Court File and Parties
Court File No.: 600/07 Date: 2016-09-02 Ontario Court of Justice
Between: Lee-Ann Barichello, Applicant (In person)
— And —
Steven Labute, Respondent
Counsel:
- Jim Oxley – March 9, 2016
- Jennifer Thomas – August 24, 2016 (for the Respondent)
Heard: March 9, 2016 and August 24, 2016
JUDGMENT ON MOTION TO CHANGE
TOBIN J.:
[1] The Original Order
[1] The Respondent brought a Motion to Change the Order of Justice Phillips, dated May 27, 2008. That order provides, among other things:
a) the Applicant have custody of the parties' child, Paige McKay Barichello-Labute, born November 28, 2006;
b) that the Respondent pay child support for the child to the Applicant in the amount of $194.00 per month based upon an annual income of $22,880.00; and
c) that the Respondent is to provide the Applicant with written notice of any change in his income or employment.
[2] The position of the Respondent on this Motion to Change is that his medical condition, bad as it was when the Order was made, is now worse such that he is not able to partake in any gainful employment.
[3] The Applicant disputes this claim. She wants the Respondent to recognize and act on his responsibility as the child's father to pay child support as ordered. She does not agree that the Respondent is unable to work.
[2] The May 27, 2008 Order ("Order")
[4] The Applicant brought an application in this court issued November 15, 2007. She claimed custody of the parties' daughter, defined access for the Respondent and child support.
[5] The Respondent defended the application and as required filed a financial statement with his answer. In his financial statement sworn February 16, 2008, he disclosed annual employment income of $16,800.00. But, he also disclosed that he had been unemployed since December 2007. The financial statement did not disclose the source of his income.[1]
[6] The parties resolved that case by entering into Minutes of Settlement with the assistance of counsel on May 27, 2008. The order granted by Justice Phillips that day was made based upon those Minutes of Settlement.
[7] On this Motion to Change, the Respondent testified that he had been injured in a 2006 hit and run car accident. He was under doctors' care for injuries he sustained. He suffered injuries to his knees, right hip, right shoulder and low back.
[8] The Respondent testified that he agreed to pay child support at that time based upon an income of $22,880.00 per year because he thought he would be able to obtain employment. His skill or trade was as a mechanic, although his training was not such that he had a licence.
[3] Circumstances Subsequent to the May 27, 2008 Order
[9] The Respondent has not earned the imputed income of $22,880.00 per year since the Order was made.
[10] The Respondent produced income information that disclosed his line 150 income as follows:
- 2009 - none provided
- 2010 - $2,337.00
- 2011 - $0.00
- 2012 - $0.00
- 2013 - $0.00
- 2014 - $0.00
- 2015 - none provided
[11] Subsequent to the Order being granted, the Respondent did work at various auto body shops and Smith Concrete Recycling between 2008 and 2010.
[12] He left his employment with Smith Concrete Recycling after two months because he was physically unable to do the work required of him.
[13] After he left this employment he spent the next two months in bed as he was unable to do more than that.
[14] He last worked at Fazio's as a mechanic. He left that job because he could not do the work. He could not stand on his feet for periods of time and he was in pain.
[15] He denied that he is or has been working at a farm owned or operated by a person named "Rob" or "Bobby". He also denied working recently at Fazio's as a mechanic, although he did acknowledge working on his car there. He was seen doing so by the Applicant's mother. He also helped the Applicant's mother move furniture one day.
[16] The Respondent denies being able to do any work whatsoever. He spends his time caring for his two children (although they are not in his care at this time) along with light housekeeping and gardening chores.
[17] He has no source of income at this time. His sole support is the social assistance income his common-law partner receives.
[18] He has applied for disability benefits through social assistance but this claim has been outstanding for a number of months.
[19] As part of this case, the Respondent produced medical records.[2] They disclose the following:
August 3, 2011 - Dr. H.B. Desai Neurology: The clinical history related to numbness and tingling in the fingers of both hands. The clinical interpretation was mild dysfunction of the median nerves at the wrist bi-laterally.
