Court File and Parties
Date: January 19, 2018
Court File No.: D62367/13
Ontario Court of Justice
Between:
Kerry Daniel Marks
Lauren Calderwood, duty counsel assisting the Applicant
Applicant
- and -
Zein Mjasir
Heather Cedarqvist, duty counsel assisting the Respondent
Respondent
Heard: January 16, 2018
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial arose out of the respondent's (the father's) motion to change my final order dated November 10, 2015 (the existing order). The existing order required the father to pay child support to the applicant (the mother) of $1,232 each month, starting on August 1, 2015 for the parties' two children, who are 13 and 9 years old (the children). This was the Child Support Guidelines (the guidelines) table amount for two children at an annual income of $85,000.
[2] The father has not paid any child support.
[3] At trial, the father asked the court to rescind all of his arrears and to order no ongoing child support.[1]
[4] The mother, in her response to motion to change, sought a dismissal of the father's motion to change.[2]
[5] The parties reached a partial final settlement on May 29, 2017. They fixed the father's support arrears as of March 1, 2017 at $19,712. This resolved the request of the father to retroactively rescind arrears.[3]
[6] On November 7, 2017, Justice Carole Curtis set filing timelines for additional affidavit evidence, as no evidence had been filed since April 28, 2017. Neither party filed additional material. To ensure a just process, the court heard additional oral evidence from both parties.
[7] The issues for this court to determine are:
a) Has there been a change in circumstances since the existing order was made that warrants changing the child support ordered?
b) In determining whether child support should be changed, what, if any, income should be imputed to the father?
c) What, if any, child support arrears should be further rescinded?
Part Two – Facts
[8] The material facts in this case were not seriously in dispute.
[9] The father is 39 years old. The mother is 31 years old.
[10] The parties have the two children together. They have no other children.
[11] The children have always resided with the mother. They do not see the father.
[12] The father was charged with assaulting the mother and threatening death against her in July, 2015.
[13] On August 13, 2015, the mother brought an application for custody and child support.
[14] The father was noted in default and the existing order was made.
[15] The father worked at the Toronto Transit Commission (TTC) starting in 2006. He worked in an administrative position.
[16] The father earned $81,780 in 2014.
[17] The father lost his job with the TTC in 2015. He provided contradictory evidence about how his job ended. He deposed in his Change Information Form that he was fired in November, 2015 due to bad performance.
[18] At trial, the father claimed that his lawyer at that time had written down that information and it wasn't true. He testified that he resigned from the TTC in November, 2015. Later, he testified that he submitted his resignation in July, 2015, but continued to work until November, 2015.
[19] The father provided several reasons for resigning from the TTC: he knew he would be convicted of the criminal charges; he was loyal and he didn't want to put his employer in a bad position; and he didn't want the TTC to know about his criminal charges.
[20] The father did not produce documents to support any of these versions of events.
[21] The father was convicted of Assault and Threatening Death in November, 2015.
[22] The father was sentenced to 45 days in jail and two years' probation in December, 2015.
[23] The father has not worked since November, 2015.
[24] The father has been on social assistance since June, 2016.
[25] On March 30, 2017, the parties consented to a temporary order that the father pay child support of $355 per month, starting on April 1, 2017, based on a minimum wage income. The father paid none of the child support ordered.
[26] On May 29, 2017, the parties agreed to fix support arrears at $19,712 as of March 1, 2017. They further agreed, on a temporary basis, to suspend ongoing child support and the enforcement of arrears pending further court order.
Part Three – Legal Considerations
[27] The father's motion to change support is 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.
[28] 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.).[4]
[29] Many courts have held that where underemployment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations should not be reduced or cancelled. See: Luckey v. Luckey, [1996] O.J. No. 1960 (SCJ); Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood, (2006), O.J. No. 4860 (SCJ).
[30] Courts have also refused to reduce support where an employer was justified in firing a payor. See: Baldini v. Baldini, [1999] B.C.J. No. 1426; Aboagye v. Sakyi, 2012 ONCJ 56.
