Court File and Parties

Ontario Court of Justice

Date: 2018-10-12

Court File No.: Toronto D81883/15

Between:

Zuhur Ibrahim Applicant (Mother)

— And —

Ahmed Hilowle Respondent (Father)

Before: Justice Robert J. Spence

Heard: October 9, 2018

Reasons for Judgment Released: October 12, 2018

Counsel:

• Ms. Glenda Perry — counsel for the applicant
• Mr. Jerald J.D. MacKenzie — counsel for the respondent
• Ms. Cynthia Bayers — on behalf of the City of Toronto Social Services

Judgment

R. J. SPENCE J.:

1: Introduction

[1] The father has brought a motion to change an order of this court dated August 8, 2016 ("final order").

[2] The final order provided that he was to pay child support for his two children, now ages 4 and 6 years, in the amount of $773 per month, commencing March 17, 2015, based on imputed income to him in the amount of $52,000 per year.

[3] That order and the amount imputed to the father was made on a default basis, and based on limited evidence available to the mother. The order further provided that the support order was "without prejudice to seek greater support on further and better evidence."

[4] The father seeks to reduce his support to $150 per month based on the father's stated income of $8,652 per year. [1]

[5] He also seeks an order rescinding all arrears which have accumulated since the making of the final order.

[6] The mother has brought a cross-motion seeking a dismissal of the father's change motion, as well as an order increasing the support payable by the father based on an income which she says should be imputed to him, in the amount of $83,517 per year. That would generate a Child Support Guidelines ("Guidelines") table amount of support in the amount of $1,214 per month for two children for the period March 17, 2015 [2] to November 30, 2017, and increasing to $1,262 per month from December 1, 2017 [3] and following.

[7] The mother also seeks a conduct order, more specifically:

An order that the father shall not bring any further motions to change without leave of the court, which leave shall be obtained on 14B motion from the case management judge. The 14B motion for leave shall not be served on the mother unless directed by the court. As a precondition of obtaining leave of the court, the father shall attach to his motion for leave proof that he has paid any outstanding costs orders that may be made against him and in addition to any mandatory disclosure required by the Family Law Rules and the Child Support Guidelines, he shall file any outstanding disclosure ordered by the court not already provided.

2: Background

[8] The parties are the natural parents of the two children mentioned above.

[9] The parties separated in March 2015.

[10] At the date of the separation the father was employed by PCL Energy Inc. ("PCL").

[11] Subsequent to the separation, the father chose to have minimal contact with the children.

[12] The mother commenced her initial Application on October 29, 2015, seeking inter alia, custody and child support.

[13] The father was duly served with the Application and he failed to respond. The court noted him in default on March 22, 2016, and gave the mother leave to proceed by 23C affidavit.

[14] On August 8, 2016 the court made the final order, including the without prejudice child support order in favour of the mother.

[15] On March 14, 2017 the father issued his first motion to change the final order. In that motion to change, he asked the court to order that the existing support be "suspended" "due to hardship and re-training for school".

[16] By 14B motion form brought by the mother, which the father did not oppose, the court made a disclosure order on May 8, 2017. That order provided for extensive documentary disclosure by the father, to be completed 20 days prior to the case conference date which was scheduled for July 20, 2017.

[17] On July 20, 2017, the father failed to attend court. The father had also failed to comply with the disclosure order. As well, the mother filed an affidavit stating that the father was then living in Egypt. On the basis of all this, the court struck out the father's motion to change.

[18] On May 3, 2018, the father issued his second motion to change, the motion to change which is currently before the court.

[19] At the case conference on July 9, 2018, the parties agreed to proceed to a focused trial in order to obtain an early hearing date, by shortening the necessary trial time required in court. They agreed to file their respective evidence in chief by affidavit in advance of trial, and they agreed to time limited cross-examination by each party of the opposite party.

[20] Trial was set for one day, October 9, 2018.

3: Issues

[21] There are three issues for this court to determine:

1. Does the father have a legal obligation to pay support for the parties' children?

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

3. Depending upon the court's findings respecting the foregoing issues, is it appropriate for the court to make the conduct order requested by the mother?

