Court File and Parties
Ontario Court of Justice
Date: January 2, 2019
Court File No.: Toronto D23290/03
Between:
Liley Vanessa Godinez Applicant
— And —
Patricio Espin
Ministry of Community and Social Services Respondents
Before: Justice Roselyn Zisman
Heard on: December 19 and 20, 2018
Reasons for Judgment released on: January 2, 2019
Counsel
Aron David — counsel for the applicant
Rita Gonsalves — counsel for the respondent Patricio Espin
Jean Hyndman — agent for the respondent Ministry of Community and Social Services, Assignee
Reasons for Decision
Zisman, J.:
Introduction and Background
[1] This proceeding commenced as an Application by the Respondent father for a paternity test and if negative a declaration of non-parentage declaring that he is not the biological parent of the child Trisha Godinez born […], 2003. He also sought an order to change the final orders of Justice Harvey Brownstone dated January 5, 2004 and August 27, 2008.
[2] The order of January 5, 2004 proceeded on an uncontested basis as the father had been noted in default. The order provided that the father pay the mother child support for their child, Trisha Godinez born […], 2003, in the amount of $639.00 per month based on an annual income of $80,000.00. The father was also ordered to pay costs of $750 and he was not permitted to commence a Motion to Change until those costs were paid.
[3] On May 18, 2007 the Family Responsibility Office commenced default hearings as the father was in arrears of $27,616.00 as of May 4, 2007.
[4] On March 31, 2008 the father commenced his first Motion to Change. He sought to vary the outstanding order based on his current income.
[5] That Motion to Change was resolved on consent on August 27, 2008. The order provided that the father pay the Applicant mother child support of their child in the amount of $651.00 per month based on the father's stated annual income of $65,000.00.
[6] The father also agreed that his arrears of support be fixed at $35,459.00 as of August 27, 2008; $15,387.63 of the arrears were owed to the mother and $20,071.37 were owed to the City of Toronto. The father was ordered to pay $300.00 per month to the mother on account of her arrears and $300.00 per month with respect to the arrears owed to the City of Toronto to commence once the arrears were paid in full to the mother.
[7] The order also required the father serve the mother with copies of his income tax returns and Notices of Assessment annually as long as he was required to pay child support.
[8] On August 24, 2009 the father commenced his second Motion to Change. On January 12, 2010, Justice Brownstone dismissed the Motion to Change on its merits. The endorsement states that, "the respondent's Motion to Change is dismissed, as he has freely admitted that his financial disclosure is unreliable, given that he works for cash in the construction industry and had failed to report his income in his income tax return". The father was also ordered to pay costs of $250.
[9] On October 18, 2017 the father commenced this third Motion to Change as an Application. He sought not only to change the outstanding child support orders and reduce the arrears but also sought a paternity test. He alleged for the first time in the litigation that he was not sure he was the biological father of the child.
[10] The mother consented to the paternity test that confirmed that the father was the biological parent. The father did not pursue the issue of paternity any further but he has not formally withdrawn his claim for a declaration of non-parentage. I note as an aside that this court does not have the jurisdiction to make a declaration of non-parentage and such a declaration can only be granted by the Superior Court of Justice.[1]
[11] It was agreed that the Application/Motion to Change would proceed based on affidavits from the parties who would be subject to cross-examination and based on documentary evidence that was filed.
Position of the Parties
[12] It is the position of the father that there has been a change in his circumstances as his Notices of Assessment or Notices of Re-Assessment indicate that his income is much less than the incomes attributed to him, that as English is not his first language he did not understand what he signed leading to the consent order of January 5, 2004, that he did not have an interpreter present when his Motion to Change was dismissed on January 12, 2010, he is no longer working for cash, he lost his driver's licence so he is unable to obtain a better paying job, he lost his job in July 2018 and he has medical issues that prevent him from working as much as he did in the past.
[13] The father seeks an order that the arrears be fixed at $13,139.71 from February 1, 2010 to October 31, 2018 based on his actual income and that he pay child support of $159.23 as of November 1, 2018 based on an annual income of $19,727.00.
[14] It is the position of the mother that the father has not met the onus on him to prove a change of circumstances and accordingly his Motion to Change should be dismissed with costs. Counsel submits that the father's credibility is extremely problematic and the court should place no weight on his evidence of his purported change in circumstances.
