Court File and Parties

Date: May 15, 2017

Court File No.: D61682/15

Ontario Court of Justice

Between:

Colline Reece, Applicant

And:

Nicholas Thomas, Respondent

Counsel:

• Renata Kirszbaum, for the Applicant
• Hugh Evans, for the Respondent
• Cynthia Bayers, Agent, for the Assignee, City of Toronto

Heard: May 1, 2017

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties have both brought motions to change this court's order dated October 23, 2013 (the final order). The final order, which was made on a default basis, imputed annual income to the respondent (the father) of $21,300 and required him to pay child support to the applicant (the mother) for the parties' 7-year-old child (the child) of $170 each month, starting on September 1, 2013. This is the Child Support Guidelines (the guidelines) table amount for one child at that income.

[2] The father asks to rescind all of the child support arrears that accumulated under the final order up until July 1, 2016. He asks that his annual income be fixed at $15,400 for the period from July 1, 2016 until December 31, 2016 and that his annual income be imputed at $15,000, for the purpose of calculating child support starting on January 1, 2017. [1]

[3] The mother asks that the father's motion to change be dismissed. She also asks the court to increase the father's child support payments based on an imputed annual income of $80,000, starting on June 1, 2016.

[4] The mother is in receipt of social assistance. The mother assigned her interest in child support on September 1, 2013 to the City of Toronto (the assignee). The entire child support arrears accumulated as of January 31, 2017 are owed to the assignee. [2] The assignee also asks that the father's motion to change be dismissed and supports the mother's request to increase child support.

[5] The court relied on the affidavits and financial statements filed on behalf of the parties and heard oral evidence from the father and his new partner, Jachelle Brown (Ms. Brown). The father chose not to cross-examine the mother and a collateral witness who provided an affidavit on her behalf.

[6] The issues for this court to determine are: [3]

a) Has there been a change in circumstances that warrants changing the child support terms in the final order?

b) What, if any, child support arrears should be rescinded?

c) Should child support be changed starting on June 1, 2016, or some later date?

d) In determining whether child support should be changed, what, if any, income should be imputed to the father?

e) If child support arrears remain owing, how should they be paid?

f) How should a costs order of $900 made against the father on March 16, 2017 be paid?

Part Two – Background Facts

[7] The mother is 35 years old. The father is 48 years old.

[8] The parties were married in Jamaica in 2004, but have never lived together.

[9] The mother was born in Canada. The father was born in Jamaica.

[10] The parties had the one child together. The child has always lived with the mother.

[11] The father has 5 other children. Three live in Jamaica, and three (including the child) live in Canada.

[12] The father came to Canada in 2007 on a work permit as a farm worker. This was a one-year permit. The father's employer terminated his contract early, as it was displeased with his performance.

[13] The father remained in Canada without legal status. In 2009, he applied for permanent residence status in Canada. The father was granted a second work permit for two years on May 26, 2010. The father worked during those two years for a construction company.

[14] The father's application for permanent residence in Canada was subsequently denied, as was his request to extend his work permit in May, 2012.

[15] In December, 2012, the father moved in with Ms. Brown and her child from another relationship. [4]

[16] The father brought a Humanitarian and Compassionate application to remain in Canada. The father testified that this application was denied in September, 2013.

[17] The father also filed a refugee claim to remain in Canada in March, 2014 that was denied.

[18] Ms. Brown and the father have lived together since December, 2012. They have a 3-year-old child together.

[19] Ms. Brown has sponsored the father to live in Canada. The sponsorship was approved in principle by Immigration Canada on June 2, 2016. The father was granted a work permit at the same time.

[20] The father did not have legal status in Canada from May, 2012 until June 2, 2016. He claims that he did not work during this time.

[21] The father claimed that he worked intermittently for the balance of 2016. He said that he has not worked in 2017.

[22] In May, 2013, the mother issued her application in this court for custody and child support. The father did not defend the action and the final order was made on October 23, 2013. [5]

[23] The father issued his motion to change on April 18, 2016.

[24] The mother filed her response to motion to change on June 3, 2016.

[25] On September 13, 2016, the parties agreed to a temporary order (the temporary order) that the father pay the mother child support of $259 each month, being the guidelines table amount for one child based on his earning annual income of $31,200. This amount was subject to adjustment as to start date and quantum. The father was also ordered to provide the mother with specified financial disclosure.

