Court File and Parties

Ontario Court of Justice

Date: November 29, 2018

Court File No.: 18-0072

Between:

Laura Elizabeth Elliott Applicant

— And —

Paul-Alexandre Vachon-Decarie Respondent

Before: Justice M.G. March

Heard on: October 29, 2018

Reasons for Decision on Motion for Summary Judgment released on: November 29, 2018

Laura Elizabeth Elliott ......................................................... acting for herself, the Applicant

Paul-Alexandre Vachon-Decarie ............................. acting for himself, the Respondent

Decision

M.G. March J.:

Introduction

[1] On October 19, 2018, the Applicant, Ms. Elliott filed a Motion for Summary Judgment ("MSJ") seeking:

a) an imputation of income to the Respondent, Mr. Vachon-Decarie in the sum of $70,000 per year;

b) child support payable at the rate of $650.00, or at some other reasonable rate decided upon by this Court; and

c) setting the date for the retroactive commencement of Mr. Vachon-Decarie's child support obligations.

[2] No one attended the hearing of the MSJ on Mr. Vachon-Decarie's behalf. On September 20, 2018, I noted the pleadings closed. Earlier on June 11, 2018, I had granted to Mr. Vachon-Decarie a period in excess of 7 weeks (i.e. to July 31, 2018) to prepare and serve responding materials upon Ms. Elliott to her application filed Jan. 26, 2018 seeking custody of the subject child, L. (DOB […] 2006), the daughter of Ms. Elliott and Mr. Vachon-Decarie, as well as child support and child support arrears from him. He chose not to meet that deadline. Nor did he provide his Notices of Assessment from the Canada Revenue Agency to establish his income as required by law.

Summary of the Relevant Evidence

[3] Ms. Elliott chose to testify at the hearing of the Motion. She recounted that her relationship with Mr. Vachon-Decarie ended in 2006 prior to L.'s birth. Before the break up, Ms. Elliott was aware that Mr. Vachon-Decarie was studying computer technology at Herzing College in Ottawa. Upon completion, he moved to Montreal to work in the I.T. field.

[4] Later on November 18, 2010, Mr. Vachon-Decarie emailed Ms. Elliott. He spoke of his intention "…to work hard for you [Ms. Elliott] and L." He mentioned he had an interview that very week with American Apparel. It was a position which paid $35,000.00 per year. Whether Mr. Vachon-Decarie landed the job is unknown. This email was marked Exhibit 2 on the hearing of the Motion.

[5] On December 10, 2017, Mr. Vachon-Decarie emailed Ms. Elliott again. He spoke of how he paid $150.00 per month as child support for his older son, Anakin, not born of Ms. Elliott. As a sign of good faith, Mr. Vachon-Decarie promised he would send money for L. to Ms. Elliott that very night. Mr. Vachon-Decarie broke that promise. He has not paid a penny to Ms. Elliott to support L. since she was born. This email was marked as Exhibit 3 on the hearing. He estimated his income would be "38 K" this year [2017]. He claimed he made a lot less in 2016.

[6] Since 2009, Ms. Elliott has been trying unsuccessfully to obtain some form of child support from Mr. Vachon-Decarie. Her first written request of Mr. Vachon-Decarie to that end was contained in an email dated October 8, 2009. This email was marked as Exhibit 1 on the hearing of the motion.

Imputation

[7] Section 19 of the Federal Child Support Guidelines (SOR/97 – 175, as amended) sets out the circumstances where income may be imputed to a person liable for payment of child support. Subsection (f) is applicable to this case. Mr. Vachon-Decarie has failed to provide income information when he was under a legal obligation to do so.