September 6, 2012 - Neurosurgery Clinic: The Respondent is seen at a neurosurgery clinic. His complaint was low back problems which had been going on for about 3 to 3.5 years. During those 3 to 3.5 years, the Respondent reported to the doctor that he was developing progressive low back pain. He described the dominant pain being the lumbar area. He felt that his pain was getting worse over the years. The doctor observed that an MRI showed "fairly severe and extensive degenerative facet disease" throughout the lumbar spine. The doctor reported to the Respondent that if he was to "estimate the age of the person of the MRI that [he] was reviewing [he] would believe that the person was 45 to 50 years of age, which is twice his age. I think the many years of heavy lifting, bending and twisting have definitely resulted in severe degenerative facet disease throughout his spine." The doctor was of the view that the majority of the Respondent's low back pain was likely attributed to the degenerative facet disease. The Respondent declined steroid injections because of a bad experience he had with it. He was discouraged by the doctor from any further heavy lifting, bending or twisting.
July 7, 2014 – Neuro Clinic: The Respondent reported that his pain had not changed at all. He feels the pain is quite significant. He had an epidural steroid injection with no improvement. The doctor recommended that he continue with conservative treatment and avoid heavy physical activity that causes flare-up of his symptoms.
[20] There were diagnostic reports (x-ray and MR) provided in the medical brief. However, no report was provided to explain the meaning of these diagnostic reports.
[21] The Respondent did not produce a copy of the disability application that he submitted.
[22] The Respondent's family physician provided a letter dated August 11, 2016, which was admitted in evidence and reads as follows:
"Mr. Steven Labute was last seen in my office on July 25, 2016. The patient continues to suffer from daily severe back pain. His physical condition has not improved. He is not capable of being employed in a job that requires strenuous physical activity." [Emphasis added]
[23] The only jobs the Respondent applied for since 2008 were to Smith Concrete Recycling and Fazio. He has not engaged any employment agencies. He has not engaged in any assessments of work that he could do. He has not engaged in any retraining programs.
[4] Assignment of Child Support
[24] The support owing under the Order was assigned to the Assignee, Ontario Works Windsor, from April 1, 2009 until August 31, 2014.
[25] As of September 16, 2015 the child support arrears owing by the Respondent during the period of the assignment was $8,864.59.
[26] The Assignee and Respondent agreed that all of these arrears would be rescinded effective September 16, 2015.
[27] The agreement made between the Assignee and the Respondent is not determinative of the issues outstanding as between the Applicant and Respondent.
[5] Legal Considerations
[28] The court's jurisdiction to change a child support order, as requested by the Respondent, is found in ss. 37 (2.1) of the Family Law Act. It is formulated as follows:
ss. 37 (2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.
[29] In the circumstances of this case, the court must be satisfied that there has been a change in circumstances within the meaning of the Child Support Guidelines.
[30] The child support provision contained in the original order was based upon income imputed to the Respondent. In Trang v. Trang 2013 ONSC 1980, the court set out the principles to be considered on a request to vary support when the original order was based on imputed income as follows:
46 But if the original support order was based upon "imputed" income, a more comprehensive analysis is required on a motion to change. The court must consider:
a. Why did income have to be imputed in the first instance? Have those circumstances changed? Is it still appropriate or necessary to impute income, to achieve a fair result?
b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable?
50 In most variation proceedings, it should be possible to establish why (and how) income was imputed in the original order. Those factual findings and calculations are usually set out in affidavits or transcripts (in uncontested proceedings) and written endorsements or judgments (in contested proceedings). This is relevant information which should be presented to the court on a motion to change. It is essential to an understanding of what factors the court considered when the previous order was made — and whether those factors have changed.
51 When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on — or wait for — representations from the payor.
52 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:
a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.
Or,
b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.
53 If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications — as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.
54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.
55 Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.
56 If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.
57 If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.
58 Imputed income matters. The reason why income had to be imputed matters.
59 If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.
60 But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct — and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.
[31] The court must also take into account the obligation imposed on a parent to support his or her child to the extent that parent is capable of doing so: See FLA ss. 31(1).
[32] In assessing a parent's capacity, the court must have regard to factors such as employment history, age, education, skills and health.
[33] Where health problems are relied upon by a payor to justify minimal or no employment income, cogent medical evidence is required: See Stoangi v. Johnson, [2006] OJ 2902 Ont. SCJ.
[34] Where medical limitations are relied upon, reasonable efforts to address them must be undertaken by the support payor.
[35] The accumulation of arrears without evidence of past inability to pay is not a change in circumstances. As well, the present inability to pay does not by itself justify an order rescinding arrears. Such an order should only be granted if a future inability to pay has been proven: Haisman v. Haisman, (1994) 1994 ABCA 249, Carswell Alta. 179 (Alta. C.A.).
