SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-11-369351
DATE: 20130618

RE: Sandra Stoyko, Applicant

AND:

Anthony Delorme, Respondent

BEFORE: C. Horkins J.

COUNSEL:
Tanya Road, for the Applicant
Anthony Delorme, acting in person

HEARD: May 21 and 22, 2013

Introduction

[1] The applicant mother’s motion seeks a variety of relief. The main focus of the motion is the request for an order that the respondent father pay interim child support based on an imputed income of $60,000 retroactive to January 1, 2011. There is no claim for s. 7 expenses.

[2] There are two dependent children (ages 17 and 14). The parties were divorced on November 25, 2011.

The Evidence

[3] Unless otherwise noted, the following evidence is not in dispute. The parties separated in May 2008 and continued to live separate and apart in the family home. The matrimonial home was sold in 2008.

[4] The applicant and respondent divided their property and debts and agreed to a shared parenting schedule. They signed a Separation Agreement in April 2009 stating that they would have joint custody of the children and access would be shared equally. As a result, it was agreed no child support would be paid. The applicant and respondent lived close to each other to facilitate the shared parenting arrangement.

[5] Before the parties separated they each had steady employment. The applicant worked full time for most of the marriage. Several years ago she decided to become a police officer and was successful in achieving this goal. For the last seven years she has worked for Toronto Police Services as a Constable First Class. She earns a base salary of $81,000 and works extra hours on paid duty jobs.

[6] The respondent graduated from College in 1984 with an electronics engineering technician diploma. For 20 years he was employed by Bell Canada (“Bell”). The respondent started as a telephone technician working in Toronto. With time he was assigned more responsibility. He was the main technician responsible for many of the downtown Toronto courts and then worked as the primary technician for the Eaton Center. During his years as a technician, he received regular on the job training and maintained all of the certifications that he needed for the jobs that he was doing. He sat on Bell’s Health and Safety Committee.

[7] In 2005 he was promoted to a management position (Field Manager) and began managing the technicians. In the spring of 2008, Bell terminated the respondent’s employment. He received a package that included three months of continued salary, a lump sum payment equivalent to one year of salary and an employee outplacement program. In his last full year of employment, the respondent earned $82,000 (line 150 income).

[8] In November 2008, the respondent bought a townhouse close to the applicant’s new home to facilitate the shared parenting. When he bought the townhouse he expected that he would be able to find a new job. As of November 2010, the respondent had not yet found a job. The employment insurance had run out, his credit card was overdrawn and he had to borrow money from his girlfriend Petra Buttner.

[9] After selling his townhouse the respondent states that he considered three options. First, he considered renting a three bedroom apartment for himself and the children in Toronto. This would allow him to continue with the shared parenting plan. He would then keep looking for a comparable job or take a minimum wage job. The respondent rejected this option because his funds would run out in four years if he only had a minimum wage job and he had been trying for two years to find a higher paying job without success.

[10] As a second option, the respondent considered renting an apartment and going back to school. He states that it was going to cost him $50,000 to take the necessary courses to get a job in his previous field of work at Bell. He rejected this option because he only had enough money to support himself and the children for just over a year. Further given his age, he states there was no guarantee that he would find a job after completing the courses. While the respondent states that he did not have the necessary certifications to find a job in his previous field of work, he does not provide any particulars to back up this statement.

[11] The respondent decided that the third option was the best one. In November 2010, he moved to Rockwood, Ontario to live with his girlfriend Ms. Buttner on her farm. Together they decided to build and open a dog boarding business on the farm. They called the business Kennel Land. The respondent planned to invest $35,000 of his savings and all of his time to build the kennel business. He believed that this would be an opportunity to “create a guaranteed job” for himself so that he could support his children.

[12] When the respondent moved to the farm, the shared parenting agreement came to an end. While the children spent some time with their father at the farm, their place of residence was with their mother in Toronto. It was clear that shared parenting was no longer possible.

[13] Therefore since November 2010, the children have lived with the applicant in Toronto. She commenced this application on May 26, 2011 seeking a divorce and child support. The applicant has cared for the children with minimal child support from the respondent. From January 2011 to July 2011, the respondent paid $250 a month (total $2,750) as a contribution to the applicant’s grocery bills. From November 1, 2011 to April 1, 2012, the respondent paid $600 a month for six months (total $3,600). This payment was confirmed in a consent court order. The respondent states that he only paid the $600 a month because “it was forced on him by his lawyer” and he hoped that the applicant “would finally be satisfied by taking” the last money he had left from the sale of his townhouse. In total, he has paid $6,350 toward child support.

