ONTARIO COURT OF JUSTICE

DATE: 2022 04 05 COURT FILE No.: Milton 174/16

BETWEEN:

STEPHEN ALEXANDER BEECH Applicant

— AND —

BEATA BEECH Respondent

Before: Justice Philip J. Clay

Heard on: February 22, 23 and 24, 2022 Reasons for Judgment released on: April 5, 2022

Counsel: Michael Kril-Mascarin, for the Applicant Beata Beech, acted on her own behalf

CLAY J.:

PROCEDURAL BACKGROUND

[1] The Applicant (“Beata”) is 48 years’ old, and the Respondent (“Stephen”) is 47. They married on September 28, 2002. They have two children Ava born on […], 2008 and Ryan born on […], 2008. They separated on July 1, 2012 and are now divorced. They negotiated a separation agreement through counsel, and it was signed on April 11, 2013.

[2] The Separation agreement imputed an income to Stephen of $100,000 and he was required to pay child support in the amount of $1,416 per month.

[3] Stephen had a number of career and job changes over the years. The issue that arose is the income upon which he should pay support for the two children. On September 3, 2019 Stephen issued a Motion to Change seeking a downward and retroactive adjustment of child support for the period May 2016 onward. He sought an order that the child support be re-adjusted so that the amount paid was based upon his actual income every year.

[4] Beata filed a Response to Motion to Change in which she took the position that there had been no material change in circumstances, that Stephen was intentionally underemployed and that the Separation Agreement has imputed an income to him that should not be variable.

THE ISSUES

(1) Was Stephen’s income as set out in the Separation Agreement an imputed income that was not subject to change? (2) Should Stephen’s income be adjusted upwards if he actually earned more than the amount imputed to him in the agreement? (3) Was there a material change in circumstances that impacted Stephen that should lead to a review of the quantum of child support? (4) Was Stephen intentionally unemployed or underemployed in the years following he separation agreement such that income should be imputed to him?

[5] This trial was scheduled to be heard virtually by Zoom video. Each party filed affidavit material for their direct evidence. They also filed extensive document briefs. They were each cross-examined on their evidence.

STEPHEN’S EVIDENCE

[6] When the parties married Stephen was a product engineer with Dana Corporation and had been in that role since 1999. He earned $70,000 per year. He chose to upgrade his education and while still working full time he completed a Master of Engineering Program between 2002 and 2004. In 2004, he enrolled in a Master of Business Administration Program with a major in accounting. It was a joint program that allowed him to obtain both an MBA and a Certified Management Accountant designation.

[7] In 2007 Stephen left Dana and secured a position with Deloitte as a manager in their tax accounting department. He received a starting salary of $75,000. In early 2009, he felt his job at Deloitte’s was in jeopardy because he had been placed on a “performance improvement plan” and his relationship was his supervisor was strained. He began looking for other senior management jobs, and in February 2009, he was offered a position as Senior Financial Analyst with CAMH in Toronto. His starting salary was $85,000 per year.

[8] Stephen said that with two young kids he found the commute from Oakville to Toronto to be onerous and he looked for another job. In February 2010, he obtained a full-time position with the Society of Management Accountants. This job was also in Toronto, but he said he accepted it because it was a significant salary increase and had more career advancement opportunities. Unfortunately, he was terminated without cause in April 2010, but continued on a contract basis for a couple of months.

[9] Stephen then said he researched other opportunities and finally landed on purchasing an accounting firm. Stephen had received a significant inheritance when his father died in the early nineties, and he had invested the funds. In October 2010, he used $275,000 of his inheritance to buy Padgett Business Services in Mississauga. Stephen said he found managing staff very demanding, the business was very seasonal and the stress he was under impacted his marriage. In 2012 Stephen earned $94,576.

[10] Stephen tied the stress of trying to run this business into a number of medical and emotional issues that he was treated for in 2012 and 2013. It is noted that this was also the last year of the parties’ marriage, and both spoke about the stress involved with a pending separation.

