Court File and Parties
Court File No.: D(R) 81994/15 Date: 2016-05-20
Ontario Court of Justice Toronto North Family Court
Between:
Angela Marie Gates NOT APPEARING APPLICANT
- and -
Keigan Richard Gates RESPONDENT
Counsel: Jide Oladejo, for the Respondent
Heard: May 18, 2016
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The applicant (the mother) lives with her 10-year-old child (the child) in the State of Oregon in the United States. She has brought an application pursuant to the Interjurisdictional Support Orders Act. She seeks child support from the respondent (the father), who is the child's father. She asks that child support be ordered retroactive to July 17, 2009.
[2] The father claims that he has not had the ability to pay any child support and asks that none be ordered.
[3] The court heard brief oral evidence by the father and relied on the written materials of the mother and father filed with this court pursuant to the Interjurisdictional Support Orders Act.
[4] The issues for this court to determine are:
a) What is the father's income for support purposes, and in particular, should income be imputed to him?
b) Should an order for retroactive support be made, and if so, how much?
Part Two – Background Facts
[5] The parties were married on August 4, 2007 in Springfield, Oregon.
[6] The parties had the one child together.
[7] The parties lived together in Nova Scotia until they separated in July of 2009.
[8] The mother returned with the child to Oregon after the parties' separation. They continue to live there.
[9] The father moved to Toronto in August of 2010 and continues to live here.
[10] The parties were divorced in Oregon in September of 2010. The Oregon court indicated that any support issues would be dealt with in Canada.
[11] The father remarried on December 24, 2011. He and his spouse have a 3-year-old child.
Part Three – The Father's Income
[12] The father reported the following annual income:
- 2013 - $1,200
- 2014 - $1,200
- 2015 - $9,081
[13] The father found employment late in 2015 as a security guard. He provided a pay stub for the pay period ending on May 7, 2016. This pay stub shows year-to-date income of $4,456 for the first 18 weeks of the year. This projects to an annual income of $12,872.89.
[14] The father testified that he also received Ontario Disability Support Plan (ODSP) benefits of about $400 in both January and February of 2016. He testified that he and his spouse earned too much money to qualify for ODSP benefits in March and April of 2016.
[15] The father testified that he is concerned that his work hours are declining. However, he said that he is eligible for ODSP benefits if he and his spouse fall below a certain combined monthly income amount. He expected to receive some ODSP benefits for May of 2016.
[16] The father's spouse earns $3,200 per month.
[17] The court finds that the father will likely earn about $13,700 in 2016. This is based on his projected employment income, together with the $800 ODSP benefits received this year.
[18] The court considered whether it should impute more income to the father for any period of time claimed by the mother.
[19] Section 19 of the Ontario Child Support Guidelines permits the court to impute income to the father if it finds that he is earning or is capable of earning more income than he claims.
[20] 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.
[21] 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?
[22] 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.
[23] The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton and Stoangi v. Petersen.
[24] The father was laid off as a security officer from the Canadian Corps of Commissionaires in Halifax in 2009. He came to Toronto and found minimum wage employment as a telemarketer in August of 2010. He was laid off from this job in February of 2011.
[25] The father did not work from February of 2011 until he obtained his present job.
[26] The court finds that the father has not been intentionally unemployed or underemployed.
[27] The father has serious medical limitations that impair his ability to earn income.
[28] The father filed a medical report from Dr. Purti Papneja from Sunnybrook Health Sciences Centre in Toronto. The report indicates that the father has Goldenhar Syndrome. This is a congenital syndrome characterized by incomplete facial development. He has severe facial deformities. The father also has profound hearing loss in both ears. He wears a hearing aid in the left ear only as he does not have an external acoustic canal in his right ear. He only has 20/60 vision in both eyes. He also has frontal nasal dysplasia and speech impairments.
[29] The father has received ODSP benefits as a result of these impairments.
[30] The father is unable to drive due to his vision impairment. It is extremely difficult for him to find work due to his vision and hearing impairments and his facial deformity.
[31] The father provided evidence of multiple efforts to find work.
[32] The father has done well to obtain his current job, given his challenges.
Part Four – Retroactive Support
4.1 Legal Considerations
[33] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
Reasonable excuse for why support not considered earlier.
Conduct of the payor parent.
Circumstances of the child.
Hardship occasioned by the retroactive order.
[34] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.
[35] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).
[36] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
[37] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S., par. 97).
[38] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed (D.B.S., par. 95).
[39] Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. (D.B.S., par. 96).
4.2 Analysis
[40] The court finds that the father did not have the ability to pay any child support from the time he was laid off in February of 2011, until he found his present employment late in 2015.
[41] The mother seeks retroactive support back to the date of separation in July of 2009.
[42] The mother did not provide any reason why she waited over six years to bring her support application.
[43] The father has not engaged in blameworthy conduct. He did not have the ability to pay any support from February of 2011 until he obtained his current job near the end of 2015. The father provided several emails showing that he has sent money to the mother for the child over the years. He has made his best efforts to support the child.
[44] The court received no evidence about the circumstances of the child. However, it is a reasonable inference that the child has been economically disadvantaged as a result of only receiving nominal support from the father.
[45] The father leads a very modest lifestyle. A retroactive order would cause significant hardship for him.
[46] The evidence does not support making a retroactive support order.
[47] Even if a retroactive support order was warranted, the evidence does not support it being made more than three years prior to the date of the application, as the father did not engage in blameworthy conduct.
Part Five – Start Date for Support
[48] The father has not paid any child support in 2016.
[49] The father has been employed since the beginning of 2016 and should have been paying support.
[50] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon.
[51] The Notice of Hearing was issued in this court on November 18, 2015 and served on the father on December 8, 2015.
[52] This order will start the father's support obligation as of January 1, 2016.
[53] The guidelines table amount of child support for one child at an income of $13,700 per annum is $72 per month.
[54] This order will create immediate support arrears of $360 (5 months @ $72 per month). The father may repay these arrears at the rate of $30 per month, starting on July 1, 2016. This will give him up to one year to repay the support arrears.
Part Six – Conclusion
[55] A final order shall go on the following terms:
a) The father shall pay the mother child support of $72 per month, starting on January 1, 2016. This is based on the father's annual income being assessed at $13,700.
b) The mother's claim for retroactive support is dismissed.
c) The father may repay the arrears of $360 created by this order, at the rate of $60 per month, starting on July 1, 2016.
d) The father shall provide the mother with a complete copy of his income tax return and notice of assessment by June 30th each year, starting in 2017.
e) A support deduction order shall issue.
Justice S.B. Sherr
Released: May 20, 2016