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

[22] 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).

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

[24] However, the father disputes that he is "capable" of providing other than minimal support.

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

[25] The father's position is that he is not capable of providing meaningful support because he does not have gainful employment. And this lack of gainful employment is not due to any fault of his own. Rather, he says that he is limited in what kind of employment he can obtain due to his claimed physical and psychological impairments. And, further, he says he has made reasonable efforts to find employment within those limitations and he has been unable to obtain any employment whatsoever.

[26] Father also says that because he has these limitations, it makes more sense for him to re-train. Specifically, he says he is now enrolled in a school in Egypt where he hopes to become a translator. Thereafter, he would intend to work as a teacher with his newly-acquired translator skills.

5.1: The Father's Medical Evidence as to His Claimed Limitations

[27] The father claims to have both physical and psychological deficits which severely limit his ability to find gainful employment.

[28] These limitations arise from a motor vehicle accident which occurred on October 18, 2013, approximately 1-1/2 years prior to the parties' separation.

[29] The father says that since the date of that accident he has "continued to experience extreme pain in my back and neck". He filed a medical report from Dr. Joseph Wong dated April 18, 2018, wherein Dr. Wong reviews the history of the accident and the father's treatments, and concludes:

The impairments involving the upper back, lower back and neck will affect [father's] ability with prolonged sitting, standing, jumping and running activities. . . . [he] will not be able to participate in physically demanding jobs in the future and will be obliged to restrict himself to a sedentary type of work.

[30] Father also filed a psychological report from Dr. Andrew Shaw dated May 8, 2018, following Dr. Shaw's assessment of the father on April 20, 2018. The relevant portions of that report upon which the father relies are as follows:

He suffers from (a) Adjustment disorder with anxiety; (b) major depressive disorder; and (c) specific phobia (travelling in and around a vehicle) . . . . the current diagnosis is a direct result of his motor vehicle accident on October 18, 2013. . . . he continues to experience many psychological and emotional difficulties which are impairing his overall functioning and his physical pain is limiting his ability to perform many of his daily activities. Further, the fact that he is physically unable to perform his pre-accident job has caused him significant worry and stress. His prognosis is currently poor. Based on the information provided during this assessment, it is clear that he is unable to perform his basic daily tasks, largely because his current psychological and emotional state is quite poor.

[31] The report which the father did not file is the report from Dr. J. Castiglione dated February 9, 2014. This report was prepared following an independent medical assessment requested by The Personal Insurance Company to determine the medical status of the father following the motor vehicle accident and, more specifically, his entitlement to receive Income Replacement Benefits.

[32] Dr. Castiglione had all of the available documentation, including x-rays, medical notes, progress reports and accident damage photos. Following all of the doctor's testing and observations, he concluded [my emphasis]:

Mr. Hilowle's injuries appear consistent with the SABS definition of minor injury. At this time, based on my assessment and review of the available documentation, I am unable to provide any objective rationale that would support his inability to return to work, at least in a modified gradual progression. . . . From an objective medical standpoint, he does not have a substantial inability to complete the essential tasks of his pre-accident employment, and should be capable of returning to the modified work offered, with gradual increase to regular work over a 6 week period.

[33] In his final submissions on his client's behalf, father's counsel frankly acknowledged that none of the medical evidence filed by the father contained objectively ascertainable evidence as to any of the father's claimed medical impairments.

[34] The essence of the medical reports on which the father relied are based entirely on self-reporting by the father to the doctors.

[35] Accordingly, in determining whether there are any real impairments which limit the father's ability to find employment, the court is required to consider father's overall credibility.

[36] I will engage in this credibility analysis later, and at various points throughout these reasons. However, suffice it to state at this point, that I reject the father's claim that he has physical or psychological impairments which limit his ability to obtain gainful employment.

5.2: The Father's Legal Obligation to Seek Out Gainful Employment

[37] The leading case in Ontario respecting a support person's obligation to seek out gainful employment and earn an income in accordance with his capacity 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. That Court stated that the person who is obligated to pay support must pay in accordance with his ability to work as though he is "working to capacity".