[11] Ultimately the parties separated, and Stephen sold the business. They negotiated the Separation Agreement at a time of some uncertainty as to Stephen’s future income. They finally settled on $100,000 as an income for the purposes of child support. Stephen said that was a notional amount as he was earning far less at the time. The Agreement was signed on April 12, 2013. Stephen continued to work as an accountant for Padgett, but he said his salary was only $45,000.

[12] By October 2013, Stephen sent Beata an e-mail stating it looked like his income would not be more than $50,000 for the year and he was going to have to reduce the child support. Beata objected and Stephen continued to pay. Stephen has paid the amount of child support under the agreement to the date of trial. He took the position that he has grossly overpaid child support relative to his income. Stephen earned an income of $108,519 in 2013 and $119,763 in 2014. (Beata’s chart has both years as a little higher).

[13] In November 2013, Stephen was hired by Intuit Canada as an accountant with a starting salary of $70,000 per year together with discretionary employment bonuses. In the fall of 2013, he obtained a position as a sessional lecturer with Sheridan College, but he only completed one term in thar role.

[14] In February 2014, Stephen again e-mailed Beata to request a reduction of child support payments.

[15] In January 2015, Stephen was terminated without cause from Intuit. He sued them for wrongful dismissal and settled for a net sum to him of $12,000. Stephen advised Beata that he lost his job and could not continue to pay child support.

[16] This job loss is relied upon by Stephen to assert that there had been a material change in circumstances since the Separation Agreement was signed.

[17] Stephen said that he quickly looked for work and in January 2015 was hired by ManuLife for a 100% commission entry level job. He continued looking for work and stated that he applied for 28 positions before being hired in June 2015 by Edward Jones as a financial advisor. In this position, he had a base salary of $60,000 per year plus commission. The salary is phased out over three years as the employee builds up their client book.

[18] Stephen said this job was very competitive and required that he work 60-70 hours a week. He said that this amount of work which included weekends was not tenable given that he had a young family. He began looking for other jobs that were commensurate with the fact that he had an MBA and CMA. In 2015, he said that his income was $85,733, but that included withdrawals from his RRSP in the amount of $33,155.

[19] Stephen said as he was unsuccessful in having Beata agree to reduce child support, he brought a Motion to Change in April 2016. He was self-represented then. The Motion to Change did not proceed as the Agreement required mediation before litigation. The Motion to Change was withdrawn.

[20] In 2016, Stephen decided upon another career change. He determined that as he spoke French, he could immediately get a secure job as a French teacher in the Halton board if he could obtain a two-year teaching degree. In September 2016 he enrolled at the University of Toronto. From the fall of 2016 to the spring of 2018 Stephen was a full- time student. In 2016, his only income was Edward Jones at $46,848, and in 2017, he had tutoring income of $2,263 and RRSP withdrawals of $19,972.

[21] Upon graduation Stephen was immediately hired as an elementary school teacher for the balance of the school year in 2018. He was hired on a full-time basis in September 2019. He worked one year as a teacher before again finding another opportunity. Stephen earned $74,728 in 2018 and $67,165 in 2019.

[22] Stephen said he was facing a huge financial burden by paying child support on an amount of income that he no longer earned. He received two gifts from his mother of $100,000 in 2018 and $150,000 in 2019.

[23] In July 2019, Stephen said he was recruited by Scotiabank. They had his resume on file from years before and they offered him a job as a trainee small business advisor with a salary of $65,000 plus an 8% bonus. He conceded that the job security was not as good as it would be in teaching (a major reason why he went into teaching was because of the salary grid and job security). He said though that the opportunity for career advancement was very good.

[24] As noted, Stephen issued this Motion to Change on September 3, 2019. Mediation was unsuccessful and this matter proceeded through the court.

[25] In 2020, Stephen received additional compensation due to working in person through the pandemic. He earned $85,748 in 2020 which included RRSP withdrawals of $4,444. Stephen kept applying for better positions within the bank.

[26] In May 2021 he was offered the position of Manager, Change and Process Management. This role came with a base salary of $75,000 plus a performance-based bonus. The base salary increased to $81,600 in November 2021. His 2021 income was $83,089.

