Court File and Parties

Court File No.: Toronto C82144/15 Date: 2018-02-20 Ontario Court of Justice

Between:

Morgan Eden Applicant (Mother)

— And —

Rudy Grondin Respondent (Father)

Before: Justice Robert J. Spence

Heard: February 15, 2018

Reasons for Judgment Released: February 20, 2018

Counsel:

• Ms. Pamela Jacobson, counsel for the applicant
• Ms. Alyssa Bach, counsel for the respondent

Judgment

ROBERT J. SPENCE J.:

Introduction

[1] This is a motion brought by the mother seeking an order for child support for the parties' one-year-old son. The father is opposed to paying child support at this time. At the case conference held before me on November 17, 2017, the parties agreed that I could determine the issue of child support on a final basis, by motion argued on affidavit evidence alone.

[2] The parties were in a brief dating relationship when the mother became unexpectedly pregnant. The child was born November 22, 2016.

[3] The parents are both quite young. They were each about 22 years old when their child was born. The father initially questioned paternity, but then subsequently accepted his paternity of the child.

[4] The father did not oppose the mother's request for sole custody, acknowledging that the mother is a loving and capable parent. However, the father sought access. On July 24, 2017, the parties entered into a consent whereby the mother was granted sole custody, with access to the father in the sole discretion of the mother.

[5] The father expressed a desire to develop a parent-child bond with the child, by starting with short, supervised visits, and then eventually moving into visits in the community. However, it appears that to date, he has not taken any steps to begin a relationship with the child.

[6] Father has not paid any child support since the child's birth. Mother seeks an order imputing income to the father for the purposes of child support, claiming that the father is intentionally unemployed, or underemployed.

[7] Father claims that he is incapable of working and, in any event, his education plans would provide a greater benefit to the child in the long term, so that any obligation to pay child support should be deferred until he has completed his education.

Issues

[8] There are four issues for this court to determine:

(1) Does the father have a legal obligation to pay support for the parties' child?

(2) Is the father immediately capable of gainful employment such that an income should be imputed to him at the present time?

(3) Whether or not the father is capable of working, is it reasonable to defer his child support obligation until such time as he completes his currently-intended education?

(4) If the father's education plans are not reasonable, and if he is not capable of working at the present time, what approach should the court take to recognize any child support obligation by the father?

Issue #1 – Does Father Have a Legal Obligation to Pay Child Support?

[9] The relevant sections of the Family Law Act (Act) provide [my emphasis]:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.

Purposes of order for support of child

33 (7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines. [Guidelines] R.S.O. 1990, c. F.3, s. 33 (7); 1997, c. 20, s. 3 (1).

[10] The Act provides, and the father does not seriously dispute that he does have an obligation to pay child support in accordance with the child support guidelines.

[11] However, the father disputes that he is "capable" of providing support.

Issue #2 – Is the Father Currently Capable of Gainful Employment?

[12] The father lives at home with his mother and is fully supported by her.

[13] The father deposes, and it is not seriously contested, that he has attempted to find employment and he has either not succeeded or, when he has obtained jobs, he has been unable to hold onto them and has been let go.

[14] The father's position is that he is currently incapable of obtaining or maintaining gainful employment because of his mental health impairments.

[15] The father underwent a psychoeducational assessment in 2013. That assessment revealed that the father has average intelligence in the verbal and nonverbal domains, but that his processing speed was discrepantly weaker and only found to be in the Borderline level of intelligence.

[16] The assessment revealed that his memory and learning abilities are also weak. The report stated that he has [my emphasis]:

Trouble recalling verbal information that is presented in both contextual and non-contextual information. His overall short term auditory memory, as indicated by his Verbal Memory Index, was in the Extremely Low range at the 1st percentile and therefore significantly weaker than his core intellectual reasoning aptitudes in both the verbal and nonverbal domains of intelligence.

