SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 44849-10
DATE: 2014-02-26
RE: Sirikkaththuge Ariyaratne
AND:
Divadalage Ariyaratne
BEFORE: The Honourable Madam Justice C. Lafrenière
COUNSEL: Applicant appeared in person
Gerry V. Schaffer appeared for the Respondent
HEARD: February 19, 2014
ENDORSEMENT
[1] The Applicant has brought a motion to change (“MTC”) the final order of Justice G.E. Taylor, dated February 13, 2012 (“the order”).
[2] For ease of reference, I will identify the Applicant as the father and the Respondent as the mother.
[3] The father seeks to change the child support and spousal support provisions of the order. He seeks to change the provision of the order granting the mother exclusive possession of the matrimonial home until June 30, 2015. The father seeks an order for the sale of the home.
[4] The father withdrew his claim to change the access provision of the order, prior to the hearing before me.
[5] I find the background facts are as follows:
a. The father was born on July 18, 1956;
b. The mother was born on January 8, 1961;
c. The parties were married on December 24, 1990 in Sri Lanka;
d. There are two sons of the marriage: Achale, born March 1992 and Mahima, born June 5, 1998;
e. The parties immigrated to Canada in 1997;
f. The parties lived in Alberta after moving to Canada;
g. The parties moved to Ottawa in 2005 and then to Kitchener in 2010, so that Achale could attend the University of Waterloo (“UW”);
h. The parties separated on December 15, 2010;
i. Achale is now in his third year at UW studying mathematics;
j. Mahima is now in Grade 10 and attends Waterloo Collegiate Institute (“WCI”)
k. The parties were divorced on February 13, 2012;
l. The children have resided primarily with their mother since separation; and,
m. The mother and children have continued to reside in the former matrimonial home, known municipally as 1267 Countrystone Drive, Kitchener, (“the home”).
The Order
[6] Justice Taylor gave comprehensive reasons for his order. The trial before Justice Taylor dealt with the issues of child support, s. 7 expenses, spousal support, equalization of the net family property and exclusive possession of the matrimonial home.
[7] Justice Taylor imputed annual income of $50,000.00 to the father. He ordered the father to pay spousal support in the amount of $500.00 monthly and basic child support of $743.00 in accordance with the Federal Child Support Guidelines (“FCSG”) and to pay 50% of Achale’s section 7 expenses.
[8] Justice Taylor granted the mother exclusive possession of the home until June 30, 2015, after which date the father could seek an order for sale of the home.
[9] Justice Taylor fixed arrears of spousal and child support in the sum of $16,978.00 and ordered the husband to pay an equalization payment in the sum of $12,893.00. Both of these debts were ordered to be offset against the father’s equity in the home.
[10] Finally, Justice Taylor ordered the father to pay the mother’s costs fixed in the sum of $12,500.00. The father has paid the costs.
Father’s MTC
[11] The father seeks to reduce the child support to the level in accordance with his actual income. He seeks to terminate spousal support on the basis that the mother earns more income annually than he does. He seeks to have the home sold immediately to allow him access to his equity in it.
[12] The father brought a motion to refrain the Family Responsibility Office (“FRO”) from suspending his driver’s licence. The motion was heard by Justice Sloan, who ordered that the child support was temporarily reduced to $500.00 and enforcement of arrears suspended.
[13] At the trial before Justice Taylor, the father was not employed and had not been employed in his field of information technology (“IT”) for quite some time.
[14] Justice Taylor imputed income to the father of $50,000.00 annually.
[15] Since the date of the order, the father has secured full time employment as a security guard. He has been employed in this capacity since September 2012 and earns $22,800.00. He earns $11.00 per hour and works 40 hours per week. He works an afternoon shift: 3:00 p.m. to 11:00 p.m.
[16] Thus, the father is in a better position now than he was when Justice Taylor imputed income to him.
[17] The father states he cannot manage financially on his income given the significant support obligations. He cannot afford an apartment but is living in a room.