[27] It is noted that Stephen’s pre-May 2021 salary was lower than post-May 2021 and then his base salary was raised again in November 2021. This means that it can be expected that his 2022 salary with a base plus bonuses will be significantly higher than it was in 2021. Stephen said that the bonus structure was quite complex, but it would probably be 10 to 12 % of base salary. He said it is paid after the fiscal year end of the bank which is October 31. This means his 2022 salary could be $89,760 to $91,392. Stephen said in cross-examination that 3-5 years after his hire he should earn in the range of $100,000.

[28] Stephen sought an adjustment of child support to the amount he earned every year exclusive of RRSP withdrawals. He attached a chart to his affidavit which claimed an overpayment of child support of $49,984.

[29] To address the allegation that he was underemployed Stephen filed an employment search brief. It comprised 9 volumes separated by year. Stephen said that this showed just how extensively he looked for work. He was never unemployed, and he always looked for the best paying work he could find.

BEATA’S EVIDENCE

[30] Beata did not dispute the history of Stephen’s employment and self-employment. She noted that Stephen could never settle into any position, but pre-separation spent his evening hours at their home applying for different jobs. She said she attended many events with Stephen where he was looking at employment or career opportunities, and that he was obsessive in his constant search for some other way to make money.

[31] She said that when they were married, he had full time work as an engineer and even doubled down on that career path by obtaining his Masters in Engineering. However, as soon as he had his Masters, Stephen wanted to leave engineering to go to medical school. This was 2004, and as they were planning on having children and Stephen had no experience or education in medicine, she encouraged him to volunteer at the local hospital. After a few months he found the emergency unit to be too stressful and tiring for him, so he abandoned that idea and decided instead to change his career path to accounting.

[32] Beata noted that of the job changes he has had in his accounting career some/ were some caused of his own volition, and some were caused by terminations of his employment. She noted though that in May 2010 Stephen was offered a job with Ernst and Young with an annual income of $110,000 plus benefits, but he declined it in order to purchase Padgett. Stephen said that the Ernst and Young offer was actually in 2009 when he was working for Deloitte, and he took the competing offer from CAMH. I accept Stephen’s evidence on this point as he was the one offered the job, and he is meticulous about keeping notes and records.

[33] Beata noted that Stephen had an inheritance, and he used that money to buy Padgett. She also said that Stephen’s access to his inheritance and the growth on those funds allowed the family to live a lifestyle that was not directly linked to his earnings. (Stephen strongly disputed this and said that he only used inherited funds for a $50,000 down payment on their first home, for the purchase of one car and the Padgett purchase).

[34] Beata said that Stephen’s statement about the financial problems of the Padgett business were overstated. She said that in the years before he bought the business the statements showed significant profits. She said that a great deal of time was expended in the negotiation of the Separation Agreement. Most of it was spent on determining Stephen’s income for child support. It was her understanding, supported by some legal advice that she received, that the $100,000 imputation was intended to continue as Stephen’s income unless there was a material change in circumstances.

[35] She noted that six months after this was agreed upon Stephen said he could not afford to pay. She also noted that Stephen now takes the position that child support must rise and fall with income, but at the same time that he asked for reduced support he did not make disclosure of his Notice of Assessments. She did not see them until he brought the 2016 Motion to Change.

[36] As for Stephen’s assertion that the loss of the Intuit job was a material change in circumstances, Beata took the position that it did not have to be so. She said Stephen leapt at the first job available as an entry level 100% commission employee at ManuLife. Beata said that this was not a reasonable step to take when he had two young children to support. He should have conducted a thorough search to find a job commensurate with his education and experience. She noted that Stephen had a lot of money in investments that he could live on in the short term, so he had more ability than most people to take a little longer with his job search.