[17] The summary of that psychoeducational report states that father has [my emphasis]:

Overall average intellectual functioning when considering the combination of his verbal and nonverbal reasoning aptitudes. . . . verbal skills were uniformly within Average limits including his conceptual reasoning, expressive vocabulary and fund of general information. . . . nonverbal skills were also uniformly Average and include his spatial reasoning, and ability to solve matrices and visualize puzzles. . . . working memory was variable and has an adverse effect on his listening comprehension and general ability to process and recall auditory information. . . . his working memory is his primary source of challenge.

His processing deficits in general and working memory accompanied by his executive dysfunctions in initiating, planning and organizing, and completing tasks impact on his learning and academic performance in reading comprehension and written expression. He therefore needs to be supported as a student with a Learning Disability. [assessor's emphasis]

In school, he experiences significant difficulties with metacognitive problem solving that impact his ability to complete work in a timely fashion. He has difficulty with independent problem solving due to problems with his ability to actively hold multiple pieces of information in mind and systematically construct a plan. As a result, this has a negative impact on his ability to complete academic tasks.

He continues to require academic support and accommodation in school in consideration of his learning disability.

[18] On January 17, 2018 the father began his application process for income support under the Ontario Disability Support Program (ODSP).[1] His Health Status Report,[2] completed by Dr. Franklin Sheps, formed part of the evidence in this proceeding.

[19] Under the heading "Conditions", Dr. Sheps states the following [my emphasis]:

Attention Deficit Disorder – Poor executive function, very slow processing speed, Impulsive, poor memory and concentration

Anxiety/Depression – Poor self Image, and depression, decreased motivation

[20] Under the heading "Restrictions", Dr. Sheps states the following [my emphasis]:

Impairment in school and occupational functioning, cannot hold a job – gets fired repeatedly due to memory, concentration issues

Finds it difficult to start or continue and low mood

[21] Under the heading "any other relevant information helpful in assessing the main condition and impairment", Dr. Sheps states [my emphasis]:

Very severe slowing of processing speed and decreased concentration and impulsive makes it very difficult to perform in work or academic environment

[22] In terms of father's physical functioning, of the 24 listed physical categories in the Report, Dr. Sheps notes that the father is functioning within either normal limits or mild or slight limitations in 22 of those categories.

[23] Under the heading "future plans", Dr. Sheps recommends [my emphasis]:

Counselling

Support group

Vocational rehabilitation[3]

[24] In a follow-up written report dated December 10, 2017, and addendum dated January 17, 2018, Dr. Sheps states [my emphasis]:

I am not surprised to hear that he has had significant issues in getting and holding a job. This would be in keeping with his deficits in executive functioning, slow processing speed and memory and concentration issues. As well it would not be realistic to expect that he would be able to work at a job and to go to school at the same time. Both of these issues make it impossible for him to earn income.

In the future I would see similar issues although with extensive education and training in a specific area he might be able to maintain employment in a circumscribed area where his issues are compensated for.

I would view his near time employment prospects as guarded and would in fact feel that working at the present time would interfere with his long term prospects and his future employability. In the long run if he is well trained and finds an appropriate niche I would be more optimistic.

[25] Father states, and it is not disputed, that he has made a number of attempts to find gainful employment but that he has not been successful, either in obtaining employment or, once having obtained a job, to maintain that employment. These have typically been low-level, low-paying types of jobs.

[26] While the evidence does not categorically lead the court to conclude it is impossible[4] for father to find and maintain any type of employment at this stage of his life, I conclude from the evidence, on a balance of probabilities that father's ability to obtain employment and to maintain it is unlikely, at the present time.

[27] I will, however, return to some of what the professionals had to say later in these reasons.

Issue #3 – Is Father's Proposed Education Plan Reasonable Such That He Should Be Permitted to Defer Paying Child Support for the Next Several Years?

[28] The father states that in order for him to maximize his income earning potential with a reasonable income, it is necessary for him to obtain an appropriate educational foundation.

[29] In response to the mother's claim for child support, the father responded that he has no source of income. He stated that he is currently enrolled at Seneca College in the first year of a three-year "Small Business and Entrepreneurship" program. When that program is completed, he stated that it is his intention to apply to Ryerson University to attend a two-year marketing program.

