Court File and Parties
Ontario Court of Justice
Date: May 4, 2020
Court File No.: Toronto D45757/08
Between:
SASHA-ANN SIMONS Applicant (Mother, Responding Party)
— AND —
ISHMAEL COMRIE Respondent (Father, Moving Party)
Before: Justice Robert J. Spence
Heard on: April 30, 2020
Reasons for Judgment released on: May 4, 2020
Applicant mother: In person, by teleconference
Respondent father: In person, by teleconference
Judgment
R. J. SPENCE J.:
1: INTRODUCTION
[1] This is a motion to change brought by the father, seeking to reduce his child support obligation imposed by final order of this court on October 27, 2008 (original order).
[2] The mother has brought her own cross-motion to change seeking two heads of relief.
[3] First, she seeks an increase in the father's child support obligation.
[4] And second, she seeks an order from the court that the father owes arrears of support in the amount of $20,000 fixed as at December 2019.
[5] The original order required the father to pay $297 per month for two children, based on an imputed annual income to him of $19,200.[1]
[6] His change motion seeks a reduction in support based on a lesser annual income in the amount of $16,640.[2]
[7] The mother states that the original order was based on a minimum wage of $8.75 per hour in 2008. But now the minimum wage in Ontario is $14 per hour so that the support should be increased to accord with an annual income of "approximately" $29,000.[3]
[8] The mother's request for a court order fixing arrears of support owing to her in the amount of $20,000 as at December 2019 arises from her assertion that the father failed to pay substantially all of the support which he was ordered to pay following the making of the original order in 2008.
2: THE FATHER'S POSITION
[9] The father states that his current income is based on a 20-hour work week and a rate of pay in the amount of $16 per hour. He argues he is not capable of obtaining employment which might allow him to work 40 hours per week, essentially for two reasons.
[10] First, he has a substantial criminal record which dates from 2002 to 2005.[4] That record includes convictions for violent and major offences.
[11] The father states that as soon as potential or actual employers conduct a criminal records check on him, he is either unable to obtain prospective employment or he is terminated from employment which he has in fact obtained.
[12] Notwithstanding this, the father did successfully obtain employment at Horizons for Youth in June 2015. He remains employed there currently. He is paid at the rate of $16.00 per hour. However, he has only 20 hours per week of employment available to him. As a result, he says that his annual salary is limited to $16,640.
[13] Second, his opportunities are also limited by the fact that he has only a high school education.
[14] He says that when he was 19 years old,[5] he applied to the Child and Youth Worker program at Centennial College and was denied acceptance because of his criminal record.
[15] He says that he is attempting to obtain a Pardon for his criminal record but, to date, he has not succeeded, describing the process as "very lengthy and arduous".
[16] In summary, then, the father argues that his current employment circumstances are challenging because of the combination of his criminal record and his limited education and training.
3: THE MOTHER'S POSITION
[17] As I noted at the outset, in her response to the father's motion to change, the mother seeks an increase in support.
[18] She also seeks an order that the father owes her $20,000 in arrears of support. In her affidavit dated April 29, 2020, the mother appended a document which she has entitled
Child Support Payments for [the children's names] October 2008 to April 2020
[19] This is a document which she has crafted on her own rather than a formal Statement of Arrears from the Family Responsibility Office (FRO).
[20] In that document she lists every individual month from November 2008 to April 2020, showing the amount of support that was ordered to be paid ($297 monthly), with a notation that the particular month's support was either "paid" or "unpaid".
[21] At the end of the document, the mother summarizes those months, stating:
Total paid to date: $5,049
Total unpaid to date: $35,937
Offered Settlement Amount for unpaid balance: $20,000[6]
4: ANALYSIS
4.1: Father's ability to earn an income
[22] Section 14 of the Child Support Guidelines (Guidelines) sets out the circumstances that must be proven in order to warrant a variation in a child support order [my emphasis]:
14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
[23] The original order was based on the "applicable table" in the Guidelines.
