SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-10-16571
DATE: 20120125

RE: Sandra Louise DeFrancesco, Applicant

AND:

Frank DeFrancesco, Respondent

AND:

Ministry of Community and Social Services, Assignee

BEFORE: Penny J.

COUNSEL:
Barry Nussbaum , for the Applicant
David Pomer , for the Respondent
Richard Andreansky, for the Assignee

HEARD: January 24, 2012

ENDORSEMENT

The Motion

[ 1 ] This is a motion to vary the support provisions of the order of Nelson J. made April 27, 2005. That Order imputed to the Respondent, Frank De Francesco, an income of $73,000. The Order requires the Respondent, commencing March 1, 2005, to pay the Applicant child support for two children of the marriage in the amount of $959 per month, being the base guideline child support for a person with an income of $73,000 for two children. The Respondent was also required to pay the Applicant spousal support of $650 per month, for a combined total support payment of $1,609 per month. Spousal support is subject to a cost-of-living increase commencing May 1, 2009, such that total support is currently accruing at the rate of $1,642.02 per month.

[ 2 ] The Respondent was also required to pay 74.1% of special and extraordinary expenses for the children under section 7 of the child support guidelines (including post-secondary education), maintain extended health coverage for the children and the Applicant and maintain a policy of insurance on his life in the amount of $50,000 with the Applicant as beneficiary so long as he is obliged to pay either child or spousal support.

[ 3 ] Paragraph 12 (1) of the Order provides that either party may seek to have the amount of child and spousal support varied in the event of a material change in circumstances. The Order goes on to specify, however, events which do not constitute a material change, including “the Respondent’s income falling below $73,000 per year.” Paragraph 12(2) provides that, in any event, either party may ask for the issue of spousal support, both quantum and entitlement, to be reviewed after May 1, 2008, or upon both children ceasing to be eligible for child support.

Background

[ 4 ] The parties were married in July 1983 and separated in 2001, 18 years later. There were three children of the marriage. The marriage was a traditional one. The Applicant was the primary caregiver to the children throughout and was a “stay at home” mother. The Respondent was the primary income earner.

[ 5 ] The Applicant commenced proceedings in the Family Court in 2003. The parties resolved all issues pursuant to final minutes of settlement which formed the basis of the Order of Nelson J. in 2005.

[ 6 ] According to the Respondent, the event which triggered this motion, the loss of his job, occurred in September 2008. The Respondent’s motion to vary his support obligations was, however, not issued until February 2010.

[ 7 ] The Respondent started working for his former employer, Talmolder, in 1984 at the age of 24 years of age. He was hired as a general laborer but rose through the ranks, with increasing responsibility and earnings, until, in the mid-1990s, he was made president. He stepped down as president in 1999 but remain employed until 2003. According to the Respondent, in 2003, he was asked to change the nature of his relationship with Talmolder to that of an external consultant.

[ 8 ] The Respondent says he continued on as a consultant until September, 2008 when his relationship with Talmolder came to an end. Although he signed a voluntary separation proposal, in consideration for a total net payment of $50,000 severance, the Respondent produced a letter of October, 2010 from the General Counsel of the parent company of Talmolder. This letter states that had the Respondent not accepted the terms of the voluntary separation proposal, his relationship would have been terminated for “performance related issues” in any event. The letter indicates that Talmolder had been experiencing “ongoing problems in its working relationship” with the Respondent, “including but not limited to” the suspension of the Respondent’s driver’s license.

[ 9 ] Notwithstanding the severance payment of $50,000 (which, at an imputed income of $73,000, represents about eight months’ notice), the Respondent fell into arrears in November 2008 and has made no serious contributions toward support since that time. No explanation or accounting was provided as to the disposition of the Respondent’s $50,000 severance payment.

[ 10 ] Since February 2009, the Applicant has been receiving social assistance income provided under the Ontario disability support program. The Applicant assigned her right to support to the Minister of Community and Social Services in consideration for the social assistance paid to her. For this reason, the Ministry is a party to this matter. All support payable to the Applicant since February 2009, to a maximum of the social assistance amount paid to her, is, therefore, owed to the Minister. As of January 17, 2012, this amount is $6,184.45.

