ONTARIO COURT OF JUSTICE

CITATION: Sharma v. Kaushal, 2019 ONCJ 166

DATE: 2019 03 26

COURT FILE No.: Brampton 1456-14

BETWEEN:

TARUN SHARMA

Applicant

— AND —

HONEY KAUSHAL

Respondent

Before Justice A.W.J. Sullivan

Heard on February 20, 2019

Reasons for Judgment released on March 26, 2019

Ms. N. Shokar.................................................................................. counsel for the applicant

Mr. S. Samra................................................................................ counsel for the respondent

SULLIVAN J.:

[1] This is a decision from a focused hearing on a Motion to Change commenced by the applicant father, Tarun Sharma (Tarun) to the May 29, 2015 Order of Justice Bovard.

[2] Tarun in his Motion to Change sought an extensive revamping of the Order dealing with his access which was supervised to unsupervised overnight access, the ability to travel internationally with his son, telephone access, and the ability for himself to pick-up his son, U., born […], 2012. In the Motion to Change there was also a request for shared holidays as well as for sharing of transportation to and from access.

[3] The respondent mother, Honey Kaushal (Honey), filed an amended Response to Motion to Change, Tab 10 to Volume 3. In her Response she indicates that she agrees there has been a material change in circumstances in that their son at the time of making the 2015 order was not in school during the weekdays. This she argues is a factor against her ability to assist with drives to and from where she resides in Burlington, Ontario.

[4] Honey also argues that she believes the applicant father changed his employment purposely in order to avoid doing pick-up and drop-off.

[5] She also argues that she believes Tarun earns no less than $4,500.00 per month and that he has incorporated a company to assist him with trucking. Honey is requesting that the court impute income to the father in the amount of at least $50,000.00 a year.

[6] To the credit of the parties they have been able to settle all but two issues in this matter.

[7] These two issues are pick-up and drop-off between Toronto and Burlington and whether Tarun’s income should be imputed.

[8] There are two Final Orders that the parties have settled on via Minutes of Settlement. The first is dated June 28, 2018, which outlines a new schedule of unsupervised access between the father and his son.

• This access is every weekend the first weekend being Friday at the end of school pick-up and return to school Monday. If Monday is a PD day than access continues to 4:00 p.m.

• The second week is Friday commencing after school to Saturday at 1:00 p.m. The father has the ability to do the drives directly as opposed to being through a third party as set out in the earlier Order. There was also a Temporary Support Order made in June. This Order has not yet been taken out and should be taken out by the applicant’s counsel.

[9] In this Consent Order it was agreed that the parties would return to court to finalize holidays, section 7 expenses, summer vacation, international travel and child support.

[10] At the start of this focused hearing for these issues the parties further came to Minutes of Settlement on all but the two issues noted above.

Final Order

[11] Order to go based on Minutes of Settlement filed at today’s hearing. The applicant’s counsel is to take out this Order.

[12] For this hearing the parties filed their respective principal evidence via affidavits which I have reviewed.

[13] They also gave updates and were cross-examined on these affidavits.

[14] Tarun’s evidence is that contrary to Honey’s position he has never earned historically and today income close to $50,000.00.

[15] He does admit to attempting to set himself up as an independent truck driver and as such incorporated the company to assist in this regard. The company’s name was

Ablash Transport Inc. This company was incorporated but operated only between May 9, 2017 and July 31, 2017. A pending cancellation notice was filed in this trial as part of Exhibit 3. Tarun testified that this company was incorporated to assist him with his attempts to set himself up in the trucking business. He was not successful and therefore sought full-time employment in a factory where he currently works. This he indicated was a change in order to provide him with regular work and salary. He is a general labourer.

[16] In his testimony he indicates that he is not in arrears of any support and despite his lower income for the years 2015, 2016, and 2017, he has paid support at imputed income of $23,000.00 which was the level of the 2015 Order of J. Bovard. Tarun further deposes that as of the June 20, 2018 Consent Order, he has agreed that his support should reflect his current income with payment at $203.00 per month and that if agreed this should commence when he began working at his current job which would have been in March 2018. However as the matter was not settled this commenced as of June 1, 2018, on a without prejudice basis for the argument in this trial.

[17] Based on his current income of $15.65 per hour as a general labourer, he estimates that his income depending on overtime will be between $25,000.00 and $26,000.00 per year. Based on this evidence I calculate that Tarun’s annual salary to be closer to $32,000.00.

[18] Further, he notes that based on the respondent mother’s income of $17,506.00 per year, his proportionate share of any section 7 costs would be 59.2% and is agreeable to pay any section 7 costs at this amount.

[19] Overall his testimony in the face of Honey’s position that there has been a material change in his income and that a higher amount should be imputed is that he has always earned approximately $20,000.00 over the course of this Order and that his recent job has provided him with a more consistent income stream as well as hours.