[6] Application of Legal Principles
[36] The parties agreed in 2008 that the basis for the Respondent's child support obligation should be income imputed to him of $22,880.00.
[37] The parties knew that the Respondent was not working at the time. His most current financial disclosure prior to the making of the original order showed that he had not worked since December 2007.
[38] The parties also knew the Respondent had been injured in a hit and run car accident approximately two years prior.
[39] It is not clear on the evidence what, if any, further basis there was for imputing income to the Respondent. It can be reasonably inferred though that the parties were optimistic that the Respondent would obtain employment and that medical reasons would not substantially interfere with this prospect.
[40] Under the original order the Respondent was obliged to keep the Applicant informed of all changes in his employment and income. He did not do so. The Respondent did not advise the Applicant of his employment and income at Smith Concrete Recycling. For those two months at least he had employment income out of which child support could have been paid.
[41] The Respondent argues that his medical condition has kept him from obtaining any employment.
[42] I accept that on the medical evidence provided, the Respondent's medical problems have continued since the original order was made and have worsened. He has symptoms in his knees, low back, shoulder and hands.
[43] He sought medical attention and received advice regarding treatment. He was advised to stop smoking as this has an effect on his back problems. Although he stopped for a while, he has recently started smoking again. He was advised that steroid injections may be of assistance but because of a bad experience he had with this procedure in the past he will not do so again.
[44] The medical reports put in evidence that address the Respondent's physical limitations consistently provide that he should refrain from heavy lifting, twisting and bending. They do not state or suggest that he is wholly disabled from being able to work.
[45] The most recent report dated August 11, 2016 provided by the Respondent's family doctor who has treated him for many years, also states any employment that requires strenuous physical activity is beyond his capability.
[46] The Respondent's evidence is that he is not able to work – at all. The medical evidence provided does not support the proposition that the Respondent is incapable of working at all. He has limitations but not an inability to engage in any employment.
[47] In the nine years since the original order was made, the Respondent has not taken steps to retrain. He has not looked for employment that would be suitable having regard to his physical limitations. He has not undertaken an assessment of what employment would suit him. The Respondent's medical evidence and his own description of his abilities do not support a finding that he is totally incapacitated. He is able to assist in the care of his children and help with household chores. He has been observed working on an automobile. He assisted the Applicant's mother to move furniture one day.
[48] Despite Ms. Thomas' forceful argument, I find that the Respondent has not provided proof of the sort of limitations which would excuse an inability to engage in any employment now or in the near future.
[49] I also find that the Respondent has not provided proof of total disability from April 1, 2014 to the date of the trial, based on medical evidence or otherwise.
[50] The Respondent did not explain why a copy of his disability application with supporting medical and other documentation was not offered in evidence at this trial.
[51] I find that the Respondent has not met his onus of demonstrating that since April 2014 he has not been capable of providing child support for his daughter. He has not shown the requisite material change in circumstances as is expected when the original order was based on imputed income. The Respondent has not established why this time his representation should be accepted.
[52] Even if I had found that the Respondent demonstrated a material change in circumstances due to the deterioration of his medical condition, he has not provided sufficient evidence to support a finding that less income should be imputed to him. The evidence does not disclose what it is he can do. Justice Pazaratz's observations at paragraph 55 of the Trang decision bear repeating:
"…the onus should not fall on the support recipient to establish why income should still be imputed on a Motion to Change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated."
[53] The court cannot speculate or guess at what the Respondent can do and what income he is capable of earning and upon which child support can be calculated.
[54] For these reasons, the Respondent's Motion to Change as against the Applicant is dismissed.
[55] Should costs be sought, the Trial Coordinator is to be contacted within 10 days of the release of these reasons so that a date can be set to address the issue.
Released: September 2, 2016
Original signed and released
Barry M. Tobin, Justice
Footnotes
[1] See Continuing Record Volume 1
[2] All the medical reports were attached to an affidavit sworn by counsel's assistant. Though this method of having medical reports tendered in evidence is most irregular, I admitted them because the Applicant had sufficient notice of these reports and they were essential to the Respondent's case. Prejudice to the Respondent in not admitting evidence significantly outweighed any prejudice to the Applicant in allowing them in where she had significant notice of these reports and time to respond if she wished.