Court File and Parties
Date: August 17, 2017
Court File No.: D91363/16
Ontario Court of Justice
Between:
Jason Alexander Michael Marshall
K. Anderson and D. Sziba, Counsel for the Applicant
Applicant
- and -
Nyree Evilyn Jenkinson
On her own behalf
Respondent
Motion Heard: June 14th and July 18th, 2017
Before: Justice M. Sager
Endorsement
Introduction
[1] This motion dealt with the mother's claim for temporary child support for the parties' three children.
[2] The parties were in a relationship from approximately 2003 to September 2009 but continued to live together until October or November 2012. They have three children namely, Iya Marshall born May 27, 2005 (12 years old), Aakira Marshall born March 15, 2007 (10 years old) and Adoni Marshall born June 29, 2010 (7 years old). When the parties physically separated the father moved out of the shared residence and the mother and children remained.
[3] Following separation, the parties made verbal arrangements between themselves for the support of the children as well as for the father's parenting time.
[4] The mother works full time and the father is in receipt of Ontario Works having been unable to secure full time employment since he lost his last full time job in July 2013.
[5] There is no issue with respect to the mother's entitlement to child support for the parties' children. The mother claims child support based on an imputed income to the father of $37,000.00 to $45,000.00 per year. The father acknowledges his obligation to pay child support but claims to have no income upon which child support can be based.
[6] On this motion the issues for determination are as follows:
a) What is the Applicant's income for the purpose of the child support calculation?
b) What amount of child support should be ordered?
c) What is the start date for child support?
Background of the Litigation
[7] The father commenced these proceedings on August 16, 2016 in an effort to restrain the mother from moving the children's permanent residence from Scarborough to Whitby, Ontario. In his Application the father requested orders for joint custody and shared parenting of the parties' three children in addition to an order prohibiting the mother from moving the children's residence outside of their current school catchment area.
[8] The father's urgent motion to restrain the impending move from Scarborough to Whitby was heard by Justice Carole Curtis on August 20, 2016. Her Honour permitted the mother's move of the children's residence to Whitby, Ontario.
[9] The mother filed an Answer and Claim seeking orders for sole custody of the children and child support payable by the father.
[10] The parties resolved the issues of custody, access and all incidents of custody and access on May 17, 2016 and an order was made in accordance with the parties' consent. The only remaining issue in this litigation is child support. A motion for temporary child support was scheduled for June 14, 2017.
[11] On June 14, 2017, the parties attended in court to address the mother's motion in which she was seeking an order fixing the father's child support payments for the 3 children based on an imputed annual income to the father, retroactive to September 2013. The parties filed extensive affidavit evidence and made oral submissions.
[12] I reserved my decision on the motion and adjourned the matter to September 18, 2017 for a Settlement Conference.
[13] On June 27, 2017, I released an endorsement advising the parties that cross examination of the father on his affidavit evidence was necessary in order for me to determine the issues raised in the mother's Notice of Motion. A date was scheduled by the trial coordinator for the parties to return to court and for the father to be cross examined.
[14] The parties returned to court on July 18, 2017, at which time the father was given the opportunity to give up-dating oral evidence in direct and the mother was given approximately one hour to cross examine the father who then was given the opportunity to clarify his evidence in reply.
[15] The following is my decision on the motion.
Mother's Position on the Motion
[16] The mother's position on the motion is that the father is educated, has always worked, and has extensive work experience in his field of social work. She rejects his argument that he has made exhaustive efforts to obtain employment and claims that he has not made sufficient effort to find employment since losing his job in July 2013 as he was being supported by his wife who earns a substantial income.
[17] The mother argues that the father's disclosure of having had only a dozen interviews over three years is the result of the father, who is smart, educated and who has always worked, not having applied for many jobs for which he is qualified and most suited.
[18] As a result of the father's failure to earn an income he is capable of earning based on his work experience and education, the mother argues that income should be imputed to the father in the range he is capable of earning, specifically $37,000.00 to $45,000.00 per year and child support should be ordered in accordance with the Child Support Guidelines.
Father's Position on the Motion
[19] The father's position is that he is unemployed and in receipt of social assistance and therefore unable to pay child support. With respect to imputing income to him, he says that would be inappropriate as he has made extensive efforts to obtain employment but without success due to no fault of his own.
[20] The father's position is that the mother has not met her onus of demonstrating on the evidence that the father is underemployed such that income should be imputed to him for the purpose of fixing his child support obligation.