[30] He estimates that because of his educational accommodations and the concomitant reduced course load at Seneca, it will take him four years to complete his three-year program. That would mean he would not complete the Seneca program before 2022.

[31] Following completion of that program he would then enter Ryerson University's two-year program. The earliest he would complete that program would be 2024. If he continues to require accommodation through a reduced course load, he might not complete his Ryerson degree until 2025, another seven years from now.

[32] And once he has completed his education, it would likely follow that father would seek a further period of time to defer his support payments so that he could get his business up and running and begin to earn an income – perhaps for another year or two, thereby taking his deferment to 2026 or 2027.

[33] In effect, then, the father is asking the court to defer his child support obligation until the child reaches 10 or 11 years of age. The question this court must ask is whether that is reasonable in all of the circumstances.

[34] As I stated earlier, the mother asks the court to immediately impute income to the father, arguing that the father is capable of finding some employment, at least minimum wage employment, at the present time.

[35] The leading case on the imputation of income in Ontario is Drygala v. Pauli (2002), 29 R.F.L. (5th) 293 (O.C.A.). In that case, the Court of Appeal stated that the court may impute income to the person who otherwise has an obligation to pay support if the unemployment or underemployment is intentional. However, the court must first ask whether that unemployment or underemployment is intentional by virtue of his reasonable education needs, the needs of the child, or reasonable health needs. Only if the answer to this latter question is negative, will the court then turn to whether to exercise its discretion to impute income and, if so, at what level.

[36] Here, the father is asking the court to conclude that his unemployment is reasonable having regard to both the father's education needs as well as his health needs. I have previously concluded that at this time, the father's health needs reasonably precludes him from any gainful employment. See also, Cook v. Burton, [2005] O.J. No. 190.

[37] However, that does not necessarily lead to the conclusion that he should be relieved of his child support obligations until his child reaches possibly 11 years of age.

[38] In order to arrive at the conclusion which the father requests in this motion, this court would have to be satisfied that the father's education plan is so patently reasonable as to relieve him of his child support obligation for the considerable number of years father is seeking.

[39] In my view, the longer the payor parent is proposing to defer his child support obligation, the closer the court must scrutinize his education plans. For example, a deferral of that obligation for one year, would have far less of an impact on the child than a deferral of 9 years. That, it seems to me, is the logical approach to take in considering this issue. Courts must always be cautious when a support payor is requesting a lengthy deferral period. See for example, McDonald v. Profeiro, 2018 ONCJ 110.

[40] A review of the Seneca College Accommodation letter reveals that Seneca has provided 18 different accommodations to the father. Despite that lengthy list of accommodations, the Seneca unofficial transcript shows that between the Fall of 2016 and the Fall of 2017, the father failed to complete courses, or achieved minimal or no success in a number of courses, as well as completing and obtaining credits in other courses.

[41] What the court is able to conclude from this unofficial transcript is that it will be a long and difficult road for the father if he is intending to remain in his present program at Seneca College. At best, it is uncertain whether the father will actually achieve success and ultimately graduate from that program.

[42] Even more speculative, is whether the father will then succeed in his plan to gain admission into Ryerson University, something which he is "looking into". And even if he does succeed in gaining admission into the two-year marketing program at Ryerson, the court must ask whether he is likely to graduate, particularly given his present low level of achievement at Seneca, combined with the father's mental health assessment discussed earlier in these reasons.

[43] Finally, even if father does complete his Seneca program, even if he does succeed in gaining admission to Ryerson University, even if he does complete the Ryerson program, what is the likelihood that he will succeed in earning a meaningful income as a self-employed marketer?

[44] The father expresses his desire to succeed in his education plans. Understandably, he says that he wants to be "successful in life" and that he wishes he will "be in a position to support" his child. However, he believes that his "best prospect at earning an income in the future is to continue my schooling."

