COURT FILE NO.: 11654/11

DATE: 20121120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Lee Swackhammer

Applicant

– and –

Ronald Alan Swackhammer

Respondent

Johnathan M. Quaglia, for the Applicant

Paul D. Watson, for the Respondent

HEARD: November 19, 2012

REASONS ON MOTION

BONDY J.

A. INTRODUCTION

[1] Two motions were heard together. The first motion was originally filed by the applicant September 12, 2012. On November 6, 2012, the applicant filed an amendment to that notice of motion, which appears at tab 16 of the continuing record. The second motion was filed by the respondent on October 4, 2012. It appears at tab 13 of the continuing record.

[2] The relief originally sought in the two motions was extensive. At the beginning of the hearing, counsel requested a brief adjournment in order to draft minutes of settlement as to various issues upon which there was agreement. The brief adjournment was granted and the minutes settlement drafted and signed.

[3] The only issues not resolved by those minutes of settlement were that of child support and spousal support.

B. BACKGROUND

[4] The applicant, Michelle Lee Swackhammer ("Ms. Swackhammer"), is 42 years of age. The respondent Ronald Alan Swackhammer ("Mr. Swackhammer") is 46 years of age. They began living together in 1987, and were married March 17, 1990. The parties separated December 11, 2010. Both parties continue to live in the Chatham area.

[5] They have four children: Danielle Rosemary Swackhammer born December 20, 1989 ("Danielle"), Lindsay Nicole Swackhammer born May 1, 1992 ("Lindsay"), Emily Madison Swackhammer born March 25, 1996 ("Emily"), and Ryan Devon Swackhammer born January 8, 1998 ("Ryan"). Danielle is 23 years of age and no longer attending school. Lindsay who is 20 years of age is attending her third year at Fanshawe College in London. She resides in an apartment off campus while she is at school, and with the respondent father some weekends and during summer vacation. Emily and Ryan are in grades 11 and 9 respectively, and reside with the applicant mother.

[6] The applicant is employed as a personal support worker with the Municipality of Chatham-Kent. Exhibit 3 provides current income information, which the parties agree, suggests income of, $33,075 per year. The respondent concedes that is likely an accurate reflection of the applicant's income.

[7] The respondent is self-employed in the automotive repair business. His business is called "Autotech Services ". His income tax return for 2010 shows a negative income of $56,107.00 and for 2011 a negative income of $50,139.89.

C. ANALYSIS

[8] I resolve the issues as follows:

a) Child Support and Spousal Support Payable by the Respondent Father

1) The Applicant’s Position

[9] The applicant would like to maintain the status quo. Her argument is simple and straightforward. She maintains that there is no reliable evidence of the respondent's income and no reliable evidence from which a reasonably representative income can be imputed. Accordingly, she takes the position that it is impossible to either ascertain whether or not any change has taken place in the respondent’s income, or to calculate either guideline child support or appropriate spousal support.

2) The Respondent’s Position

[10] The respondent argues that $50,000 is a reasonable amount of income to impute because it is consistent with the lifestyle the family enjoyed prior to separation. The respondent argues that the matrimonial home was paid for through hard work and the benefits of inflation. He asserts that his boat is very old and that the five cars referred to by the applicant are also very old. The respondent urges that I find $50,000 per year is the maximum amount of income that could support the family's pre-separation lifestyle and his current lifestyle.

3) Analysis and Conclusions

[11] The respondent currently pays $389.00 per month in child support. That amount was paid between separation and May 2011 when Lindsay, Emily and Ryan were all living with the applicant. The amount remained unchanged after May 2011 for Ryan and Emily after Lindsay moved in with her father.

[12] The respondent pays spousal support of $175 per week and repairs the vehicle that the applicant drives at his expense.

[13] The applicant, Emily, and Ryan all live in the matrimonial home rent-free. The respondent also pays the property taxes, hydro, gas, water, insurance, cable and telephone bills related to the matrimonial home.

[14] That arrangement was not imposed by court order, but rather by agreement between the parties. Accordingly, it is reasonable to conclude that both the applicant and respondent considered that amount reasonably representative of what should be paid.

[15] I agree with Mr. Quaglia’s assertion that there must be evidence upon which to impute income. The court cannot simply guess.