[37] With respect to the 9 volumes of job search history, Beata said that she never disputed that Stephen was constantly looking for jobs. She said that his job searches were unfocused. He did not use a search firm to match his talents and abilities to a job. He just used a scatter gun approach to apply for anything that come within the wide range of jobs he was qualified for. This involved applying for a lot of jobs he was more than qualified for. It resulted in Stephen earning far less than he should be earning given all of his education and experience.

[38] Beata said that until fairly recently she had only part-time work. She was primarily caring for two small children. She had no financial cushion like Stephen had with his accumulated wealth from the inheritance. She felt it was very mean spirited for Stephen to demand that support be reduced in October 2013, February 2014 and again in January 2015. To be fair in October 2014 Stephen briefly increased child support to $1,520 per month when working for Intuit, but he reduced it back to $1,416 when he lost that job.

[39] Beata’s position throughout was that Stephen had a long history of job changes such that his income would always fluctuate. She said that is why after a long negotiation they had settled on an amount of $100,000 as his income. She felt that as Stephen had his investments that he did not bear any real risk of financial hardship if one career move, or another did not work out as he always had money to fall back on. She felt that her children’s support should not be subject to the whims of Stephen’s mercurial search for the perfect job.

[40] Beata focused on the fact that Stephen was in a secure position as a teacher and had the ability to move up to a vice-principal or principal position. She presented evidence from the board that showed that a vice-principal earns $106,175 and a principal earns $115,339. Stephen noted that he earned more at Scotiabank now than he would have if he had remained as a teacher. He said that administrative positions were much sought after and there is no way to know if he would be successful in becoming a principal.

THE LAW

[41] Stephen wants his child support to be based upon the table to the Child Support Guidelines applied to his income in every year. Beata takes the position that the child support should be based upon an imputed income not the actual income.

[42] Section 19(1)(a) of the Child Support Guidelines permits the court to impute income. The relevant sub-sections of it read as follows;

19(1) Imputing income

The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally underemployed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[43] In Drygala v. Pauli, 61 O.R.(3d) 711, the Ontario Court of Appeal set out the following three-part test to be applied in considering a request to impute income:

1. Is the spouse intentionally underemployed or unemployed?
2. If so, is this required by virtue of his or her reasonable educational needs, or the needs of the child of the marriage, or arising from reasonable medical needs?
3. If the answer to #2 is “no”, then the court must decide whether to exercise its discretion to impute income and, if so, in what amount.

[44] Both parties filed casebooks in which they relied upon Tillmanns v. Tillmanns, 2014 ONSC 6773, which provided a thorough summary of the case law on imputing income for child support purposes. I have reproduced below the paragraphs of that summary that are most relevant to the case before me.

52. In Drygala the court went on to find that “Intentionally” means a voluntary act. It does not apply to situations beyond one’s control. A parent is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning having regard to all of the circumstances. Drygala ( supra ); Smith v. Smith 2012 ONSC 1116 (SCJ).

53. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependants. Thompson v. Thompson 2013 ONSC 5500 (SCJ); Smith ( supra ).

54. The court does not need to find a specific intent to evade child support obligations or bad faith in order to impute income. Drygala ( supra ); Smith ( supra ); G.T.B. ( supra ).

55. The onus is on the party seeking to impute income to establish that the other party is intentionally underemployed or unemployed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.); Banning v. Bobrowski, [2007] O.J. No. 3927 (SCJ).

56. If the court is not satisfied that the support payer is intentionally underemployed, the inquiry ends there. But once intentional underemployment is established the onus shifts to the payor to show one of the exceptions of reasonableness. Drygala ( supra ); Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ); Bekker v. Bekker 2008 CarswellOnt 173(SCJ); Millford ( supra ).

57. Parents can take jobs which generate less money as long as the decision is reasonable. But a support payor cannot select a job merely because it suits his or her purposes. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. Riel v. Holland, [2003] O.J. No. 3901 (Ont. C.A.); G.T.B. ( supra ); Rilli ( supra ).

58. The court will not excuse a payor from their support obligations or reduce those obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce support payments. Smith ( supra ); Hanson ( supra ); Stewart ( supra ).