[21] The father's counsel argued that this court should rely on the decision of Justice Campbell of the Ontario Superior Court of Justice in Plant v. Marshall, 2016 ONSC 7379 who found in another case involving the father's obligation to pay child support for a child from another relationship that it is the father's "size, ethnicity, criminal record and lack of mobility that have prevented him from finding full time employment".
The Issue: What is the Father's Income for the Purpose of the Child Support Calculation?
(a) The Law
[22] Section 16 of the Child Support Guidelines provides that a parent's income for the purpose of determining child support is determined by "using the sources of income set out under the heading 'Total income' in the T1 General form issued by the Canada Revenue Agency".
[23] If the court determines that relying on the parent's T1 General would not result in the "fairest" determination of income, the court can rely on sections 17-20 of the Child Support Guidelines to come to a fair determination.
[24] Section 19 of the Child Support Guidelines grants the court authority to impute income to a child support payor where the court considers it appropriate. Circumstances that would give rise to an imputation of income include when a support payor is intentionally under-employed or unemployed; where it appears that income has been diverted which would affect the level of child support payable; and, the payor derives a significant amount of income from sources that are taxed at a lower rate or tax exempt.
[25] The circumstances that may give rise to an imputation of income under section 19 of the Child Support Guidelines are not exhaustive.
[26] In appropriate circumstances, the court has discretion to impute an amount of income to a support payor. See: Liscio v. Avram.
[27] In Lawson v. Lawson, the Ontario Court of Appeal cites the decision of that court in Dryagla v. Pauli, the leading case on imputing income. The court confirmed that Section 19 (1) (a) of the Child Support Guidelines is perceived as being a test of reasonableness. The court must have regard to a parent's capacity to earn income in light of such factors as employment history, age, education, training, skills, health, available employment opportunities and the standard of living earned during the marriage. The court looks at the amount of income the payor could earn if he or she worked to capacity.
[28] Income may be imputed on a temporary motion. As motions are limited by the evidence available, "it is incumbent on the person seeking a finding of imputation of income to provide the court with sufficient information from which a reasonable inference could be drawn". This evidence "generally involves the presence of some type of documentary evidence which assists the justice in reaching an estimate of the appropriate income". See: Kowalik v. Kowalik; Stoyshin v. Stoyshin.
[29] There must be an evidentiary basis to make an income determination. See: Quintal v. Quintal. The onus is on person requesting that income be imputed to a payor to show a reasonable inference upon which the order can be made. See: West v. West (2001), 18 RFL (5th) 440 (Ont. SCJ).
[30] 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.
[31] 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.
(b) The Evidence
[32] The father's evidence is that he wants to work, is ready and motivated to work and there are no impediments to him working full time. The father's evidence is that he has submitted hundreds of resumes and job applications since July 2013 but has not been able to secure full time employment since 2013, other than a brief period of employment between August 2015 and January 2016. As soon as he obtains full time employment he will pay child support.
[33] The father gave evidence that although he did provide the court with documentary evidence of some positions he applied for between 2014 and 2016, he could not produce many of the job applications he made between 2013 and 2016 as he could not retrieve the applications from his computer. Included in evidence were copies of some cover letters that accompanied his job applications, email exchanges with prospective employers, and, follow up letters after receiving an interview.
[34] The mother suggested to the father that his documentary evidence discloses that he only submitted two applications per month prior to 2017. The father's response is that he made more applications than she alleges but did not do a good job at keeping records of the jobs he applied for.
[35] Included with the father's motion materials were several versions of his resume. The father received a Bachelor of Arts from the University of Toronto in 2000. He majored in sociology and criminology. After received his BA, the father acquired extensive work experience as a conflict resolution officer, community development housing worker, a program coordinator, tenant support worker, project coordinator, and a housing support program case manager.
[36] The father provided the court with a list of jobs he applied for between March and May 2017, which exceed 100 positions. A review of the list reveals that many of the positions are for unskilled workers or entry jobs in the retail and food sector for which, considering his resume, he is significantly over qualified. Of the 104 applications he made, the father received four interviews.
[37] The father has enrolled in various programs designed to help him find employment. He has done so on his own and through Ontario Works.
[38] The father was asked why he did not keep a comprehensive list of his job searches seeing that he was already involved in litigation regarding his obligation to pay child support for another child, and ought to have known he should maintain scrupulous records of his job search. He responded that there was no court order requiring him to do so.
