Court File and Parties
Court File No.: D72048/14 Date: 2016-02-26
Ontario Court of Justice
Between:
ANNAKIM FFRENCH Applicant
- and -
DONTAY WILLIAMS Respondent
Counsel:
- Pamila Bhardwaj, for the Applicant
- Dontay Williams, Acting in Person
Heard: February 22, 2016
Before: Justice S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial was about the respondent's (the father) child support obligations for the parties' 8-year-old child (the child).
[2] The applicant (the mother) asks the court to impute the father's income at $41,700 per annum and to order him to pay her the Child Support Guidelines (the guidelines) table amount of $385 per month. She asks that child support start as of December 1, 2014.
[3] The father says that he does not have the ability to pay any child support.
[4] The parties agreed that this would be a focused hearing pursuant to subrule 1 (7.2) of the Family Law Rules (the rules). It was agreed that only the father would give oral evidence as the mother had no direct knowledge of his income.
Part Two – Background
[5] The parties are both 24 years old.
[6] The parties lived together from June of 2008 until December of 2009. They have remained separate and apart.
[7] The parties had the one child together. They were both 16 years old when the child was born.
[8] The child has always lived with the mother.
[9] The mother graduated from the University of Toronto in April of 2015. She is working full-time.
[10] After completing high school in Toronto, the father attended a Junior College in Virginia, in the United States. He testified that he took business level courses. His main ambition, though, was to become a professional football player. He played for his college team from 2012 – 2014. The father testified that he returned to Toronto when "football didn't pan out".
[11] The father said that he did not work prior to 2015 as he was dedicating himself full-time to football.
[12] The father said that he spent most of 2015 trying to "figure himself out". He enrolled at York University in the fall of 2015 in the first year of a Business Administration program. This is a 4-year-program.
[13] The father testified that his main goal is still to become a professional football player. He testified that he played for the York University football team in the fall of 2015.
[14] The father deposed that he also works part-time as a personal trainer. He said that since the start of 2015 he has earned between $400 and $500 per month.
[15] The father lives with his mother and brother.
[16] The father has received student loans totaling $10,000 for this school year.
[17] The father testified that his family paid for his expenses as an international student while he was in the United States. He was unclear about the actual amounts of these expenses and provided no documentation about them. He said that it cost about $10,000 (in U.S. funds) in his first year for residence and tuition.
[18] The father says that his family has had to financially support him. They paid for his expenses in the United States and have supported him in Canada.
[19] The father has never paid the mother child support.
[20] The mother issued an application for custody, child support and a restraining order on November 14, 2014.
[21] On February 9, 2015, Justice Robert Spence made temporary orders granting the mother custody of the child and restraining the father from contacting or communicating with the mother and the child.
[22] On April 2, 2015, the parties resolved all but the child support issue. The mother has final custody of the child. The father has defined access. There is a final restraining order in place prohibiting the father from communicating with or contacting the mother or coming within 500 metres of her.
[23] On September 17, 2015, the parties consented to an order that the father provide specific financial disclosure.
[24] On December 14, 2015, the mother consented to an extension for the father to provide the required financial disclosure.
[25] The father only provided part of the financial disclosure ordered.
Part Three – Positions of the Parties
[26] The mother asked the court to impute an annual income of $41,700 per annum to the father. She submitted that this is the average income of personal trainers.
[27] The mother submitted that the father's failure to earn income and pay child support is not justifiable.
[28] The mother also submitted that the father is likely earning far more income than he deposes. She asked the court to draw an adverse inference arising from his lack of full financial disclosure.
[29] The father asked the court to give him more time before it requires him to pay child support.
[30] The father said that this is an important time in his football career. He said that he will be attending two open Canadian Football League (CFL) tryouts in April and May. He hopes to be able to play football this season in the CFL and eventually play football in the National Football League (NFL).
[31] The father said that playing football is his best opportunity to support himself and the child in the future.
[32] The father said that his school and football commitments mean that he has little time for part-time work. He said that he is required to extensively train for football in the off-season. He testified: "my school and football come first".