[14] The respondent’s income tax returns show the following line 150 income:

2007 $82,034
2008 $148,702 ($77,588 was earnings from Bell, the rest was severance)
2009 $889
2010 $17,400 (employment insurance)
2011 $13,847.84 (gross business income of $23,017)
2012 $5,078.71 (gross business income of $83,355)

[15] As of December 31 2010, shortly after the respondent moved to the farm to live, he had savings in his CIBC account totaling $87,810.91. The respondent invested almost all of his savings in the Kennel Land business. By the end of 2011, the respondent had depleted his savings and only had $2,832.19 left.

Efforts to Find Employment

[16] When the respondent’s employment at Bell was terminated, he states that his technical skills had fallen behind. During the three years he had been working in management, he had stopped updating his certifications. In 2008, the respondent states that it was a difficult time to find a new job because of the recession and he needed to be retrained to update his skills.

[17] The respondent says that after losing his job at Bell he tried but was unable to find a comparable paying job in Toronto. The evidence about his efforts to find a new job is disputed. It is the applicant’s position that the respondent’s search for a new job was halfhearted at best. Further, the applicant argues that the respondent has failed to provide particulars of the search that he says he undertook.

[18] In a May 29 2012 affidavit that was filed for a settlement conference, the respondent described his efforts to find a job as follows. He made more than 20 cold calls to people in the industry, posted his resume on 21 job sites and renewed them regularly. In September 2008, he participated in a 3 month program that Bell funded to assist in finding new employment and he attended the “Successful Transition Program” a four week course sponsored by Employment Canada. Between September 2008 and October 2010, he applied directly for more than 450 positions. The affidavit states that a “detailed list” of his job applications is attached to the affidavit. However, no such list is attached. As well, he states that he applied to many more positions by posting his resume on various websites. Again he states that a “detailed list is attached” but no list is attached to the affidavit. In fact, there are no exhibits attached to this May 29 affidavit.

[19] In response to the applicant’s motion, the respondent filed a detailed affidavit dated April 22 2013. As well, his girlfriend Petra Buttner filed an affidavit. These affidavits attach several documents but the lists that were missing from the May 29, 2012 affidavit are not included.

[20] In the May 29 affidavit, the respondent states that it was going to cost $40,000 to be retrained. Ms. Buttner offered different evidence on this point. She states that it was going to cost the respondent $60,000 to return to school and acquire the necessary certifications. The respondent and Ms. Buttner do not provide any particulars of this retraining. Specifically, there is no evidence to document what retraining was required, the actual courses that the respondent had to take, where he would take them, how long it would take to update his certifications and the actual cost.

[21] The applicant appoints out that the job search described in the May 29 affidavit is not documented. The respondent says that this is because the hard drive on his computer crashed in October 2010. As a result, he says that he lost all the details of job applications made before this date. Without the benefit of this hard drive information, I question how the respondent was able to recall the 450 plus jobs that he applied to in order to prepare the “detailed list” that he forgot to attach to his affidavit.

[22] I accept that the respondent undertook a job search but there is no evidence to show that it was as extensive as he claims. He provided some specifics. He used Verity International that was offered with his severance package. He also used an employment agency called VPI and a head hunter called Head to Head. He had an interview with Telus and Toronto Community Housing but no job was offered. He posted his resume on various job websites.

[23] Various copies of the respondent’s resume were produced. In these resumes, he describes his involvement at an “Equine Facility” as early as 2008 (this is the year the parties separated and the year the respondent lost his job). The equine facility is called Black Lightning Horses and is located on Ms. Buttner’s farm. She is the sole registered owner of the farm and land.

[24] In one of the resumes he describes his work experience from 2008 to present as the “Assistant Manager” of Black Lightning Horses, an equine facility covering 150 acres. The resume lists the assistant manager’s numerous responsibilities. The responsibilites cover a wide range of maintenance and upkeep work on the farm. In other versions of the resume, the respondent describes himself as a “volunteer groundskeeper, an assistant manager Equine Facility”.

[25] The respondent was questioned about the work he did as the assistant manager. He provided the following evidence. He cut the lawn and helped with haying. He was responsible for operation of all machines required for the equine facility (mowers, chainsaws, weeders, tractors, vehicles), clearing the 8 km of trails on the property, grooming of an indoor arena, outdoor riding rings and cross-country courses and the landscaping maintenance. The respondent also maintained enclosures, outbuildings, the heating, the electrical, plumbing and security system, gates and fences. He also took care of “proper forestry management”. This was the harvesting of a wood lot on the farm property that involved more than 500 trees. Together with Ms. Buttner, they removed all of these trees.