[ 11 ] The Applicant herself is personally owed over $46,220.50 in support arrears during the period of the Minister’s assignment (commencing February 9, 2009). Since default of payment began in November 2008, the total amount owed to the Applicant is actually a few thousand dollars more.

The Alleged Material Change

[ 12 ] The principal material change relied on by the Respondent (and the complete focus of the factums and oral argument) is that his income, since he lost his job, has been in the $6-$9000 range, rather than the imputed income of $73,000. He says he is trying to find work, without success. He attributes this lack of success principally to two things: 1) the loss of his driver’s license; and 2) depression.

[ 13 ] The Respondent says he cannot work without a driver’s license. He maintained that he lost his driver's license as a result of non-payment of support. However, his own evidence indicates that he lost his driver's license in 2002 because of his drinking. The MCSS evidence also shows that the FRO was not responsible for the loss of the Respondent’s drivers license. The FRO took no action with respect to the Respondent’s driver’s license because it had already been suspended in 2002 .

[ 14 ] In any event, I am prepared to take judicial notice of the fact that the TTC has ridership numbering in the millions and that people, numbering in the thousands if not hundreds of thousands of that ridership, are using the TTC to go to and from work. In my view, the loss of his driver’s license is an insufficient basis for the Respondent to claim he cannot get a job.

[ 15 ] The Respondent supplied a list of firms to which he has made application. I find this evidence entirely unpersuasive. There is no evidence of submitting a curriculum vita, no evidence of his correspondence with these potential employers, no indication whether these were “cold calls” or in response to an advertisement etc. and no evidence that he has sought the assistance of job search agencies and the like.

[ 16 ] The real substance of the Respondent's argument is that he suffers from depression such that he cannot hold a job.

[ 17 ] The Respondent sought to bolster this argument with the claim that he is disabled because he applied for and received social assistance from the ODSP. The Respondent sought to leave the impression that he had qualified for assistance as a person with a disability.

[ 18 ] This evidence was, to put it charitably, disingenuous. The MSCC’s evidence shows that, although the Respondent applied for social assistance, he was found not to be a person with a disability under the ODSP and was denied benefits in December 2011.

[ 19 ] The core of the Respondent's argument depends upon a May 13, 2011 health status report apparently filled out by Dr. Eva Styrsky and a September 27, 2010 letter, apparently from Dr. Ivan Perusco. Neither Dr. Styrsky nor Dr. Perusco filed an affidavit in these proceedings identifying these documents, explaining the context in which they were prepared or commenting on the Respondent’s health status or employability in any way.

[ 20 ] The health status report is filled out with handwritten notes which are often illegible. The Respondent relies upon a handwritten note which appears to say, under the heading “Restrictions,” “unable to sustain employment full or part-time.”

[ 21 ] As noted by the MCSS, this health status report also indicates that the Respondent is within normal limits or has only mild limitations for 22 of 24 indicators respecting his ability to attend to his own care, function in the community and function in the workplace.

[ 22 ] Dr. Perusco’s 2010 letter gives no indication of when he last saw the Respondent. It merely indicates that he started working with the Respondent in 2001 “when he came to our treatment facility for medical detoxification.” Dr. Perusco expresses a “belief” that the Respondent's inability to maintain employment stems from his “mental illness” and loss of his driver's license. However, there is no indication that Dr. Perusco ever treated the Respondent for mental illness or depression. Rather, the letter states that the Respondent was treated for alcohol dependency beginning more than 10 years ago at a treatment facility where Dr. Perusco practices.

[ 23 ] There is also a subsidiary issue. In his affidavit, the Respondent deposes that his older daughter (one of the two children in respect of whom he is obliged to pay support) completed university in April 2008 and was, thereafter, gainfully employed.

[ 24 ] This evidence is not contradicted by any evidence from the Applicant. All the Applicant says is that the childrens’ aunt and uncle had to pay their college and university tuition because the Respondent did not make his contributions towards their section 7 expenses.