[15] It is also the position of the assignee that the father's Motion to Change be dismissed with costs. Both the Toronto Employment and Social Services (Toronto) and the Ministry of Community and Social Services (Minister) have an interest due to assignments by the mother that ended on December 31, 2016. The total amount of arrears that the father owes Toronto is $22,746.37 as of September 13, 2018. The total amount of arrears that the father owes the Minister is $51,033.73 as of September 13, 2018.
Law with Respect to Motion to Change
[16] Subsection 37(2.1) of the Family Law Act provides the test for changing a child support order as follows:
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6
[17] The prerequisite to any variation of an existing support order is a finding that there has been a change in circumstances since the making of that order that would result in a different child support order. Therefore in this case, the onus is on the father, as the moving party, to prove on a balance of probabilities that since his previous Motion to Change was dismissed on January 12, 2010 that there has been a change of circumstances.
[18] To ascertain whether a change in circumstances has occurred, a court must consider whether the change advanced was "material" – meaning a change that, "if known at the time, would likely have resulted in different terms" – and a change with some degree of continuity, and not merely a temporary set of circumstances.[2]
[19] In this case the father is also seeking an order to retroactively reduce his arrears. The Ontario Court of Appeal in the case of [Gray v. Rizzi][1] considered the application of the principles of DBS[2] to a claim by a payor for a retroactive decrease in support. The court held that although the principals required some adjustments to suit the circumstances the fundamental factors still apply.
[20] The court applied the process set out in the case of [Corcios v. Burgos][3] as follows:
56 First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."
57 Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor's circumstances that affected the payor's ability to make the child support payments when they came due.
58 A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.
59 Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: "[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly."
[21] The court then stated at paragraph 60 of the decision that the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity and the quantum of relief:
The nature of the obligation to support, whether contractual, statutory or judicial;
The ongoing needs of the support recipient and the child;
Whether there is a reasonable excuse for the payor's delay in applying for relief;
The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: "Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";
Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;
Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:
[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.
Application of Principles to Facts of This Case
[22] With respect to the order of January 5, 2004, it is the father's position that he did not become aware of that order until 2005 when he discovered that his driver's licence had been revoked due to non-payment of support.
[23] As that order was varied on consent by the order of August 27, 2008 I do not find that there is any need to determine whether or not the father was aware of the order or the father's personal and financial circumstances at that time.
[24] With respect to the August 27, 2008 order, the father's evidence is that he did not understand the consent he signed, that he just agreed to the income that the mother wished as the basis for the amount of child support he should pay and he did not have counsel. He stated that he was unaware that child support was based on his income.
[25] However, it is clear from the preamble to the Order that the father had the benefit of a Spanish interpreter and both he and the mother had separate duty counsel. The order does not state that income was imputed to the father rather it states that it is based on the father's "stated income". In other words, the father admitted that he earned $65,000.00. Further, the father also consented to fix the arrears.
[26] At the time of that order the father's change of information form states that in February 2009 he was laid off from his fulltime job as a framer with Power Construction and was only working sporadically on a contract basis and that he was only earning $24,000. He sought an order reducing child support to $203.00 per month.
[27] The father deposed that his actual income since the January 5, 2004 order was as follows:
2004 - $16,164.94 2005 - $7,798.00 2006 - $8,906.70 2007 - $374.24 2008 - $1,569.49
[28] However, despite his declared income on his tax returns, the father consented to the order of August 27, 2008 on the basis of his stated income of $65,000 that is, based on the income he actually earned as opposed to the income he declared for tax purposes.
[29] With respect to the father's Motion to Change heard before Justice Brownstone on January 12, 2010, the father's evidence is that he did not understand the proceedings and he did not have the benefit of a Spanish Interpreter.
[30] A transcript of the hearing has been filed in this proceeding. The first question Justice Brownstone asked the father was whether or not he understood English and the father replied that he did. I have reviewed the transcript and there is no instance where it appears that the father does not understand the proceedings as he answers the questions asked appropriately. Counsel for the father could not point to any portion of the hearing where it appeared the father did not understand what was being asked of him.
[31] Justice Brownstone questioned the father about how could live on the $1,500 he declared on his 2008 tax return and the father then admitted that he worked for a company that did renovations of private jobs and they paid him cash. He estimated that he earned about $18,000 a year doing this work which Justice Brownstone pointed out was less than minimum wage of $19,700.
