Court File and Parties

Court File No.: DR80713/15 Date: 2016-01-26

Ontario Court of Justice

Between:

SHELLY SAMAROO The Applicant, participating only in writing

Applicant

- and -

MUNESHWAR MONASAR

Respondent

Counsel: Carolyn Chambers, for the Respondent

Heard: July 21, 2015 and January 25, 2016

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The applicant (the mother) has brought a claim for child support against the respondent (the father) pursuant to the Interjurisdictional Support Orders Act, 2002 (Ontario) (the Act), regarding the parties' 8-year old child (the child).

[2] The mother seeks child support retroactive to May 1, 2014.

[3] The respondent filed an Answer to the application. He requested and was granted an oral hearing pursuant to sub-rule 37 (9) of the Ontario Family Law Rules.

[4] The oral hearing began on July 21, 2015 and the father started his testimony. The case was adjourned, at the father's request, as he believed he would be able to soon obtain a higher-paying job. He was ordered to pay temporary child support of $292 per month, based on an imputed income of $34,000 per annum, pending the return date. This order was made without prejudice to the issues of the support amount and the start date for support.

The father was also ordered to provide additional financial disclosure prior to the return date. He did this.

[5] The father filed additional affidavit evidence and gave further oral evidence at the return of the hearing held on January 25, 2016.

[6] The father did not oppose a retroactive order being made. He requested that the start date for support be even earlier than the date requested by the mother in order that he could be credited with support paid in 2014 up until May 1, 2014.

[7] The issues for this court to decide are:

a) What should be the start date for child support?

b) What income, if any, should be attributed to the father for child support purposes?

c) What credits should the father receive towards support arrears?

d) How should support arrears be repaid?

Part Two – Background

[9] The parties were in a relationship from 2004 to 2008. They had the one child together.

[10] The mother and the child have lived in Florida since 2012. The father has lived in Toronto.

[11] The father is 35 years old. He lives with his wife and daughter. His daughter came to live with them in August of 2014. She had previously been living with family in Guyana.

[12] The father has worked as an assistant machine operator. He worked many overtime hours at this job. In 2012, he earned $54,664. In 2013, he earned $52,074 and in 2014, he earned $47,633.

[13] The mother issued her application in Florida on November 21, 2014.

[14] The Notice of Hearing in Ontario was issued on April 27, 2015.

[15] The father quit his job on April 30, 2015.

[16] The father was served with the Notice of Hearing on May 15, 2015.

[17] The father obtained employment as a general labourer on June 4, 2015. This job paid him at the rate of $18,720 per annum.

[18] The father actively searched for and found better employment on December 15, 2015. He is now being paid at the rate of $29,120 per annum.

Part Three – The Start Date for Support

[19] The father's request to start support as of January 1, 2014 is very reasonable given that the mother sought a start date of only May 1, 2014.

[20] Based on the father's 2014 income of $47,633, his monthly child support obligation was $430 per month pursuant to the Ontario Child Support Guidelines (the guidelines).

[21] The total amount of support accrued in 2014 was $5,160 ($430 x 12 months).

Part Four – Support for 2015

[22] The father asks that his support obligation for 2015 be based on annual income of $26,069. This is the cumulative amount he received from his three employers.

[23] The court does not agree with this submission. Parents have a joint and ongoing obligation to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. See: Drygala v. Pauli. The father quit his job in April of 2015. The consequence was that he earned a far lower income in 2015 and will earn a lower income going forward. The child should not have to bear the full consequence of that decision.

[24] Where underemployment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will often not be reduced or cancelled. See: Luckey v. Luckey; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood.

[25] 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.

[26] The father provided inconsistent information about his reasons for leaving his job in April of 2014. In his Answer he explained that he left this job due to very difficult working conditions, including disputes with management regarding his salary and pay. However, when the court asked him on January 25, 2016 why he left this job he said it was because he believed that the company was about to let him go due to his performance and he felt that would look bad to prospective employers. He said that he had been verbally warned once for talking too much during work and had next received a warning letter about his performance.

[27] The father also testified on January 25, 2016 that he was having difficulty performing this job due to problems with his knees. This was the first time he provided this as an excuse for leaving his job.

[28] Cogent medical evidence in the form of detailed medical opinion should be provided by a payor in order to satisfy the court that he or she will be unable to work. See: Cook v. Burton and Stoangi v. Petersen.

[29] Support payors must use reasonable efforts to address, whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

[30] The father provided no medical evidence to support his claim that he was physically challenged in performing his prior work duties. He has not seen a specialist or had any treatment. He said that he has an appointment to see his family doctor, who he hopes will refer him to see a specialist.

[31] The father did not convince the court that quitting his job was a reasonable course of action.

[32] The court finds that the father did actively look for new employment once he left his job on April 30, 2014.

[33] While the timing of the father quitting his job is suspicious (3 days after the Notice of Hearing was issued and 15 days before he was served) the court cannot find on a balance of probabilities that he quit this job to avoid his support obligation.

[34] The court will balance the consequences of the father's decision to quit his job by imputing income to him in 2015 at the rate of income he earned in 2014. However, it will determine ongoing support based on his actual income. [1]

[35] The total amount of support accrued in 2015 was $5,160 ($430 x 12 months).

Part Five – Ongoing Support

[36] Based on the father's ongoing income of $29,120 per annum, he shall pay child support of $238 per month starting on January 1, 2016.

Part Six – Support Credits and Calculation of Support Owing

[37] The court accepts the father's evidence that he paid a total of $2,894.05 to the mother in 2014. He provided documentary proof of these payments, except for one $700 payment he said that he gave to the mother in cash in July of 2014. The court found his evidence about this payment to be credible.

[38] The father has not paid any child support since July of 2014.

[39] The total arrears owing as of this date are $7,664, calculated as follows:

Amounts Accrued:

• 2014 - $5,160
• 2015 - $5,160
• 2016 - $238

Sub-total - $10,558

Less paid - ($2,894)

Balance owing - $7,664

Part Seven – Repayment of Arrears

[40] The father offered to repay any arrears at the rate of $200 per month.

[41] The father told the court that he has not paid any of the temporary support ordered by the court on July 21, 2015. He said that he had called the Family Responsibility Office and had been advised that a case officer had not yet been assigned for him. He said that he has held the money owing in a bank account.

[42] The support that should have been paid to date pursuant to the temporary order is $1,752 (6 months @ $292 per month). The father will be required to pay this sum within 30 days.

[43] The court otherwise finds the father's repayment proposal to be reasonable, provided he keeps his payments in good standing.

Part Eight – Conclusion

[44] An order shall go on the following terms:

a) The father's support arrears as of this date are fixed in the sum of $7,664, as calculated in these reasons for decision.

b) The father shall pay the sum of $1,752 to the mother on account of these arrears within 30 days.

c) The father may repay the balance of these arrears at the rate of $200 per month, on the first day of each month, starting on February 1, 2016. However, if he is more than 30 days late in making any support payment as required by this order, the entire amount of arrears shall immediately become due and payable.

d) The father shall pay ongoing child support to the mother in the sum of $238 per month, starting on February 1, 2016. This is the Child Support Guidelines table amount for one child at the father's income of $29,120 per annum.

e) Nothing in this order precludes 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.

f) The father shall provide the mother by June 30th each year with complete copies of his income tax returns and notices of assessment.

g) A support deduction order shall issue.

Released: January 26, 2016

Justice S.B. Sherr

[1] If the court had found that the father had quit his job to avoid his child support obligations it would have continued to impute income to him at his 2014 income level.