[ 25 ] No evidence was before me on the issue of section 7 expenses or the cost of the childrens’ university education. Nor was this subsidiary issue addressed in the factums or in oral argument.

Analysis

[ 26 ] There is a heavy onus on a person asking for a reduction of child and spousal support and/or a cancellation of arrears. That party must show that there has been a significant and sustained change in circumstances. The change must be real and not one of choice.

[ 27 ] Section 19(1) of the Child Support Guidelines provides that the court may impute income to a spouse in certain circumstances which include intentional underemployment. A person is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard to all of the circumstances. The issue is “what is reasonable in the circumstances?” Factors to consider include: age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked capacity.

[ 28 ] Thus, the Respondent has, in effect, two threshold hurdles to overcome. He must prove that his income reduction constitutes a change in circumstances that would justify variation and that his new income represents his maximum earning capacity during the relevant period of time.

[ 29 ] In my view, on the principal issue of the income that should be used to determine support obligations, the Respondent has failed to discharge the legal onus upon him to justify a change to the Nelson J. Order. On the core issue – whether the Respondent suffers from a mental illness that prevents him from working – the evidence is wholly inadequate. The doctors’ notes and letter do not explain why they were prepared or what analysis or assessments underpin the conclusions expressed. These two documents fail almost all the tests for the admission of expert opinion evidence. The timing of Dr. Styrsky’s report is also such as to lead to the inference it was prepared in the context of the Respondent's application for disability benefits. These benefits were, of course, denied.

[ 30 ] I do not say the Respondent could never demonstrate that he is unemployable due to depression but he has not done so on the record in this case. In light of the fact that almost everything he says and is asking for is in dispute, I also question whether this matter could ever properly be resolved on a motion without viva voce evidence. In any event, in the absence of comprehensive, direct and compelling evidence of a demonstrated inability to work, I am not prepared to find that any variation to Nelson J.'s order is warranted on the issue of the Respondent’s income.

[ 31 ] On the secondary issue, the termination of support for the older daughter as a result of her graduation from university, I might have been inclined to vary the Order of Nelson J. (retroactive to the commencement of the Respondent’s motion on February 10, 2010, not before, as there was no evidence of any notice of the Respondent’s intentions having been given to the Applicant prior to the commencement of this motion) but no calculations were provided as to the impact of this variation. Further, there was no evidence of the section 7 expenses or of the relationship, if any, between the alleged failure of the Respondent to pay his share of the section 7 expenses, the ongoing child support obligations and the cost of the childrens’ university education. I, therefore, decline to make any order in respect of this issue, without prejudice to the parties’ ability to raise and deal with this issue in any future proceedings.

[ 32 ] Accordingly, the motion to vary the Order of Nelson J. is dismissed.

The MCSS Assignment

[ 33 ] The MCSS’s evidence was that it has a valid assignment of an entitlement to payment from the Respondent, as of January 17, 2012, in the amount of $6,184.45. Aside from the issues relating to the variation of the Order, no challenge was made to the assignment or the amount. I, therefore, find that the MCSS has a valid assignment of the Applicant’s claim for support payable from the Respondent since February 2009, up to a maximum of the social assistance amounts paid to her. Counsel for the MCSS advised the Court that the Minister was prepared not to enforce his entitlement for four months, to provide the Respondent with the opportunity to generate income. Thereafter, however, the Minister’s position is that the Respondent should pay $150 per month until the support arrears, to the maximum of the social assistance received by the Applicant, are paid off. I accept the Minister’s proposal in this regard and so order.

Costs

[ 34 ] I would encourage the parties to come to an agreement on the disposition of the costs of this motion. In the absence of agreement, however, parties may make brief (not to exceed two typed pages) submissions as to costs, accompanied by a Bill of Costs, within 14 days of the release of this Endorsement. Any responding submissions are subject to the same limitation and shall be filed within 14 days thereafter.

Penny J.

Date: January 25, 2012