[26] On March 16, 2017, the court ordered the father to pay the mother costs of $900 due to his failure to adequately comply with its financial disclosure order. The court indicated that it would determine how these costs would be paid at this trial. The trial date was set and directions were given for the conduct of the hearing.

[27] The father did not pay any child support pursuant to either the final order or subsequent temporary order until he gave the mother $600 at the court appearance on March 16, 2017. This has been his only child support payment. [6]

[28] The father does not pay child support for his other children.

[29] The father owed support arrears in the sum of $7,054 to the assignee as of January 31, 2017, pursuant to the final and temporary orders. [7]

[30] The father owes the mother support arrears of $436 accumulated from February 1, 2017 until today ($259 per month x 4 months - $600 payment), pursuant to the temporary order.

Part Three – The Father's Request to Rescind Child Support Arrears for the Period from September 1, 2013 until July 1, 2016

3.1 Legal Considerations

[31] The parties' motions to change support are governed by subsection 37 (2.1) of the Family Law Act which reads as follows:

Powers of court: child support

(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.

[32] The mere accumulation of arrears without evidence of a past inability to pay is not a change in circumstances. Present inability to pay does not by itself justify a variation order. It should only be granted if the payor can also prove a future inability to pay. Otherwise, the option is to suspend, or order repayment of arrears. See: Haisman v. Haisman (1994), 1994 ABCA 249, 157 A.R. 47 (C.A).

[33] The Ontario Court of Appeal set out the considerations for the court to apply when determining a retroactive downward variation of child support by a payor in Gray v. Rizzi, 2016 ONCA 152.

[34] The court set out that where a payor seeks a retroactive decrease in support, the D.B.S. factors [8] – such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support – remain relevant (par. 51). Although those factors require some minor alteration to suit circumstances where the payor's income has gone down, not up, the fundamentals still apply (par. 54).

[35] The court applied the process set out in Corcios v. Burgos as follows:

[56] First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."

[57] Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor's circumstances that affected the payor's ability to make the child support payments when they came due.

[58] A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

[59] Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: "[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly."

[36] In paragraph 60 of Gray, the court stated that the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;

2. The ongoing needs of the support recipient and the child;

3. Whether there is a reasonable excuse for the payor's delay in applying for relief;

4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.:

"Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";

6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

[37] The court considered how the retroactive award should be calculated once it is decided that there should be an adjustment in paragraphs 61-64 as follows:

[61] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

[62] Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide "reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately." As put by Chappel J.:

A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor's circumstances has occurred.

[63] This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor's financial situation. A payor's failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

[64] Finally, "with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating."

[38] In paragraphs 51-60 of Trang v. Trang, 2013 ONSC 1980, the court discussed how courts should address support change motions when income was imputed to a payor in the original order as follows:

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.

3.2 – Position of the Father

[39] The father claimed that he earned no income between May, 2012 and July 1, 2016. This was, he said, because he did not have a work permit and was not permitted to work in Canada. He denied the mother's allegations that he worked illegally for cash during this period. He said that he never earned the income imputed to him in the final order and did not have the ability to pay any of the child support ordered.

[40] The father claimed that he wasn't served with the original application and had no knowledge of the final order until May, 2014, when he learned about it while at court on a case involving another one of his children. [9]

[41] The father claimed that he was entirely supported by Ms. Brown during this time.

[42] Ms. Brown was in receipt of social assistance during most of this period.

3.3 Position of the Mother and the Assignee

[43] The mother and assignee both submitted that the father was unable to establish the requisite change in circumstances to change the final order – he did not have a work permit when the final order was made and this was still the case when he brought his motion to change.

[44] The mother and assignee both submitted that the father was unable to establish that the income imputed to him in the final order was incorrect. The mother deposed that the father earned income during this time selling drugs. She also claimed that the father lived (and still lives) a "flashy lifestyle" – going to dance hall parties every weekend.

[45] The mother and the assignee submit that the father was properly served with the original application; he chose not to defend the action and he took no steps to appeal it or set it aside.