[26] The resumes state that the respondent was doing this work as of 2008. The respondent confirmed in his evidence that he was not paid a salary although he was “fed” and “housed” while he was at the farm. In other words, he suggests that Ms. Buttner paid for his work by providing him with room and board. However, from November 2008 until he moved to the farm permanently in late 2010, the respondent owned his own home in Toronto. After the respondent moved to the farm in January 2010, he continued all of these jobs without compensation.

[27] The respondent also did odd renovations jobs for friends. He helped to renovate a bathroom and was paid $600. As well, he helped a friend build a deck and was paid $100 a day for four days.

[28] The respondent’s evidence about when he stopped searching for a job is conflicting. During questioning, he first stated that he continued his search for a new job through 2009. Later he said that he continued looking for a job right up until he sold his townhouse and moved to Ms. Buttner’s farm in November 2010.

[29] I conclude that the respondent’s job search is not well documented. I accept that while he made some efforts to find a comparable job he did not devote his full attention and energy to this important job search. Instead, his resumes reveal that as early as 2008 he was investing his time and effort in Ms. Buttner’s farm and was not being paid for his work.

[30] His own evidence about when he stopped searching for a job is unreliable. Whether he stopped in 2009 or 2010, his evidence reveals that he had diverted his time and attention to Ms. Buttner’s farm as early as 2008. At the latest, all efforts to find a job ended in 2010. Since then the respondent has invested all of his time, energy and savings in building and operating Kennel Land.

Kennel Land

[31] The Kennel Land brochure describes the business as “Dog Boarding and Doggie Day Care”. The respondent and Ms. Buttner are described as the owners. The brochure includes pictures of a large barn where the dogs are boarded. The brochure advertises that there is a “huge INDOOR play area”, a heated indoor lounge, 150 acres of farmland and pick up and drop off services provided. In addition to running Kennel Land, the brochure states that the respondent “takes on renovation jobs” and is building their new log home.

[32] Depending on the source of the respondent’s evidence, he invested $47,529.38, $50,313.26 or $50,202.76 to build Kennel Land. Some of the respondent’s money was used to purchase a sawmill, a riding lawnmower, a wood burning furnace and a log splitter to deal with dead wood on property.

[33] In addition to working at Kennel Land, the respondent is also building a log home on Ms. Buttner’s farm property. A statement made in the Kennel Land brochure indicates that “besides working the kennel, Tony takes on renovation jobs and is building our new log home out of home grown white pine”, the same white pine harvested from the property. When questioned about this activity, the respondent clarified that the work to date has only entailed the clearing of the property and that the logs are “now just sitting in a pile”. During the questioning, he also stated that the intention was to build a log home “big enough for when my children came” and that “the intention is to build it myself, yes”.

[34] The evidence reveals that the respondent has a lack of knowledge about the financial side of the Kennel Land business. As the respondent states in his affidavit, he has no experience or education in business management, accounting, marketing or any other business related task” and he “still does not know much about this side of the business”. He is responsible for the daily operation of the kennel (feeding and caring for the dogs and cleaning and maintaining the facility). Petra is responsible for the finances and marketing of the kennel business. In her affidavit, she states that she has an MBA in “business, economics and computer science”.

[35] There is no evidence to show that the respondent investigated the financial viability of building and starting Kennel Land before ending his job search and deciding to invest all of his savings in this venture. The respondent relied on business plans for Kennel Land that Ms. Buttner prepared. What investigation if any led to the creation of the plans is unknown. There is no evidence that Ms. Buttner had any previous experience running a dog kennel.

[36] The business plans dated October 2010, June 2011 and October 2011 reveal an increasingly negative income forecast. In October 2010, a net loss of $43,675 was forecasted for Year 1, with no significant net profit projected until Year 3 ($53,400). In the October 2011 plan, a net loss of $57,180.98 was projected with forecasted profits in the following years: 2012 - $7,624; 2013 - $31,830; 2014 - 53,058. Since the respondent and Ms. Buttner are equal owners in Kennel Land, the respondent knew that he would only share in 50% of these expected net profits.

