Court File and Parties

Court File No.: Brampton 65/10 Date: 2014-02-27 Ontario Court of Justice

Between:

Naadira Mungal Applicant,

— AND —

Darryl Mungal Respondent.

Before: Justice S.R. Clark

Ruling on Motion to Change re Child Support

Motion heard: February 12, 2014 Ruling released: February 27, 2014

Counsel:

• Ms. Bonnie Caplan-Stroeder for the applicant Naadira Mungal
• Darryl Mungal on his own behalf

CLARK J.:

1:0 INTRODUCTION

[1] This ruling relates to an intentionally unemployed payor.

[2] This Court has been involved in this matter for more than one year, since November, 2012.

[3] The respondent father, Darryl Mungal (the father) brought a motion to change dated September 6, 2012. The two relevant orders were made by Justice Dunn.

[4] The first order, dated April 29, 2010 provides, inter alia, that the applicant mother, Naadira Mungal (the mother), has sole custody of the two boys, Nabil, born June 21, 2006, presently age 7, and Nafis, born November 9, 2007, age 6. The father now seeks joint custody with primary residence to him, or alternatively, a more meaningful access schedule. This motion to change is not the subject of a ruling today. This matter remains ongoing.

[5] The second order made by Justice Dunn, dated January 13, 2012, sets out terms including child support arrears being fixed in the amount of $2,870.00 as of December 1, 2011. The other relevant term is that child support otherwise payable in the amount of $330.00 per month is terminated as of December 1, 2011. This order also provides that the father was to notify the mother immediately once he was no longer on social assistance.

[6] He now seeks to rescind or otherwise terminate any arrears of child support altogether, as of June 4, 2012.

[7] He has not worked since the date of these orders. He continues to receive social assistance.

[8] Substantially all of the mother's materials filed in response relate to the issues of custody and access. Her position on child support, however, is that the arrears should be paid and child support should resume. The Court should impute income to him.

[9] Most of the case management time has been devoted to the access issue.

[10] Thankfully the mother is not in dire straits financially, which is why the issue of child support has been more academic than practical.

[11] However, the time has now come to take this off the "back burner".

[12] At a settlement conference held on February 21, 2013, when the father was still represented by counsel, he sought a 4-month adjournment on the child support issue to obtain the necessary documentation to support his inability to work. Counsel for the mother was adamant that this matter should not be adjourned and sought leave to bring her own motion seeking an order imputing income to the father. She was granted leave.

[13] Upon more careful review of the file, it was not necessary for this to be a separate motion, as the matter was already the subject of the motions to change and the mother's response to same.

[14] In any event, the matter continued to be case managed on April 29, and May 28, 2013.

[15] The motions were scheduled to be heard on September 27, 2013. However, shortly before this time, the father was no longer represented by counsel. Accordingly, the September 27 date was vacated and a new date was scheduled for November 18, 2013. Again, it did not proceed.

[16] As a result of a continuing settlement conference held on February 12, 2014, a temporary order was made varying access to be unsupervised by the father each Sunday. The Court then heard submissions on the motions dealing with the child support issue. The ruling was reserved.

2:0 THE ISSUES

[17] The 3 main issues are as follows:

1. Has there been a material change in circumstances?
2. Should the Court vary child support retroactively and if so, to what date?
3. Is the father intentionally unemployed, and if so, should the Court impute income to him for purposes of determining child support?

3:0 THE POSITIONS OF THE PARTIES

3:1 The Father

[18] His physical status has remained essentially unchanged.

[19] He has not been working since 2010. He was involved in a motor vehicle accident and suffered a number of injuries, particularly to his wrist. He continues to experience residual pain, headaches, dizziness, breathing problems, and difficulty walking.

[20] He advised the Court in September, 2013 that he is receiving funds from Ontario Works. At that time he continued to suffer dizziness and headaches. Because of his back problems he has been unable to either sit or stand for lengthy periods of time. He provided a hand-written letter from his family physician, Dr. Malinowski, dated August 28, 2013, supporting the position that he was unemployable. However, there is very little detail in the letter. In fact, the substance is more in the nature of supporting the father's position regarding custody and access. The only medical reference relates to a gait problem.

