Court File and Parties

DATE: May 30, 2022 COURT FILE NO.: FO- 733-20 ONTARIO COURT OF JUSTICE

B E T W E E N:

ELISHA POMMAINVILLE, Applicant

• and - KEITH GEDDES, Respondent

Before: Justice Sarah Cleghorn

Heard on: May 3, 4 and 5, 2022 Reasons for Judgment Released Electronically

Counsel: Ms. J. Melchiorre, for the Applicant Mr. K. Geddes, Self-represented

CLEGHORN, J.:

Introduction

[1] The parties have one child together, Aniyah Geddes, born […], 2020. At the commencement of the trial, the parties resolved the issues of decision-making responsibility and the parenting schedule for Mr. Geddes. The trial proceeded forward on the following:

• Mr. Geddes's claim for undue hardship in terms of support owing and ongoing child support payable.
• Ms. Pommainville's claim for imputed income because she submits Mr. Geddes is intentionally under-employed.
• Ms. Pommainville's claim for child support from December 2020 to the trial date based on an imputed income.

[2] I will begin by setting out an overview of the evidence at trial.

[3] Mr. Geddes has two children from a prior relationship. A son, who is 16 years of age and resides with his mother, and a daughter, who is 18 years of age and lives with him. Mr. Geddes has a verbal agreement with his son's mother, and he testified that he pays the mother an amount between $120.00 to $150.00 per month in child support. There is not a court order requiring him to pay support for his son, nor is there a domestic contract.

[4] Mr. Geddes is the primary caregiver to his 18-year-old daughter. He did not pursue child support payable by the mother as he testified the mother does not work and would not have an income that would attract a child support obligation.

[5] The 18-year-old suffers from a medical condition. In 2007, she received a heart transplant. He testified his daughter is doing well physically but requires one to two monthly visits to SickKids hospital in Toronto for monitoring. In addition to these two visits, the daughter must have her blood work taken twice per month. The daughter was diagnosed with Attention-Deficit/Hyperactivity Disorder-Combined type (ADHD) and mild sleep apnea in July of 2017.

[6] The daughter's medical condition does not require day-to-day supervision. She can perform activities of daily living. The daughter's intellectual challenges do require supervision. Having said this, Mr. Geddes was clear in his evidence that this does not interfere with his ability to hold employment. He has and can rely on extended family members to supervise his daughter while he is employed.

[7] Mr. Geddes lives with his mother and daughter in his mother's two-bedroom apartment. His current source of income is Ontario Works.

[8] Mr. Geddes testified that he is and has been actively seeking employment. He testified that he believes that he has been unable to secure jobs for two principal reasons. First, when he informs prospective employers that he will need one to two days off per month to take his daughter to her appointments at Sick Kids hospital, the prospective employers are unwilling to accommodate his schedule. Secondly, Mr. Geddes has a dated criminal record and is not bondable.

[9] Mr. Geddes was convicted for possession of a controlled substance for the purpose of trafficking in 2006. He was sentenced to a 12-month conditional sentence. He has a second conviction from 2006 for failing to comply with an undertaking, for which he received a suspended sentence with six months’ probation.

[10] Mr. Geddes has only recently started the process of obtaining a record suspension (pardon). Correspondence to Mr. Geddes from a company that assists individuals obtaining record suspension were made exhibits, that included a letter from that company to Mr. Geddes, dated August 27, 2021, advising him that he has not paid the victim surcharge of $50.00. Mr. Geddes has to pay that to complete his sentence, and then after he does so, wait a further three years to finally apply for a record suspension.

[11] Mr. Geddes had still not paid the surcharge by the time of trial. He is hoping that Ontario Works will pay this expense for him. He has requested that the cost be covered and is still awaiting a response.

[12] Mr. Geddes has been receiving Ontario Works as of 2019. He currently finished a one-year registered deposit broker course, which ran from April 2021 to April 2022. He hopes to find employment with a bank. The program was arranged through Ontario Works.

[13] In terms of his support obligation for Aniyah, Mr. Geddes testified he had paid Ms. Pommainville $120.00 to $140.00 since the date of their separation in January 2017. The parties had a verbal agreement that $150 a month was to be paid in child support. He testified that in 2021 he had paid $1,240.00 to Ms. Pommainville for child support.

