CITATION: Oyewole v. Adepoju, 2019 ONCJ 111
DATE: February 28, 2019
COURT FILE NO. D20654/18
ONTARIO COURT OF JUSTICE
B E T W E E N:
THERESA OLAWUNMI OYEWOLE
SUBY BHARDWAJ, duty counsel, assisting the APPLICANT
APPLICANT
- and -
DANIEL ADEPOJU
NOT APPEARING
RESPONDENT
HEARD: FEBRUARY 26, 2019
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] This was an uncontested trial. The applicant (the mother) seeks child support from the respondent (the father), based on an imputed annual income to him of $76,794, retroactive to July 1, 2017, for the parties’ 11-year old child (the child). She also asks for an order that the father contribute to the child’s special and extraordinary expenses (section 7 expenses), pursuant to section 7 of the Child Support Guidelines (the guidelines).
[2] The mother seeks $750 for costs and an order that the father cannot bring any further court proceedings without prior leave of the court, and without full compliance with prior orders for financial disclosure and only after paying all costs orders.
[3] The mother issued her application for custody and child support on April 30, 2018.
[4] The father served and filed an Answer/Claim seeking joint custody of the child on August 3, 2018.
[5] On September 17, 2018 the parties consented to a final order granting the mother custody of the child, together with final incidents of custody. A temporary access order was made and the father was ordered, on a without prejudice basis, to pay child support to the mother of $248 each month. The father consented to, and was ordered to provide detailed financial disclosure regarding his bookkeeping business.
[6] The father did not attend at court on October 29, 2018. The father had not provided any of the financial disclosure, or paid any of the child support ordered. The father had also not exercised any of the temporary access granted. The court adjourned the case peremptory on the father. He was put on notice that if he did not attend on the next court date, the mother could orally move to strike his Answer/Claim and proceed to obtain final orders without his participation. The court ordered the father to pay the mother’s costs of $150.
[7] Court staff mailed a copy of the court’s endorsement to the father.
[8] The father did not appear at court again on the return date of January 15, 2019. The mother orally moved to strike his Answer/Claim and this motion was granted. At the mother’s request, the case was adjourned to permit her to prepare a Form 23C Affidavit for Uncontested Trial (Form 23C). The court ordered the father to pay another $150 costs to the mother.
[9] The court required the mother to serve the father with a copy of the Form 23C. She did this. The father did not respond to her or attend on the return date.
[10] The court reviewed the mother’s Form 23C on the hearing date and heard further oral evidence from her.
[11] The issues for the court to determine are:
a) What is the father’s income for support purposes? In particular, what, if any income should be imputed to him?
b) What amount, if any, should the father be required to pay for the child’s section 7 expenses?
c) Should the court order retroactive child support?
d) If so, when should the retroactive support obligation begin?
e) What costs should be ordered?
f) Should any prohibitions be placed on the father before he can commence any further proceedings in this court?
Part Two – The evidence
[12] The parties are both 42 years old.
[13] The parties married in 2002 and separated in July, 2014.
[14] The parties had the one child together.
[15] The child has always lived with the mother.
[16] The mother works for a bank and earns annual income of $42,640.
[17] The mother incurs annual child care expenses of $1,887 for the child.
[18] The father graduated with a diploma in Business from the University of Lagos in Nigeria.
[19] The father came to Canada in 2001 from Nigeria.
[20] The father worked in customer service for a furniture company from 2002 until 2014. The mother testified that he earned annual income of between $30,000 and $35,000.
[21] The mother testified that the father attempted to become a mortgage broker in 2014, but it didn’t work out for him.
[22] The mother said that the father started his own bookkeeping business towards the end of 2014 and continues to operate it. She believes that this has been a successful business for the father.
[23] The father paid the mother child support of $300 each month from July, 2014 until 2016. In 2016 the parties agreed that the father would start paying the mother $500 each month and he began regularly paying this amount to her.
[24] The mother stated that the father stopped paying her support in June, 2017.
[25] The mother said that she asked the father for support “right away”. He told her that he was in a difficult financial position and couldn’t afford to pay support to her at that time. He also told her that she was now working and could support the child without him.
[26] The mother hoped that the father would change his mind and start paying support again. When he didn’t, she started this application.
[27] The father has not paid the mother any child support since June, 2017.
Part Three – The father’s income
3.1 Positions of the parties
[28] The mother seeks to impute the father’s annual income at $76,794.
[29] The father deposed in his financial statement that his annual income is $15,093.
[30] The father filed income tax returns. He declared his income as follows:
2015 - $13,674
2016 - $14,295
2017 - $15,093
[31] On September 17, 2018, the father consented to an order for financial disclosure including:
a) His complete income tax returns and attachments starting in 2014.
b) Any notices of reassessment since 2014.
c) Applications for credit and business loans for the past 3 years.
d) A copy of his mortgage statement and mortgage application.
e) Proof of amounts paid for his mortgage and home expenses.
f) Personal and business bank statements for the past 3 years, including those held jointly with a third party.
g) Annual business statements for the past 3 years.
h) Copies of any service or employment agreements for the past 3 years.