[16] I find the respondent’s tax returns are not representative of his income. There is ample evidence to support that finding. I reiterate his income tax return for 2010 and 2011 claim negative incomes of $56,107.00 and $50,139.89 respectively. Exhibit "G" to the respondent's October 3, 2012 affidavit claims he paid a little under $60,000 per year for 2011 and 2012 for the support of the applicant and his children. To be clear, that does not include the respondent’s own living expenses.

[17] Two things are clear.

[18] The first is that the difference between what the respondent claims to earn and the amount he claims to spend is at least $110,000 per year. That has the situation for two years. Deficit spending of that magnitude is not likely sustainable for that period of time. Accordingly, I find that the respondent's income tax information is not representative of his actual income.

[19] The second is that an estimate of income based upon lifestyle would logically require that the respondent's personal expenses be added to the $60,000 a year he claims he is already spending. The total would clearly exceed the $50,000 amount the respondent asks I impute.

[20] Mr. Swackhammer is in a unique position to provide the evidence necessary to show his income. All the business records are in his possession. He works at his business daily. Notwithstanding that information, he has failed to provide any information that would assist the court in adjusting the income reported on his tax return to reflect what he actually earns. For example, section 19(1)(g) of the Guidelines speaks of a payor that "unreasonably deducts expenses from income". There is significant evidence that the respondent does so. For example, his children who do not work in the business are on the payroll. They drive company cars. The respondent purchases his personal lunches from petty cash. Evidence as to the amounts of those deductions and other deductions may have helped Mr. Swackhammer establish his actual income.

[21] For all of these reasons I agree with Mr. Quaglia’s assertion the evidence is insufficient to allow me to impute $50,000, or any other amount of annual income to the respondent.

[22] In the interests of clarity, I am unable to make any estimate whatsoever given the lack of evidence. That determination is properly left to the trial judge who presumably will have much better evidence than was available today.

[23] The burden of proof in a case involving the imputing of income is generally on the party asserting the request: see Bekkers v. Bekkers (2008), 49 R.F.L. (6th) 119, 2008 CarswellOnt 173. It is the respondent father who is asking for change from the status quo. The respondent has failed to do so.

[24] In summary, I accept Mr. Quaglia’s assertion that the evidence is insufficient for me to complete any independent calculation of the appropriate level of child support or spousal support. The evidence is also insufficient for me to ascertain whether any change has taken place in the respondent's income. It follows that fairness to the applicant and the best interests of the children require the arrangement agreed to by the parties stay in place until better evidence is available.

b) Child support Payable by the Applicant Mother

1) The Applicant’s Position

[25] The applicant takes the position that she should not have to pay periodic child support, or assist with Lindsay's post-secondary education, given the status quo.

2) The Respondent’s Position

[26] The respondent maintains that the applicant mother should be paying both monthly child support and a share of Lindsay's post secondary education costs.

3) Analysis and Conclusions

[27] I begin with the observation that Lindsay was living with her mother when the original support arrangements were agreed to. She has been living with her father since about May 2011.

[28] I reiterate it is impossible to calculate an appropriate amount of child support with any precision. That is because the respondent father's income is unknown. That, however, is not a reason to deny child support to Lindsay. The objectives of the Federal Child Support Guidelines make it clear that child support is the right of the child not a parent: see s. 1 Federal Support Guidelines.

[29] Although the evidence is insufficient to estimate child support directly, the evidence is sufficient to establish a likely minimum and maximum child support payable. The average of those two amounts, although imprecise, is preferable to denying Lindsay child support.

[30] The lower limit is Guideline child support. Parents are required to pay this amount absent extenuating circumstances. The amount of child support payable for child over 18 who is still in school is presumptively the amount set out in the Federal Child Support Guidelines: see s. 3(2). The applicant earns $33,075.00 per year. Guidelines support for a parent with that income is $281.00 per month.

[31] To be clear, I am not suggesting this is an appropriate amount of child support. It only represents a lower limit. Lindsay is continuing her post-secondary education away from home. Where a child lives away from home during school much of the expense that child support is intended to capture is included in the schooling expenses: see Liscio v. Avram, [2009], O.J. No. 346 (Ont. S.C.J.).