[14] The Application before the court is dated December 16, 2020. Mr. Geddes's income for 2020 was $12,024.00. Mr. Geddes has not received his Notice of Assessment for 2021. However, he attached the T-slip showing he received $12,024.00 in social assistance in 2021 to his financial statement, sworn October 6, 2021.

[15] Mr. Geddes's resume was put before him in cross-examination. He testified it was not his most current resume and did not list all his employment over the years. It details the following employment history:

• Abrams Towing from September to December 2010.
• Realform Technologies from January to June 2013.
• Mikkol Services from February 2014 to September 2016.
• Wendy's Cleaning Services from June to August 2017.
• Wilkinson Chutes from June to August 2017.

[16] Mr. Geddes uses employment agencies to help him find work.

[17] Mr. Geddes testified that he was fired from Mikkol Services and Wendy's Cleaning Services because he was not bondable.

[18] When Mr. Geddes was working in 2017, he earned $28,761.00. In 2018, he earned $28,354.00.

[19] Lastly, Mr. Geddes testified that the debt listed on his financial statement is now in collections. He has one credit card that he makes payments on, which has a balance of $300.00.

[20] Ms. Pommainville has four children from prior relationships. She has a 20-year-old, an 18-year-old, a 16-year-old and a 13-year-old.

[21] Ms. Pommainville testified that the parties reached a verbal agreement after separation that Mr. Geddes would pay her $150.00 per month for child support. She brought the court application when Mr. Geddes did not abide by the terms of their verbal agreement.

[22] Ms. Pommainville testified that Mr. Geddes was able to secure a job when "he felt like it." She recalls that Mr. Geddes was fired from several of his positions, not because of his criminal record but due to his temper.

[23] Ms. Pommainville believes Mr. Geddes is intentionally under-employed because he wants to avoid his child support obligation to Aniyah. On her account, Mr. Geddes did the same thing when Mr. Geddes was brought to court by his son's mother in 2009 until 2011. She recalls that Mr. Geddes did not want to pay child support for his son and chose to go on Ontario Works until the court proceeding was finished.

[24] Ms. Pommainville testified that she received the sum of $960.00 for child support from Mr. Geddes in 2021. Filed as an exhibit was a copy of Mr. Geddes's banking statements showing transfers sent to Ms. Pommainville. The total funds sent via e-transfers in 2021 amounted to $1,190.00. The e-transfer documents also show a payment in December of 2020 of $240.00.

Law and Analysis

[25] Having summarized the evidence at trial, I will now turn to the law and my analysis, starting with Mr. Geddes’s claim of undue hardship.

a) Does Mr. Geddes have a claim for undue hardship pursuant to section 10(1) of the Federal Child Support Guidelines?

[26] Section 10(1) of the Federal Child Support Guidelines allows a court to award an amount different than the Table amount payable, if, requiring a payor to pay the Table amount would cause the payer to suffer undue hardship.

[27] The circumstances that may cause an undue hardship are set out in section 10(2) and are as follows:

(2 ) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising parenting time with a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

[28] Mr. Geddes asks the court to find that his child support obligation to his son, and his disabled daughter, provide the foundation for an undue hardship claim.

[29] In terms of his 16-year-old son, Mr. Geddes is not under “a legal duty under a judgment, order or written separation agreement” to pay child support. Ms. Melchiorre provided the case of Soleimani v Melendez, 2019 ONSC 36. Charney J. summarized why a support obligation must be in the form of a court order or separation agreement in paragraph 28:

While the respondent father is to be commended for assuming financial responsibility for his children in El Salvador, this support is not, on the record before me, a legal duty. This is an important consideration for two interrelated reasons. Firstly, s. 10(2)(d) expressly requires that the spouse have a legal duty to support the other child(ren). Second, in the absence of a legal duty, if an order were made reducing child support because of undue hardship related to such payments, there would be nothing to stop the father from unilaterally reducing or discontinuing the payments to El Salvador yet continuing to benefit from the reduction of support in Ontario.