[37] The opening of Kennel Land was delayed because they had to pay $13,000 in what the respondent calls “undisclosed development charges”. The Kennel Land financial statements show that the business operated for four months in 2011 and a full year in 2012. The financial statements reveal the following:

2011 – 4 months

• $23,017 sales

• $27,920 net loss

2012

• $83,355 sales

• $10,157 net earnings

[38] The largest expense item each year is rent. In 2011 (a four month period), Kennel Land paid rent of $36,000. In 2012 the rent was $43,000. Kennel Land operates on Ms. Buttner’s farmland and the rent is paid to her. There is no evidence to show how the amount of rent was determined and whether it represents fair market value for rent.

[39] In addition to the rent that Kennel Land pays for using the farm land, the respondent pays $1,000 a month rent to live with Ms. Buttner in a house that she owns.

[40] The evidence shows that Ms. Buttner is the beneficiary of the rent that Kennel Land and the respondent have paid. The evidence also shows that Ms. Buttner needed this stream of rental income. This is clear from the following evidence. After the respondent was questioned in this application, his counsel at the time (Steven Foster) wrote a letter dated October 26, 2011 to the applicant’s counsel and told her about his meeting with the respondent and Ms. Buttner. The letter states in part as follows:

After a lengthy discussion it became very clear that the farm is operating on life support and that Ms. Butner requires Mr. Delorme’s share of the rent both for living expenses of $1,000 per month and kennel rent of $2,000.00 per month in order to make ends meet.

As advised at the examination, Mr. Delorme’s share of the kennel rent is $2,000.00 which he has prepaid his rent through to June, 2012.

The $1,000.00 per month for room and board he continues to pay monthly.

[41] The letter also states that the Kennel Land is generating $3,000 a month of gross revenue but expenses for repairs, improvements, advertising, promotion and rent are $4,000 a month. The letter states that neither owner is drawing an income from the business. If the respondent had not prepaid his share of Kennel Land’s rent, the business would be operating at a “significant deficit”. The farm on the property is described as “marginal” and not contributing to the “ongoing expenses”. While the letter does not identify the farm’s ongoing expenses, there is evidence from Ms. Buttner that two mortgages are registered on the property. In 2012, three banks rejected her application to refinance the second mortgage.

[42] On April 12, 2012, a Kennel Land board meeting was held. The notes record the following decisions made by the respondent and Ms. Buttner:

• Due to an unexpected high income in the first three months of the fiscal year the partners decided to allow each partner a monthly salary of $500 commencing May 15, 2012. In Ms. Buttner’s affidavit she says that they decided to allow this payment so the respondent could cover his living expenses. He had almost no money left.

• It was decided that the company would build retained earnings of $20,000.

• Black Lightening (i.e. Ms. Buttner) was entitled to withdraw $14,000 of its investment in Kennel Land to partly repay an overdue mortgage for which refinancing was not been possible and to avoid the foreclosure of the premises.

• The landlord informed Kennel Land that an increase in rent would happen in June 2012.

[43] There is no evidence that Kennel Land created any retained earnings and there is no evidence that Black Lightening ever invested the $14,000 that was to be withdrawn from Kennel Land.

[44] The respondent signed a Cohabitation Agreement with Ms. Buttner on April 23, 2013. This agreement states that Ms. Buttner owns the farm property. It also states that the respondent cannot claim an interest in the farm property as a result of monies he paid to Ms. Buttner or to fund improvements on the farm, unless his contribution (and right to claim) is acknowledged in writing by Ms. Buttner (there is no such acknowledgment). Further, the agreement states that the respondent’s interest in Kennel Land does not entitle him to any interest in the farm property except rights that he has under a lease agreement.

[45] The respondent has used his savings to build and develop Kennel Land and to pay Kennel Land’s rent (to Ms. Buttner). He explained why he paid Kennel Land’s rent: “it’s ensuring that I can run this thing for a year. Like I’m putting the money out. I want you know to give myself an opportunity of running this thing for a year. It’s prepaid”.

[46] The farm is currently for sale. If sold, there is no agreement between the respondent and Ms. Buttner that the monies he invested to build and open Kennel Land will be returned to him. Absent any agreement, the Cohabitation Agreement states that he has no such right. As early as 2008, the respondent has been investing his money and time to improve Ms. Buttner’s farm. She alone is the benefactor of the respondent’s time and money.

[47] Lastly, the respondent and Ms. Buttner confirm that running Kennel Land is more than a full time job. They each work on average 10-12 hours a day, seven days a week (or 70 - 80 hours a week).