[45] On the one hand, the father relies on much of what Dr. Sheps has to say in the psychoeducational assessment as a reason he cannot be gainfully employed at the present time. On the other hand, the father asserts that despite these significant impairments, he will not only succeed at Seneca, but he will also succeed at Ryerson University, and he will turn all of that higher education into a gainful income-earning venture.

[46] In the court's view, there is an inconsistency between the mental health evidence which I have earlier discussed, and the father's future plans.

[47] Either the father's mental health impairments are not significant and the father is in fact able to be gainfully employed at the present time, or those impairments are in fact significant and they will negatively impact on his ability to complete higher education and subsequently become a successful self-employed individual.

[48] On the evidence, including the fact that father has now applied for ODSP, the court finds the latter to be the case. More specifically, the court is unable to conclude that father's educational/self-employment aspirations are consistent with the medical/mental health evidence.

[49] Returning to the case of Drygala v. Pauli, supra, I cite the following, beginning at paragraph 38 of the court's reasons [my emphasis]:

Reasonable Educational Needs

[38] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

[39] There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

[40] But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs of a spouse.

[41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.

[50] What I glean from that decision is that the burden is always on the non-paying parent to establish the reasonableness of his education decision. Unreasonable education decisions will be rejected by the court. See for example Carter v. Spracklin, 2012 ONCJ 193, [2012] O.J. No. 1533.

[51] In my view, and for the reasons I have articulated, I am unable to conclude that the father has satisfied the evidentiary burden of establishing the reasonableness of his education plans, such that he can connect those plans – even if he succeeds – to an income-earning venture, and thereby begin to fulfill his child support obligations.

[52] Furthermore, it would be difficult to find as reasonable an education plan which defers the child's entitlement to receive support from his parent for a period of 8, 9 or 10 years.[5]

Issue #4 – Is There an Alternative Such That Father Can Begin to Fulfill His Child Support Obligation at a Reasonable Point in the Future?

[53] I have found as a fact that father is not presently able to either obtain or hold onto gainful employment. Because of that I must necessarily conclude that he has no current ability to fulfill his child support obligation.

[54] However, I have also concluded that father's educational plans are unreasonable. His child should not have to wait until he is perhaps 11 years of age before there is little more than a mere possibility that father will be able to pay even the first dollar toward his child support obligation, an obligation which arose the day his child was born.

[55] Despite this, there does appear to be an alternative, one which reasonably balances the competing needs between father's abilities and the child's entitlement to receive support.

[56] I return to father's Health Status Report and to the recommendations made by Dr. Sheps. Specifically, under the heading "future plans", Dr. Sheps recommended "counselling, support group and vocational rehabilitation".

[57] In this motion, the father has relied heavily on other parts of that Report, but he has ignored entirely those future plans recommendations.

[58] Given father's current limitations, which the court has accepted, it seems reasonable to the court that the father should be giving serious consideration to Dr. Sheps' recommendations, rather than to pursuing an education plan which, at best, amounts to little more than hopefulness by father.

[59] People with impairments as great as or greater than those experienced by father are often able to find and maintain gainful employment. The key to that, however, is training for the right kind of employment, employment which makes sense having regard to the individual's particular needs.

[60] Father has overall average intelligence; he functions within the normal range insofar as his physical abilities are concerned. But he has certain mental impairments which Dr. Sheps believes can be addressed by the appropriate counselling, support and vocational rehabilitation.

[61] No evidence was presented to the court in this motion as to what would be involved in the counselling, support and vocational rehabilitation process. The court does not know how long this process would take, and for father to then become gainfully employed once the vocational rehabilitation is completed. The burden would have been on father to present that evidence to the court, particularly given that he seeks ongoing deferral of his legal child support obligation.

[62] Based on speculation alone, the process could take six months; it could take one year, or even longer before all of that will happen. However, the court should not have to speculate. Nevertheless, because no evidence is before the court regarding this process, the court will take an approach which is intended to be reasonable in all of the circumstances, having regard both to the father's abilities and the child's need to be supported by the father.

[63] That said, because the father has not provided the necessary evidence, the court's approach will place the burden on father to seek any changes to the order I make, in the event father may have an evidentiary basis for requesting such a change in the future.

