Court File and Parties

Court File No.: D57036/12 Date: 2015-03-18

Ontario Court of Justice

Between:

RICARDO GONZALEZ Acting in Person Applicant

- and -

CINDY GARCIA Respondent

Counsel: Patricia Gan, for the Respondent

Heard: March 16, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the applicant's (the father) support obligations for the parties' three-year-old child (the child).

[2] The respondent (the mother) asked the court to impute the father's income at $45,000 per annum for the purpose of calculating child support. She asked for an order that the father pay the table amount of child support for one child, pursuant to the Child Support Guidelines (the guidelines), in the sum of $406 per month, retroactive to January 1, 2014.

[3] The father took the position that he could not afford to pay child support as he is unemployed and in receipt of social assistance.

[4] The parties previously resolved the parenting issues. The mother has custody of the child and the father has specified access to him.

Part Two – Background Facts

[5] The mother is 28 years old. The father is 26 years old.

[6] The parties cohabited from April of 2011 until May of 2012. The child lived with the mother after the parties separated.

[7] The mother issued an application for custody and child support on July 6, 2012.

[8] On September 12, 2012, the parties consented to a temporary order that the mother have custody of the child, the father have specified access to the child and that the father pay child support of $253 per month to the mother, based on an annual income of $28,600.

[9] The parties reconciled in November of 2012.

[10] On January 4, 2013, the case was dismissed as abandoned and the temporary order was terminated.

[11] The parties subsequently separated on December 22, 2013. They have remained separated. The child has continued to live with the mother.

[12] The mother issued a new application for custody and child support on February 25, 2014.

[13] On July 8, 2014, the father was ordered to pay, on a without prejudice basis, temporary child support to the mother in the amount of $193 per month. This was based on an income attributed to the father of $22,800 per annum.

[14] The father has been paying the mother child support of $200 per month since July of 2014.

[15] On September 18, 2014, the parties consented to a temporary order granting the mother custody of the child and specified access to the father. A detailed financial disclosure order was also made.

[16] The parties resolved the parenting issues on a final basis at court on February 13, 2015. The father had not complied with the financial disclosure order and was ordered to provide the mother with this disclosure by March 6, 2015.

[17] The mother presently supports herself with Ontario Student Loans and the support paid by the father. She is taking the Police Foundations Course which will end in April of 2016.

Part Three – Positions of the Parties

[18] The mother testified that the father earned between $40,000 and $45,000 per annum while they lived together.

[19] The mother said that the father worked in construction, had a licence to remove asbestos and had experience driving a forklift.

[20] The mother stated that the father was employed for most of the time they were together. She said that he would earn income under his social insurance number and would also earn income using his father's social insurance number. The purpose of doing this, she said, was that both would be able to claim employment insurance. In addition, the mother said that the father earned significant cash income in this time period.

[21] The mother testified that the father manipulated bank accounts in order to show he had no assets. This way, he could obtain benefits from social services and avoid creditors. She said that he bragged about his ability to do this. She testified that the father's mother cashed his cheques from work and gave the cash to the father and to her.

[22] The mother provided evidence from the father's Facebook page to establish that he is living a comfortable lifestyle. This included evidence of two trips to New York and a trip to Ecuador in the past year; evidence of tickets to sports events and concerts and many pictures of the father partying at nightclubs.

[23] The father testified that he last worked in June of 2014. He received employment insurance until November of 2014 and has been on social assistance since the beginning of March of 2015. He stated that he is supported by his parents and his girlfriend.

[24] The father testified that he plans to go back to school in the Second Careers Program as he wants to become a computer technician.

[25] The father says that he is not capable of earning the income the mother seeks to impute to him. He said that his work is seasonal and with bad weather, it has not been available. He testified that he struggles to pay the current support order of $200 per month.

[26] The father provided a comparative income tax summary setting out his annual income as follows:

• 2010 - $43,403
• 2011 - $28,638
• 2012 - $32,452
• 2013 - $20,340
• 2014 - $31,175

[27] The father has received employment insurance benefits every year since 2011.

[28] The father admitted that he also earns annual cash income of between $2,000 and $3,000.

[29] The father testified that he could not afford to pay retroactive child support.

Part Four – Legal Considerations

[30] Section 19 of the guidelines permits the court to impute income to the father if it finds that he is earning or capable of earning more income than he claims.

[31] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli.

[32] The Ontario Court of Appeal in Drygala 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?
3. If not, what income is appropriately imputed?

[33] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322.

[34] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano.

[35] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[36] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi.

[37] It is not reasonable for a payor to return to school and not pay support, unless it is justified by a sufficient increase in earning ability that will benefit the child (see my comments in Carter v. Spracklin, 2012 ONCJ 193).

[38] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[39] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini; Maimone v. Maimone.

[40] A person's lifestyle can provide the criteria for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

Part Five – Credibility

[41] The mother was a very credible witness. She testified in a calm and direct manner. She provided considerable detail about the father's work history and how he conducted his financial affairs.

[42] The father was not a credible witness. He was vague when questioned about his work history and evasive when questioned about his efforts to find work and how he conducted his financial affairs.

[43] The father's credibility was also undermined by his failure to provide full financial disclosure. The court made a detailed disclosure order on September 18, 2014. As of the court appearance on February 13, 2015, the father had not complied with the order.

[44] The father only provided partial disclosure at trial. He did not provide any of the following, which were required by the order: his full income tax returns, his record of employment from his last employer, a letter from his union showing that he has been willing to accept all work and is on the hiring list and his bank and credit card statements for the past 12 months.

