SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-10-2535
DATE: 2012/09/26

RE: Gregory Lavigne, Applicant

AND

Sheighna Nancy Maule, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Gary Blaney, for the Applicant

Cecil J. Lyon, for the Respondent

HEARD: September 13, 2012

ENDORSEMENT

[ 1 ] This is the mother’s motion for a temporary order for retroactive and ongoing child support, retroactive and ongoing payment of special or extraordinary expenses, and for an order for life insurance securing the child support obligations. The issues are covered by the Divorce Act , R.S.C. 1985, c.3, and the Federal Child Support Guidelines , SOR/97-175 (“ Guidelines ”).

Issues

[ 2 ] The main issues argued were twofold: (1) whether income should be imputed to the father for the purposes of child support, and (2) if so on at what level.

Background

[ 3 ] The parties were married on March 10, 2001, and separated on June 30, 2009. However, they continued to live together until August 4, 2011, when the mother left the home with the two children Emmaleigh Lavigne, born […], 2002, and Adam Lavigne, born […], 2005. The Children’s Aid Society was involved at the time.

[ 4 ] The father was born on […], 1961, and is currently 50 years old. He worked for approximately 13 years for Rogers Communications Inc. He lost his employment on September 8, 2009. In each of the last two full years there he earned over $94,000. His education and experience are in the area of communications technology. He provides evidence that he has been actively looking for employment since losing his job. He indicates that he has sent out 360 applications over three years but only had five interviews. He also took courses in 2011. He started a consulting company that received close to $20,000 for 11 weeks work in the spring of 2012. Other than that, Mr. Lavigne has been unemployed for approximately three years.

[ 5 ] Mr. Lavigne’s most recent Financial Statement shows no income but yearly expenses of $49,404. He indicates that he lives off his savings, RRSPs, and money obtained by refinancing.

[ 6 ] In applying for refinancing Mr. Lavigne made statements to the lending institution that Ms. Maule suggests are inconsistent with his position of having no income.

[ 7 ] Mr. Lavigne did not dispute that he bought a travel trailer since the physical separation. Ms. Maule had second-hand information that he paid $8,000 for it and that he also paid a year’s rental fee of $1,500 in advance to keep it at McGowan’s Lake. Mr. Lavigne has provided evidence indicating that he in fact paid $1,000 for the trailer plus $158 in Retail Sales Tax. He does not appear to dispute payment of the yearly fee.

Issue 1 – Should Income be Imputed to the Father?

[ 8 ] Mr. Lavigne argues that the Court should not impute income to him or should impute a nominal amount and let the trial Judge make any necessary adjustments. He relied on three cases. In Walker v. Pietrangelo , [2003] O.J. No. 5223, 2003 CarswellOnt 5209 (S.C.J.) , the support recipient wanted items added to the payor’s salary by way of imputation but the court found that there was not enough information to do so on an interim basis. In Bedard v. Bedard (2003), 2003 64313 (ON SC) , 36 R.F.L. (5th) 10 (Ont. S.C.J.), the payor lost his job earning $70,000 and found a new job earning $44,000. The support recipient suggested that the father could return to his previous employment and asked that income be imputed at $70,000. The Court held that it could not decide the issue on an interim basis on the facts before it. In Yunger v. Zolty , 2011 ONSC 5943 , 12 R.F.L. (7th) 232, the payor earned $96,439 per year, and the support recipient argued on an interim basis that he was underemployed because of his academic achievements. The court determined that was a matter best left to trial.

[ 9 ] I note that in all these cases the support payor had employment income upon which to base support, and it was only the arguments for higher amounts requiring further evidence that were left to trial.

[ 10 ] The core argument Mr. Lavigne makes is that the trial Judge would be in a better position to assess all the factors required to resolve disputes about income. I agree. As to the interplay between the interim order and the final order, he cited the following passage from Jesse v. Jesse , 2010 ONSC 861 , at para. 64 :

Temporary motions for child support are notoriously difficult where adequate income information is not available and judges are always told to adopt a cautious approach to income in these circumstances: Billings v. Billings (2004), 2004 CarswellOnt 295 (Ont. S.C.J.) . In Walsh v. Walsh (2004), 2004 36110 (ON CA) , 69 O.R. (3d) 577 , 46 R.F.L. (5 th ) 455 (Ont. C.A.) , Laskin J.A. emphasized the better position of a trial judge who can benefit from a full review of the merits and correct past support.

[ 11 ] Contrary to Mr. Lavigne’s position, I do not interpret any of the above cases as standing for the proposition that because the father is not working I should defer making any interim order that imputes income.

[ 12 ] Pursuant to subsection 15.1(2) of the Divorce Act and section 19 of the Guidelines the Court may impute such an amount of income to a spouse on an interim basis as it considers appropriate.

[ 13 ] As noted in Brown v. Brown (1999), 1999 15074 (ON SC) , 45 O.R. (3d) 308 (Ont. S.C.J.), para. 34 :

Interim orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial. Of necessity, interim orders are susceptible to error – the same evidence is simply not available at that stage as at trial. Interim orders are makeshift solutions until the correct answer is discovered at trial.