[33] The father said that he has two clients whom he personally trains. He says they each pay him about $200 to $250 per month. He provided no documentation about his earnings.
[34] The father said that his "Plan B", if football didn't work out, was to continue in school and work part-time as a personal trainer. He has registered a business for his personal training work.
Part Four - Legal Considerations
[35] 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.
[36] 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.
[37] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:
a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.
b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.
c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
[38] 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:
- Is the party intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
- If not, what income is appropriately imputed?
[39] 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.
[40] 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.
[41] 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. The trial judge must determine whether the educational needs claimed by the payor are reasonable. See: Drygala, supra, paragraph 39. 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; Drygala, supra, paragraph 39.
[42] The court in Drygala expands on what is required to determine if the educational needs of a payor are reasonable in paragraphs 40 and 41 as follows:
[40] But, s. 19 (1) (a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs of a spouse.
[41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.
[43] 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 children (see my comments in Carter v. Spracklin, 2012 ONCJ 193).
[44] 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.
[45] 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.
[46] 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.
[47] Where a party receives regular gifts from his or her parent, the court may impute the amount of those gifts as income for support purposes: See: Marrello v. Marrello, 2016 ONSC 835, citing Bak v. Dobell, 2007 ONCA 304 at paragraph 75 and Korman v. Korman, 2015 ONCA 578, at paragraphs 47-51, 62-65 and 67.
Part Five – Analysis
[48] The father has been intentionally unemployed or underemployed since (at the very least) the mother issued this application.
[49] The father is healthy, educated and very capable of earning a reasonable income. He is capable of paying a reasonable amount to support his child.
[50] The father has made a choice that school and in particular, football, come ahead of his child's interests. As a result, he has never paid child support. The mother has been left with the entire responsibility of supporting the child. This has been profoundly unfair to the mother and the child.
[51] The time has long passed since the father could validly argue that his educational needs justify his underemployment.
[52] The father did not pay any child support during the three years that he attended Junior College in Virginia. Attending school in Virginia was expensive. His family paid for his schooling expenses of at least $10,000 per annum (U.S. funds). None of this money was directed towards child support.
[53] The father testified that Junior College football did not pan out for him. He did not receive any professional football offers or scholarships to attend a football program at an American university. At that point, the reasonable course of action would have been to obtain employment and support his son.
[54] Instead, when the father returned to Toronto, he did little to support himself. He testified that he spent much of 2015 "trying to figure himself out". The father received no job offers from professional football teams. He did not attend any professional football tryouts.
[55] The father earned nominal income doing personal training in 2015. He made no effort to apply for work. He paid no child support.
[56] The father's educational plan presented to the court was vague. He said that his undergraduate course will take 4 years. He does not know where it will lead. He hopes to one day start a business, but did not provide any more detail about this.
[57] The child should not have to wait that long to be supported. He has already gone over 8 years without child support.
[58] It was apparent that the main reason the father was attending school was to further his opportunities for a professional football career. He did not provide adequate evidence to satisfy the court that this was a reasonable excuse for not earning income and paying child support. The father is already 24 years old. He has never received an offer to play professional football. Football in Virginia did not work out for him. He provided no documentary evidence (such as evidence of his statistics as a running back at York University) that would convince the court that he might be signed as a professional football player. When he was asked about his performance this past football season the father said that his rushing statistics were reduced because he was new to the team and his coaches had to get to know him. It is highly speculative whether the open tryouts the father will attend will lead to a contract offer from a professional football team.
[59] The father stated that if he does not receive a contract offer at the upcoming football tryouts that he will try again next year. Again, the child should not have to wait that long to be financially supported.
[60] Football can no longer take priority to the father's child support obligations.