[24] The father is alleging a "change in circumstances". That change is an alleged reduction in his income from what was found in the original order.
[25] The father says in his evidence that although the original order fixed his income at $19,200 in 2008,
I certainly have not earned such an income in 2016, 2017 and 2018
[26] In support of that assertion, the father filed his Notices of Assessment from Canada Revenue Agency for those three years.
[27] However, he did not file Notices of Assessment or give any evidence about his earnings from 2008 to 2015. Accordingly, it is impossible for the court to know whether he earned more than $19,200 or less than $19,200 in those years.
[28] Furthermore, how much the father says he earns today and how much he says he earned in the past, is not the sole basis for determining income for child support purposes. I turn again to the Guidelines.
[29] Subsection 19(1)(a) of the Guidelines states [my emphasis]:
Imputing income
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
[30] In Drygala v. Pauli, the Court of Appeal had occasion to consider this subsection of the Guidelines and stated, at paragraph 28 [my emphasis]:
Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less [page 719] than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.
[31] In other words, child support will be based upon the payor's capacity to earn an income, not solely on his actual earnings.
[32] Even though the father's disclosed income is $16,640, the father provided no evidence of any efforts he has made to work some additional hours during the week. His bare statement that he has made efforts is of marginal evidentiary utility.
[33] The court must ask whether his capacity to earn an income has changed since 2008.
[34] The father's argument that his criminal record has significantly interfered with his employability is buttressed at least in part by some evidence, specifically, the criminal record itself.
[35] As I noted earlier, the criminal record is quite dated, the last entry being about 15 years ago. It does disclose convictions for serious and violent offences.
[36] However, this is where the father's argument runs into difficulty. The criminal record, although significant, ends in 2005. Therefore, whatever argument the father may have today about the impact of a criminal record on his employability, is no different than it would have been in 2008 when the original order was made. His criminal record in 2020 is the same as his criminal record in 2008. In that respect, there has been no change in his circumstances.
[37] Furthermore, it seems to me that if the existence of a criminal record is going to impact a potential hire, a more recent record (which was the case in 2008) will likely have a greater impact than a record where the last conviction was 15 years in the past (as is the case today).
[38] When the court ordered the father to pay based on minimum wage in the original order there was no evidence that the father was incapable of earning minimum wage for a 40-hour week. This, even though the father's criminal record was far more recent than it is today.
[39] In summary then, I cannot find there has been a "change of circumstances" for the father. Specifically:
- His criminal record is the same today as it was in 2008;
- He has provided no evidence of his earnings from 2008 to 2015; and
- He has not provided any meaningful evidence of steps he has taken to maximize his income-earning capacity beyond 20 hours each week.
[40] As I noted earlier, the mother's argument is that the father was imputed with an income based on minimum wage in the final order and there is no reason why he should not also be imputed with a minimum wage income in 2020.
[41] As the wording of subsection 19(1)(a) of the Guidelines reveals, the imputation of income to a support payor is an exercise of judicial discretion. See also Drygala v. Pauli, supra, at paragraph 44.
[42] I am inclined to accept the mother's argument that income should be imputed to the father, at minimum wage. However, I intend to exercise my discretion in a way that will transition the father toward minimum wage over a period of time, rather than imputing minimum wage to him immediately. I do so for the following reasons.
[43] There is a body of case law which holds that the existence of a self-induced criminal record should not provide an opportunity for a support payor to reduce his support obligations. See for example, Stoodley v. Klein, 2013 ONSC 3058 and Costello v. Costello, 2012 ONCJ 399
[44] The argument for not permitting a reduction in support obligations is often very compelling. However, in my view not every situation requires a strict application of this approach.
[45] In S.M. v. N.T., 2018 ONSC 6011, Justice P. MacEachern stated the following at paragraph 44 [my emphasis]:
[44] This matter is not a situation, in contrast to some of the other decisions, where the Respondent's present incarceration is related to conduct that was motivated by an intention to evade his child support obligation. Although the law in Ontario, under the Drygala v. Pauli decision of the Ontario Court of Appeal, is that there is no need to find a specific intention to evade child support obligations before income can be imputed, the lack of such an intention may still form part of the circumstances the court may consider in determining whether it is appropriate to impute income.
