Court File and Parties

Ontario Court of Justice

Date: September 25, 2018

Court File No.: Toronto D91639/16

Between:

M.T. Applicant

— And —

J.L.-T. Respondent

Before: Justice Roselyn Zisman

Heard on: August 8 and 15 and September 17, 2018

Reasons for Judgment released on: September 25, 2018

Counsel:

• Reide L. Kaiser, for the Applicant
• Leroy Bleta, for the Respondent

Reasons for Judgment

Zisman, J.:

Introduction

[1] This was a focused trial heard over portions of several days. The only issue to be determined was child support.

[2] The Applicant (mother) seeks an order that the Respondent (father) pay child support based on an imputed income of $47,129 being the average of his income for the last three years when he was employed full-time. The mother also seeks an order that the father contribute to the children's special and extraordinary expenses.

[3] The Respondent (father) seeks to pay child support based on his present income being receipt of Ontario Disability Support Payment (ODSP) and some limited employment income.

[4] Both parties filed affidavits as their evidence in chief and were subject to cross-examination by opposing counsel. The parties who are both deaf were assisted by a deaf interpreter and 2 ASL interpreters.

Background

[5] The parties are the parents of two children: a son who is 6 years old and a daughter who is 4 years old.

[6] The parties were in a relationship from 2009 and were married on February 5, 2012. There were several brief separations and a final separation on February 28, 2016.

[7] On May 29th the father cut himself with a knife in the presence of the children. On May 30th the father was charged with assault with a weapon as a result of an incident that occurred in February 2016. There was a no contact order in place.

[8] The criminal charges were resolved on October 26, 2017 by means of the father entering into a 12 month peace bond.

[9] The mother commenced this application on September 15, 2016 for custody, access and child support.

[10] On January 5, 2017 the father consented to pay temporary child support of $355 per month based on an imputation of minimum wage, which was then $23,712. The father also consented to a disclosure order.

[11] On April 12, 2018 on a final basis the parties agreed that the mother have custody and access issues were settled.

Education and Employment History

[12] The mother is 37 years old. Since the separation she has returned to school and completed a course for a manicurist and is seeking employment. She is also pursuing training and education to become a deaf interpreter.

[13] The mother is in receipt of ODSP and earns a little income doing occasional work as a cleaner. Her income is as follows:

• 2015: $25,080
• 2016: $15,489
• 2017: $20,296

[14] The father is 43 years old. He has a grade 12 education and a certificate as a Personal Service Worker. He was employed at Bob Rumball Association for the Deaf (BRAD) as a counsellor from December 24, 2011 to July 13, 2016. He is currently in receipt of ODSP and has some limited employment income.

[15] Since leaving his employment at BRAD, the father has been upgrading his education. In January 2018, he enrolled at George Brown College and testified that he was taking courses for communication, math and American Sign Language. He is training to be a deaf interpreter. On May 16, 2018 he began training as a sign language instructor and he has obtained some employment at $22 per hour through the Canadian Hearing Society.

[16] The evidence with respect to the father's income is as follows:

• 2012: $49,582
• 2013: $47,582
• 2014: $45,853
• 2015: $45,960
• 2016: $32,940 (T4 $6,444 for Employment Insurance and BRAD $26,496)
• 2017: $13,206

Applicable Legal Principles

[17] The statutory authority applicable in this case for imputing income is set out in Section 19 of the Child Support Guidelines as follows:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

[18] The Ontario Court of Appeal in the case of Drygala v. Pauli held that imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children.

[19] 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 and to establish an evidentiary basis upon which this finding can be made.

[20] In the Drygala v. Pauli case the court set out a three-part test to determine whether income should be imputed on the basis of under-employment or unemployment as follows:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If not, what income is appropriately imputed in the circumstances?

[21] Therefore, the first part of the test in Drygala v. Pauli is to ask whether the payor is intentionally under-employed or unemployed. The court stated 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.

[22] The second part of the test in Drygala v. Pauli requires the court to determine if the payor is intentionally under-employed, is this by virtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs?

[23] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. Parents can take jobs with less money as long as the decision is reasonable. However, when an employment decision results in a significant reduction in child support, it must be justified in a compelling way. A spouse must demonstrate that the decision was "reasoned, thoughtful and highly practical".

[24] The payor must prove that any medical excuse for being underemployed is reasonable. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his or her reasonable health needs justify his/her decision not to work.

[25] The third part of the test in Drygala v. Pauli, once there is a finding that there is no reasonable excuse for the payor's under-employment or unemployment, requires the court to then consider 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 during the parties' relationship.

[26] The payor's previous income is a rational basis on which to impute income. As it is the amount of income the payor would have continued to earn but for his or her decision to leave their job.

[27] The court can also draw an adverse inference against a party for the failure to comply with their disclosure obligations.

