CITATION: Warren v. Coade-Warren, 2013 ONSC 2869

COURT FILE NO.: 11-45188

DATE: May 30, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gregory Warren, Applicant

A N D:

Amanda Coade-Warren, Respondent

BEFORE: The Honourable Mr. Justice Robert J. Nightingale

COUNSEL: Glenda McLeod, for the Applicant

Jacqueline Mulvey, for the Respondent

HEARD: April 24, 2013

E N D O R S E M E N T

[1] The Applicant father brings a motion for interim spousal support from the Respondent mother. The Respondent has brought an interim cross-motion for child support and Section 7 expenses.

[2] The parties were married on August 27, 2005. The Applicant alleges they lived separate and apart at the matrimonial home since November 1, 2010 but there is no dispute that they physically separated on or about January 28, 2011.

[3] The parties have two children Ayla Mary Warren born March 29, 2007 and Caitlin Charlene Warren born July 9, 2009. The children have always remained in the custody of their mother since the separation and all three currently reside in the matrimonial home.

[4] Upon separation, the Applicant initially resided in the matrimonial home by himself. Kent, J on November 16, 2011, on application of the Applicant, ordered the payment of an interim lump sum amount of $3000 to him. The Applicant suggested in this motion that the reason for that Order was to allow the Respondent wife to move back into the house with the children and proceed with the immediate sale of the matrimonial home which unfortunately has not taken place as of yet.

[5] The Applicant presently resides in a rooming house and receives Ontario Works income of approximately $606 per month plus the $450 per month payment towards his rent. There has not been any questioning of the parties to date on their affidavit material and the main issue in this motion for interim support is whether significant income should be imputed to the Applicant for the purposes of calculating his child support obligations and his own potential claim to spousal support.

Applicant’s Income

[6] The Applicant’s evidence on his affidavit was that prior to December 2009 he maintained full employment as an unskilled labourer in a factory and earned approximately $54,000 annually. He said at that time he had suffered a workplace injury resulting in restricted use of his right arm. He then received temporary WSIB benefits amounting to approximately $3000 per month which then decreased to approximately $389 per week in April 2011 or $20,228 per year.

[7] He then said that on or about November 2, 2012 “these benefits were terminated” and that he was currently in the process of applying for social assistance. He gave no explanation in his affidavit for the termination of those benefits.

[8] He then said that he attended for WSIB retraining in the field of business administration but provided no details and then said that despite that, he had been unable to secure employment since December 2009.

[9] His affidavit suggested that he had been diagnosed with Attention Deficit Disorder and that he had issues with anxiety or depression.

[10] In a subsequent affidavit he suggested that he is now receiving monthly income from Ontario Works as of November 2012 which agency also pays for his rent at his present rooming house.

[11] He swore that he had applied for several jobs and provided a list of employers suggesting he had not been successful in obtaining gainful employment with them. However he provided no details at all as to how or when he applied for those positions or proof that he had in fact done so.

[12] He then attached the letter of Dr. Patti Galvin of December 19, 2012 to his affidavit which was not sworn evidence. Dr. Galvin’s letter confirmed he had difficulty with function in his right arm and elbow and numbness in the fingers that were aggravated by repetitive use, gripping and grasping involving the right forearm. He was not on any medication. The report suggested he was functionally limited but did not suggest or insinuate that he was unable to work. She only suggested additional training in an occupation suitable for him including sedentary “community” work and as a security guard.

[13] A further brief note that his family doctor Dr. Dixon January 18, 2013 wrote states that “Because of a WSIB injury to his right elbow/forearm in 2006 the Applicant was unable to do repetitive work or computer work”. The doctor did not suggest in the least that he was unable to work in a full-time or part-time position in any other capacity.

[14] The Applicant stated in his affidavit that he hoped with some retraining he would be able to find gainful employment “maybe in social service or community work” and that he needed for retraining a voice-activated system or scribe which were not always available.

[15] What was of particular concern to the Court was not the evidence that he swore to his affidavit but his failure initial to disclose the evidence of his refusal to find work he could do or even attempt to work at all since 2009. This became evident when the Respondent obtained disclosure of his WSIB records regarding his work related injury. These records were obtained by the Respondent’s Counsel and provided to the Court in her affidavit material shortly before the hearing. They confirmed that the Applicant had extensive retraining and rehabilitation assistance by the WSIB in helping him to retrain and to obtain remunerative employment outside of his job that he was doing when he ceased work in 2009. Those records include the following:

a) a vocational assessment report by Dr. Carey May 12, 2009 confirmed a number of suitable employment alternatives for the Applicant including business services to management positions.

b) a labour market re-entry plan assessment included academic upgrading and job search training and determined that a suitable occupation for the Applicant would be administrative officer to which the Applicant objected. The Applicant suggested that the social service industry was of interest to him but because he was having problems with anxiety and Attention Deficit Disorder and nonoccupational personally characteristics, he was ruled to be unsuitable for social service work. The Applicant also had provided no evidence of any transferable skills in the social services occupation.