[31] In Samaroo v. Monasar, 2016 ONCJ 47, where a payor had unjustifiably quit his job in 2014 and had not found comparable employment by the time of trial, this court decided to maintain the payor's support obligation from the time he quit his job, and only reduce it beginning in February, 2016. This was determined to be a fair balancing of the consequences of the payor's decision to quit his job.
[32] In Malcolm v. McGee, 2017 ONCJ 357, the father had been fired from his job. It took him several months to find a new, lower paying job. This court balanced the consequences of the father's misconduct in losing his job by not reducing support for the time he was off work and reducing support to an amount based on his actual income once he started working. This court wrote at paragraphs 47-48:
[47] The court must determine how to allocate the consequences of the father's poor decisions. The mother argues that the father should bear the entire cost of these decisions – the child should not receive any less support.
[48] The court agrees with the mother to some extent. However, at a certain point, an existing order can become unrealistic and unjust due to a payor's changed circumstances – no matter if those changed circumstances were caused by the payor's misconduct. The court should conduct a contextual examination of all the circumstances in determining the support amounts it should order.
[33] 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.
[34] 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.).
[35] 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:
Is the party intentionally under-employed or unemployed?
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?
If not, what income is appropriately imputed?
[36] The court, in determining the income to impute, 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.
Part Four – Analysis
[37] The court is not prepared to go behind the final settlement reached by the parties on May 29, 2017, that fixed child support arrears as of March 1, 2017. That issue has been determined.[5] The court will only examine whether to make changes to the existing order after that date.
[38] There has been a change in circumstances since the existing order was made. The father lost his job in November, 2015 and has been on social assistance since June, 2016.
[39] There is no question that the father's reduction in income is due to his misconduct and poor choices.
[40] The father has acted badly. For instance:
a) Despite previously earning a good income he has never paid child support.
b) The court found credible the mother's evidence that the father has threatened her many times that he will never pay her "a dime of child support".
c) The court also found credible the mother's evidence that the father threatened her with physical harm if she pursued her support claim.
d) The father quit his job when the mother started her support application.
e) The father claims that his criminal record impairs his ability to find work. This criminal record arose due to serious domestic violence perpetrated against the mother – so serious that he was convicted of these offences and served time in jail.
f) The father has made nominal efforts to look for work.
g) The father admitted that he has not applied for minimum wage jobs. He testified that he was not prepared to do this. He testified:
i) I'm not a guy who works for minimum wage.
ii) I'd rather make real money.
iii) I like to apply for jobs with a progressive future – not for minimum wage jobs.
iv) I want to earn a real living, not live paycheque to paycheque. I'd rather go to jail.
v) I like to live comfortably.
h) The father was entirely dismissive of the impact his failure to pay child support has had on the mother and the children. Referring to the mother, he testified, "I want this to end. Either you want to send me to jail or to pay you money".
[41] In contrast, the mother has behaved in an exemplary manner. She has been the sole support of the children without any help from the father. She agreed to a temporary reduction of child support – the father paid her nothing. She agreed to a partial rescission of arrears as of March 1, 2017 despite the father's conduct. Then she agreed to stay the support order for six months in the hope that the father would obtain work. There is no evidence that the father made any serious effort to find work. The mother made it clear to the court that she does not want money the father doesn't have, she just wants him to "contribute something".
[42] The court is very tempted to make no change to the existing order given these circumstances. The father has egregiously and selfishly placed his own interests ahead of those of his children. However, as I wrote in Malcolm, at a certain point, an existing order will become unrealistic and unjust if a payor is unable to pay the support ordered. The question then becomes how to strike a just balance between this consideration and the adverse consequences of the father's conduct on the children.
[43] In Malcolm, the payor acted much more reasonably than the father. Despite his misconduct in losing his job, the payor was making serious efforts to rectify his mistakes and support his child. The court balanced the consequences of the payor's misconduct with the reality of his reduced earning ability by maintaining the support level in the existing order for seven months, before reducing his support to an amount based on his actual income.