[45] The father treated his disclosure obligations in a cavalier manner. He testified that some of the outstanding documents were at home. He said that the union wouldn't provide a letter since he was behind on dues (he offered no proof of this).

[46] The father testified that he has no bank accounts, but did have a joint account with his mother until she changed it into her name alone in November of 2014. The father's most current financial statement listed a different bank account. The father, when questioned, claimed it was his father's account.

[47] When asked where his pay went when he was employed, the father acknowledged that he cashed his cheques for a $40 fee (each time), and they did not go into either bank account.

[48] When asked why he did not have an account in his own name, the father said it was because of his credit. On further examination, it became apparent that the father was trying to avoid creditors and not show any assets (which would also assist him in making a social assistance application).

[49] The father lives with his parents. He testified that social assistance directly pays them his rent of $500 per month. It is interesting that the father did not pay any rent to his parents until after his employment insurance ran out and he applied for social assistance. This increased the social assistance received.

[50] All of this evidence corroborated the mother's testimony that the father manipulates whatever system he can to obtain money.

[51] The father acknowledged that the Facebook entries provided by the mother were authentic. He denied paying for any of his trips, sports or concert tickets, or the multiple alcoholic beverages appearing before him in the pictures. He claimed that these were all paid for by friends and family. He was not credible.

[52] The court prefers the mother's evidence that the father has been earning income of about $40,000 to $45,000 per annum, and that he is presently leading a lifestyle commensurate with such an income.

Part Six - Intentional Unemployment or Underemployment

[53] The court also finds (in the event he is not presently working for cash) that the father is intentionally unemployed or underemployed (the first step in the Drygala test).

[54] The father testified that he has not worked since June of 2014. He was ordered to provide a job search list. He provided a list of five jobs he applied for in February of 2015. It became apparent in cross-examination that he had not otherwise applied for work since June of 2014. The father said this was because "it was a rough moment in my life". It was also because he travelled to Ecuador from September of 2014 until January of 2015.

[55] The job search list provided by the father did not include applications for jobs in construction and demolition or driving a forklift – all occupations that the father is qualified for and experienced in.

[56] The father did not provide a reasonable excuse for his unemployment (the second part of the Drygala test). He did not appear eager at trial to return to work. His preference is to return to school and learn a new occupation – to become a computer technician. This is not a reasonable career choice when he has support obligations. It would be more reasonable for him to take night classes and continue to work.

[57] The last step in the Drygala test is to assess what income the father is capable of earning. The father only has a grade 10 education, but has a number of marketable employment skills. He has experience driving forklifts, working in construction and demolition and in asbestos removal. He was earning $28 per hour when he worked in 2014. He is resourceful at maximizing his income.

[58] The court accepts the mother's evidence that the father is capable of earning between $40,000 and $45,000 per annum. His income will be imputed at $42,500 per annum for support purposes. The guideline table amount for one child at this income is $384 per month.

Part Seven – Start Date for Support

[59] The mother asks that the father be required to pay child support starting on January 1, 2014. The parties separated on December 22, 2013. The mother issued her application on February 25, 2014.

[60] The court has jurisdiction to order retroactive child support payments, and the principles set out by the Supreme Court of Canada in D.B.S. and S.R.G. v. T.A.R. and L.J.W., 2006 SCC 37, structure its discretion. In that decision, the Court articulated two overarching principles governing claims for retroactive child support and retroactive increases in support: 1) Each parent has an obligation to insure that his/her child receives proper support in a timely manner; and 2) courts considering these claims must balance the payor's interest in the certainty of the status quo with the need for fairness and flexibility. The Court set out four factors to be considered in such claims:

1. Reason for the delay in bringing the claim;
2. Conduct of the payor parent;
3. Circumstances of the child;
4. Hardship that may be caused by a retroactive award.

[61] The mother moved promptly for support after the separation. She had moved into a woman's shelter with the child after the separation and had to first get settled. The father demonstrated blameworthy conduct by not paying child support for the child until the temporary support order was made. The circumstances of the child were disadvantaged by the father's failure to pay support as the child had to live in a shelter. Any hardship to the father arising from a retroactive order can be addressed through a repayment order.

[62] The mother's request for retroactive support is modest and reasonable and will be ordered.

[63] The father should only be credited with child support paid to date, as reflected in the records of the Director of the Family Responsibility Office.

[64] The father may repay the arrears created by this order at the rate of $125 per month, starting on April 1, 2015. However, if he is more than 30 days in default of any ongoing or arrears support payments, the entire amount of arrears shall immediately become due and payable.

Part Eight – Conclusion

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

a) The father shall pay the mother child support, based on an imputed income of $42,500 per annum, in the amount of $384 per month, being the guidelines table amount for one child, starting on January 1, 2014.

b) The Director of the Family Responsibility Office is asked to amend their records to reflect the terms of this order.

c) The father shall only be credited with child support paid to date as reflected in the records of the Director of the Family Responsibility Office.

d) The father may repay the arrears created by this order at the rate of $125 per month, starting on April 1, 2015. However, if he is more than 30 days in default of any ongoing or arrears support payments, the entire amount of arrears shall immediately become due and payable.

e) This order will not preclude the Director of the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or from any lottery or prize winnings of the father.

f) The father shall, by June 30th each year, provide the mother with a complete copy of his income tax return and notice of assessment.

g) A support deduction order shall issue.

[66] If the mother chooses to seek costs, she is to serve and file written submissions by March 30, 2015. The father will then have until April 10, 2015 to make written response. The submissions should not exceed two pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

Justice S.B. Sherr

Released: March 18, 2015