c) the Applicant underwent a 30 week program academic upgrading, a 34 week business administrative program and a four-week job search training program in 2010. He successfully completed the upgrading. However after doing so, he said he was totally disinterested in the job search training program provided by Crawford Health Care Management Services. The report of Crawford Health Care Management Services confirmed that the Applicant clearly stated to them that he was not planning on returning to work after the training session and did not plan to ever work in that field. The evidence was that he completed the bare minimum of work required while in the program.

d) the WSIB employment placement status report confirmed that calls made immediately to employers in the Kitchener Waterloo area to find job opportunities for the Applicant but the Applicant declined any interest in a customer service call centre suggesting he had “difficulty articulating”. That same service provider confirmed that on February 25^th 2011, he was contacted for an administration position in Cambridge but that the Applicant told him he was not interested in working outside of Kitchener and had his own idea of “where he wanted to be”. The vocational rehabilitation specialist again contacted him on March 16, 2011 to discuss employment opportunities but that the Applicant stated he was not interested in any positions at this time and told the specialist to “stay out of his life”.

e) that same vocational specialist requested that he identify where the Applicant saw himself working or suggest an employer but he simply stated that it was none of her business and that he would take care of himself when he was done with WSIB.

f) the WSIB records indeed confirmed that the Applicant’s benefits were cut off in November 2012 but the reason was because of his clear refusal to even attempt to work in the areas for which he had been retrained and was fully capable of doing which he failed to disclose in his initial affidavit before the Court.

[16] The evidence was clear from the WSIB records that the Applicant was provided with significant academic and vocational upgrades over an extended period of time resulting in his having a business diploma and significant job placement assistance. The evidence is clear from those reports that he unilaterally decided not to seek work in areas where he was specifically retrained and that he refused to even consider those job opportunities that had been provided to him.

[17] The WSIB concluded that the Applicant because of his retraining should be making or at least was capable of making $33 per hour for 40 hours a week. The Respondent accordingly suggests that income should be imputed to him of $68,640 for both his spousal support claim and child support purposes. Since the separation of the parties in January 2011, she has not received any child support from the Applicant father.

[18] The Respondent’s evidence in her affidavit was that the Applicant’s claim with the WSIB in fact started in October 2006 when he suffered an elbow strain as a result of the repetitive nature of his job. Accordingly, she suggested that he has had ample time to find an alternative job and/or career but that he simply lacks the initiative to seek reemployment or retraining in another career. She suggests that instead of being gainfully employed, he spends hours on his computer using social media.

[19] The issue is then whether there should be some imputation of income to the Applicant at this stage of the interim motions for child and spousal support and if so to what amount.

Analysis

[20] In O’Halloran v O’Halloran [2010] O.J. No. 537, the trial judge imputed income of approximately $33,500 at trial to a payor spouse, a truck driver who suffered a back injury at work. The trial judge found that there was insufficient evidence at trial of his ability to work or his efforts to secure lighter employment as his condition and permitted.

[21] The trial judge in that case relied on the earlier decision of Iddon v Iddon [2006] O.J. No. 537 wherein Corbett J found that the payor spouse father was underemployed and imputed annual income to him of $36,000. There was a lack of significant medical evidence of his claim for disability and the judge found that the payor spouse had not taken meaningful steps to find new employment or retrain when he was receiving disability benefits for two years.

[22] Although both of those decisions were trial decisions, Price J. in Mignella v Federico 2012 ONSC 5696, [2012] O.J. No. 4705 considered those decisions on a motion for interim spousal support and child support. Although the payor spouse was not working because of soft tissue injuries sustained in a car accident and was shortly going to receive social assistance of $852 per month, Price J imputed his annual income at $45,416 based on his 2011 income tax Notice of Assessment. The medical evidence was conflicting about his ability to work and he had not provided any documentation of his efforts to secure lighter duty work from his employer or retrain himself or secure alternate employment elsewhere.

[23] Mr. Justice Broad in Johnson v. Johnson 2012 Carswell ONT 8411 on a motion for interim child support imputed income at an approximate midpoint of the payor father’s income as a car salesman compared to his previous income at a job from which he had resigned . He found that there was nothing to suggest that income could not be imputed to a payor under Section 19 of the Child Support Guidelines on an interim motion although the court was hampered by the lack of cross examination on the affidavit material and the lack of ability to have the issue fully flushed out as would be done in a trial.

[24] As contemplated in Rilli v. Rilli 2006 ONSC 34451, [2006] O.J. No. 04142, upon review of all of the evidence in this case, the Applicant “with modestly greater exertion on his part” can cease his unemployment and significantly increase his income if he wishes based on the evidence before me.

[25] In my view, the Respondent has provided sufficient evidence in this case at this time to impute some income to the Applicant as the Applicant has chosen not to work when capable of earning an income. I am mindful of the usual test of considering the means and the needs of the parties on such motions for interim support. However, “means” includes not only what the parties are earning but also what they can reasonably expect to earn; it means not only actual income but the ability to earn it. Rilli v. Rilli, supra.