[30] The evidence at this trial is that Mr. Geddes made one e-transfer to the mother of his son in 2020. He testified that he made the payments to his son’s mother in cash when he saw her. On his evidence, Mr. Geddes has not been consistent in the amount of child support he pays to his son’s mother or Ms. Pommainville. I cannot be sure he is paying any defined monies to his son’s mother, nor can I be sure he will continue to make payments for his son. In the end, he is not paying child support for his son under the terms of a court order or a domestic contract. Therefore, he cannot rely on the child support he pays for his son to advance his undue hardship claim.

[31] In terms of his 18-year-old daughter, Mr. Geddes testified that he is able to work and also care for his daughter. He has a demonstrated pattern of working while caring for his daughter. Mr. Geddes has utilized extended family to supervise his daughter while he is at work. He has the same plan for when he can secure employment in the future.

[32] Mr. Geddes testified that he believes that requiring two days per month to take his daughter to appointments at Sick Kids has resulted in prospective employers not hiring him. I am hard-pressed to accept that an employer would not allow Mr. Geddes to take off one to two days per month to accommodate the hospital visits. Mr. Geddes managed to work full time in 2017 and 2018 and care for his daughter. I am confident that Mr. Geddes can work full time and meet his daughter’s medical needs as he has done in the past.

[33] Mr. Geddes has claimed his criminal record is one of the principal reasons he cannot get hired or keep a job. Mr. Geddes is the author of his misfortune. His convictions are dated; he has chosen not to take the necessary steps to address his criminal record. He was fired in 2017, but only applied for a record suspension sometime in the beginning of 2021. He has continued to delay obtaining a record suspension by failing to pay the $50.00 victim fine surcharge. He could have paid the $50.00 as soon as he received the letter from the pardon company instead of waiting to see if Ontario Works would assume the cost for him. Had Mr. Geddes dealt with his criminal record in 2017 when he was fired, his three-year wait would have been completed in 2020.

[34] For all these reasons, I do not find that Mr. Geddes would suffer an undue hardship so as to justify permitting him to pay an amount different from the Table amount.

b) Should income be imputed to Mr. Geddes for intentional under-employment pursuant section 19 of the Federal Child Support Guidelines?

[35] Section 19 (1)(a) of the Federal Child Support Guidelines provides:

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;

[36] To find that Mr. Geddes is intentionally under-employed, his actions must be viewed as “voluntary,” which means that the “parent chooses to earn less 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:” see Drygala v. Pauli, [2002] 61 O.R. (3d) 711 (C.A.), at para. 28.

[37] The purpose of the legislation is to recognize the joint financial obligation that parents have to support their child and meet that obligation by ensuring that each parent is earning to their capabilities: Drygala, at para. 32.

[38] The onus rests on Ms. Pommainville to establish that Mr. Geddes is intentionally under-employed and provide the claim's evidentiary basis: see: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (C.A.), at para. 28. Ms. Pommainville gave evidence that Mr. Geddes could find employment throughout their relationship in minimum wage positions when he wanted to. The parties were together for a decade, and although there were times when Mr. Geddes was unemployed, Ms. Pommainville recollects that it was the fault of Mr. Geddes' temper. Further, she testified that on the one occasion Mr. Geddes was on Ontario Works in the past, it was to avoid his child support obligation to his son. Once the court proceeding was completed, Mr. Geddes returned to work.

[39] Ms. Pommainville has established a prima facia case that Mr. Geddes is intentionally under-employed. With that, the onus shifts to Mr. Geddes to show why his income should be as stated on his income tax return: see Lo v. Lo, 2011 ONSC 7663, at paras. 57-58; Charron v. Carriere, 2016 ONSC 4719, at para. 66.

[40] As stated above, I do not find that Mr. Geddes's parental day-to-day care of his 18-year-old impacts his ability to be employed full-time, nor does his criminal record.

[41] Mr. Geddes testified that he is physically and mentally sound; nothing prevents him from working full-time. He is prepared to work two or three part-time jobs if required.