[38] The capacity of one individual may not be the same as the capacity of another individual. In this case the court must look at the father's attempts to find employment after he stopped working at PCL.

[39] The court must consider whether he made himself available to work fulltime at a job that he was capable of doing. In that regard, I note the uncontradicted evidence of the mother that the father absented himself from Canada for considerable periods of time following the parties' separation in March 2015. More specifically, he travelled to the following places and for the following dates, for personal reasons in the past few years:

(1) March 2015 – Saudi Arabia

(2) November 2015 to June 2016 – Egypt

(3) December 2016 to January 2017 – Indonesia

(4) April 2017 to December 2017 – Indonesia, Malaysia, Egypt, Gambia

(5) May 2018 to June 2018 – Egypt

(6) August 29, 2018 to October 6, 2018 – Egypt [4]

[40] It appears, therefore, that in the 43 months since the parties separated in March 2015, the father was out of Canada for about 21 months, or almost one-half of that period. [5]

[41] How can a person who fails to make himself available for fulltime employment be considered to be working to capacity? To ask this question is to answer it.

[42] When he left PCL in February 2017, the father stated that the reason was for "compassionate and parental leave" purposes. More specifically, he stated that his then-wife in Egypt was ill during a pregnancy in 2017.

[43] The father swore an affidavit early in this motion to change stating that he was married to a woman in Egypt and that she had just given birth to the father's child in February 2017.

[44] However, that very same wife filed an affidavit in this proceeding in which she stated:

The Applicant, Zuhur Ibrahim has informed me and I believe that Ahmed [the father] has claimed that I gave birth to his child in February 2017 and that I had a difficult pregnancy: none of that is true.

[45] When the father was confronted at trial with this direct contradiction of his own sworn evidence, he first replied that he made a "mistake" in his sworn affidavit. Then he said that his wife lied to him at the time about her pregnancy.

[46] In short, the father was not entitled to leave Canada for either "compassionate" reasons, or for "parental" reasons.

[47] Even though his government of Canada papers specifically stated that he was absent from Canada beginning from February 2017 due to "parental leave", he acknowledged that his claim for parental leave was based on a deception. He was then asked whether he ever corrected that documentation with the Canadian government. His response at trial was that he "called in" to the government to make that correction.

[48] I find this response to be suspicious at best and, more likely, untrue. In the court's experience, individuals do not correct Canadian government documentation by simply "calling in" to speak to someone.

[49] Beginning in January 2018, up to the date of this trial, the father said he applied for 13 different jobs. That works out to fewer than two job applications per month.

[50] Furthermore, the evidence is that he was absent from Canada for about three of those nine months.

[51] The court cannot reasonably conclude that the father was maximizing his income-earning potential when he made only 13 job applications over a 9-month period, during which period of time he was in Canada for only 6 of those months.

5.3: Support Deferment Due to Education/Re-training

[52] 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.

[53] 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, and Eden v. Grondin, 2018 ONCJ 116.

[54] The father's so-called education/re-training plan is almost entirely devoid of any specifics.

[55] The letter he produced from the Quran Language Center in Egypt states that father is enrolled in a two-year program for learning the Arabic language for non-native speakers, and that the program of study commenced 15 April 2017.

[56] That is the entire extent of the father's so-called re-training plan. Having regard to the Court's comments in Drygala, supra, the deficiencies of the plan include:

(1) The lack of specifics – how many courses must be taken and when?

(2) How much time must be devoted in and out of the classroom to ensure continuation in the program?

(3) Are the demands such that the paying parent is excused from pursuing part-time employment?

(4) Could the program be completed over a longer period with the parent taking fewer courses so that he could obtain part-time employment during the regular academic year?

(5) Is summer employment reasonably expected?

(6) Why is this program likely to lead to better employment opportunities such that the parent will be able to generate a greater income than what he was earning prior to his retraining?

(7) What kinds of jobs are available and at what starting salaries/pay for a graduate of this program?

(8) Is this program offered in Egypt the only program of its kind so that, for example, attending a similar program in Canada is not an option?