[21] He filed two additional medical reports in support of his position. The first was from Dr. Adit Margaliot from the Credit Valley Hospital, dated September 27, 2011. The report discloses that as a result of a motor vehicle accident in December 2010, Mr. Mungal felt an increase in his anterior knee and quad discomfort. He sustained a concussion although there were no fractures apart from his right wrist. There was a suggestion of him having mild cerebral palsy to explain the problems with his legs. He was laid off from his job at Dollarama and has not been working since. He continues to live with his mother. The report also confirms that Mr. Mungal has a degree in Islamic law and theology. He completed grade 11 in Canada and then move to England for the rest of his education. The doctor's impression is that Mr. Mungal's medical history is somewhat unclear. He seems to have spasticity in his lower extremities although his overall strength is quite full. The doctor was unable to clarify his diagnosis.

[22] The report from Dr. C. Forster-Gibson, also from the Credit Valley Hospital, dated August 15, 2012, discloses that he was seen at the genetics program regarding the possible diagnosis of hereditary spastic paraplegia. His difficulties with walking because of his gait became worse after he was involved in the car accident in 2010. He reported he could not stand or sit for long periods of time and when sitting, his legs would often shake uncontrollably. He also experiences knee pain on both sides which began in his childhood. Otherwise, he reported he was in good health. Any occasional headaches would go away after he had slept. He does not have any difficulty with his memory. He had normal strength in his upper limbs. Again, there was no clear diagnosis made, although the possibility of a genetic aetiology was not ruled out.

[23] His affidavit, sworn February 11, 2014 does not disclose any new information about his medical status or ability to work.

[24] Accordingly, he submits he should not be required to pay child support, although he is prepared to so do if and when he is ever in a position to secure employment.

[25] Although he is living with his mother, his social assistance benefits only allow him to cover his own basic needs. On the other hand, he submits the mother earns in excess of $60,000.00 per year and also has an obligation to support the children.

[26] Accordingly, he asks the Court not to impute income.

[27] He submitted a two-page written document titled, "Factum of the Respondent/Father". He asks the Court to consider the following points:

1. The Court should not impute income given the substantiated medical opinions that he is unable to work because of health handicaps.
2. Counsel for the mother could have cross-examined the doctor or doctors but did not. Instead, the Court is being asked to accept self-serving and "dishonest" assertions by her.

3:2 The Mother

[28] She has maintained the same position throughout. Simply put, the father has remained intentionally unemployed. The medical documentation does not support such a debilitating medical situation such that he is not capable of finding any form of employment. Furthermore, he has not provided an evidentiary basis of any efforts to seek or obtain any form of work.

[29] It should be noted that he left his last job at Dollarama because he felt the wages were inadequate. This is set out in the medical report from Dr. Margaliot.

[30] Although the medical reports suggest he may be unable to perform certain types of physical labour, given the problems with his gait and strength in his legs, there are countless jobs that would be available to him given his level of education and intellectual skills.

[31] The affidavit, sworn February 10, 2014, sets out her position as follows:

1. There are many people who are physically challenged who can still successfully work at various types of employment.
2. The father has shown through email and written documents that he is able to use his home computer and write for his personal use.
3. The mother queries why the father is not receiving disability income if he is so disabled from working? He has previously "taught" students through his temple. This demonstrates he is capable of working. He has provided no information from the job opportunities listed by the North American Muslim Foundation.
4. He states he is below the poverty line, yet he owns and continues to operate a motor vehicle.
5. He continues to demonstrate a total lack of respect and compliance with the judicial system and Court orders. He has still not paid a costs order made against him in the amount of $5,000.00.
6. He resides with his mother and does not have to address the usual expenses that others would face.
7. By maintaining the position that he is unable to provide for himself, one queries how he can possibly provide for two small children given the access schedule he is seeking.

[32] In short, the father has not met the onus that he has done everything possible to exhaust all efforts at obtaining employment. Accordingly, the Court should impute a fair and reasonable income to him.

4:0 ANALYSIS

4:1 Issue 1 – Has there been a material change in circumstances?

[33] The Court is taking a broad interpretation of this factor. What has become "material" is, rather ironically, the fact that there has been no change in the father's status as it relates to his employability.

[34] Accordingly to him at least, he has not been rehabilitated to the point where he believes he can work. By maintaining this position, however, he has effectively, and conveniently, made himself "judgment-proof". Therefore, the material change is due to the fact there has been no change.

[35] Clearly, the issue of child support should be revisited.

4:2 Issue 2 – Should the Court vary support retroactively, and if so, to what date?

[36] The Court has jurisdiction to vary or otherwise reduce child support payments if the circumstances deem it necessary and appropriate.

[37] The leading decision in this area is D.B.S. v. S.R.G., 2006 SCC 37 (hereinafter referred to as D.B.S.). The majority decision of the Supreme Court of Canada addressed two general principles, namely, that both parents have an obligation to ensure their children receive the appropriate amount of support in a timely manner, and when faced with a retroactive claim, must balance the payor's interest in relying on the status quo with the need for fairness and flexibility.