Application of Findings of Fact to the Legal Principles

[28] There were serious concerns about the father's credibility throughout his evidence. I found his evidence to be vague, evasive, self-serving and without corroboration on significant issues. He continually blamed others when confronted with contradictions between his testimony and the documentary evidence.

[29] I find the father is intentionally under-employed for the following reasons:

1. The father "quit" his well-paying employment at BRAD that provided him and his family with medical benefits and vacation pay. Although the Record of Employment filed by the father indicated that he "quit" in July 2016 the father maintained that he only took a medical leave of absence due to the stress of the job. The father never requested that the Record of Employment be corrected nor did he summons his employer or the author of the Record of Employment as a witness;

2. Even if the father only took a leave of absence, he never returned to his position on a full-time basis;

3. Both parties testified that it is extremely difficult for a deaf person to find employment. The father testified that he was "lucky" to obtain employment in 2012 with BRAD; therefore it was reckless and unreasonable for the father to leave such a well-paying job at BRAD;

4. The timing of the father leaving his job is relevant as he did so shortly after being charged with assaulting the mother with a weapon; and

5. The father admitted in cross-examination that although throughout the relationship he found the job at BRAD stressful, he continued working as he had a responsibility to support his children and yet he left that job after the separation while having the same obligation to support his children.

[30] Having found that the father is under-employed, the onus shifts to him to prove on a balance of probabilities his under-employment is reasonable due to his educational or medical needs.

[31] I find that the father has not met the onus on him to prove that his under-employment is reasonable for the following reasons:

1. Although the father deposed and filed a letter from George Brown indicating he that as of January 29, 2018 he was enrolled in the Deaf Upgrading program, he only provided proof he was taking one course once a week and there were no further details as to the time commitment;

2. The father maintained that he was unable to continue to work at BRAD due to the "stress" of the job including being threatened and assaulted, being required to work at double and triple shifts and he had to work at 3 different group homes and "he preferred not to do that". The father provided no corroboration of any of these allegations. The report from the Centre for Addiction and Mental Health (CAMH) prepared for the father's criminal court case, states that the father was referred for an "assessment and treatment, anger management, abuse as a child". The father highlighted issues with respect to his "temper, stress at work and problems in the marriage". Throughout the report there is no further mention of "stress" in his workplace or any of the details testified to by the father. The father blamed the omission on the lack of proper interpretation but the father took no steps to obtain another report. Further, the report indicates that the assessment was conducted with an ASL interpreter.

3. Although the father testified that he had to leave his employment "to take care of his health", the CAMH report only diagnoses the father as "presenting with a three month history of depressive symptoms following an altercation at home, after discovering his wife's affair." The father's presentation was characterized as an "adjustment disorder with depressed mood". No follow up at CAMH was required, ongoing counselling was recommended and it was expected that the symptoms would resolve over time;

4. The father did not file a report from his counsellor;

5. The only medical evidence produced by the father was a short letter dated April 9, 2017 from Dr. Ho who has been the family doctor for both the parties. Dr. Ho's letter is entirely self-serving and based on the father's self-reporting. Dr. Ho states that, "I truly believe that no one should work in any place where they do not feel safe both physically and mentally and as such I do not recommend that he return to his previous job at Bob Rumball." I put no weight on this letter as it does not even qualify as a medical opinion but I do note that even Dr. Ho does not state that the father cannot work full-time;

6. The father agreed that he had never filed a grievance through his union to complain about his work conditions;

7. The father testified that he did complain to his supervisor about his work conditions but there was no evidence to corroborate any such complaint and the supervisor was not called as a witness;

8. The father testified that he was unable to obtain new employment due to his criminal record. However, the father left his job at BRAD when he was facing criminal charges and should have considered or known that such pending charges could create some difficulty in obtaining new employment. Further, the father does not have a criminal record as the charges were resolved by a peace bond;

9. The father testified that he was unable to obtain new employment through the Canadian Hearing Society without a criminal clearance and he did not obtain that clearance until March 2018. There was no evidence as to when he applied for the clearance as the criminal charges were resolved in October 2017;

10. The father in cross-examination offered a further excuse for not working more hours namely, that the mother was "forcing him to take the children". However, the mother was never questioned about this allegation and the father contradicted himself in any event as he testified that he was working as many hours as were offered; and

11. The father failed to comply with the disclosure order that required him to provide a copy of his ODSP application and a medical report that outlines his diagnosis, prognosis, treatment plan and if there is compliance with the treatment plan.

[32] Having found that there is no reasonable excuse for the father's under-employment, the next step is to determine what income should be imputed based on the father's circumstances.