[20] On the issue of sharing travel between Toronto and Burlington to pick-up and drop-off his son, Tarun’s principal evidence in this regard is that as the parties were settling the 2015 Order regarding the pick-up and drop-off, Honey made a move unilaterally to Burlington.

[21] He argues that his drive has resulted in approximately a 70 kilometre drive between Toronto and Burlington with a 140-kilometre return trip.

[22] This he has been doing for the past four years during the course of this Order.

[23] He is requesting that the exchanges take place midway and has offered a location at 2979 Unity Gate in Mississauga. This is a plaza at Highway 403 and Winston Churchill Boulevard.

[24] Honey, at the trial and through cross-examination, conceded that on the issue of Tarun’s income, the suggested imputed amount of $50,000.00 a year came principally from her discussions with those that were counselling her. She indicated that after hearing of Tarun’s incorporation of the transportation company, that she was using an industrial average for somebody operating their own truck. At the end of the day this was the best evidence that she had and believes that Tarun is underemployed.

[25] No other evidence was led that would suggest that Tarun’s income while the parties lived together and since separation was any greater than the amount that he is currently earning. He has always hovered around the minimum wage.

[26] On the issue of Honey sharing in the transportation of their son between Burlington and Toronto for access, Honey’s main evidence objecting to this was as follows:

(1) She testified that this has been in place for some four years and at the time that the old Order was settled on she believes Tarun was advised of her move in order to obtain affordable housing and this is not something that is new nor a material change.

(2) She argues that during pick-up and drop-off she is intimidated by the fact that his entire family has come with him and his sister who was assisting with pick-up and drop-off but can no longer do this. In any case the need for third party is no longer an issue as the parties have settled on the fact that Tarun do the exchanges on his own and he no longer needs the assistance of his family.

(3) As her children are in daycare and school would be difficult for her to assist on Friday delivering her son to his father as she has another son in daycare in the Burlington area. This second child is from her current relationship. Her husband does not drive and she is the only one who can drive in her family.

(4) She argues that her car insurance will increase. When questioned as to whether she had an actual quote in this regard from her insurer, she conceded that she did not but had heard that this could be the case.

(5) She argues that if she is to drive more than 60 minutes this causes her to have recurring pain on her right knee. She attached as Exhibit D a medical note to her September 26, 2018, affidavit. This is a note from Doctor Al Dabbagh which indicates that Honey was seen on one occasion by this Doctor and concludes that she has recurring right knee pain and unable to sit in a car for long drives more than 60 minutes. This letter is dated March 8, 2018. There is no context from the doctor as to how long and when this problem occurred, if the doctor conducted any objective examinations over periods of time and the reasons for this right knee pain. There was a referral for an X-ray. No X-ray result was filed in this trial.

Analysis/Discussion/Order

[27] Counsel on behalf of the respondent mother, Ms. Kaushal, argued Mr. Sharma should be imputed income of at least $50,000.00 and points to the Ontario Court of Appeal decision of Drygala v. Pauli 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 and argues that Tarun is underemployed and has not provided adequate disclosure and the reasons that would support why he is working in his current employment.

[28] There is no doubt that the Court in Drygala clearly spells out the obligation of both parents to support their child and the legal obligation to earn what he or she is capable of earning.

[29] In Drygala the Court focused on the father's decision to give up his tool and die making work to pursue post-secondary education to become a teacher. It was concluded that his re-education efforts were reasonable but, however, his obligations were not diminished. The Court of Appeal decision agreed with the trial judge that it was understandable that the father could not look for part-time work during a probationary period in order to solidify his full-time status at the University. After the period of probation, however, he should have been able to look for some part-time work given his skill set, the history of this past employment, age and the fact there was no health issues that would stop him from looking for work.

[30] Of course the fact situation in this case is not the same, however, Drygala is also used to point to intentional underemployment or unemployment and whether or not there are reasonable facts that support why a payor is not fully employed. The Court of Appeal in Drygala underlined that there is no requirement to show that a payor is operating in bad faith, but rather the central focus is the objective obligation of both parents to support their children and in order to meet this legal obligation parents must earn what he or she is capable of earning.

[31] In the case before me, Tarun has always been a low income earner. There was no evidence presented that he possesses a skill set that would allow him to be a skilled tradesman and that during the relationship and since that he has been earning more than the evidence that was presented, which is between $25,000.00 and $26,000.00 per year.

[32] Tarun earned less when he was imputed income by Justice Bovard on May 29, 2015.

[33] His obligation to pay is pursuant to the initial Order and there is no evidence that he is in arrears.

[34] His past history is consistent with his current employment efforts. He attempted to become self-employed which did not work out. He should not be faulted for this as he did not attempt to reduce his support during these efforts to become self-employed.

[35] He then found employment which he currently has. This employment provides consistent work. It is not seasonal and provides regular hours and a modest income which is slightly higher than when the original Order was made.