[39] The father was asked in cross examination how many jobs he has applied for. The father responded that it is not effective to send out several applications a day as "you have to research the company and know about the job".
[40] When asked if he brought an up to date job search with him on July 18, 2017, the father said he did not.
[41] The father gave evidence that one of the many websites he searches for employment is Charity Village, a website used to advertise positions in the field of social work. The mother showed the father a list of jobs posted on the website the week of July 6-12, 2017, and asked him which if any he applied for. He reviewed the list and was quite certain he applied for one of the jobs but could not be sure about the others.
[42] When he was asked if he applied for the position as a Housing Outreach Worker, the father said "I might have. I don't remember." When asked if he applied for the overnight home support worker position, the father said he did not know if he qualified for the position but that the posting shown to him did not look familiar.
[43] The father confirmed he applied for one of the jobs posted on the Charity Village website the week of July 6-12, 2017 and that a few of the others might be in his email in-box and that he will apply before the application deadline.
[44] The father was then shown four particular job postings that the mother suggested he was qualified for and asked if he applied for any of the positions. His evidence is that if a job for which he is qualified in terms of his education and work experience requires him to own or have access to a car, he is in fact not qualified and would not apply for the job. In other words, if he did not have access to a car he was disqualified as a candidate for any position that required ownership of or access to a car.
[45] He was asked why he would not apply for these jobs for which he was qualified and if he was successful in obtaining a job he could purchase a car. His response was that if the job posting requires him to own or have access to a vehicle he is not qualified for the job and would not apply. He said that he would not apply for any positions that required candidates to own or have access to a car as doing so would be dishonest. He said that he would not apply for any positions that required candidates to own or have access to a car as doing so would be dishonest.
[46] The father also gave evidence that he only has a G1 drivers' license but did not adequately explain why.
[47] When asked for the names of the temporary employment agencies he is registered with, the father could recall the names of two of the four agencies he says he is registered with.
[48] The father gave evidence that in his opinion he is ready and able to work. When asked about barriers to obtaining employment, the father said that his criminal record from the early 1990's was not a barrier. He felt that his weight might be an impediment to obtaining employment as he believes that there is a misperception amongst some employers that a larger man like himself is lazy. The father gave evidence that the time spent in this litigation, the litigation with the mother of his fourth child and enforcement proceedings commenced by the Family Responsibility Office are the largest impediment to him looking for and obtaining employment.
[49] The mother questioned the father about his involvement in a band as a drummer. He agreed that drumming was very physical. He said he played drums in two bands but now was only playing with one band. The father was shown a list of five shows he would be performing in between July 20, 2017 and August 12, 2017 and agreed that this was in fact accurate but that he was not paid for this work and was driven door to door for these shows so it did not cost him any money.
[50] Mr. Marshall's oral evidence on this motion directly contradicted his own affidavit evidence, his lawyers' submissions and Justice Campbell's findings that he had made extensive efforts but was unable to find employment due to his "size, ethnicity, criminal record and lack of mobility".
Analysis of the Evidence
[51] The father was shown postings of jobs that closely resemble positions he has had in the past, some of which he has not applied for. Even though the postings shown to him were from only a week prior to the court date, the father was unable to quickly identify any of the positions as ones he has or has not applied for. Considering the father has 4 children to support and has been unemployed for four years, the court expected him to be intimately familiar with job postings on a web site he frequented as part of his job search for which he is qualified and would or should apply for. This father's oral evidence did not convey this message to the court.
[52] The father's explanation as to why he does not apply for jobs that require use of a vehicle is entirely unreasonable.
[53] If a G1 drivers' license was an impediment to obtaining employment in his field, he ought to have obtained the license he needed years ago. His failure to do so is unreasonable given his obligation to support 4 children.
[54] The father's evidence is that since he lost his job in 2013, he has had about a dozen interviews. That amounts to approximately 4 interviews a year. For someone with his qualifications and work experience, this is not reasonable. I find that the low number of interviews is due to the inadequate number of appropriate job applications made by the father.
[55] I do not accept or rely upon the findings made about the father by Justice Campbell in the decision of Plant v. Marshall, 2016 ONSC 7379 dated November 28, 2016 in the Superior Court of Justice. In that case, the father persuaded the court that he has made extensive efforts to obtain employment without success due to the factors cited by Justice Campbell.