3.4 Analysis

[46] The strictest interpretation of the legal test would result in a conclusion that the father did not establish a change in circumstances since the date of the final order – he did not have a work permit in October, 2013 when the final order was made and continued to lack a work permit in April, 2016, when he issued his motion to change. However, this court will not take such a strict approach.

[47] In her Form 23C affidavit prepared for the final order, the mother made no reference to the father lacking a work permit. She just indicated that he was healthy and capable of working. While the father did not defend the claim, the evidence indicates that it took him much longer than he thought it would to renew his work permit. Part of the reason for this was because he was still married to the mother, and Ms. Brown could not sponsor him until they were able to establish to Immigration Canada that they had co-habited for 12 months.

[48] The court finds the unexpected length of time it took for the father to obtain a work permit to be a change in circumstances, permitting it to consider if there should be a downward change of the final order.

[49] The following factors favour a downward change of child support:

a) The father was not permitted to work in Canada from May, 2012 until June, 2016.

b) Based on the length of time it took him to obtain his previous work permits, the father had a reasonable expectation that he would be able to obtain his work permit earlier than he did.

c) The father's income tax returns reveal nominal income earned during this time period.

d) Requiring the father to pay all the support arrears will cause him some hardship. Ms. Brown is presently supporting a family of four, including the father, on very modest income. [10]

[50] The following factors militate against a downward change in child support:

a) The court finds that the father was properly served with the original application and chose to ignore it. He had the opportunity to present the court with his financial information at that time and chose not to.

b) Even accepting the father's evidence at its highest, he had knowledge of the final order and its enforcement by the Family Responsibility Office as early as May, 2014 and chose to do nothing about it until he issued his motion to change in April, 2016. As with the original application, he put his head in the sand and hoped that he would not have to pay child support.

c) The father did not offer a legitimate excuse for his delay in dealing with the support order.

d) The date of effective notice was when the father served the mother with the motion to change in April, 2016. At no time before then did he make a request to her, whether formally or informally, to change the final order.

e) Despite having knowledge of the final order as early as May, 2014, the father did not comply with the annual financial disclosure provisions in it.

f) The father did not act in good faith. He failed to make any child support payments pursuant to the final order, despite having some ability to do so. The child has been disadvantaged by this behavior.

g) While it is unlikely that the father, during this time, earned the income imputed to him in the final order, it is also unlikely that he was not earning any money. The father deposed that Ms. Brown was entirely supporting their family of four. However, the evidence shows that Ms. Brown was only receiving $990 each month from social assistance for most of the relevant time period – not enough to support four people without some supplemental cash income. The credibility of the father and Ms. Brown was hurt by the fact that Ms. Brown never reported to social assistance that the father was living with her during this period.

h) While it is understandable that the father wished to remain in Canada, he made a choice to remain here without work status from May, 2012 until June, 2016. The child shouldn't have to fully bear the cost of this decision. In Legere v. Legere, [2001] N.S.J. No. 173 (NSSC), the court imputed income to a payor in similar circumstances, finding that the payor made a deliberate choice to stay in a country where she had no work status and earn no income.

[51] The father sought to rescind support for a period of 34 months. This is from when child support in the final order started (September 1, 2013) until he started working in July, 2016. Balancing all of the considerations set out above, the court will rescind 15 months of child support that accumulated under the final order. This comes to $2,550 ($170 x 15 months). The balance of arrears shall remain owing.

Part Four – The Father's Child Support Obligation after July 1, 2016

4.1 Positions of the Parties

[52] The father asked that child support for the period of July 1, 2016 until December 31, 2016 be based on his income earned, which he claimed projected to $15,440 for the year. He asked that his income be imputed annually at $15,000 for the purpose of calculating child support from January 1, 2017.

[53] The father testified that he worked at two part-time jobs after he obtained his work permit in June, 2016 – as a moulding and asbestos remover. One job paid him $17 an hour – the other job paid him $20 an hour. The father said that one employer stopped giving him work after he asked for a letter confirming his income for this case. He said that the other employer rarely called him for work.

[54] The father said that he has not worked in 2017. He has decided to stay at home and care for the child he has with Ms. Brown because he is unable to earn enough money to cover the cost of child care.