[32] The father has provided none of this financial disclosure. He also hasn’t paid any of the costs orders.
3.2 Legal considerations
[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 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).
[35] 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. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
[36] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
[37] The court 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, 2006 CanLII 26573 (Ont. C.A.).
[38] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O’Connor, 2006 CanLII 13554 (ON SC), [2006] O.J. No. 1660, (Ont. Fam. Ct.).
[39] Self-employed persons have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 2002 CanLII 2806 (ON SC), 31 R.F.L. 5th 88 (SCJ).
[40] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, 2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616 (SCJ); Maimone v. Maimone, 2009 CanLII 25981 (ON SC), [2009] O.J. No. 2140 (SCJ).
[41] A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.
3.3 Analysis
[42] An adverse inference is drawn against the father due to his failure to provide any of the financial disclosure ordered.
[43] The tax returns and income information provided by the father are essentially meaningless without the supporting documentation ordered by the court. The father is self-employed and the income tax returns are based on self-reporting that is highly suspect.
[44] The father has been put on notice about the income the mother seeks to impute to him and has chosen not to defend himself against this claim.
[45] The mother based her imputation of income request, in large part based on what the Job Bank Report (published by the Government of Canada) stated was the high-range income that can be earned by a senior bookkeeper in Ontario.
[46] However, the father is not a senior bookkeeper. He is not employed – he runs his own business. The court has to consider that historically he only earned annual income of between $30,000 and $35,000 while the parties lived together.
[47] When asked by the court what income she really thought the father was making, she answered, “$60,000 – at least”. This appears to be a much more realistic estimate based on the father’s lifestyle. The mother testified that:
a) The father purchased a condominium in 2016 for $400,000. He lives there on his own.
b) The father told her he has monthly condominium expenses of about $2,000.
c) The father travels yearly to Nigeria and last year also traveled to England.
d) The father recently bought a Mercedes Jeep.
e) The father often wears designer clothing and shoes.
[48] Based on the father’s lifestyle, the adverse inference drawn against him and his failure to respond to the mother’s imputation request or participate further in this case, the court will impute his annual income at $60,000.
[49] The guidelines table amount for one child based on an annual income of $60,000 is $556 per month.
Part Four – Section 7 expenses
[50] The mother seeks an order that the father contribute towards the following annual expenses of the child:
a) Child Care - $1,887
b) Tutoring - $1,680 (in 2019 only)
c) Basketball - $144
[51] The expenses claimed by the mother do not take into account any income tax credits or deductions she is entitled to arising from these expenses. It is the net amount of the expense that the court must apportion between the parties. See: Subsection 7 (3) of the guidelines.
[52] Subsection 7 (1) of the guidelines reads as follows:
Special or extraordinary expenses
7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
[53] The Guidelines define “extraordinary” as follows:
7 (1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
[54] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See Park v. Thompson, 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601, (Ont. C.A.).
[55] The court finds that the child care and tutoring expenses claimed by the mother are eligible section 7 expenses. The child care expenses are reasonable, necessary and required as a result of the mother’s employment. The tutoring is an extraordinary primary school expense. It is a reasonable and necessary expenditure to provide support for the child’s educational weaknesses. The tutoring expenses are more than the mother can reasonably cover, taking into account her income and the amount that she will receive under the applicable guidelines table.
[56] The court finds that the basketball expense claimed is an ordinary, and not an extraordinary extracurricular expense as defined in subsection 7 (1.1) of the guidelines. It is an amount the mother can reasonably cover with her income and the table amount of child support that will be ordered. The expense also does not qualify as extraordinary under clause 7 (1.1) (b) of the guidelines.
[57] Subsection 7 (2) of the guidelines sets out that the guiding principle in determining the payment of a special expense is that the expense is shared by the parties in proportion to their respective incomes. The court sees no reason to deviate from the guiding principle in this case.
[58] The software analysis attached shows that the father’s share of the eligible section 7 expenses in 2019 is $134 per month, and $54 per month in 2018 – the lesser amount being due to there being no tutoring expense before 2019.
Part Five – Retroactive support
5.1 Legal considerations
[59] The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:
Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
…….(f) requiring that support be paid in respect of any period before the date of the order;
[60] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
[61] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.
[62] Retroactive awards are not exceptional. They can always be avoided by proper payment (D.B.S. par. 97).
[63] The court should take an expansive view of what constitutes blameworthy behaviour. Blameworthy behaviour is anything that privileges the payor’s own interests over the child’s right to an appropriate amount of support (D.B.S., par. 106).