[46] The father's situation is not unlike the S.M. case. He did not accumulate a criminal record to the purpose of avoiding his support obligations, as his convictions occurred and came to an end well before the original order was made in 2008.
[47] The father said during the hearing that he applied for a Pardon in 2009 and that he expected the Pardon to be granted in the near future. The father had not placed any Pardon documents before the court at the time of this hearing. However, I told him that I would be prepared to consider any such documents if he forwarded them to me through the trial coordinator's office.
[48] The father did forward numerous documents to me on the day following the hearing, namely, on May 1, 2020.
[49] A review of those documents confirms that the father did apply in 2009 for a Pardon through an agency called Pardons Canada. As the documents disclose, the Pardons process requires the acquisition and preparation of considerable and detailed paperwork. It is not a simple process.
[50] On August 18, 2014, Pardons Canada wrote to the father stating that father's eligibility date for a Pardon is May 17, 2019. That letter also stated:
Once this date approaches, we will contact you in order to move your file forward to completion and submit your application to the Parole Board of Canada for final approval.
[51] On May 1, 2020, Pardons Canada sent the father an email, which the father also provided to the court. That email states in part:
On May 7, 2019, Pardons Canada submitted your application to the Parole Board of Canada (PBC). We are now waiting for the PBC to review the entire application and give you final approval. We will notify you as soon as the decision has been made and the final Record Suspension document has been received in our office. Typical timelines for a decision to be made can run between 6-12 months, however at times can run longer.
[52] It has now been approximately 12 months since the application was presented to the PBC. Obviously, PBC's consideration of the father's application is taking longer than the timeline estimated by Pardons Canada.[7]
[53] In arriving at my decision, I take the Pardon issue into consideration. More specifically, the father's concerted efforts in applying for his Pardon, over a period of many years, tells the court that he is sincere about bettering his circumstances. It tells the court that his desire to obtain a Pardon is something he recognizes as a roadblock to enhanced opportunities in the workplace.
[54] While in no way attempting to excuse the father for his criminal activities and recognizing that he must bear meaningful responsibility for the circumstances he currently finds himself in, the court also recognizes the reality of the father's current situation. He does accept responsibility for his past criminal activities. And he clearly wishes to move forward in a positive way.
[55] In determining an appropriate amount of time to transition the father into an imputed income at minimum wage, I also take into account the current COVID-19 pandemic which has left many people either unemployed or with reduced employment.
[56] It is impossible for the court to predict how long it will be before employment levels begin to normalize. But because the court is required to make an order now, I will exercise my discretion by allowing a reasonable amount of time for this to occur.
[57] In my view, it is reasonable to give the father 12 months to move from a 20-hour-a-week job to employment where he can work 30 hours per week.
[58] And thereafter it is reasonable to give the father a further 6 months to acquire fulltime employment at a 40 hour per week level.
[59] I recognize that these 12-month and 6-month periods are not based on any evidence or empirical data. However, in the exercise of my discretion as provided for in subsection 19(1)(a) of the Guidelines, these are the timelines which seem reasonable to the court at the present.
[60] In the court's view, the timelines are a reasonable balancing between the father's current circumstances and his obligation to pay child support at an appropriate level.
[61] In the exercise of my discretion I have also considered that the father's Pardon, if it is granted, should be granted in the reasonably foreseeable future, thereby enhancing his ability to eventually obtain and retain employment at or near fulltime hours.
4.2: The mother's claim for an order fixing arrears in the amount of $20,000
[62] Even though the mother simply filed her own "homemade" statement of support payments covering the period from 2008 to the present, rather than a Statement of Arrears from the FRO, the father did not dispute the accuracy of her statement.
[63] However, he tried to explain his non-payment of support for an 11-year period by saying that he and the mother had entered into some sort of written agreement which effectively rescinded his support obligation.