[32] As to the upper limit, the respondent asserts that Lindsay's educational costs are $18,788.64 per year or $1565.72 per month (see exhibit G to the respondent’s October 3, 2012 affidavit). The respondent asserts that all of those expenses are paid by him.

[33] Typically, that monthly expense would be shared by the parents in proportion to their income, after a potential contribution from the child: see Lewi v. Lewi, 2006 15446 (ON CA), [2006] O.J. No. 1847 (Ont. C.A.).

[34] As to Lindsay's share, I have no evidence that she incurred student loans or has otherwise contributed to her education. I reiterate that the respondent's affidavit asserts he has paid all of Lindsay's expenses. Notwithstanding, children have an obligation to make a reasonable contribution to their own post secondary education: see Coghill v. Coghill, [2006] O.J. Po. 2602. Based on the very limited evidence provided in the respondent's affidavit, I conclude that on an interim and without prejudice basis Lindsay should pay one third of that expense. That is about $522 per month. That leaves $1044 per month to be paid by the parties.

[35] Generally speaking the education expense attributable to the parents should be shared based upon the parties' incomes. As said, it is impossible to calculate the respondent's income. It is however possible to calculate a likely upper limit of what the applicant would be required to pay.

[36] It is unlikely his income will be lower than the $50,000 he concedes. It is possible it will be greater. It follows that a division between the parties based on the respondent earning $50,000 per year represents the maximum share the applicant will likely have to pay. Based on the applicant having income of $33,075 per year and the respondent having income of $50,000 per year, the applicant would be responsible for 40% of the $1044 per month for which the parties share responsibility. That is $417.60 per month payable by the applicant. That is the upper limit.

[37] The average between the lower limit of $281 per month and the upper limit of $417.60 is about $350 per month. In all of the circumstances, I find that to be a reasonable amount of all-inclusive child support to be paid by the applicant to the respondent until better evidence is available.

[38] In the interest of clarity, I have not imputed income of $50,000 per year to the respondent. I have only used that amount to determine a likely upper limit of child support payable by the applicant to the respondent while Lindsay is at school and not living at home with her father (for example as she will during the summer).

D. ORDER

[39] The following orders are made on an interim and without prejudice basis:

a) Minutes of Settlement

Order to go in accordance with minutes of settlement filed.

b) Child Support Payable by the Respondent Father

The respondent father shall continue to pay to the applicant mother child support for Emily Madison Swackhammer born March 25, 1996 ("Emily"), and Ryan Devon Swackhammer born January 8, 1998 in the amount of $389.00 per month.

c) Spousal Support Payable by the Respondent

Spousal support shall continue to be paid by the respondent to the applicant as follows:

i. The respondent shall continue to make spousal support payments in the amount of $175 per week to the applicant.

ii. The respondent shall continue to pay household bills for the matrimonial home limited to: property taxes, hydro, gas, water, insurance, cable, and telephone bills.

iii. The respondent shall continue to repair the applicant's vehicle at his sole cost in a professional and workmanlike manner.

d) Child Support Payable by the Applicant Mother

The applicant mother shall pay the respondent father child support for Lindsay Nicole Swackhammer born May 1, 1992 the sum of $350 per month.

e) Director of Family Responsibility

Unless the support order is withdrawn from the director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

E. COSTS

[40] I have been asked to leave the issue of costs to the trial judge. I do not find that appropriate in the circumstances. Rule 24(10) of the Family Law Rules, Ont. Reg. 114/99 Courts of Justice Act R.S.O. 1990, c. C. 43 provides that “promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs”. Similarly section 131(1) of the Courts of Justice Act, provides the costs of and incidental to a step in a proceeding are in the discretion of the court.

[41] The success of the parties was mixed. Neither party was unreasonable. The minutes of settlement demonstrated the opposite. Accordingly, I do not find this an appropriate case for costs.

Original signed “Christopher Bondy”

Christopher M. Bondy

Justice

Released: November 20, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Lee Swackhammer

Applicant

– and –

Ronald Alan Swackhammer

Respondent

REASONS FOR JUDGMENT

Christopher M. Bondy

Justice

Released: November 20, 2012