[38] The Court set out 4 main factors to be considered:

1. The reasons for the delay in bringing the claim.
2. The conduct of the payor.
3. The circumstances of the children.
4. Any hardship that may be caused by a retroactive award.

[39] There is no priority, necessarily, to these factors. None of them is decisive. The Court should strive for a holistic approach.

[40] These same factors are applicable whether there is a retroactive claim for an increase in child support if brought by the recipient, or when the payor is seeking to reduce or otherwise terminate child support.

[41] Applying the above-noted criteria, and the principles set out in D.B.S., the Court finds the following to be relevant factors:

1. Reasons for Delay

[42] The father has continued to take the position that he is unable to pay and has made virtually no effort to do so.

[43] Were it not for his desire to bring a motion to change relating to access, this financial issue would not have been advanced by him.

[44] The Court finds that he would have been quite happy to have continued to "lie in the bushes" and make the mother come after him, so to speak. On the other hand, the mother, quite realistically, realized the futility of trying to get "blood from a stone". Thankfully, she was otherwise able to meet the financial needs of the boys and, for a period of time, likely thought it wasn't worth the aggravation to bring the father to Court over it. Despite the fact she may not be as destitute as some other recipients, this is hardly the point.

2. The Conduct of the Payor

[45] The Court is entitled to take an expansive view of what constitutes blameworthy conduct. Anything that privileges the payor's own interest over his children's right to an appropriate amount of support constitutes blameworthy behaviour.

[46] The Court is quite satisfied the father has not demonstrated, on a balance of probabilities, that his behaviour and conduct has been anything but blameworthy. His financial disclosure came in dribs and drabs.

[47] Furthermore, the medical evidence he has provided in support of his inability to work is wanting.

[48] He has obvious skills. In fact, he has tried to highlight these in an effort to support the merits of his position on access. Yet, while he uses his abilities as a "sword" to advance his access position, he converts them to a "shield" when it comes to his position on employability.

[49] The Court finds it is not reasonable at all that he is unable to find any form of employment. Most telling is that he has not provided any evidentiary foundation to suggest he has even tried to find work.

[50] His anecdotal claim, quite frankly, rings hollow.

3. The Circumstances of the Children

[51] There is no evidence that the children are leading anything other than a basic lifestyle.

[52] Although it may be fair to say that they are not suffering, this is not the test. It is an obvious inference to draw that their interests could have been further advanced if there was more money available to support them.

4. Hardship for the Payor

[53] This factor has diminished significance when the father, through his own conduct, brought about the hardship.

[54] He does not have the usual expenses that most people have. He lives with his mother.

[55] He has almost been able to create the perfect "bullet-proof" situation claiming he can't work, and only has limited income from his social assistance payments. Meanwhile, all of other attendant expenses are being absorbed by his mother.

[56] In all the circumstances, therefore, the Court finds the Court should not reduce or otherwise vary the child support otherwise owing by the father, at least totally. He must start paying something.

4:3 Issue 3 – Is the father intentionally unemployed, and if so, should the Court impute income to him for purposes of determining child support?

[57] Caution should be used when exercising judicial discretion to impute income.

[58] It is both an art and a science. It should be a contextual and purposive analysis.

[59] Income may be imputed in circumstances where an individual is intentionally underemployed or unemployed (see Drygala v. Pauli and s.19(1) of the Guidelines).

[60] However, the Court must undertake a 3-part analysis set out in Drygala as follows:

1. Is the payor intentionally unemployed?
2. If so, is it by virtue of the needs of the children?
3. If not, what income is appropriately imputed in the circumstances?

[61] The onus is initially on the party seeking to impute to establish an evidentiary basis that the party meets term #1 above. The Court must also consider the following factors:

• The Court must consider what is reasonable in the circumstances, taking into consideration the age, education, experience, skills, and health of the payor, as well as his past earning history and the amount of income he could reasonably earn if he worked to capacity.
• The amount of income the Court imputes is a matter of discretion. The only limitation is there must be some basis in the evidence for the amount the Court chooses to impute.
• It is incumbent on the payor to provide evidence of the availability of job opportunities and adequate information on the types of jobs available. If this is not provided, the Court can consider his previous earning history and impute the appropriate amount.

[62] The fundamental obligation of a parent is to support his children. This takes precedence over his own interests and choices.