[55] The mother and assignee asked to impute the father's annual income at $80,000 for the purpose of calculating child support from June 1, 2016. This is the month when the father obtained his work permit. The mother bases her imputation request on the father's own evidence, contained in paragraph 16 of his affidavit sworn on April 12, 2016, where he writes:

When I obtain PR status in Canada, I have construction skills that will enable me to make a decent living and support my children. I learned carpentry in Jamaica. When I was in Canada, I also learned steel framing for poured concrete. This trade pays about $38 per hour for straight time and I would be able to earn over $80,000 per year in this trade. As construction is heavily unionized it is impossible for me to get a job without having the appropriate papers from CIC.

[56] The mother and assignee claim that the father is deliberately unemployed without reasonable excuse. They submit that he hasn't looked for work or taken the necessary steps to join the union and is attempting to avoid paying proper child support.

4.2 Imputing Income – Legal Considerations

[57] Section 19 of the guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.

[58] 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, [2002] O.J. No. 3731 (Ont. C.A.).

[59] 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.

[60] 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 or her reasonable educational or medical needs, or those of a child?

3. If not, what income is appropriately imputed?

[61] 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, [2009] O.J. No. 1552 (Ont. C.A.).

[62] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[63] 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, [2008] O.J. No. 417, (Ont. S.C.).

[64] 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.

[65] 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, [2000] O.J. No. 453 (Ont. Fam. Ct.); Drygala, supra, paragraph 39.

[66] In Loscerbo v. Loscerbo, 2008 MBQB 183, [2008] M.J. No. 246 (Q.B. (Fam. Div.)), the court held that income can be imputed to a parent for a decision to reduce hours to have a second family. This case was followed in Terracol v. Terracol, 2010 ONSC 6442.

[67] This court has written that a party's child care responsibilities to other children can be a legitimate reason for a reduction in income. See: J.C.M. v. K.C.M., 2016 ONCJ 475, par. 171; Black-Johnson v. Black, 2016 ONCJ 736. However, the choice to reduce income for this reason must be reasonable. See: H.A. v. M.M., 2016 ONCJ 246.

[68] 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.

[69] A person's lifestyle can provide the basis 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.

4.3 Imputing the Father's 2016 Income

[70] The father provided T4 slips from his two employers in 2016. One T4 showed income of $6,385.60; the second showed income of $1,334.50. Based on this evidence, the father earned $7,720.10 after July 1, 2016. This projects to an annual income of $15,440 – the income the father requests the court to apply for calculating child support.

[71] The father provided a pay stub indicating that he started working for the first employer on July 10, 2016 at the rate of $20 an hour. His pay stub for the pay period ending August 20, 2016 shows that he had earned $5,158 from this employer. His rate of pay for this period projects to an annual income of $44,702 ($5,158 divided by 6 weeks x 52 weeks).

[72] It appears that the father must have stopped working for this employer shortly after August 20, 2016, as his T4 slip doesn't show him earning much more than was reflected in the August 20, 2016 pay stub. The father didn't produce the remaining pay stub or a record of employment from the employer. He said that the employer stopped calling him for work, but didn't provide a very good explanation about why the work would have suddenly stopped.

[73] The father produced a letter dated December 8, 2016 from the second employer. It indicated that the father had started working for them on July 21, 2016 at the rate of $20 an hour for a minimum of 14 hours each week and that he was still working as of December 8, 2016.

[74] The information in the second employer's letter is inconsistent with the pay stubs the father provided. The first pay stub shows that the father started working for this employer on July 4, 2016 – not July 21, 2016, as stated in the letter. It also showed that he was earning $17 an hour from this employer, not $20 an hour as stated in the letter.

[75] This letter is also inconsistent with the information provided in the T4 slip. Based on the father's actual start date and the statement in the employer's letter that the father was still working with the company on December 8, 2016, a minimum of 14 hours each week for 20 hours, the father's actual income from this employer for these 20 weeks should have been $5,600 ($280 x 20 weeks). If we apply the pay rate shown in the pay stubs ($17 an hour) provided, the father would have earned $4,760 ($236 x 20 weeks).

[76] The father could not adequately explain these discrepancies.

[77] Despite the fact that the father's pay stubs reveal only nominal income earned after September 1, 2016, the father's bank accounts show deposits of about $3,058 in September, 2016 and $1,400 in October, 2016. [11] The father could not adequately explain the disconnect between his deposits and his pay stubs to the court's satisfaction.