Legal Framework and Analysis

[48] The respondent agrees that since the shared parenting plan ended he has had an obligation to pay child support. The issue is what income should be used to determine child support and whether a retroactive child support order should be made.

[49] The respondent says that interim child support should be based on the actual income that he earns. In his 2012 income tax return he reported net business income of $5,078.71 and according to the child support guidelines he should not be ordered to pay any child support.

[50] He resists the applicant’s attempt to impute income. He states that he undertook a rigorous job search and his decision to invest in Kennel Land was the only viable option. In defence of his position, he argues that the applicant earns a good income and can earn extra money working overtime.

[51] The applicant seeks an interim order imputing no less than $60,000 per year in income to the respondent and that this order be retroactive. As she points out this is more than fair given the respondent’s history of earnings at Bell. For 17 years he worked as a technician and earned about $50,000 a year. As a Field Services Manager he earned $70,000 a year and in his last full year of work he earned $82,034.

[52] The Federal Child Support Guidelines provide that a court may impute income to a spouse in various circumstances. The applicant relies on the following:

19. (1) 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;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

[53] Dealing first with s. 19(1)(f), the respondent finally produced the financial statements for Kennel Land after the applicant brought this motion. The financial statements for 2011 and 2012 reveal the significant amount of rent that Kennel Land pays. Absent any evidence to explain the reasonableness of the quantum of rent, it is argued that s. 19(1)(g) is triggered. Obviously if the rent was less, the net profit of the business would be greater. The evidence is clear that the rent is directed to keep Ms. Buttner’s farm afloat. Whether the rent is inflated or not, cannot be determined on the record before me on this interim motion.

[54] The main focus of the applicant’s position is s. 19(1)(a); intentional under-employment. In Lawson v. Lawson, 2006 26573 (ON CA), [2006] O.J. No. 3179, the Court of Appeal explains intentional underemployment at para. 36 as follows:

Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.

[55] For the reasons that follow, I find on the record before me that the respondent is intentionally underemployed.

[56] After losing his job at Bell in 2008, the respondent made some effort to find a comparable replacement job. However, he did not devote his full attention to finding a new job as he should have. This is clear from the respondent’s own evidence. He represented on his resume that he was working at Ms. Buttner’s farm as the assistant manager as of 2008 and was not being paid. His evidence about his job search lacks details. While he cited his lack of training and qualifications as a reason for not finding a job, he never revealed what qualifications he was lacking, the training he required, where the training was offered and how long it would take to complete. His evidence about the significant cost to retrain was not supported with any evidence.

[57] In 2010, the respondent made a decision to move to Ms. Buttner’s farm and invest all of his time and savings in building and running Kennel Land. Once he made this decision, he stopped looking for a new job. Instead, he has been working on average 70 - 80 hours a week and earning virtually no income.

[58] The respondent insists that moving to Ms. Buttner’s farm and investing all of his effort and savings in the kennel business, was his only viable option. The onus rests on him to prove that he had no reasonable alternative. He failed to do so.

[59] The respondent had no experience building and running a business. He knew from the business plans that they would not generate any income from Kennel Land for at least three years. The business plans informed him that the business was going to operate at a loss and only generate a profit in Year 3. By Year 3, he only expected a profit of $53,400 and this was shared with Ms. Buttner. Though he invested virtually all of his savings in Kennel Land, the respondent had no expectation that his investment in Kennel Land and the property farm would be protected.

[60] In Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), the father quit his job as a tool and die maker and returned to school to become a teacher. At trial, the court found that he allowed his skills as a tool and die maker to atrophy while he furthered his commitment to education. The court imputed an income of $30,000. The quantum of income was reduced on appeal to $16,500 (because there were no reasons given to support $30,000). Similarly, in this case, the respondent has allowed his skills as a technician to lay dormant while he has pursued his commitment to Kennel Land.

[61] As stated in Drygala, at para. 46, “[i]f 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.” Neither party provided any evidence about available jobs and salaries. As a result, it is appropriate to rely on the respondent’s long history of earnings at Bell to impute a reasonable level of income.

[62] The respondent in this case has clearly failed to recognize his child support obligation. This is a relevant factor in deciding to impute income (see Drygala, at para. 49). His attitude toward child support is reflected in the following evidence. He says that his decision to pay $600 a month for 6 months, was “forced on him” by his lawyer. In a letter from his counsel confirming his agreement to pay this amount, the lawyer states that the respondent did not want to pay anything more because he was concerned it would jeopardize his investment in the kennel business.