[18] Before immigrating to Canada the father earned a degree in Applied Mathematics and Chemistry, in Sri Lanka. In Canada, he worked for several years in the IT field.
[19] He has not worked in the IT field since he was laid off in 2009, except for a few weeks on contract in 2011.
[20] The father filed two financial statements in support of his MTC.
[21] The first was sworn November 23, 2012 and the father attached a pay statement dated November 4, 2012 and his Notices of Assessment for the 2009, 2010 and 2011 years.
[22] The second financial statement was sworn February 13, 2014 and the father attached a pay statement dated January 11, 2014 and his Notices of Assessment for the 2010, 2011 and 2012 years.
[23] The father’s income according to his Notices of Assessment is set out below:
a. 2009 $79,287
b. 2010 $24,535
c. 2011 $15,583
d. 2012 $34,199
[24] In the November 2012 financial statement he set out RSP’s of $9,000.00. In the February 13, 2014 statement he does not set out any RSP but now indicates he has $13,000.00 in a securities account. When challenged on cross-examination, the father said the RSP and the securities account is the same asset.
[25] The father stated he cashed $22,898.26 in RSP’s to pay the cost award in the order of $12,500.00 in 2012. A copy of the working copy of his 2012 ITR was filed. The father did not have the T-5’s with respect to the withdrawals from the RSP. The father stated he received about $16,000.00 after tax. He paid the costs award and used the balance to meet his living expenses.
[26] The difficulty with the husband’s position is that he is unable to establish a material change in circumstances that warrants a reduction in the support provisions of the order.
[27] I agree with the mother’s counsel that what the father is really attempting to do is set aside Justice Taylor’s order rather than change it, based on a material change in his circumstances that has occurred since the order.
[28] The father did not appeal Justice Taylor’s order. The father has not specifically claimed that the order should be set aside.
[29] The father’s best case as set out in his MTC and in his evidence before me is that the employment that Justice Taylor found he should be able to secure simply has not materialized.
[30] The father is re-arguing the facts that were before Justice Taylor and attempting to persuade the court that the findings made by Justice Taylor were wrong.
[31] The father did not address the finding made by Justice Taylor at paragraph [9]:
During the course of submissions, the applicant suggested that he should be able to find employment earning at least $45,000.00 annually although he was reluctant to agree to a time within which he could reasonably expect to commence such employment.
[32] The father submits that if he had his equity from the matrimonial home he could secure an apartment or perhaps a condominium and establish stability and dignity for himself. The father submits that with this stability and dignity he will be able to secure employment and support his children, and, re-establish a relationship with them. Presently the father has no contact with the children.
[33] Before me, while the father testified and repeated in submissions that after he established a residence providing stability and dignity he would be able to secure better paying employment, he never specified what he believed he would be earning.
[34] The father submits that he is still struggling to find employment in his field just as he was at the time of trial.
[35] He has not worked in his field since his lay-off in 2009 other than for a few brief contracts.
[36] He says he was diagnosed with sleep apnea in 2010 and this is adding to his difficulties.
[37] Justice Taylor stated in his reasons for judgment he found the father’s evidence as to his financial circumstances and employment prospects to be vague.
[38] I too found the father’s evidence to be vague.
[39] On cross examination, the father conceded there were a number of errors in his pleadings and in his financial statements. In his MTC pleadings, he stated he had been actively pursuing work in his field since the date of the order, when he fact he has not been doing so.
[40] He acknowledged he has not attended a job fair to explore opportunities in the IT field for at least two years.
[41] He has not made any formal applications in his field in the past two years. He says there have been no job openings in his field in the Kitchener-Waterloo area in the last two years.
[42] He will not consider moving from the Kitchener-Waterloo area for employment opportunities because he does not want to move away from his children.
[43] When pressed on cross examination, that he could make a better income if he considered moving to another province to secure employment, the father said he would not be able to handle the job because he would have to leave his heart here, referring to his children.