[78] The court finds that the father's two T4 slips do not accurately reflect his 2016 income. It draws an inference that the father was earning additional cash income in 2016.

[79] The parties consented to a temporary order on September 13, 2016 that starting on September 1, 2016, the father would pay child support of $259 each month, based on a projected 2016 income of $31,200. The court finds that this income projection is the most reliable indicator of what the father actually earned or was capable of earning in 2016 and will adjust the temporary order, on a final basis, to start on July 1, 2016 – when he actually started working.

[80] This finding will increase the father's child support obligation by $178 for 2016 ($259 – 170 x 2 months).

4.4 Imputing the Father's Income after January 1, 2017

[81] The evidence was clear that the father has been intentionally unemployed since January 1, 2017.

[82] The father claimed that he was looking for work but on cross-examination it became evident he has made little effort to find employment. When asked what jobs he has applied for, the father named one restoration company and one food store. He couldn't remember when he had applied for these jobs. He has not placed his name with any employment agencies. He produced no job applications.

[83] The father claimed that he could earn good income (over $20 an hour) if he joined the union. However, both he and Ms. Brown testified that they could not afford the $780 the union requires up-front for him to join it. The father identified no other impediments to joining the union.

[84] This evidence made little sense. The father's bank accounts showed significant deposits in August and September of 2016. Ms. Brown had her own bank account where she deposited her pay cheques. The father wasn't paying any child support despite the court orders. There was sufficient money available to pay the union fee. It should have been a simple decision for the father to pay it to ensure a secure income.

[85] The father's bank records show that he chose to spend his money on matters other than child support or the union deposit during that time, including $432 at the LCBO over those two months. The father claimed that he was buying liquor for a friend. His evidence on this point was not believable. The father acknowledged that he frequently goes to Jamaican dance halls, however he states that his friends always pay for him. He did not provide any proof of this. This evidence was also not believed.

[86] The father did not provide a reasonable justification for his unemployment. Although there are certain cases where a parent staying home to care for a young child can justify unemployment or underemployment, this is not one of them.

[87] Both the father and Ms. Brown testified that if the father could earn a good income, they could afford daycare for their 3-year-old child. The father identified a good income as being paid full-time at $20 an hour. The evidence indicates that the father is capable of earning such an income – he has just chosen not to do so. He is not looking for work and hasn't joined the union.

[88] Except for the $600 payment made when the case was scheduled for trial, the father has not paid any child support. The evidence is clear that paying child support for this child is a very low priority for him. [12] He has actively avoided his child support obligations. Based on his actions, the court draws the conclusion that the father has chosen not to work and has decided not to join the union until after this court case is over, in the hope that his child support obligation will be significantly reduced by this court.

[89] This leads to the third question in Drygala - what income is the father capable of earning?

[90] The father is limited to working at physical jobs due to literacy challenges.

[91] The father has many physical job skills. He is a carpenter. He is experienced in mould and asbestos removal. He is trained in steel framing for poured concrete. He said that he can do restoration work. He said that he could work in a factory or in a restaurant. He identified no medical limitations to performing any of this work.

[92] In re-examination, the father testified that he may need a period of retraining if he joined the union and might have to pay for the retraining. It was evident that the father had taken no steps to determine if this was actually the case and provided no details about what, if any, training was required, how long it would take and what, if any, costs would be incurred.

[93] The court will not hold the father to his April, 2016 statement that he could earn $80,000 annually if he joins the union. There is no evidence that the father has ever earned this level of income.

[94] The evidence indicates that the father has been capable of earning $17 to $20 an hour, even without joining a union. This is the minimum amount he should be earning.

[95] However, the father should be joining the union and earning more income – conservatively in the range of $25 an hour. He should be immediately taking steps to start this process. In making this order, the court will give the father four months to join the union and take any retraining before it imputes his income at a higher level.

[96] In determining the amount of income to impute to the father after four months, the court will take into consideration that due to his shared caregiving responsibilities for the child he has with Ms. Brown, he might have some reduced flexibility in the hours he can work, which, to a small degree, could impair his earning ability.

[97] The court will maintain its imputation of the father's annual income level at $31,200 until the end of September, 2017. Starting on October 1, 2017, the father's annual income will be imputed at $48,000 for support purposes. The guidelines table amount based on this income is $433 each month.