[64] The court will defer the father's child support obligations for one year, with the expectation that he will follow the recommendations of Dr. Sheps, by engaging in counselling and vocational rehabilitation. This is the recommendation which the court finds to be the most reasonable, balancing the competing interests between the child's entitlement to support with the father's most likely scenario for employment success.

[65] Following that one-year period, it is reasonable to expect that the father will be able to obtain at least half-time employment, at minimum wage.

[66] I will then allow the father another one year at half-time employment to continue to gradually work toward full time employment, so that by the end of two years from now, the court expects that he should be capable of working full time, at minimum wage.

[67] Following the first one-year deferral period, father will have leave to bring a change motion if there has been a material change in circumstances since the making of this order, such that he may reasonably require a further period of time before he is able to commence paying child support. However, the burden will rest with the father to establish that material change in circumstances.

[68] I will also give the father leave to bring a change motion if, at the end of the second year he has been unable to obtain full time employment, despite reasonable efforts to do so. Once again, however, the burden will rest with the father to establish that material change in circumstances.

Conclusion

[69] Based on the foregoing the court makes the following order on a final basis:

(1) The mother's motion for the immediate implementation of child support is dismissed.

(2) The father's child support obligation shall be deferred for a period of one year, concluding February 28, 2019.

(3) Commencing March 1, 2019, the father will pay child support to the mother, in the amount of $70.75 per month, for one child, based on an imputed income to him in the amount of $14,560 per year.[6]

(4) Commencing March 1, 2020, the father will pay child support to the mother in the amount of $248 per month, for one child, based on an imputed income to him in the amount of $29,120 per year.[7]

(5) In the event the minimum wage changes[8] this will constitute a material change in circumstances permitting either party to commence a motion to change.[9]

(6) In the event father's circumstances otherwise change such that he requires a further period of time before he has the ability to commence paying child support based on half-time hours at minimum wage he will be at liberty to commence a motion to change after March 1, 2019.

(7) In the event father's circumstances change such that he requires a further period of time before he has the ability to pay child support based on full time hours at minimum wage, he will be at liberty to commence a motion to change after March 1, 2020.

(8) In the event father obtains gainful employment or there is otherwise a material change in his financial or other circumstances prior to March 1, 2019, he shall forthwith notify the mother in writing, setting out the details of that material change. In such eventuality, if the parties are unable to agree as to the amount of child support that will be paid by father, either party will be at liberty to commence a motion to change.

(9) Until such time as a motion to change is brought by either party, or unless the court orders otherwise, the father will provide full annual financial disclosure to the mother, including his Notice of Assessment of his income tax return, commencing June 1, 2018.

[70] At the conclusion of argument on this motion I had set April 16, 2018 as a return date. However, as this motion is now decided on a final basis, the matter is now concluded and the return date is vacated.

Released: February 20, 2018

Signed: Justice Robert J. Spence

Footnotes

[1] His application for ODSP has yet to be determined.

[2] Which is completed by a physician as part of the ODSP application process.

[3] I will return to the "future plans" recommendations later in these reasons.

[4] I recognize that Dr. Sheps used the word "impossible" in his Report. However, the court must also be mindful of the fact that at least some of that Report is based on father's own self-reporting. In any event, the court does not have to conclude that obtaining a job is impossible, only that it is not likely, on a balance of probabilities.

[5] That is not to say that a long deferment of child support may not be reasonable under certain, very unique circumstances. However, as I noted earlier, the longer the period of requested deferment the more incumbent it would be on the payor parent to satisfy the court as to the reasonableness of that deferment.

[6] 20 hours per week x $14.00 per hour, which is the current minimum wage in Ontario.

[7] 40 hours per week x $14.00 per hour.

[8] The present government has announced that the minimum wage will increase to $15.00 per hour on January 1, 2019.

[9] Or, perhaps more appropriately, to file a 15D consent to change the child support order if a change order is required solely as a result of the change in minimum wage.