[32] In dismissing the father's Motion to Change, Justice Brownstone found that the father did not provide any financial disclosure and states, "you are absolutely unreliable in your financial disclosure. There is no way to trust what you are telling the court about your finances because you readily admit working for cash. You even admitted it in writing in what you sent to the government." Justice Brownstone also rejected the father's evidence that he was unable to provide financial disclosure as his common law spouse had his papers and rejected his submission that he could not pay the amount of child support ordered as he had children from a previous relationship for whom he was required to pay support.
[33] The father's evidence with respect to a change in his circumstances since his Motion to Change was dismissed on January 12, 2010 is essentially the same as the evidence at that hearing.
[34] He submitted that the court should rely on his declared income that is as follows:
2010 - $21,375 2011 - $11,650 2012 - $12,233 2013 - $0 (pre-bankruptcy) 2013 - $17,866 (post-bankruptcy) 2014 - $17,562 2015 - $18,876 2016 - $18,700 2017 - $19,727
[35] Based on this income, it is submitted that the child support arrears should be reduced to $13,139.71.
[36] I do not find that the father's evidence with respect to his declared income is credible. The father testified that he is not a licensed framer but only a framer's assistant, and that his work is seasonal.
[37] However, the father has worked in the construction industry since coming to Canada about 23 years ago. In both his affidavits of October 11, 2017 and October 1, 2018 he admits that he worked for cash on and off from 2010 to 2013.
[38] He then deposes that in 2013 he obtained a job as a framer with AVKM Framing Co. until that company closed down and that in January 2016 he began to work for JPAG Framing Inc. In July 18, 2018 he was laid off due to a shortage of work and then resumed working for that company on September 24, 2018. He deposes that given the nature of his work it is seasonal.
[39] At various points in both affidavits he refers to himself as a framer and other times as only a framer's assistant. The father explains these discrepancies as drafting errors. The father produced no documentary evidence to substantiate his claim that he only works as an assistant but in any event even if he is not formally licenced he is an experienced construction worker who has worked as a carpenter and a framer.
[40] The father explained that his income is so low because his work is seasonal. The father produced copies of his pay stubs from 2014 to 2018 from AVKM Framing Inc. and JPAG Framing Inc. that do not indicate that his work is seasonal as the hours worked in both the summer and winters do not vary significantly albeit he was not working many hours. The pay stubs also indicate that the father was paid in cash until quite recently. The father explained that his identification was stolen or lost so he could not obtain a bank account but considering that he requested to be paid in cash for several years it is difficult to believe this explanation.
[41] The father's evidence was that he worked about 70-80 hours a month. But his pay stubs from 2015 to 2017 state that he worked 67 hours a month, except for the month of December where there was a slight reduction. The few pay stubs submitted for 2018 do not state the hours worked.
[42] The authenticity of his pay stubs is also questionable. Attached to the father's financial statement sworn September 19, 2017 is a pay stub from JPAG Framing Inc. indicating the father worked 76.57 hours at the hourly rate of 22.35 for the month of August 2017. However, the father also produced a pay stub from JPAG Framing Inc. for the same month of August 2017 indicating that he worked 67 hours at an hourly rate of 22.38. As pointed out by mother's counsel, the font and style of the pay stub attached to the father's financial statement is different from the font and style of the pay stubs in the father's disclosure brief. The pay stub attached to the father's financial statement is suspiciously similar to the pay stubs from AVKM Framing Inc.
[43] There are also some discrepancies between the year-end pay stubs the father produced and his declared income on his Notices of Assessment that he could not explain.
[44] The father was cross-examined as to whether or not someone was helping him financially and testified that only his aunt with whom he lives. He confirmed, as stated in his financial statement sworn September 19, 2017, that his employer JPAG Framing Inc. had loaned him $7,111 and that he had no other debts. He then added that his employer loaned him $2,000 to assist him with his legal fees.
[45] However, on June 28, 2018 the father was ordered to pay the Family Responsibility Office $20,000 by August 10, 2018 or be jailed in default. The father paid that amount and produced his bank draft. When cross-examined as to the source of those funds, the father testified that his employer JPAG Framing Inc. loaned him the money as he is a valued employee but he "forgot" about it.
[46] The father's explanation as to the source of this $20,000 lacks any air of reality as it is inconceivable that an employer would loan an employee $20,000 who was only earning less than $18,000. Further, the father testified that this very same employer had laid him off in July 2018.
[47] I draw the common sense inference that the father either has another source of income or his earning more income from his employer than is undeclared.
[48] The father testified that after he was laid off in July 2018 he could not find other employment because he is unable to read or write English and he is restricted to only obtaining minimum wage jobs. But according to the father's declared income, he has never even been able to obtain a minimum wage job.