[57] These are just some of the questions which are not answered by the father.

[58] I note as well that the letter which the father produced was neither dated nor signed. Nor did it appear to be on the letterhead of what the letter describes as "The Quran Learning Center".

[59] The mother's evidence is that this letter is fraudulent. In this regard she has filed the affidavit of the father's current wife in which that wife states:

Ahmed told me that he was claiming to the Ontario court that he was taking an Arabic language program in Egypt. He was not taking this program, and he admitted to me that the letter that he gave to the court was a fake. The letter was created by Ahmed's friend for him to use for court (he did not mention the friend's name to me). While he was in Egypt with me in 2017, Ahmed studied for 5 weeks at a school called Al Ibaanah but, he then left the school and went to Gambia to marry Saffie (end of August 2017). [6] He did have a teacher come to our home to teach him, but he fired the teacher after he got into an argument with him.

[60] It is noteworthy that the father filed no reply evidence, nor did he seek to give reply evidence in court, in response to the affidavit evidence filed by his current wife in Egypt. Nor did the father even seek to cross-examine the mother as to the genesis or reliability of this evidence.

[61] Given my overall assessment of the father's credibility as set out in these reasons, I find it more likely than not that the letter which the father filed was not genuine.

[62] However, even if the letter was genuine, for the reasons I have previously 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 to an income-earning venture, and thereby begin to fulfill his child support obligations at a level commensurate with his full income-earning capacity.

[63] Furthermore, in the face of father's demonstrated income-earning ability while he was employed at PCL [7], there is no evidence whatsoever that obtaining a certificate or diploma in Arabic language translation is likely to lead to greater income for the father and, accordingly, a higher level of child support payable to the mother.

6: Further Examples of Father's Credibility Deficits

[64] In the preceding sections of these reasons I examined a number of areas where the father's credibility is lacking. I intend to address a number of other areas which, when taken together, further underscores why the court must reject much of what the father has had to say in this trial, including:

(1) Father said his first motion to change was dismissed by the court because his lawyer "quit" on him. In fact, a review of those motion to change documents reveals that no lawyer ever represented him in that proceeding.

(2) The father complains of serious medical disabilities which interfere with his ability to find gainful employment; and yet for some reason he has never made an application for Ontario Disability Support Program. [8]

(3) His job applications for 2018, reveal that he made no applications for jobs whatsoever during the periods between March 6, 2018 and July 3, 2018, and no applications after July 23, 2018.

(4) Despite his stated willingness to pay support at $150 per month, the father has made only two voluntary payments, for $100 each, since he commenced this motion to change on May 8, 2018. It appears from the available evidence that the father is currently in arrears of support in an amount close to – or beyond - $10,000.

(5) He testified that his "life is at stake" if he does strenuous work. And yet in one specific job application dated January 8, 2018, the father stated [my emphasis]:

I am willing to do demanding and strenuous physical work. I am not afraid of heights. I am willing to work on scaffolds. I am willing to travel throughout Ontario and live away from home for long periods of time to maintain employment. I am willing to work in all types of adverse conditions. I am willing to make a commitment to four years of ON-THE-JOB training.

In that same job application he stated that he has worked in construction in the oil sands. And he answered "Yes" to the question, "Are you in good health".

(6) On February 19, 2018 he applied for a job as "Construction Labourer".

(7) The foregoing gives lie to his self-reporting of being in such physical pain that he is incapable of doing meaningful work. The foregoing is in fact consistent with the report of Dr. Castiglione that father "does not have a substantial inability to complete the essential tasks of his pre-accident employment".

(8) His assertion that his income is limited to social assistance in the amount of $721 per month is not credible. He has made several trips to Egypt and other places, but he says that someone else paid for his tickets to travel. He has produced no evidence of this.

(9) He claims that the school in Egypt is paying him $100 per month, in cash. When he was asked by the City of Toronto Social Assistance worker why he did not report that income as he was required to do when he made a claim for social assistance, he replied that he didn't think he had to report the income because it came from a different country outside of Canada.