[64] The mother denied this, and the father did not produce any documentation to support his argument.
[65] Furthermore, the father attempted to defend against the accrual of unpaid support over this 11-year period by stating that he had made other, unspecified, expenditures on behalf of his children, such as buying them gifts and meals, and that these expenditures ought to be considered.
[66] I reject the notion that the mere purchasing of some gifts and meals for children, from time to time, offsets a parent's support obligation particularly where, as is the case here, the father made no such claim in any of his material before the court, nor itemized the extent of those expenditures.
[67] Children need to be fed, clothed and housed. The occasional gift or meal from a non-custodial parent directly to a child does nothing to offset those expenditures which are necessary to support children.
[68] Accordingly, I do not accept the father's argument that he should be relieved of the responsibility to pay support from the date of the original order.
[69] That said, it is not for this court to determine how much the actual arrears are in the context of the present motion to change. I come to this conclusion for two reasons.
[70] First, there was no Statement of Arrears from the Director of the FRO which would have set out the support payments accrued and the payments actually received.
[71] Second, while a Statement of Arrears from the Director of the FRO is not necessarily a sine qua non for the determination of arrears, there was simply a dearth of evidence in the parties' respective filings.
[72] If the Director has not taken steps to enforce the order, then the mother ought to contact the Director and ask the Director commence a Default Hearing to enforce the existing order[8], or take such other steps as are available to the Director under the Family Responsibility and Support Arrears Enforcement Act.[9] Sometimes it is the squeaky wheel that gets the grease.
5: CONCLUSION
[73] For all the reasons set out above, the court makes the following final order:[10]
(1) The father's change motion is dismissed.
(2) Paragraph 3 of the order dated October 27, 2008 is varied as follows:
a. Commencing May 1, 2020 the father shall pay child support to the mother in the amount of $299 per month for two children based on an imputed annual income to the father in the amount of $19,200.
b. Commencing May 1, 2021 the father shall pay child support to the mother in the amount of $335 per month for two children based on an imputed annual income to the father in the amount of $21,840.
c. Commencing November 1, 2021 the father shall pay child support to the mother in the amount of $446 per month for two children based on an imputed annual income to the father in the amount of $29,120.
(3) The mother's claim for an order that the father's arrears of support owing by him in the amount of $20,000 is dismissed. This dismissal is without prejudice to the Director FRO to take appropriate enforcement proceedings.
(4) The father shall immediately notify the mother in writing in the event of a change in his employment circumstances which results in greater employment income to him.
[74] The court encourages the father to be proactive in following up on his Pardon application through Pardons Canada.
[75] There has been divided success in the outcome of this case and, accordingly, the court makes no order as to costs.
Released: May 4, 2020
Signed: Justice Robert J. Spence
Footnotes
[1] The Child Support Guidelines changed in 2011 so that support for two children on an income of $19,200 would now result in a support order in the amount of $299 per month. This will be reflected as part of my final order at the conclusion of these reasons.
[2] His change motion sought an order that his income be imputed at $14,312, but in his subsequent affidavit dated March 11, 2020 he stated his income for support purposes should be based on $16,640.
[3] Based on the current minimum wage of $14 in Ontario, the annual income at that rate would be $29,120 for a 40-hour work week.
[4] His record was filed as an exhibit. It also discloses a youth criminal record dating to 1994.
[5] The father is now 38 years old.
[6] I have not considered this "settlement" offer in my decision.
[7] Pardons Canada did caution that could be the case. Furthermore, it is reasonable to assume that normal business functions, particularly less urgent functions, have been impacted by the COVID-19 pandemic.
[8] Any enforcement proceeding by the Director will now likely be an enforcement of the order this court is now making, rather than the original order.
[9] There are a number of enforcement mechanisms available to the Director, such as the suspension of a driver's licence for delinquent support payors.
[10] Paragraph 68(2)a. brings the support order into line with the current Guideline amounts. And paragraph 68(2)b. is based on a 30-hour work week at $14 per hour.