59. A parent cannot pursue an improvident career path at the expense of the child. Evans v. Gravely, [2000] O.J. No. 4748 (SCJ).

60. If a court finds a payor is intentionally underemployed or unemployed, a court cannot arbitrarily allocate an imputed income. There must be an evidentiary basis for the income level to be imputed. Drygala ( supra ).

61. The court must consider many factors including the age, education, experience, skills and health of the party; his or her past earning history; the standard of living during the parties’ relationship; and the amount of income the payor could reasonably earn if they worked to capacity. The Court can also consider the pattern of income -- usually during the three years leading up to termination of employment -- to determine an amount that is fair and reasonable. Beck v. Beckett 2011 ONCA 559 (Ont. C.A.); Drygala ( supra ); Lawson v. Lawson, 2006 CarswellOnt 4789 (Ont. C.A.), Kramer v. Kramer 2014 ONSC 5952 (SCJ); Smith ( supra ).

62. Where a payor elects to return to school to retrain for a new type of employment or career, the court must consider whether the educational plan is reasonable; whether it relates to realistic and productive career aspirations; the extent to which ongoing support will have to be interrupted or reduced; and the ultimate impact retraining will have on income prospects and long-term ability to pay. Lebouthillier v. Manning 2014 ONSC 4081 (SCJ); Scott v. Blake, [2008] O.J. No. 2195 (SCJ).

63. All of these principles have a common theme: reasonableness. Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children. Stewart ( supra ).

SUBMISSIONS

Stephen

[45] Mr. Kril-Mascarin stated that there was a material change in circumstances when Stephen was terminated from the Intuit Canada position in January 2015. This permits the court to look at the actual income earned after that date and set an amount of child support based upon that income. Beata wants to impute income to Stephen and counsel stated that the onus is upon her to show that he is intentionally under employed.

[46] Counsel said that this is not a case where the support payor quits a job to take a lower paying one. In every case where Stephen’s income was reduced it was a result of a termination of his employment. He always found another job immediately and then looked to increase his income either by internal applications or by looking and finding a job that paid more.

[47] Counsel conceded that the only exception to remaining steadily employed was Stephen’s decision to leave Edward Jones to attend a two-year teacher’s college program. However, he said that at the time his income at the financial firm was tenuous and the hours and workload were punitive for a man with children. Stephen calculated the cost of two years out of the work force as against the income he would immediately earn in a secure position with a salary grid upon completion of the program.

[48] Mr. Kril-Mascarin said that the court cannot use the benefit of hindsight in assessing whether attending teacher’s college was a reasonable decision for Stephen to make in 2016. Counsel said that if it was a reasonable decision to make at the time. The fact that Stephen abandoned teaching to return to the financial field after just one year, cannot be used to conclude that the 2016 decision was unreasonable.

[49] Counsel did concede; however, that it there is any period in which some income could be imputed to Stephen, and he argues there is not, it would be in the 2016 and 2017 years.

[50] Mr. Kril-Mascarin said that gifts given to Stephen by his mother and his access to investment funds are not relevant as there was no history of regular gifts and no legal obligation upon his mother to make gifts. Counsel said that the evidence did not show that Stephen was less inclined to seek higher paying work because he was financially secure. In fact, the opposite was true. The evidence showed that Stephen vigorously pursued high paying jobs and only used his RRSP funds to ensure he could pay the child support in years when his income was quite low.

[51] M. Kril-Mascarin sought an order that Stephen be recognized to have a credit towards child support in the amount of his overpayment of support which as at December 1, 2020, stood at $49,984.

Beata

[52] Beata’s initial position was that Stephen should always pay child support on an income of $100,000, because that was what his income was found to be in the Separation agreement.

[53] It was noted that the wording of the agreement was that $100,000 was found to be his income at the time. The agreement clearly stated that there was to be annual income disclosure and an adjustment of child support to the income earned annually.

[54] Beata noted that Stephen did not comply with the disclosure requirements of the agreement when his income was higher than $100,000 in 2014. She also noted that there was no disclosure, and no material change in circumstances when he sought a reduction in child support just six months after signing the agreement.