Part Five – Calculation of Arrears and Repayment of Arrears and Prior Costs Order

[98] The father's child support arrears, as reflected in the records of the Family Responsibility Office, should be reduced by $2,372. This consists of the 15-month rescission of child support arrears ($2,550) set out in paragraph 51 above, less the $178 adjustment for having the father's annual income imputed at $31,200 starting on July 1, 2016, instead of the September 1, 2016 start date in the temporary order.

[99] This order will result in the father still having significant child support arrears. The court does not want to set up any undue impediment to the father joining the union, so it will order that the father can start paying the arrears, in the amount of $150 each month, starting on October 1, 2017.

[100] The court indicated that it would address the issue of how the father's outstanding costs order of $900 would be paid in this decision. The mother asks that it be paid immediately. The father proposes that it be paid at the rate of $150 each month. The court wants to prioritize the father joining the union at this time, so it will order that the father can start paying these costs at the rate of $150 each month, starting on October 1, 2017.

[101] Once the costs are paid in full, the arrears payments shall increase to $300 each month.

[102] If the father is more than 30 days late in making any ongoing child support or arrears payments or any costs payment, the entire amount of support arrears and costs owing at that time shall immediately become due and payable.

Part Six – Conclusion

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

a) This support order shall change all prior support orders.

b) The father's child support arrears are to be reduced by $2,372 from the amount currently reflected as owing in the records of the Director of the Family Responsibility Office. Arrears of $436 are owed to the mother. The balance of the arrears are owed to the assignee.

c) The father shall pay child support to the mother for the child in the sum of $259 each month, starting on June 1, 2017. This is the guidelines table amount for one child based on an imputed annual income to the father of $31,200.

d) Starting on October 1, 2017, the father shall pay child support to the mother for the child in the sum of $433 each month. This is the guidelines table amount for one child based on an imputed annual income to the father of $48,000.

e) The father may pay the outstanding costs order of $900 at the rate of $150 each month, starting on October 1, 2017.

f) The father may pay support arrears at the rate of $150 each month, starting on October 1, 2017. Once the outstanding costs order has been paid, the arrears payment shall increase to $300 each month.

g) If the father is more than 30 days late in making any ongoing child support or arrears payments, or any costs payment, the entire amount of support arrears and costs owing at that time shall immediately become due and payable.

h) Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as HST or income tax refunds) or from any lottery or prize winnings.

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

j) A support deduction order shall issue.

[104] If either party or the assignee seeks costs, they shall serve and file their written costs submissions by May 29, 2017. The other party and the assignee will have until June 12, 2017, to serve and file any written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs.

[105] The court thanks counsel and the agent for the assignee for their professional presentation of this case.

Released: May 15, 2017

Justice S.B. Sherr

Footnotes

[1] At the start of the trial, the father asked that no support be payable after January 1, 2017. He changed that position in his closing submissions.

[2] Ontario Regulation 228/16, s. 8 amends subsection 54 (1) of Ontario Regulation 134/98, made pursuant to the Ontario Works Act, 1997. This amendment provides that, starting on February 1, 2017, any child support payments the mother receives will not be deducted from her social assistance payments. This means that ongoing child support and child support arrears accumulated after February 1, 2017 belong to the mother.

[3] The father also moved for access to the child in his motion to change. There is a temporary order that the father have supervised access with the child. It was premature to have this issue determined on a final basis. It was not dealt with at trial.

[4] This child is now 13 years old.

[5] The mother also obtained a final custody order.

[6] The court accepted the mother's evidence that the father has also given the child gifts and clothes totaling about $400 since she was born. The father claimed he paid more but provided no evidence to support his claim.

[7] This was the amount presented by the assignee and was not disputed by the father. The court was not provided with a statement of arrears from the Family Responsibility Office. Any statement of arrears in this decision is subject to the records of the Family Responsibility Office.

[8] D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 SCR 231.

[9] The father deposed that he was not ordered to pay child support for that child.

[10] Ms. Brown testified that she is now earning about $38,000 annually. She works full-time as a debt collection agent and part-time as a personal support worker.

[11] The father failed to produce his bank records after November, 2016, despite a court order to do so.

[12] The father also does not pay child support for his other children.