[64] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).
[65] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121). In this case effective notice was given by the mother to the father in July, 2017.
[66] The principles set out in D.B.S., also apply to retroactive claims for section 7 expenses. See: Smith v. Selig (2008) 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209 (BCSC); Surerus-Mills v. Mills, [2006] O.J. No. 3839 (SCJ).
[67] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon 2005 CanLII 13191 (ON CA), 2005, 13 R.F.L. (6th) 221 (Ont. C.A.). Accordingly, the mother’s retroactive claim is for the period before April 18, 2018 when she issued the application.
5.2 Analysis
[68] The mother is not making a large retroactive claim (9.5 months). The mother provided a reasonable excuse for her delay in bringing the application. The father had voluntarily paid support for 3 years. She initially accepted his explanation that he was going through a difficult financial time and hoped that he would change his mind about paying support. When he still refused to pay any support she brought her application in a timely manner.
[69] The father has engaged in blameworthy conduct by not paying any support since July, 2017. He has preferred his own interests to those of the child.
[70] The child’s circumstances have been adversely affected by the failure of the father to pay support. The mother can barely meet the child’s basic financial needs. The child has been deprived of attending extracurricular activities and going on vacations. The mother was unable to afford tutoring that the child required prior to 2019 due to the lack of financial support from the father.
[71] There is no evidence before the court that the father would suffer hardship by a retroactive award. He likely has equity in his condominium that he can use to pay the amount of support he will owe to the mother.
[72] The father will be required to pay support retroactive to July 1, 2017.
Part Six – Calculation of support owing
6.1 2017
[73] The guidelines table amount in 2017, based on the father’s imputed income of $60,000 was $546 each month until December, when it changed to $556 each month.
[74] The father’s share of section 7 expenses in 2017 for child care was $52 each month. The software analysis is attached.
[75] The amount the father owes the mother for 2017 is $3,598, calculated as follows:
Table amount – 5 months (July – November) @ $546 per month = $2,730
– 1 month (December) @ $556 per month = $556
Section 7 expense – 6 months (July – December) @ $52 per month = $312
6.2 2018
[76] The guidelines table amount in 2018, based on the father’s imputed income of $60,000 was $556 each month.
[77] The father’s share of section 7 expenses in 2017 for child care was $54 each month.
[78] The amount the father owes the mother for 2018 is $7,320, calculated as follows:
Table amount – 12 months @ $556 per month = $6,672
Section 7 expense – 12 months @ $54 per month = $648
6.3 2019
[79] The father owes the mother the amount of $1,380 for 2019 calculated as follows:
Table amount – 2 months @ $556 per month = $1,112
Section 7 expenses – 2 months @ $134 per month = $268
6.4 Total amount owing
[80] The father owes the mother $12,298 as of February 28, 2019 ($3,598+ $7,320 + $1,380).
Part Seven – Other relief
[81] The mother’s claim for further costs of $750 is proportionate and reasonable and will be ordered.
[82] This is the first time this case has been in court. Subsection 37 (3) of the Family Law Act already provides that the father cannot move to change this order within the next six months except by leave of the court. The court will not require the father to seek leave beyond this 6 month period. However, it will require the father to provide proof that he has paid the $1,050 costs owing to the mother (the $750 in this case, together with the two prior $150 orders) and provide the financial disclosure previously ordered before he can start any action in this court.
Part Eight – Conclusion
[83] A final order shall go on the following terms:
a) The father shall pay the mother ongoing child support of $690 each month, starting on March 1, 2019. This consists of the guidelines table amount of child support for one child, based on an imputed annual income to the father of $60,000, being $556 each month, and the amount of $134 each month as his contribution to the child’s section 7 expenses, being child care and tutoring.
b) The father owes the mother child support of $12,298 up until February 28, 2019 as calculated in this decision. This covers the father’s support obligation retroactive to July 1, 2017.
c) All temporary orders are terminated.
d) A support deduction order shall issue.
e) The father shall pay the mother’s costs fixed at $750. These costs shall be enforceable as support by the Family Responsibility Office.
f) The father must provide proof that he has paid all outstanding costs of $1,050 to the mother before he can start any action in this court.
g) The father must also file the following financial disclosure before he can start any action:
His complete income tax returns and attachments starting in 2014.
Any notices of reassessment since 2014.
Applications for credit and business loans since January 1, 2016.
A copy of his mortgage statement and mortgage application.
Proof of amounts paid for his mortgage and home expenses.
Personal and business bank statements for the past 3 years, including those held jointly with a third party.
Annual business statements starting in 2016.
Copies of any service or employment agreements starting in 2016.
[84] The court thanks duty counsel for her able assistance to the mother in this matter.
Released: February 28, 2019
_____________________ Justice S.B. Sherr