[36] Considering his evidence that he earns $15.65 per hour and works 40 hours a week, this would place his income to at least $32,000.00 which is not the suggested imputed amount of $50,000.00.

[37] He argues that he was prepared to pay support based on his new employment as of March 15, 2018. I accept this and this will be the commencement date. In setting this date there will be some arrears owed. In the past the evidence before me indicates that Tarun has lived up to his responsibility and paid any and all arrears. I expect and have confidence that he will do the same presently and will make the appropriate arrangements through FRO to pay arrears owing from the temporary child support provisions in the June 28, 2018 Order.

Order

(1) Tarun Sharma shall pay monthly child support for one child, U., born […], 2012, to Honey Kaushal in the amount of $273.00, commencing April 1, 2018, based on an annual income of $32,000.00.

(2) With respect to section 7 expenses, the Applicant and Respondent must first agree in writing to each expense after which Tarun Sharma’s contribution shall be 61% of this agreed to section 7 cost.

(3) A Support Deduction Order shall issue.

Sharing of the Transportation Pick-up and Drop-off

[38] Initially in Tarun’s Motion to Change and Change of Information form Tabs 1 and 2 of Volume 3, there is very little information regarding a material change in circumstance on this issue.

[39] At trial, Tarun raised the issue that he was not aware of Honey’s move to Burlington at the time of the conclusion of the negotiations that resulted in the May 29, 2015 Order of Justice Bovard.

[40] When considering Tarun’s pleadings, it appears that he argues that he has been doing the driving for some four years and that as such has taken on more of this responsibility which has cost him time and money.

[41] In his pleadings there is no specific allegation that Honey unilaterally made the move without his knowledge.

[42] This issue is, however, raised in his affidavit evidence and to some degree during his testimony.

[43] Honey argues that this was known to Tarun at the time of the 2015 Order. She deposes that she was looking for subsidized housing and could not find the same in Peel but did so in Burlington and took this opportunity.

[44] No evidence was led by either party about correspondence between counsel at the time of the 2015 Order or shortly thereafter that talked about this issue and whether it was objected to at the time.

[45] Tarun’s sister testified at the trial that she at times was unclear where Honey was living and on occasion was picking up her nephew on Tarun’s behalf, on occasion in Oakville. However she also testified that she soon settled into picking up the child in Burlington and has done so for at least 2 to 3 years from the mother’s home.

[46] It is clear that when the parties litigated in 2014/2015, both of their addresses on the pleadings and the Order of Justice Bovard were listed as in the care of their respective counsel.

[47] I am left with very little evidence that would support a material change on this issue.

[48] I was given the Court of Queen’s Bench in Alberta decision of Brown v. Brown, 2004 (ABQB 62), that indicates amongst other things that the general rule is that a parent who moves away from an established situation should share in assisting with the transportation and or the associated costs, see Saint Laurent v. Saint Laurent, 2002 ABQB 899, 2002 AJ NO. 1248 (Alta. Q.B.), and Foster v. Allison, 2003 CanLII 2369 (ON SC), [2003] O.J. No. 3681.

[49] I was also given several cases that given that the custodial parent shoulders the day-to-day burden of caring for the children bringing them to daycare, school, activities and medical appointments, that therefore it is generally understood that the access parent is to do the pick-up and drop-offs, see McFadden v. Simpson, 2009 Carswell Ont 3225 (CJ).

[50] In my review of the evidence that I have been provided on this matter, I find that it is inconclusive and does not support a material change.

[51] It is uncertain where either party lived at the time that the last Order was settled.

[52] Even if I were to accept, as Tarun argues, that Honey moved on or about the time of the settlement of the last Order, at no time did he object to this and for several years now he has been picking up and dropping off his son at Honey’s home. This fact has not changed. The only change is that now he can do this without the need to have the assistance of a third party to help him to do so.

[53] If there was evidence to the contrary, many of the reasons that Honey provided at this trial would not have prevented her from sharing in the transportation in this new Consent Order at least twice a month on the Sunday when her son is returned to her.

[54] Therefore I find that this request in Tarun’s Motion to Change is denied.

[55] I ask that the applicant’s counsel take out the June 2018 Order and the Consent Order, filed at the start of this trial on February 20, 2019, and the Final Order from this decision.

[56] On the issue of costs I request the parties to first attempt to negotiate this issue. In doing so the parties should review a recent decision of Justice Sherr on costs in family law litigation I.L.P. v. S.C., 2019 ONCJ 52, January 31, 2019.

[57] Failing which, within 30 days of today’s decision a party seeking costs shall serve and file via a 14B motion a maximum of two page submissions on costs with a bill of costs and a signed offer to settle.

[58] The responding party shall have 15 days from the date of service to serve and file responding submissions, bill of costs and a signed offer to settle as noted above via a 14B motion.

Released: March 26, 2019

Justice A.W.J. Sullivan