[56] Justice Campbell gave the father a reprieve from paying child support for another child for a seven month period between December 1, 2016 and June 1, 2017. Justice Campbell determined that the father should be working and earning at least minimum wage by June 2017. At paragraph 19 of his decision, Justice Campbell ordered the father's child support to be adjusted annually based on his line 150 taxable income "but such support is never to drop below the minimum base annual income of $25,000.00 set by this order."
[57] I do not accept and rely upon Justice Campbell's findings as I am not bound by those findings. The case before Justice Campbell did not involve Ms. Jenkinson. She was not present, did not file materials and did not make submissions. In addition, the mother cross examined the father about his efforts to obtain employment. The father was not cross examined in the case before Justice Campbell.
[58] Secondly, while Mr. Marshall may have sworn an affidavit in this matter swearing that he has been unable to obtain employment for the reasons cited by Justice Campbell, he said something very different in his oral evidence given on this motion. He said many times that he was ready and able to work, wanted to work and that there was nothing standing in his way.
[59] In addition, the mother points out that the father's criminal record existed prior to his University education and the extensive work experience that followed and the father gave evidence that his criminal record has not been an impediment to obtaining employment.
[60] I do not accept Justice Campbell's finding that the father's "lack of mobility" has been an impediment to his obtaining employment given that this court heard that the father is a drummer in a band and until recently was drumming for two bands. This brings the finding of Justice Campbell that the father faced mobility challenges directly into question.
Conclusion
[61] I find that the father is an intelligent, articulate and energetic man with extensive work experience.
[62] I do not accept the father's evidence that he has made exhaustive efforts to obtain employment, at least in 2017. The evidence reveals that while the father applied for some positions in 2015-2016 for which he appeared qualified, the list of jobs he applied for between March and May 2017, contain mostly positions for which he is glaringly over qualified. No evidence provided showed any serious job search in 2017. One can only conclude from the documentary evidence that the father is not serious about obtaining employment for which he is qualified based on his education and work experience and is therefore intentionally underemployed.
[63] The father's evidence in cross examination brought into question how seriously he is seeking employment in the areas he is most qualified. The court was baffled by how the father did not know if he had submitted job applications for postings on the Charity Village website from only a week before the court date. The answers to the questions posed to him by the mother demonstrated that he was not someone who was immersed in a serious and comprehensive job search.
[64] I was also not persuaded by the father's evidence that this litigation as well as the litigation he is involved in with respect to another child both with his mother and the Family Responsibility Office was or should be an impediment to his obtaining employment. This is an example of the father being unable to get his priorities in order.
[65] I am particularly concerned by the fact that the father did not apply for positions he is immensely qualified for because he does not own or have access to a car. One of the positions paid over $55,000.00 which would have allowed him to secure a vehicle. The father could have and should have applied for these jobs and if given an interview, advise the employer that as soon the job is secured he will obtain a vehicle. He certainly would have been in a much better position to persuade this court that he has done everything possible and within his power to obtain employment if he had done that. Instead the father made it very clear that in his opinion it would be dishonest to apply for a job that required him to have access to a vehicle. I find that his choice not to apply for these positions is unreasonable in all of the circumstances.
[66] Through cross examination, the mother has met her onus of creating an evidentiary basis for imputing income to the father who is underemployed considering his age, education, health, work experience and education.
[67] The father's oral evidence demonstrated to the court that he is not taking his obligation to contribute towards his children's support as seriously as he should. The court finds that once the onus shifted to the father to defend his position that he can only earn income from Ontario Works and not pay child support for his three children, he failed to do so.
[68] As a result, income will be imputed to the father in the amount of $40,000.00 annually and child support shall be payable for the parties three children in accordance with the Child Support Guidelines effective June 1, 2017 and on the first of each month thereafter until further order of the court.
[69] I decline to address the mother's claim for retroactive child support on this motion. I will leave the merits of that claim to be assessed by the trial judge on a more complete evidentiary record.
Order
Commencing June 1, 2017, without prejudice to the parents' rights to claim a different start date at trial, the Applicant father shall pay child support to the Respondent mother in the amount of $746.00 per month based on an imputed annual income to the Applicant of $40,000.00 and the Child Support Guidelines.
The parties may speak to the issue of costs of the motion on the next court date.
Adjourned to September 18, 2017, at 2:00 p.m. for a Settlement Conference with Settlement Conference Briefs.
Justice Melanie Sager
Released: August 17, 2017