[44] When further pressed that the children refuse to see him and his relationship with them might improve, if he got a higher paying job and provided support, the father responded he “does not get a good night sleep” because of his sleep apnea. He then continued, that is why he is “going for a small apartment” so he can establish some dignity and then be successful.
[45] The father states the IT field has moved on and he has not kept up. He acknowledged that he has not undertaken any courses to keep current. He stated he tries to keep up with the field by reading but cannot read very long because he develops a headache. He said learning does not come as easily to him as it did when he was younger.
[46] He said he tries to keep fit and has a gym membership. He forgot to include the monthly expense on his financial statement. He stated he is fit from the “eyes down” and that his problem is from the “eyes up”.
[47] He said on a number of occasions, “let me establish some roots and stability and then I’ll get a job”. He stated that if he can get his equity from the house, he will be able to concentrate better and get a better job.
[48] The father stated he is not under a doctor’s care for his sleep apnea and does not have a family doctor.
[49] The father travelled to Sri Lanka in July 2013 to visit his father. The airfare cost $2,100.00. He paid for the airfare.
[50] The father acknowledged that his oldest son has had medical issues both at the time of the order and since.
[51] In cross examination the father was challenged that the mother is maintaining all of the expenses of the matrimonial home. He responded “but I am not getting occupational rent to which I am entitled in my opinion.”
[52] The father acknowledged that he refused to approve the order after the trial and that it was necessary for the mother to bring a motion before Justice Taylor to settle the terms of the order. The father responded “how could I sign it? I didn’t have a job. I couldn’t pay what the order says.”
Mother’s case
[53] The mother is 53 years old. She has a degree in civil engineering that she obtained while still living in Sri Lanka. Since coming to Canada, seventeen years ago, she has never worked in the engineering field.
[54] She is currently employed at the CIBC as a financial ambassador/ services representative and receptionist. She earns $15.00 per hour or $30,000.00 gross annually.
[55] The mother and children have resided in the matrimonial home since November 2010.
[56] Achale has a permanent medical issue relating to his back. He has herniated discs and sever disc disease. He had back surgery in 2011 which necessitated the use of taxis referenced in the order.
[57] Achale has also suffered from depression. The mother filed a medical brief providing medical reports substantiating the difficulties Achale has and continues to experience. He became depressed when he was weaned off the narcotic prescribed for the pain after his back surgery. Apparently, this is a common occurrence when such a powerful narcotic is taken.
[58] Achale saw a counsellor at UW, who suggested he cut back his workload. He took two courses in the spring semester of 2013, three courses in the fall semester of 2013 and by the winter semester of 2014 he was back to a full time course load.
[59] The mother bought him a car to travel to and from school because the taxis were not reliable and he also had to walk a long way to the place where the taxi picked him up. After his surgery he was walking with a cane and the long distance was difficult for him.
[60] The mother filed a brief entitled Car Loan and Tuition Brief. In the brief she provided the documentation to show that the car loan was secured without a down payment and at 0% financing. The mother explained how she determined purchasing a car was the reasonable approach. The taxis were costing $600.00 per month and the car loan is $280.00 twice monthly and the car insurance is $230.00 monthly. She believes she is saving money and having the car saves Achale time and effort.
[61] She does not use the car.
[62] The father has not made any contribution toward the education expenses incurred by Achale, substantiated in the brief. Achale does not have employment except that he has done some tutoring. He does not contribute to the household expenses. The mother pays all of the expenses for the home.
[63] All of the expenses, including the mortgage are up to date. She has managed by borrowing money. Currently she has two lines of credit (“LOC”) one with CIBC and one with Scotia Bank which together total about $20,000.00. She receives financial assistance from her friends and family. She carries credit card debt and owes family $9,000.00. She owes money for her legal expenses.
[64] The mother’s plan is to pay off her debts, when the home is sold.
[65] The mother has not taken a vacation since the date of the order. Her mother passed away on November 7, 2013 in Sri Lanka. She could not afford to go to visit her mother while she was alive or pay her respects after her death.
