Court File and Parties
Date: January 3, 2020
Court File No.: D70561/14
Ontario Court of Justice
Between:
Tricia Lynch Acting in Person Applicant
- and -
Michael Lewis Acting in Person Respondent
Heard: January 2, 2020
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial was about the respondent's (the father's) motion to change the court's child support order dated September 20, 2017 (the existing order).
[2] The existing order provides that the father pay the applicant (the mother) child support of $696 each month, for the parties' 9-year-old twins (the children), starting on May 1, 2017, based on his annual income of $46,992. The father asks that his monthly support be reduced to $350 each month starting on August 1, 2018.[1]
[3] The mother asks that the father's motion to change be dismissed.
[4] The parties filed multiple affidavits and financial statements. They both testified and were cross-examined. There were no other witnesses.
Part Two – Background Facts
[5] The father is 37 years old. He lives with his father. He has no other children.
[6] The father graduated from the Social Service Work program at Seneca College in 2004. He has worked in the social work sector. When the existing order was made, he was working full-time for a community service provider. The father testified that he lost this job on August 1, 2018 when the service provider lost its government contract.
[7] The father said that he subsequently went on Employment Insurance.
[8] The father stated that he has been working about 20 hours each week since September 2019 assisting persons who have Huntington's disease. His pay stubs indicate that he is earning $22.16 per hour at this job.
[9] The father issued his motion to change on September 24, 2018.[2]
[10] On February 1, 2019, Justice Carolyn Jones made a temporary without prejudice order reducing child support to $423 each month from October 1, 2018 to May 31, 2019, with support to revert back to $696 each month on June 1, 2019.
[11] This trial was originally scheduled to be heard on October 30, 2019. The trial was adjourned because the father had not complied with financial disclosure orders.
[12] The father has only paid $500 for support since June 1, 2019.
[13] Based on the records of the Director of the Family Responsibility Office, the father owes the mother child support of over $4,900.[3]
Part Three – Positions of the Parties
[14] The father asks that support be set at $350 each month starting on August 1, 2018. He says that he cannot afford to pay the support amount in the existing order. He testified that he has looked for full-time employment and is hopeful that he will be able to work full-time in the near future.
[15] The mother asks that the father's motion to change be dismissed. She feels that the father is deliberately under-employed and will remain so until his child support obligation is reduced. She submitted that the father's lifestyle has not changed and that he has unrevealed and unexplained sources of income.
Part Four – Legal Considerations
[16] The father's motion to change support is governed by subsection 37(2.1) of the Family Law Act which reads as follows:
Powers of court: child support
(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.
[17] The court's discretion to reduce support arrears is to be exercised judicially. See: DiFrancesco v. Couto, 2001 O.J. No 4307 (OCA); Gray v. Rizzi, 2016 ONCA 153.
[18] 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.
[19] 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] O.J. No. 3731 (Ont. C.A.).
[20] 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.).
[21] 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.
[22] 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.
[23] 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.
Part Five – Analysis
[24] The court will exercise its discretion and not reduce the child support ordered in the existing order for the period prior to September 1, 2019, despite the father's loss of his full-time job, for the following reasons:
a) The existing order is based on a 2017 annual income for the father of $46,992. He actually earned $52,195 and underpaid support in 2017.
b) The father earned $37,182 for the first 7 months of 2018. This projected to an annual income of $55,773. The father was underpaying support for the first seven months of 2018.[4]
c) The father did not notify the mother about his increases in income despite the requirement in the existing order to provide annual financial disclosure by June 1st.
d) Despite claiming that he was in financial trouble after he lost his job in August 2018, the father's financial statements filed showed that he had annual expenses of over $33,000 for the year completed in November 2019, yet his net worth increased by over $15,000 from September 2018 until November 2019. This informs the court that he had other sources of revenue during this period.
e) The father's bank accounts from January to August 2019 showed average monthly deposits of about $4,200, confirming again that he had additional sources of revenue.
f) The father maintained his lifestyle during this period. He has a vehicle he values at $40,000 and he spent over $1,300 each month on it while claiming that he could not afford to pay child support.
g) The father testified that his priority during this time was to reduce his credit card debt (it was reduced by over $3,000). He prioritized his debt payments at the expense of the children.
h) The father significantly delayed providing the financial disclosure ordered by the court. At trial, he was still unable to set out how much money he has received from each income source in 2019.
i) The father did not act in good faith by only paying $500 to the mother after June 1, 2019 despite having access to considerable funds.
[25] The father testified that he had lent his credit card to his aunt and that many of the funds deposited into his bank account were repayments of monies his aunt had charged on this card. He provided no proof of this (such as credit card statements or direct evidence from his aunt) despite multiple opportunities to provide complete financial disclosure. He did not claim that his aunt owed him money on any of his financial statements – this was raised for the first time during his cross-examination. The court does not accept the father's explanation about these deposits. The court finds that the father had other revenue sources from August 1, 2018 until September 1, 2019.
[26] The court will exercise its discretion and reduce the father's child support obligation starting on September 1, 2019 due to the change in circumstances arising out of the loss of his full-time job and his inability to obtain comparable full-time employment.
[27] Based on the father's evidence, he has been earning annual income of about $23,046 from his present job ($22.16 per hour x 20 hours per week x 52 weeks) since September 2019.
[28] However, the analysis does not stop there. The court agrees with the mother's submission that the father is deliberately underemployed.
[29] The father acknowledged that he has no medical limitations or educational reason for not being able to work full-time. He was asked if he had expanded his job search outside of the social service sector. He said he hadn't – he wants to work in his field.
[30] The father's desire to work in his field is understandable. However, after being unemployed for over a year, it was no longer reasonable, as of September 1, 2019, for him to restrict his job search to his chosen field. He has an obligation to support his children to the best of his ability.
[31] The father could and should have been working part-time in a minimum wage job, such as a retail job, after September 1, 2019 to supplement his income and properly support the children. The court will impute additional annual income of $13,104 to him. This is calculated by multiplying 18 hours each week at $14 per hour.
[32] This means that starting on September 1, 2019, the father's annual income will be imputed at $36,140 for support purposes. The monthly guidelines table amount for two children at this income is $547.
Part Six – Conclusion
An order shall go on the following terms:
a) There shall be no change to the existing order prior to September 1, 2019.
b) The existing order is changed to provide that starting on September 1, 2019, the father shall pay the mother the guidelines table amount for two children, based on his imputed annual income of $36,140, in the amount of $547 each month.
c) The temporary order of Justice Jones dated February 1, 2019 is rescinded.[5]
d) The Director of the Family Responsibility Office is requested to amend its records to be in accordance with this order.
e) A support deduction order shall issue.
f) The father shall immediately notify the mother when he obtains employment and provide her with the name, address and phone number of the employer. He shall also provide her with his first three pay stubs from the employer.
g) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.
Released: January 3, 2020
Justice S.B. Sherr
Footnotes
[1] The father also sought a contribution by the mother to the children's special expenses pursuant to the Child Support Guidelines (the guidelines). He did not pursue this claim at trial.
[2] The father also asked to change his parenting time in his motion to change. That issue was resolved prior to this trial.
[3] This takes into account the reduced amount ordered by Justice Jones from October 2018 until May 2019.
[4] The father's total 2018 income, including Employment Insurance was $46,717.
[5] This means that support should be set at $696 each month for the period from October 2018 until May 2019, as opposed to the $423 each month ordered, on a temporary without prejudice basis, by Justice Jones for this period.