[55] With respect to Stephen’s argument that he was always employed and made decisions to ultimately increase income, Beata questioned the reasonableness of the choices made. She said that if Stephen could earn nearly $120,000 at Intuit in 2014, he should not have accepted a fully commissioned entry level job so soon after his termination. She said that if he had acted reasonably to maximize his earning capacity, he would have conducted a job search that would either have resulted in a similar income job or make it absolutely clear that such a job was not available to him.

[56] Beata said that Stephen’s extensive job search volume did not show that he obtained career advice or used job search professionals to find work that would allow him to pay the child support he had committed to pay.

[57] Beata said that the career switch to teaching could not be justified. It was his third career change and one made when he had young children to support. He took two years to be qualified for a job that began at $61,500 and would move through a ten-year grid before he could make less than he made at Intuit. She said that the decision was not reasonable at the time it was made.

[58] However, she said that having become a teacher he should not have left after a year as for a man with a checkered work history it offered stability, security, and the ability to apply for a principal’s job at $115,000 per year.

[59] Beata also said that the Scotiabank position was one he was over-qualified for as it did not require any of his professional qualifications. Beata said that Stephen’s job history showed that he made deliberate choices to pursue what he finds interesting at the time. He was not focused on maximizing his income as he should have been given his child support obligation.

ANALYSIS

[60] I will analyze this matter by reference to each issue.

I. Was Stephen’s income as set out in the Separation Agreement an imputed income that was not subject to change?

[61] Beata pursued this position throughout the litigation. It is not difficult to see why she was frustrated that after months of negotiation to determine Stephen’s income it was put into question by his request to reduce support just six months after the agreement was signed.

[62] Nevertheless, the plain reading of the Separation Agreement makes it clear that the imputation of income to Stephen was just for the 2013 year when the agreement was being negotiated. There are clear clauses that state that Stephen was to provide his Notices of Assessment annually so that child support could be adjusted in accordance with changes in his income.

[63] It should be noted though that Stephen did not provide disclosure until the 2016 motion to change. This, despite the fact that he sought a reduction of child support on three different occasions before that. When disclosure was made it became clear that he had more income than estimated in both 2013 and 2014. This was bad faith on his part, and it caused Beata unnecessary stress.

II. Should Stephen’s income be adjusted upwards if he actually earned more than the amount imputed to him in the agreement?

[64] Mr. Kril-Mascarin noted that Beata had not sought a retroactive increase in child support in her pleadings so she should be barred from doing so at trial. He sought to tie income to support after January 2015 when Stephen lost his job at Intuit.

[65] I find that it is not fair for Stephen to fail to make disclosure in his higher income years of 2013 and 2014, and then take the position that those years should not be re-adjusted upwards, but the lower income years after 2015 should be re-adjusted downwards. It is noted that Stephen did increase his child support between October 2014 to December 2014 when he knew that he was on pace to make nearly $120,000, but he still underpaid child support from May 2013 to December 2014.

III. Was there a material change in circumstances that impacted Stephen that should lead to a review of the quantum of child support?

[66] The separation agreement, like all court orders, required income disclosure and re-adjustment. If that is done properly parties should not have to access the courts for changes to support.

[67] Having said that not all changes to income permit a party to bring a Motion to Change. The threshold that permits the court to intervene is whether a material change in circumstances has been established. Stephen asserted that there was a material change when he was terminated without cause from his position at Intuit in January 2015. Beata took the position that there was no material change in this matter as Stephen simply needed to use a focused and diligent job search to replace the income lost.

[68] I find that the loss of this position was a material change in circumstances. There is no doubt that Stephen was terminated. He received a modest severance after litigating this issue. It is arguable that Stephen could have done a better job search after the termination, but it was an involuntary job loss and thereby a material change in circumstances.

IV. Was Stephen intentionally underemployed in the years following he separation agreement such that the income for a given year should not be used to determine child support?

[69] I agree with Mr. Kril-Mascarin’s submission that none of the many cases reviewed in Tillmanns and the other cases he included in his brief had similar facts to the case before me.