(10) In his financial statement sworn April 24, 2018, he failed to disclose the income which he says he was receiving from Egypt, notwithstanding that his sworn financial statement requires him to disclose "all of the income" he receives, with no restrictions as to the country of origin of that income.

(11) In December 2016, and following, he transferred by email varying amounts of cash to another account in his name, totalling about $3,780. However, he failed to disclose that account in this proceeding, despite having an obligation to make full disclosure.

(12) In November 2016 he transferred almost $2,000 to a mutual fund. He failed to produce any disclosure regarding that fund which he testified has since been closed.

[65] Some of the foregoing statements/inconsistencies in the father's evidence were so blatantly misleading, that the court has no hesitation in calling it what it is – intentional deception and gamesmanship.

[66] As these reasons will disclose in the following section dealing with imputing income to father, his credibility is further undermined by the conflict between his testimony and what he has stated in his own employment resume.

[67] This court can have no confidence in almost anything the father had to say, except in those very few instances where he may have stumbled inadvertently into the truth.

7: Imputing Income to the Father

[68] Subsection 19(1)(a) of the Guidelines provides [my emphasis]:

Imputing Income

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

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

[69] As is apparent in these reasons, I give no weight to the various claims made by the father, including his assertion that he is medically disadvantaged from obtaining gainful employment in those areas where he has a historically demonstrated ability to work.

[70] And because I give no weight to his claims of medical disadvantage, I reject his claim that he cannot find employment suitable for his demonstrated abilities.

[71] The court in Drygala, supra, stated at paragraph 28: [my emphasis]

[28] Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less [page719] than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income.

[72] In determining how much income to impute to a person who is unemployed or underemployed, the Drygala decision makes clear that a court cannot simply pull a number out a hat.

[73] The court is required to look at the best available evidence, including such things as historical earnings, level of education and types of jobs held in the past. The court recognizes that even a consideration of these relevant factors will yield an estimate at best. But that is simply the reality of income imputation.

[74] Much of the documentation which the mother obtained and which is now before the court respecting the father's income and his income-earning capacity, was not in her possession when she completed her form 23C affidavit in support of the final order, where income was imputed to the father in the amount of $52,000.

[75] The mother subsequently obtained the father's resume which reveals that he graduated from grade 12 in Welland, Ontario. And according to that resume he "excelled in communications technology, mathematics and computer applications. He placed in the top 5 percentile of Canada in math.

[76] He then attended St. Clair College Business Administration from 1999 to 2002.

[77] In his testimony in chief at trial, the father stated [my emphasis]:

I have made efforts to seek training as a translator in Ontario, but given my poor performance in high school I would not be accepted into any form of post-secondary education.

[78] What is clear from the foregoing is that father has actively mislead the court, in fact engaging in outright lies about his "poor performance" in high school, and his inability to be accepted into "any form of post-secondary education".

[79] Father's resume also reveals him to be a highly trained and skilled welder, specifically [9]:

• AWS Certified GTAW (TIG) – all Positions
• CWB Certified SMAW (Stick) – I GF, 2G, and 3GF (Flat, Horizontal and Vertical)
• CWB Certified GMAW (MIG) – 1 GF (Flat)

[80] He describes having worked for Steelrite Structural Simplicity for 3 years, as a Wall Fabricator/Welder.

[81] The father's Notice of Assessment for 2015 showed income in the amount of $59,573. However, this income was earned for about half a year as he stopped working in June 2015 and he was in receipt of Employment Insurance for the balance of the year.

[82] In the current motion to change the father did produce a number of paystubs for his employment at PCL during 2016 and 2017. Those paystubs reveal that the father was earning a base rate of $27.87 per hour for the first 32.5 hours of the week and thereafter he was earning $41.81 for all additional hours of the week.

[83] In some weeks the father worked as much as 60 or 70 hours, earning in the range of $2,100 to $2,700 per week. In other weeks, his work hours were much lower.

[84] Based on all of the paystubs which the father produced, mother's calculations – which the father did not challenge – revealed that for the periods he worked in 2016 and 2017, which totalled 222 days, the father earned $50,796.