[8] In paragraph 6 of her Affidavit sworn October 19, 2018, Ms. Elliott sets out her belief that Mr. Vachon-Decarie earns an annual income of approximately $70,000.00 She bases this belief on information provided to her by Mr. Vachon-Decarie that he is an I.T. specialist who works on a contract basis for companies in the Montreal area. Using a website (www.payscale.com), Ms. Elliott's computer research suggests a range of salary anywhere between $43,009.00 and $93,350.00. The median is set at $60,678.00. Presumably based on Mr. Vachon-Decarie's experience level, Ms. Elliott asks me to impute a salary of $70,000.00 per year to Mr. Vachon-Decarie.

[9] Upon reflection, I cannot conclude that I have been satisfied that Mr. Vachon-Decarie is capable of making that much. He could perhaps be if he were working full time for a single company. However, his email from December 10, 2017 suggests he made $38,000.00 approximately in 2017. Even if he underestimated or lied about his income level, $70,000.00 per year seems high for a man who works on a contract basis, not full time.

[10] I find therefore that Mr. Vachon-Decarie's income potential is not as much as Ms. Elliott believes it should be. Indeed, he states he is only subject to a $150.00 child support payment for his son, Anakin.

[11] Discerning and assessing as much as I can fairly on the dearth of evidence I have available to me, I shall impute income to Mr. Vachon-Decarie at the lower end of the range for a person working as Mr. Vachon-Decarie does with greater than a decade of experience in the I.T. field. It shall be fixed at $45,000.00.

Child Support

[12] Under the Federal Child Support Guidelines, a person who makes the income I have attributed to Mr. Vachon-Decarie, I shall fix his liability to pay child support in the sum of $406.00 per month.

Retroactivity

[13] Applying DBS principles, I shall set the effective date for retroactive liability for payment of child support by Mr. Vachon-Decarie to October 8, 2009. That is when he was placed on notice in writing by Ms. Elliott. He has shirked his responsibility to pay since then. He has repeatedly refused to provide proof of income or to pay any form of support for L. since her birth. He has rebuffed the offer of this Court to participate in this proceeding. In my view, Mr. Vachon-Decarie's intransigence at virtually every turn when the issue of support for L. was broached with him certainly constitutes "blameworthy conduct" on his part.

[14] However, I do not believe Mr. Vachon-Decarie would have earned, or would have been capable of earning $45,000.00 per year as far back as 2009. I will, therefore, calculate a gross amount which would be payable at $406.00 per month, and offer a 40% discount to reflect the lower earning potential of Mr. Vachon-Decarie in the early years of his career upon leaving college, and the gradual pay increases he ought to have received as he gained experience.

The Relief Granted

[15] I shall grant the MSJ in favour of Ms. Elliott as follows:

a) Mr. Vachon-Decarie shall be imputed an income of $45,000.00 per year in 2018;

b) Mr. Vachon-Decarie shall pay child support to Ms. Elliott on L.'s behalf in the sum of $406.00 on a monthly basis commencing December 1, 2018; and

c) November 1, 2009 shall be the effective, retroactive date upon which Mr. Vachon-Decarie became liable for payment of child support. I shall thus calculate child support arrears owing as follows:

$406.00 x 12 = $4,872.00 (i.e. yearly amount of child support for which Mr. Vachon-Decarie is liable as of November 1, 2009).

$4,872.00 x 9 = $43,848.00 (i.e. the amount of child support which has accrued in the period November 1, 2009 to November 1, 2018).

$43,848.00 x 60% = $26,308.80 (i.e. the total amount of child support arrears owing by Mr. Vachon-Decarie after application of the 40% discount).

Conclusion

[16] Mr. Vachon-Decarie has failed miserably to meet his obligation to support his daughter, L. This is particularly troubling in light of the child's diagnosis as falling along the Autism Spectrum Disorder at Level II. Sadly as well, Mr. Vachon-Decarie has done little to forge a relationship with his daughter. At a minimum, Mr. Vachon-Decarie shall be compelled to financially support her fairly and equitably under the law.

Released: November 29, 2018

Signed: Justice M.G. March

Footnote

1 D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231