costs with a bill of costs are to be served and filed within 30 days and the respondent's response to be served and filed 30 days thereafter.

[134] I can be spoken to if there are any mathematical errors in my calculations.

Released: December 20, 2013

Signed: Justice Roselyn Zisman

Footnotes

[1] This provision is clearly set out in the reasons for judgement but was not incorporated into the order.

[2] Bracklow v. Bracklow, [1999] 1 S.C.R. 420

[3] Perino v. Perino, [2007] O.J. No. 4298; Rilli v. Rilli, [2006] O.J. No. 4142

[4] Drygala v. Pauli, [2002] O.J. No. 3731

[5] Divorcemate calculations the court prepared as the basis for the calculations are attached as appendixes to this judgement. The calculations prepared by mother's counsel were filed as part of her submissions.