[70] Stephen was always employed. To paraphrase Tillmanns which referred to Thompson v. Thompson, 2013 ONSC 5500 the issue is whether he met the duty upon him to actively seek out reasonable employment opportunities that maximized his income potential.

[71] Stephen’s evidence was that he knew that his job at Intuit was in jeopardy, so he began a job search in the fall of 2014. He said that is why he took the much lower paying entry level position at ManuLife in February 2015. He said that he knew that there were not any jobs available that he would be able to secure if and when he was fired. Beata was aware that Stephen was always looking for new jobs if not new careers, so she did not dispute that he had done some investigation prior to losing his job. However, she said that Stephen had two Masters degrees in engineering and business administration respectively. She said it was not reasonable for Stephen to jump at an entry level 100% commission sales job within a month of losing a job paying $120,000 a year.

[72] I find that the evidence supports Beata’s position. Stephen had had managerial roles consistent with his qualifications at CAMH, and at the Society for Management Accountants. He had been offered a job paying $110,000 at Ernst and Young. He had earned over $100,000 a year in his self-employment with Padgett. It simply was not reasonable of him to take an entry level job in early 2015.

[73] Stephen had spent an inordinate amount of time obtaining education and additional qualifications in two completely separate fields; engineering and accounting. While his engineering qualifications may have needed upgrading his MBA and CMA certificates where relatively newly obtained. It was not reasonable of him to accept a commission position that he could have obtained with any university degree or related experience. If had retained a job placement firm and been unsuccessful after months of searching he could state that he had done everything reasonably possible to maximize his earning capacity. He did not take that step and I find that Stephen was underemployed while at ManuLife from February to July 2015.

[74] The challenge on the facts of this case is to decide what to do once a finding of underemployment is made. I find that it is not reasonable to impute the income to Stephen that he made at Intuit as the simple fact is that he lost that job within a year (and lost a previous job in the same pay range at the Society for Management Accountants within a few months).

[75] I find that at the very least Stephen should have been able to get the Edward Jones job in February 2015. It paid a base salary of $60,000 plus commission. Stephen spoke about how competitive that position was as the company hired 15 associates and he was one of the last two still there when he left for teacher’s college. I find that a job like the one he took at Edward Jones of salary plus commission would have been a much more reasonable choice than a 100% entry level commission job for a man with two Masters degrees, a history of making over $100,000 and two children to support.

[76] Even if salary plus commission financial advisor work was available Stephen should still have tried to find a job that required his extensive qualifications. We cannot know if he would have been successful, but he should have made an effort at finding this type of work.

[77] On balance I find that the most reasonable approach is to consider that a job making $100,000 should be considered to be the highest income he might have earned (since he failed twice with jobs paying $110-120,000). An income of $70,000 should be considered the lowest amount he should earn (a base salary job with modest commissions). I find that as Stephen has found jobs in both salary ranges within a few years of each other that it is reasonable to impute to him an income of $85,000 per year. I will begin that level of child support on January 1, 2015.

[78] Stephen then left the Edwards Jones position in the summer of 2016 to take a two-year degree to be able to become a teacher. As this meant that he would have virtually no income for two years Stephen had the onus upon him to provide a compelling reason to justify this voluntary reduction in income.

[79] Stephen said that he knew he could obtain a teaching position paying over $60,000 immediately after graduation. He knew that there was a 10-year salary grid and that he would ultimately make $100,000. Finally, he said that there was stability and security in teaching that was not available in the financial services industry.

[80] Even if I do not apply any hindsight evidence, I still find that Stephen’s decision to go to teacher’s college when he had to pay child support was totally unreasonable. Stephen is clearly a very intelligent man with the ability to quantify his income earning potential and assess risks. It appears that he looked at teaching as a career purely from the viewpoint of what would be best for him as a person. He did not consider the impact of his decision on his ability to support his children. He began a two-year teacher’s college program when his children were 10 and 8 years old.