[44] In this case, it is incumbent on the court to make a much stronger statement about the father's misconduct and his blatant disregard of the children's interests. The court will balance the consequences of the father's misconduct on the children with the realities of his present earning ability as follows:
a) It will rescind the temporary orders that reduced his support obligation and stayed the enforcement of support.
b) It will maintain the support level contained in the existing order for the period from March 1, 2017 to today. This will result in additional arrears of $12,232 (10 months @ $1,232 per month from March 1, 2017). This increases the father's total support arrears to $31,944.
c) It will reduce his ongoing support obligation as set out below.
[45] This leads to the next question: how much income should be imputed to the father for ongoing child support purposes?
[46] The court finds that the father is intentionally unemployed without a justifiable excuse. He quit his job and he has not made reasonable efforts to obtain work. He is disdainful of looking for a minimum wage job.
[47] The father has no medical limitations preventing him from working.
[48] The father provided vague plans about going back to school. He says that he has to upgrade and then he hopes to go back to school in September, 2018. This is not a realistic plan. The father has children to support and should be working.
[49] The court recognizes that the father will have some difficulty finding work due to his criminal record.
[50] The court also recognizes that it is highly unlikely that the father will find employment comparable to his job at the TTC.
[51] However, the father is capable of working. He has many job skills. He obtained a certificate in Accounting and Program Analysis from Centennial College. He steadily worked from May, 2006 in clerical and accounting jobs.
[52] The father states in his resume that he is proficient in working with Accounting Software, has excellent computer skills and has good interpersonal, communication and customer service skills. He says that he is detail oriented, self-motivated and reliable.
[53] The annual minimum wage in Ontario as of January 1, 2018 is $29,120.
[54] The father's age, health, job skills and work experience inform the court that he should be earning more than a minimum wage income and would be, if he made a reasonable effort to look for work.
[55] The court will impute the father's annual income at $40,000 starting on February 1, 2018. The guidelines table amount for two children at this income is $597 each month.
Part Five – Conclusion
[56] A final order shall go on the following terms:
a) The temporary orders are rescinded.
b) The father's request to rescind arrears accumulated after March 1, 2017 under the existing order is dismissed.
c) The support arrears owing by the father to the mother are fixed at $31,944, as calculated in this decision.
d) The existing order is changed to provide that the father shall pay child support to the mother for the children in the sum of $597 each month, starting on February 1, 2018. This is the guidelines table amount for two children based on an annual income of $40,000 imputed to the father.
e) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year, starting in 2018.
f) The father shall immediately notify the mother of any employment he obtains. He is to provide the mother with copies of any employment contract and his first 3 pay stubs.
g) A support deduction order shall issue.
[57] The mother advised the court that she will not seek costs.
[58] The court is under no illusion that the father will begin to pay support. This matter should be enforced immediately by the Director of the Family Responsibility Office (the Director). It is seriously unfair to the mother and the children that the father has not paid any child support. Court staff are directed to send a copy of this decision to the Director.
[59] The court thanks counsel for their assistance in this matter.
Released: January 19, 2018
Justice S.B. Sherr
Footnotes
[1] In his motion to change, the father asked to change the existing order by fixing support arrears at $4,928 and to fix ongoing child support based on a minimum wage income.
[2] At trial, the mother said that she only wanted the father to start paying some support – she didn't want him to have to pay an amount that he couldn't afford.
[3] The father issued his motion to change on January 6, 2017. Any arrears he sought to rescind prior to that date are retroactive arrears.
[4] Since the parties resolved the issue of arrears as of March 1, 2017 (which included any claim for retroactive rescission of arrears), the legal considerations for a downward retroactive change of support set out in the leading case of Gray v. Rizzi, 2016 ONCA 152 are not applicable.
[5] The father also did not put the mother on notice that he would seek a further rescission of these arrears at trial. However, the court wants the father to know that even if it had been willing to revisit this issue, it would not have made any further reduction in support arrears for the reasons set out in this part.