[49] The father provided no proof that he was looking for any other employment. The only evidence he produced was a print out of a response to a job alert. He did not provide any job searches. The mother attached to her affidavit a printout from the Government of Canada Job Bank confirming that framers are offered compensation from $29.00 to $41.50 per hour.
[50] The father also relies on the fact that he lost his driver's licence as a change in his circumstances and as a reason he has been unable to obtain better paying employment. However, the father lost his licence as a result of non-payment of his child support obligations. The father cannot rely on his own misconduct as a reason for his inability to find better employment.
[51] The father also testified that he is in the process of seeking a Motion to Change in another court with respect to an order to pay child support for his three children from a common law relationship as two of those children are no longer entitled to support. It is not clear how this could be relied upon as a change in circumstances as this order was in place when the father brought his previous Motion to Change. Further, it appears that that court order will now be reduced so that the father will have more funds available meet his child support obligation to this child.
[52] The father also alleges that he has various medical conditions and as he is growing older and the strenuous job in the construction industry is becoming increasingly difficult. This appears to be a new ground that was not raised previously before the court. However, the only evidence the father produced were copies of various clinical notes regarding diagnostic tests and the handwritten clinical notes of his family physician that are illegible. There is no report that outlines the father's diagnosis, treatment and how any of his medical conditions impact on his ability to work. Cogent medical evidence in the form of a detailed opinion is necessary in order to satisfy a court that the father's medical condition impacts on his ability to work.[3]
[53] The father offered no explanation as to why he waited from 2010 to 2017 to pursue a further Motion to Change although I draw the inference that he waited until the Family Responsibility Office began enforcement proceedings to do so as he was content to simply not pay child support in the interim.
[54] Other than making a few voluntary support payments in 2008, the father has not made any voluntary payments in all of the years that he has been required to support his daughter.
Conclusion
[55] I find that at the time of the father's previous Motion to Change in 2010, the father was not working full-time, he alleged that he earned less than minimum wage and he alleged that he was looking for full-time employment. Essentially, the father's evidence on this Motion to Change is just a rehash of his previous evidence. The father has testified that he is in the same financial circumstances on this Motion to Change as he was in 2010 that is, his is still only working part-time, he is earning less than minimum wage and he is still looking for full-time employment.
[56] I find that the father is not a credible witness and his evidence is just as unreliable now as it was found to be unreliable in 2010. It is obvious that his declared income is not his actual income.
[57] In view of his years of experience in the construction industry, I find that the father has the current ability to earn at least the $65,000.00 that he admitted to earning at the time of the August 27, 2008 order.
[58] I therefore find that the father has not met the onus of proving that there has been a change in his circumstances. Therefore the order of August 27, 2008 remains in full force and effect.
[59] As a result of the father's payment of $20,000 and other funds that have been received by the Family Responsibility Office the mother's arrears have been paid up until August 2018. The father is still required to pay $300.00 per month on account of her arrears and then begin to pay the assignees at the same rate. The arrears owing to the assignees were fixed as of August 27, 2008 by the order of that date and then continued to accumulate until the assignment ended on December 31, 2016.
[60] In view of the number of Motions to Change that the father has initiated, I find that it is necessary that the court act as a gatekeeper to determine if there is any merit to any further Motions to Change initiated by the father. Accordingly, the father will be required to seek leave of the court to bring any further Motions to Change before the mother is required to respond.
[61] There will be an order as follows:
The Respondent Patricio Espin's claim for a finding that he is not the biological parent of the child Trisha Godinez born […], 2003 is dismissed.
The Respondent Patricio Espin's Motion to Change the orders of January 5, 2004 and August 27, 2008 is dismissed.
For clarity, the order of August 27, 2008 is in full force and effect.
[62] As the successful parties, the Applicant and Assignee are presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Applicant and the assignee shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached by January 25, 2019. Counsel for the Respondent shall submit her written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, by February 25, 2019. All submissions to be filed with the trial co-ordinator.
Released: January 2, 2019
Signed: Justice Roselyn Zisman
Footnotes
[1] Children's Law Reform Act, s. 1(1)
[2] Gray v. Rizzi, 2016 ONCA 152, at para. 39
[3] D.B.S. v. S.R.G., 2006 SCC 37
[5] F.K. v. M.C., 2017 ONCJ 181, at para. 35 and cases cited therein