[63] Further, the respondent is unfairly critical of the applicant’s expressed difficulty in caring for the children on her own. She states that it is difficult for her to afford the monthly expenses on her salary alone. She has had to rely on her savings to make ends meet. The respondent describes her evidence as “preposterous considering her income”. He fails to accept that his child support obligations are not dependent on what income the custodial parent earns (there is no claim for s. 7 expenses).

[64] The non-custodial parent must earn what he is capable of earning and pay child support. Instead, the respondent made a decision to invest all of his savings and energy in a business when he had no expectation of earning more than minimum wage until Year 3 of operations. Given his child support obligation, this was not a reasonable path to pursue. Furthermore, the respondent has allowed this to happen with no security for the time and money he has invested in Kennel Land and the farm. The Cohabitation Agreement that he signed makes it clear that Ms. Buttner is the beneficiary of his hard work and money and not his children.

[65] Imputing income is the way the court “gives effect to the legal requirement that a parent must earn what he or she is capable of earning and must support his or her children based on this capacity to earn.” (Sherwood v. Sherwood, 2006 40795 (ON SC), [2006] O.J. No. 4860 (S.C.), at para.71.)

[66] The respondent has demonstrated that his age and health do not interfere with his ability to work. As an owner of Kennel Land he works long hours, seven days a week. His capacity for successful full time employment is well documented by some 20 years of work at Bell.

[67] Having decided that income must be imputed, I turn to the quantum of income. As the court stated in Drygala, at para. 44, “[s]ection 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.”

[68] There is a rational basis for imputing $60,000 of income to the respondent and it is grounded in the following evidence. For some 20 years the respondent worked for Bell. For the majority of this time he worked as a technician and was the main technician in charge of significant buildings in downtown Toronto. As a technician, he received training throughout this employment. His average salary as a technician was $50,000. In the last two and half years at Bell, he worked as a manager and earned $70,000 with an increase to $82,000 in his last full year of work. An income of $60,000 is a fair mid-point. In conclusion, for the purpose of calculating the amount of child support to be paid, I impute an income of $60,000 to the respondent.

[69] It note that on this motion, I had the benefit of the respondent’s transcript from his questioning in addition to the extensive affidavit evidence from the parties and Ms. Buttner. This provides me with a clear and reliable evidentiary foundation on which to impute income and make an interim child support order. Much of the evidence that I am relying upon is uncontested and originates from the respondent. It is imperative that a child support order be made now. As the court stated in Rodrigues v De Sousa, 2008 ONCJ 807, [2008] O.J. No. 4541, at para.12 “[c]hildren cannot wait until a trial is held to be adequately supported.”

[70] The applicant asks the court to order that child support be paid as of January 1, 2011.This reflects the fact that joint parenting ended when the respondent moved to the farm in late 2010 and the applicant assumed full financial responsibility for the children. It is an appropriate date to commence payment of child support.

[71] The respondent is to be given a credit for the child support he has paid ($6,350).

conclusion

[72] I order that the respondent pay interim child support for two children pursuant to the Federal Child Support Guidelines as follows:

(1) Fixed at $902 a month for 2011 (with a credit for the $6,350 paid)

(2) Fixed at $892 a month for 2012

(3) Fixed at $892 a month for 2013 and to continue pursuant to s. 3 of the Federal Child Support Guidelines

[73] A support deduction order is issued.

Other Relief

[74] The applicant seeks financial disclosure from “any other income earner” in the applicant’s household. The applicant as noted lives with Petra Buttner. Since she has refused to provide financial disclosure, the applicant must bring a motion and serve her as a non-party to request this relief. This part of the respondent’s motion is dismissed.

[75] The motion seeks further financial disclosure from the respondent. The respondent produced additional disclosure prior to and during the hearing of this motion. It is agreed that the applicant will consider the disclosure and, if any additional documents are required, she will request same from the respondent. If he refuses to comply with the request, the applicant will bring a further motion.

[76] No order is made for interim child support for the first child of the marriage. He is now 22 years old and no longer attending school. He was 20 years old as of January 1, 2011. I have evidence that he was attending school at some point after separation. It is unclear if he was still attending school as of January 2011. Therefore based on the evidentiary record before me I make no interim child support order for the eldest child.

[77] If the parties cannot agree on costs, they will exchange brief written costs submission and provide them to the court by July 15, 2013.

C. Horkins J.

Date: June 19, 2013