[ 14 ] I have concerns about the length of time it is taking Mr. Lavigne to find re-employment. He argued that he should not be expected to take on a low paying job as it would be a problem if prospective employers learned he is willing to work at that level. This argument is less convincing after three years of unemployment with children to support during the last year. In my view his short-term employment expectations need to change. While Mr. Lavigne searches for the elusive job in his area of expertise he still needs to work and support his children. When there are child support responsibilities, parties must earn what they are capable of earning: see Gobin v. Gobin , 2009 ONCJ 245 , at para. 10 .

[ 15 ] The fact that Mr. Lavigne did not make any payment towards child support or special expenses when he purchased the travel trailer and paid the lot fee, and when he received consulting income, also speaks to the need for a support order. The priority of child support must be formalized.

[ 16 ] For these reasons I find that that income should be attributed to Mr. Lavigne.

Issue 2 – Level of Imputed Income

[ 17 ] The Court needs some rational basis on which to impute income: Drygala v. Pauli (2002), 2002 41868 (ON CA) , 61 O.R. (3d) 711 (Ont. C.A.) .

[ 18 ] Ms. Maule asks me to ‘gross-up’ Mr. Lavigne’s expenses to the pre-tax income he would need to service them, and then impute that as income for the purposes of child support. She relies on two cases. In DePace v. Michienzi (2000), 2000 22560 (ON SC) , 5 R.F.L. (5th) 40 (Ont. S.C.J.) , the Court found that income must be attributed to the father since it was patently clear that he and his current spouse could not possibly live their lifestyle with the incomes they disclosed. However, the way the court actually imputed income was based on an imputed hourly wage multiplied by an average work week and an average number of weeks worked per year. That determination was made after a three-day trial.

[ 19 ] The second case, Khan v. Parlee , 2012 ONCJ 60 , involved an interim order. While the Court did consider the cost of financing the payor’s lifestyle in imputing income, it also found that the payor had withheld relevant information and misrepresented facts.

[ 20 ] Parents have an obligation to disclose information required to properly assess their income and establish child support. Mr. Lavigne has provided an explanation for how he is currently paying his expenses which I am unable to discount at this time. The suggestion by Ms. Maule that he has other sources of income that he is not disclosing is a serious one and not established on the affidavit evidence. There are limits as to what a Court can do on a motion regarding questions of credibility.

[ 21 ] Ms. Maule also encourages me to impute an income to Mr. Lavigne similar to what he earned in the past. I find that would be too high. Mr. Lavigne provided evidence that he has been actively looking but as of today he cannot find a job in his field that would pay him close to what he earned at Rogers. On the other hand, Mr. Lavigne is not new to the workforce and should be able to earn more than minimum wage. The contract alone in just three months time provided earnings roughly equivalent to a full-time minimum wage job for a year. While there is little to no information as to what Mr. Lavigne could earn by way of other employment, it is clear that the answer for now lies somewhere in the middle.

[ 22 ] Although the Court of Appeal decision in Drygala v. Pauli , supra , involves a parent who was in school, at paragraph 46 it dealt with the same practical issues facing this Court as follows:

When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent’s previous earning history and impute an appropriate percentage thereof.

[ 23 ] In light of all the above I impute an income of $40,000 per year. That would be roughly equivalent to securing one more three month contract in a year or equivalent to a mid-level job earning roughly twice minimum wage. Looking at Mr. Lavigne’s earning history it would be a little over 40 percent of what he was earning at his previous employment, an appropriate percentage. Again per Brown v. Brown , supra, and Jesse v. Jesse , supra , this is a very rough solution using a cautious approach to income and subject to a review on the merits and correction at trial.

Decision

[ 24 ] Based on imputed income Mr. Lavigne shall pay child support on a temporary without prejudice basis of $579 per month pursuant to the Guidelines . The payment will commence July 1, 2012, the first month following the date the motion was brought.

[ 25 ] Mr. Lavigne shall also pay on a temporary without prejudice basis his share of Guidelines section 7 expenses of $485 per month also commencing July 1, 2007. This amount takes into account Ms. Maule’s earnings at $75,000 per year and is 35 percent of the day care expense of $16,640 per year.

[ 26 ] I am not inclined to deal with the issue of retroactive support, retroactive special expenses, or life insurance coverage on an interim basis. They were not argued at any length. I defer those issues to trial.

Costs

[ 27 ] The result here relative to the parties’ position on the motion is mixed. I am not inclined to make an order for costs. However, if there are other considerations not argued that could impact on my decision, such as offers to settle, then failing an agreement counsel may schedule a hearing to have that addressed.

Mr. Justice Timothy Minnema

Date: September 26, 2012

COURT FILE NO.: FC-10-2535
DATE: 2012/09/26

ONTARIO SUPERIOR COURT OF JUSTICE RE: Gregory Lavigne, Applicant AND Sheighna Nancy Maule, Respondent BEFORE: Mr. Justice Timothy Minnema COUNSEL: Gary Blaney, for the Applicant Cecil J. Lyon, for the Respondent ENDORSEMENT Mr. Justice Timothy Minnema

Released: September 26, 2012