[63] D.B.S. makes it clear that payors must not arrange their financial affairs so as to prefer their own interests over those of their children. Indeed, a payor will engage in blameworthy conduct even where he does nothing active to avoid his obligation, if he consciously chooses to ignore it.

[64] It is important to note that the word "intentionally" in this context clarifies that the provision does not apply to situations beyond one's control.

[65] It is also important to note that the Court may exercise its discretion not to impute income where the payor establishes the reasonableness of his decision.

[66] However, a payor will not be excused from his child support obligation merely because he chooses to leave an unproductive job where he feels the wages are not adequate.

[67] As a practical matter, it is not always easy to determine when a payor is the victim of unfortunate financial or medical circumstances, or the author of same.

[68] A situation which commonly arises is one where a payor involuntarily, or in the circumstances of the present case, voluntarily loses his employment and a lengthy period of unemployment follows. The argument is that he should have been able to find substitute employment if he looked hard enough. It stands to reason, therefore, at the very least, the payor should be providing a list of jobs he has applied for. Alternately, he should have pursued other self-employment which could or would yield the same or more income.

[69] The Court may also give consideration to scenarios where there is an obvious motive to avoid support, or a situation where a payor is simply self-centred, or does not view his lack of ambition as an intention to avoid child support.

[70] The Court can also properly consider whether the payor was merely content or resigned to continue to receive minimal income because he has been able to reduce his own living expenses. In other words, the Court may find that an individual is able to languish in unemployment, because his needs are being otherwise met by a lowering of his own lifestyle, or by receiving support from another family member.

[71] Another consideration is that a payor is not entitled to leave a job because it does not pay well or because he does not wish to do a certain type of work. Job satisfaction is not a weighty factor to consider.

[72] Finally, the Court should not impute income to merely punish a payor. Rather, the Court should only properly consider the amount of income the payor could reasonably earn in the circumstances.

[73] Applying the above-noted principles to the evidence in the present case, the Court finds the father has been intentionally unemployed for the following reasons:

1. He has failed to provide meaningful, cogent and clear medical documentation that categorically states he is unemployable.
2. Despite the limitations articulated in the now somewhat dated medical reports, and even accepting his oral evidence that he continues to suffer from dizziness, headaches and mobility, none of these are either individually, or cumulatively impediments to employment.
3. The father's rigid thinking that he is unable to find work is not a position that can reasonably be maintained.

5:0 CONCLUSIONS

[74] For the reasons noted above, the Court finds that there is an appropriate evidentiary foundation on which to impute income to the father.

[75] He is not without skills or opportunities.

[76] The Court, therefore, intends to make an order based on a minimum wage annual income.

[77] The Court intends to leave the terms of Justice Dunn's final order of April 29, 2010, intact.

[78] However, the Court intends to vary Justice Dunn's order dated January 13, 2012 to more realistically reflect what the father should be paying as retroactive child support, and what he is capable of paying on an ongoing basis. Accordingly, the Court intends to maintain the term that arrears of child support are fixed at $2,870.00 as of December 1, 2011. The Court also intends to maintain the term that child support payable in the amount of $330.00 per month is terminated as of December 1, 2011. However, child support will now be reinstated as of January 1, 2014.

6:0 ORDER

[79] The Court makes the following final order:

1. The final order of Justice Dunn, dated January 13, 2012 is hereby varied as follows:

   (a) Arrears of child support are fixed at $2,870.00 as of December 1, 2011. No further arrears of support are owing from December 1, 2011 through to December 31, 2013.

   (b) The respondent father, Darryl Mungal, shall pay child support to the applicant mother, Naadira Mungal, on behalf of the said children, Nabil Mungal, born June 21, 2006, and Nafis Mungal, born November 9, 2007, in the amount of $317.00 per month, from January 1, 2014, on imputed annual income of $20,800.00 representing minimum wage, commencing January 1, 2014.

2. The outstanding costs award in the amount of $5,000.00 made on March 11, 2013 (and confirmed on March 14, 2013), is enforceable as child support.

3. A support deduction order shall issue.

4. The parties shall exchange financial disclosure annually on or before June 30 of each year, commencing in 2014.

5. There shall be no order for costs on this motion.

7:0 NEXT STEPS IN THE PROCEEDINGS

[80] This matter is otherwise adjourned to March 24, 2014 in courtroom 304 at 9 a.m. before Clark J. for a continuing settlement conference on the motion to change the final order of Justice Dunn, dated April 29, 2010, on the issues of custody and access. No briefs or further affidavit material is required.

Released: February 27, 2014

Justice S.R. Clark