[61] It is apparent that the father has lived a comfortable lifestyle while he has ignored his child support obligations. He attended an expensive college football program in the United States. He deposed that his car expenses are $650 per month (he said this is paid by his family). He testified that he receives "perks" for playing football, such as receiving tickets for the NBA All-Star weekend held in Toronto. A friend (who he says plays professional football in the NFL) took him on a trip to Mexico. He pays no room or board. His family appears willing to pay considerable money to support his aspirations. None of this money has been applied to child support.
[62] The father provided incomplete bank records. Most of the statements he did provide showed no activity. It appears that he operates mostly in cash. The one bank record provided that showed activity (in November of 2015) revealed the father spending over $650 that month at restaurants and shoe stores.
[63] It is appropriate to impute income to the father. If he chooses to continue to pursue his football career, he will also have to pay a reasonable amount of child support.
[64] The mother asked the court to impute the father's income at $41,700 per annum. She submitted that this was the average income of personal trainers. She did not lead any evidence to support this. Her counsel merely put this figure to the father in cross-examination, having obtained this figure in an internet search. The father did not agree that he could earn this level of income working as a personal trainer.
[65] The mother also asked the court to draw an adverse inference arising from the father's lack of financial disclosure and find that he has been earning significant income. While the father's financial disclosure was incomplete, the court accepts that he has not been earning any meaningful income – certainly nowhere near the amount sought to be imputed by the mother (even drawing an adverse inference against the father). The main concern for this court (after reviewing the evidence) was whether the father should have been earning meaningful income – not whether he actually earned it.
[66] The court agrees with the father that the amount sought to be imputed by the mother at this time is too high. The father would likely need some time to establish himself as a personal trainer before earning the level of income claimed by the mother.
[67] The father is capable of working at many types of work. He could be a personal trainer. He is very strong and fit. He is able to perform manual labour in construction or at a factory. He is educated. He could likely work in customer service. The father is capable of earning more than a minimum wage income.
[68] The father should have been earning income and paying support from December 1, 2014 (the 1st day of the 1st month after the application was issued). The father is very fortunate that the mother has not sought an order that support be retroactive to a date prior to the issuance of the application. Support will begin as of December 1, 2014.
[69] The father's ability to earn income would likely have been somewhat less on December 1, 2014 than it would be today. If he had started working then as a personal trainer, he would likely be earning more income today. The father's income will be imputed at $25,000 per annum as of December 1, 2014 and $30,000 per annum as of January 1, 2016 for the purpose of the child support calculation.
[70] This order will create immediate support arrears. The father will be permitted to repay these arrears at the rate of $150 per month. However, if the father is more than 30 days late in making any ongoing or arrears support payments, the full amount of arrears outstanding shall immediately become due and payable. To ease financial pressure on the father while he completes this school term and attends the CFL football tryouts, the court will not require him to start paying the arrears until July 1, 2016.
Part Six – Conclusion
[71] A final order shall go on the following terms:
a) Starting on December 1, 2014, the father shall pay the mother child support of $200 per month, being the guidelines table amount for one child, based on the father's annual income imputed at $25,000.
b) Starting on January 1, 2016, the father shall pay the mother child support of $245 per month, being the guidelines table amount for one child, based on the father's annual income imputed at $30,000.
c) The father may repay the arrears created by this order at the rate of $150 per month, starting on July 1, 2016. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears shall immediately become due and payable.
d) The father shall, starting in 2016, annually provide the mother by June 30th with copies of his complete income tax returns (including all schedules), notices of assessment and his three most recent pay stubs.
e) The father shall immediately notify the mother if he obtains employment. He shall provide her with the name and address of his employer and documentation establishing his income (such as pay stubs or contracts).
f) A support deduction order shall issue.
g) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source, such as HST or income tax refunds, or from lottery or prize winnings.
[72] If the mother seeks costs against the father, she shall serve and file written submissions by March 11, 2016. The father will then have until March 25, 2016 to serve and file a written response to these submissions. The written submissions are not to exceed 2 pages, not including any offer to settle or bill of costs. The submissions should be filed at the trial coordinator's office on the second floor of the courthouse.
Released: February 26, 2016
Justice S.B. Sherr