[85] On that basis, the mother then calculated that if the father were to work 365 days per year, his actual earned income for the above periods would pro rate to $83,517. [10]

[86] This $83,517 figure is based on working every one of the 365 days during the year.

[87] In my view it is unreasonable to impute income based on working every day of the year. Instead, I would calculate income based on 260 days of work – 52 weeks multiplied by 5 days per week.

[88] I recognize that this allows for no vacation time. However, it also does not take into account the longer work weeks – sometimes more than 5 days per week - that father demonstrated an ability and willingness to work.

[89] On this basis his earnings would extrapolate to $59,491. [11]

[90] The foregoing historical evidence of father's work history, his skills attainment and his actual earnings, and the court's calculations based on those earnings leads to a result which is fair and reasonable in the circumstances.

8: Issue #3 – The Mother's Request for a Conduct Order

[91] Subrule 14(21) of the Family Law Rules states:

NO MOTIONS WITHOUT COURT'S PERMISSION

(21) If a party tries to delay the case or add to its costs or in any other way to abuse the court's process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court's permission. O. Reg. 114/99, r. 14 (21).

[92] In the present case I have made certain findings of fact, including the fact that the father has actively mislead the court in presenting his evidence in support of his motion to change. His active deceptions took the form of testimony in court as well as in affidavit evidence filed in this proceeding.

[93] He has also demonstrated an unwillingness to voluntarily pay child support in accordance with the final order.

[94] Further, he has proceeded with this motion to change without making full and frank disclosure of all relevant documents.

[95] And, finally, this is the father's second motion to change the final order. Both motions to change have not only failed but, moreover, neither motion to change has been shown to have any merit whatsoever. Both motions to change have drawn the mother needlessly into litigation at great cost to her, both in terms of money as well as her time and energy.

[96] In the court's view, these are the kinds of circumstances that are contemplated by subrule 14(21). See Rubatto v. Sandoval, 2017 ONCJ 652.

[97] I find that it is appropriate in the circumstances of this case to grant the conduct order requested by the mother.

9: Conclusion

[98] The father's claim to reduce his child support to $150 per month is dismissed.

[99] The father's claim to rescind all outstanding arrears arising from the final support order is dismissed.

[100] I impute income to the father in the amount of $59,491 per year, retroactive to March 17, 2015.

[101] Accordingly, paragraph 4 of the final order is varied so that father shall pay mother the following amounts for the support of two children:

(1) $882 per month from March 17, 2015 to November 30, 2017, and

(2) $906 per month commencing December 1, 2017

[102] There will be a conduct order to go in the form requested at the outset of these reasons, and as pleaded by the mother in her Form 15B, Response to Motion to Change, sworn June 8, 2018.

[103] In the event the mother seeks her costs of this proceeding she shall file her written submissions at the trial coordinators' office no later than 21 days following date of this judgment. The father shall have 21 days thereafter to file his responding submissions. Submissions by both parties shall not exceed three pages, double-spaced, exclusive of attachments including any Bill of Costs and authorities relied upon.

Released: October 12, 2018

Signed: Justice Robert J. Spence

Footnotes

[1] Although the Child Support Guidelines would not require any support payments to be made at that level of annual income, the father says that he is willing to pay $150 per month in support because "I recognize my obligation to support my children".

[2] The effective date of support as set out in the final order.

[3] The first full month after the Guideline table support amounts were increased in the most recent changes to the Child Support Guidelines on November 22, 2017.

[4] This latest travel information came from father's oral testimony at trial.

[5] An approximation of the number of months given that the court did not have the specific dates the father either left or returned to Canada, apart from the most recent trip.

[6] It appears that the father was married simultaneously to at least two wives during 2017.

[7] Which I will discuss when I address the issue of how much income ought to be imputed to him.

[8] Although at trial he said he is planning to make such an application.

[9] The following are apparently all professional welding certifications which the father says he has achieved.

[10] $50,796 divided by 222 days and then multiplied by 365 days.

[11] $50,796 divided by 222, multiplied by 260.