[26] Given the Applicant’s present circumstances and his receipt of Ontario Works benefits, it would not be appropriate to impute $68,000 per year income to him as suggested by the Respondent based on the WSIB reports . This is a matter that would be best determined at trial after the trial judge has the benefit of the complete evidence of the parties and their witnesses including the attending doctors on behalf of the applicant and the vocational and other experts from the WSIB.

[27] However, with the evidence of the Applicant having had at least two years after extensive WSIB retraining to find full-time employment with their assistance, the uncontradicted evidence before me that he declined or refused to look for work in the fields he was specifically trained for by the WSIB and the medical evidence not confirming a disability to work at sedentary employment, in these circumstances it would be reasonable on these interim motions to impute an income based on his earning a minimum wage of $10.25 for a 40 hour week which results in an annual imputed income of approximately $21,320.

[28] I note as well in coming to that finding that the applicant received and excelled at his computer training courses in 2009 to 2010 at Trios College earning marks in the 80’s and 90’s which would be helpful to his ability to obtain employment. This annual income imputed of $21,320 would only be approximately 35% to 40% of the income he was earning during the marriage which would not be unreasonable.

Respondent’s Income

[29] The Respondent is employed as a marketing manager with an annual income of $89,043 per year. Her evidence was that both children have always been in full-time daycare since their oldest Ayla was 11.5 months old. The daycare provider takes care of the children from 8:00 a.m. until 4:30 p.m. from Monday to Friday. She is presently incurring daycare expenses of $14,582 per year and has been solely responsible for all of the children’s Section 7 expenses without any contribution by the Applicant.

[30] Her financial statement confirmed that she is maintaining the mortgage payments property taxes and insurance utilities on the matrimonial home until it is sold.

Child Support

[31] The Divorcemate calculation provided by Counsel for the Respondent using an annual income for the Respondent of $89,043 and an imputed income of $21,000 for the Applicant confirms that the Applicant should be paying child support for the two children in the Respondent’s custody of $320 per month.

Spousal Support

[32] That “custodial payor” formula under the Spousal Support Advisory Guidelines in my view is the appropriate formula as the Respondent is the higher income spouse potentially paying the spousal support to the Applicant and she has primary care of the two children. Moreover, she alone has been paying the significant S.7 expenses for child care.

[33] The same Divorcemate calculation suggests spousal support should be payable by the Respondent to the Applicant using a low range of $287, mid range of $335 and high range of $382 per month for a duration of 2.5 to 5 years from the date of separation.

[34] Accordingly, an approximate midrange quantum of spousal support payable by the Respondent to the Applicant is practically identical to his child support obligations payable by him of $320 per month to her based on his imputed income. The Respondent has no guarantee that she will ever be paid child support by the Applicant and will still be solely financially responsible for the children’s care including the costs of maintaining the matrimonial home until its sale and their significant child care expenses.

[35] Aitken J. declined to award spousal support to a spouse father earning only $15,000 by the custodial mother of three children in Brown v. Brown 2004 ONSC 12750, [2004] O.J. No. 2519 but required him to pay child support in part as an incentive for him to assume financial responsibility for himself and the children.

[36] This Court under Section 15.3 of the Divorce Act is required to give priority to the best interests of the children by giving child support priority over spousal support. Although the court can order that the Applicant’s child support obligations be secured against his interest in the matrimonial home on its sale, that would still not solve the immediate problem of the Respondent mother having to pay some spousal support in the meantime to the Applicant when she needs her available funds for the interim support of her children including their significant daycare expenses and the maintenance costs of the matrimonial home.

[37] In these limited circumstances, in my view this is an appropriate case where the parties respective obligations of child support and spousal support should be offset against each other on an interim interim basis but that the Applicant receive a one-time payment of $1500 from the Respondent to assist him to obtain accommodation, provide for his initial necessities and permit and encourage him to obtain immediate employment.

Conclusion

[38] On an interim interim basis this Court orders as follows:

(a) With respect to the Respondent’s cross motion, the Applicant shall pay child support to the Respondent for Ayla Mary Warren born March 29, 2007 and Caitlin Charlene Warren born July 9, 2009 based on his imputed income of $21,300 in the amount of $320 per month commencing on July 1, 2013.

(b) With respect to the Applicant’s motion, the Respondent shall pay spousal support to the Applicant in the amount of $2000 on or before June 1, 2013 and in the amount of $320 per month commencing July 1, 2013.

(c) The amount of monthly child support payable under this Order commencing July 1, 2013 by the Applicant is hereby secured in favour of the Respondent and shall be deemed to be paid by the Applicant by way of an offset of the Respondent’s obligations of monthly spousal support to the Applicant in the same monthly amount of $320.

(d) The amount of monthly spousal support payable under this Order commencing July 1, 2013 by the Respondent shall be deemed to be paid by the Respondent by way of an offset of the Applicant’s child support obligations in the same monthly amount of $320.

(e) On the mutual consent of the parties, there will be an Order that the parties be restrained from dissipating any of their assets pending a hearing or other disposition of these applications.

(f) If the parties cannot agree on the disposition of costs in these matters, they can make written submissions limited to four pages in length within 15 days from the date of this Order including details of any relevant offers to settle.

May 30, 2013

The Honourable Mr. Justice R.J. Nightingale