[81] If Stephen had said to Beata that I really want to be a teacher and I will pay you child support upon what I am capable of earning today and the children will benefit from my guaranteed growth in income in the future that might have been reasonable. Beata would no doubt still think it was a quixotic quest given that this would be the fourth career he contemplated and the third he started (a four-year gap for medical school having been avoided by her wise counsel). But Stephen did not take that position. He took the position that he should effectively not pay child support for nearly two years while he retrained to start a new career at an income that was virtually the same as the base salary he earned when he joined Edward Jones.

[82] I find that the imputation of income at $85,000 per year should continue until December 31, 2020. The teaching career lasted just one year notwithstanding his being offered a job right out of college and a full-time position in the city in which he lives. Stephen left teaching to accept a position with Scotiabank at a starting salary of $65,000 per year. Once again, he did not need any of his academic qualifications to be considered for this position although I recognize that when one applies for any position the applicant’s entire resume is relevant and it is usually not known what particular personal quality, or academic or professional qualification landed them the job.

[83] As it happens, Scotiabank went back to his 2014 application to contact him on LinkedIn for this position. The fact that he was offered a base of $65,000 further persuades me that an imputation of an income of $85,000 over all these years is appropriate. We now know that he earned $83,089 in 2021.

[84] I find it somewhat ironic that after years of career and job changes Stephen is now qualified as a change management specialist. Perhaps this is the job he was always destined to do as he, more than anyone, has experience with career changes.

CODA

[85] As I reviewed the hundreds of pages of documents compiled in this case and considered the evidence, I was left with a sense that it should never have come to this. I find it sad that the parties have spent the last ten years in conflict about the amount of child support that should be paid. Stephen had the resources to take a different approach. He received good advice to pay the support in the agreement pending the result but the financial uncertainty and the legal costs that Beata faced from October 2013 on should not have happened.

[86] I do not know what drove Stephen to be so unsettled and unsatisfied in his various career choices. All I know from the evidence is that he is obviously bright and capable of obtaining many types of jobs. The fact that every single career choice led to stress and the need for change suggests that there is an underlying personality issue that hopefully will be addressed. Perhaps his desire for change will be salved in his current job.

COSTS

[87] It is clear from my decision that there was some mixed success, but without doing all of the arithmetic it appears that Beata was more successful in that my order will result in her receiving support on no less than $85,000 per year of income from January 1, 2015, onward. I appreciate that offers to settle may have been exchanged so I will provide an opportunity for costs to be sought.

ORDER

[88] The Separation Agreement of April 11, 2013 shall be varied as set out below;

(1) Beginning January 1, 2014, and payable on the first day of each and every month until December 31 2014: the Applicant, Stephen Beech, shall pay to the Respondent, Beata Beech, for the support of the children Ava Beech born on October 18, 2008, and Ryan Beech born on October 18, 2008, the sum of $1,714 per month, based upon his 2014 income of $119,763.

(2) Beginning January 1, 2015, and payable on the first day of each and every month until December 31, 2021, the said child support payment shall be $1,284, based upon the Applicant’s imputed income of $85,000 per year.

(3) Beginning January 1, 2022, and payable on the first day of each and every month thereafter the said child support payment shall be $1,351, based upon the Applicant’s estimated 2022 income of $90,000.

(4) The Applicant shall have a credit for the child support payments that he has made that exceed the adjusted child support owed pursuant to this order. The credit shall not be paid by the Respondent to the Applicant but shall be reduced over time by the payments made by the Applicant under this order provided that he shall not pay less than $1,000 per month during the period of the reduction of the credit.

(5) SDO to issue.

(6) The parties may seek costs of this Application as follows;

(a) By April 25 the parties may serve and file a costs submission limited to three pages double spaced (it is not necessary to set out the Rules or the case law except by reference); and

(b) The parties may only attach to the submission an offer to settle that was still valid at the time of trial and a bill of costs. While the Respondent was unrepresented at trial, she may file a bill of costs or a copy of any invoice that she received from counsel during this proceeding.

Released: April 5, 2022 Justice Philip J. Clay