[33] I find that income should be imputed in the amount that the father could have earned if he had remained in his employment at BRAD for the following reasons:

1. The father has not made reasonable efforts to obtain new employment. After leaving his job he testified that he took 6 months off but then kept changing his evidence as to when he took this time off and that maybe it was only 6 weeks;

2. The father is not credible as his actual income. He produced his tax return and Notice of Assessment for 2016 indicating an income of only $9,084. When confronted with his T-4s for 2016 indicating an income of $32,940 he testified he just signed the tax return as prepared by his accountant and blamed his accountant for the error and then blamed his mother for not properly interpreting;

3. The father could not explain why in 2017 he received a T4 from BRAD for $1,576;

4. The father testified that his personal circumstances were dire as he was homeless but was evasive as to when and where he lived and then confirmed that he lived with a roommate and at other times with his mother;

5. The father was not clear about the number of hours he worked at his new employment with the Canadian Hearing Society. He testified that he was paid $22 per hour but he was "on call" and only worked about 2 hours a week. But his pay stub for the weeks July 1 to 15, 2018 indicated that he worked 25 hours. The father did not produce a pay stub for the last 2 weeks of July. If the father was working full-time for 40 hours at this job, he would earn $45,408;

6. The father made no reasonable efforts to find new employment. From July 2016 to July 2018, the father only submitted 5 job applications and received responses from only 2 prospective employers. He provided no further details as to his efforts; and

7. The father is certified as a Personal Support Worker and now is also certified as an ASL instructor. There is no credible medical evidence that he has been unable to work full-time since leaving his job at BRAD.

Conclusion

[34] The father left a well-paying unionized job that provided himself and his children with employment benefits. Despite being aware of the obstacles facing a deaf person with finding employment, the father left BRAD without having first secured another job and without making efforts to improve his work conditions at BRAD. Although the break-up of the marriage and his criminal charges may have been difficult for him to deal with emotionally, he recklessly and without any thought for the well-being of his children preferred his needs over those of his children.

[35] Since leaving his secure employment at BRAD he has made limited attempts to find alternate employment at the same level of salary.

[36] Although he is now working, it is only for very limited hours but he has the possibility of earning in the same range as he earned at BRAD if he uses all of his skills and training and obtains full-time employment.

[37] I find that it is therefore appropriate to impute income to the father in the amount of $47,129 being his average income for the last three years he was employed at BRAD. Such amount to be payable as of the commencement of this Application and with credit for any amounts he has already paid.

[38] With respect to the special expenses, it is reasonable that the father also contribute to those expenses on an ongoing basis. The mother confirmed that the father has been contributing $85 monthly for their daughter's dance classes from February to June 2018. The mother is not seeking that the father make any retroactive contribution to other expenses. In 2018, their daughter was enrolled in swimming, baseball, dancing and attended baseball camp and their son was enrolled in swimming, baseball and attended summer camp and there are some minor costs for after-school programs. While individually these expenses may not be "extraordinary" the total costs as submitted by the mother are about $1,960. The mother was not cross-examined on these amounts and I find that they are reasonable. Based on the mother's current income and the income imputed to the father, his proportionate share would be 70%.

Order

[39] There will be an order as follows:

1. As of October 1, 2016, the Respondent shall pay to the Applicant child support in the amount of $699.00 per month for the two children, commencing October 1, 2016. This amount is in accordance with the Child Support Guidelines for two children and is based on an imputed income of $47,129.00.

2. As of December 1, 2017, the Respondent shall pay to the Applicant child support for the above noted two children in the amount of $711.00 per month. This amount is in accordance with the Child Support Guidelines for two children and is based on an imputed income of $47,129.00.

3. The Respondent shall be given credit for any amount paid by him pursuant to the temporary order of January 5, 2017.

4. The Respondent shall pay 70% of the reasonable section 7 expenses for the children. At the present time, total yearly expenses of $1,960.00 are deemed to be reasonable. The Applicant shall provide the Respondent proof of the section 7 expenses as they arise and the Respondent shall pay his share within 30 days. If the Applicant seeks a contribution exceeding this yearly amount, she shall provide the Respondent with proof of the anticipated expense and an explanation as to why incurring the expense is in the children's best interests. The Respondent's contribution shall not be unreasonably withheld.

5. Commencing June 1st, 2019, and each year thereafter and for so long as child support is payable, the Respondent shall provide copies of his income tax returns and Notices of Assessment to the Applicant. The amount of child support payable shall be adjusted accordingly except that the Respondent's income shall not be attributed to be less than $47,129.00.

6. If the Respondent seeks the Applicant's contribution to any section 7 expenses, she shall also be required to provide her tax return and Notices of Assessment to the Respondent. The Respondent's income shall not be attributed as less than $47,129.00 for the purposes of any future calculations with regard to each parties' respective share of such expenses.

7. As the successful party, the Applicant is presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Applicant shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Respondent shall submit his written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Applicant's costs submissions. All submissions to be filed with the trial co-ordinator.

Released: September 25, 2018

Signed: Justice Roselyn Zisman