[42] Mr. Geddes, when asked by me whether he has kept track of the jobs he has applied for, responded that he has not. Although he testified that his worker at Ontario Works would have this information, he chose not to call his worker to give evidence or prove his efforts to find employment as of December 2020. The absence of evidence concerning his efforts to obtain employment weighs in favour of imputing income to him: see Filippetto v. Timpano, [2008], 2008 O.J. No. 417 (S.C.), at para. 12.

[43] The evidence in this trial is that Mr. Geddes is fully capable of working a full-time minimum wage job. Perhaps Mr. Geddes has chosen not to apply for certain types of employment, for example, in the service industry, where his criminal record would not be an issue. However, that is a choice he has made. Mr. Geddes has a legal obligation to support his child, and his child has an entitlement to receive the proper amount of support.

[44] Mr. Geddes is and has been intentionally under-employed. An income of a full-time minimum wage paying job shall be imputed to him for December 2020 until December 2021, in the annual amount of $29,120.00. With that income, the Table amount for one child is $248.00. Mr. Geddes has shown through his resume that he can work full-time and earn this level of income.

[45] For the period commencing January 2022, and after, an income of a full-time minimum wage paying job shall be imputed to him in the amount of $31,500.00. With that income, the Table amount for one child is $268.00.

c) How much is owing in child support back to the commencement of the Application?

[46] Since Mr. Geddes was intentionally under-employed, the quantum of child support owing must now be determined.

[47] The fact that Mr. Geddes made some child support payments does not relieve him of his obligation to make right the amount of his underpayment. It is “unreasonable for the [payor] parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children:” see S. (D.B.) v. G. (S.R.), 2006 SCC 37, at para. 80.

[48] Delay in seeking child support is not an issue in this matter. Ms. Pommainville testified that she commenced the court proceeding when Mr. Geddes failed to pay the agreed-upon amount of $150.00.

[49] Based on the evidence at trial, in December of 2020, Mr. Geddes paid $240.00. The Table amount was $248.00. This leaves a shortfall of $8.00. For 2021, Mr. Geddes paid $1,190.00. He should have paid $3,216.00. This leaves a shortfall of $2,026.00. There was no evidence that Mr. Geddes paid any child support from January to May 2022. He should have paid $1,340.00. The amount of child support owing from December 2020 until May of 2022 totals $3,374.00.

[50] A repayment schedule is appropriate to ensure that the payment of the support owing ($3,374.00) does not occasion hardship. As stated in Goulding v. Keck, 2014 ABCA 138, at para. 5: “The obligation to pay support at the Guidelines amount for a prior period is not a hardship…The payor does not suffer hardship by having to pay money which he or she may otherwise owe.” Of course, Mr. Geddes has every intention of finding full-time employment within the foreseeable future. As such, he has the future ability to pay the support owing: see Colucci v Colucci, 2021 SCC 24, at para. 107.

Final Order to Issue

[51] In conclusion, a Final Order shall issue as follows:

• Keith Geddes shall have an imputed income in the amount of $31,500.00.
• Keith Geddes shall pay child support to Elisha Pommainville for the child, Aniyah Geddes, born, […], 2020, based on an imputed income of $31, 500.00 in the Table amount of $268.00 commencing June 1, 2022, and the first of each month thereafter until further order of the court.
• Keith Geddes shall pay child support owing from the commencement of the Application, December 2020, through to May 31, 2022, fixed in the amount of $3,374.00. The amount shall be repaid in installments of $100.00 per month, commencing June 1, 2022, and on the first of each month thereafter until the sum has been paid in full.
• Keith Geddes and Elisha Pommainville shall pay proportionate to their incomes towards any Section 7 expenses for the child, Aniyah Geddes, born, […], 2020. Elisha Pommainville shall provide proof of any Section 7 expense claimed by way of invoice.

[52] If costs are at issue, Keith Geddes may provide written submissions, limited to five pages, excluding any offers to settle, within fourteen days of the release of this decision. Elisha Pommainville may provide written submissions, limited to five pages, excluding any offers to settle, within thirty days of the release of this decision. Should no submissions be received after thirty days of the release of this decision, there shall be no order as to costs.

Dated: May 30, 2022 Justice Cleghorn