[66] The mother does not want to list the matrimonial home for sale. She believes the father owes her $60,000.00 in support arrears, s. 7 expenses, and the equalization payment which would be credited against his equity.
[67] She confirmed the family lived in Edmonton, Calgary, Ottawa, and finally Kitchener after arriving in Canada. She confirmed the moves were dictated by the husband’s employment, except the move to Waterloo when Achale began his studies at UW.
[68] During the marriage, the husband worked long hours.
[69] In Calgary, the mother ran a home daycare.
[70] In Ottawa, the mother worked part time at the Bay department store.
[71] In Kitchener, she worked part time at the Bay and later took on a second part time job at CIBC. She now is full time at CIBC and it is her only employment.
[72] She acknowledged that she did not set out the car loan on her financial statement. She explained that she thought the financing arrangement was like a lease rather than a debt. In Sri Lanka such an arrangement is referred to as a lease.
[73] The father had his own business during the marriage. She deposited the cheques for him. He could write off certain expenses through the business.
[74] She did not believe the father’s sleep apnea was a real problem for him. She believes it is related to age and that everyone gets it as they get older.
[75] The mother was on short term disability for about two months suffering from severe symptoms of menopause. She could not afford to continue receiving the disability income and had to return to work full time.
[76] The father cross examined the mother. Her evidence was not shaken in cross examination.
Submissions
Father
[77] The father seeks an order for child support that reflects his current and realistic earnings. He asserts he did not quit his employment but was laid off from it and has never been able to secure alternate employment in his field.
[78] He wants the matrimonial home sold immediately so he can use his equity to buy a small condominium. He stated he wants to stand up and be strong and support his children.
[79] He wants the support provisions of the order changed retroactively to March 1, 2012 using his actual earnings rather than the imputed income.
Mother
[80] Given that the order is dated February13, 2012 and the father is seeking to change it retroactively to a date a couple of weeks after it, there can be no doubt that the father is seeking to set aside the order essentially rather than change it based on a change in circumstances.
[81] The father did not appeal the order and it should not be open to him to simply bring a MTC and appeal the order through that process.
[82] The father has not shown a material change in circumstances warranting the changes to the order he seeks.
[83] The father launched his MTC in November 2012, eight months after the order and about one month after the terms of the order were settled by Justice Taylor.
[84] The father ignores the detailed analysis undertaken by Justice Taylor in arriving at his decision.
[85] The father’s circumstances are better now than in February 2012. He is now employed full time. His savings have increased and his has not incurred any further debt.
[86] The father stated before Justice Taylor he could earn $45,000.00.
[87] The mother’s counsel asserted that the father appears now to be content earning $12.00 per hour or less than $23,000.00 annually.
[88] The father has made very little effort to re-enter the field in which he is educated and has experience. The father says he is stressed and cannot get on track. The mother is stressed too but she has to manage somehow. She has the two children to support and her older son’s medical needs to address.
[89] The father needs to be motivated to secure a greater income. The mother asserts that if he is successful on his MTC he will not be motivated.
[90] The father’s refusal to look for employment outside the Kitchener Waterloo area is not reasonable particularly given the family’s history of moving around in Canada for his work.
[91] The father can pay support despite his income being less than the level imputed to him in the order because his obligation can be set off against his equity in the home. Justice Taylor contemplated this result and provided for it in his order.
Analysis and discussion
[92] The father offered no proof regarding the applications for employment he says he has made since the date of the order. The father has not established that he has made reasonable efforts to secure work in his field, I find.
[93] The fact that the father refuses to consider looking for employment outside the Kitchener Waterloo area suggests he is not sincerely interested in finding work in his field. The fact that the children are refusing to have any contact with the father cannot be forgotten.
[94] The father’s statement that he cannot move away and leave his heart behind suggests he is willing to make sacrifices for his children. However, I find he is not willing to make sacrifices for his children because rather than allow the children to reside in the home for another 15 months, he takes the position that the home should be sold immediately so that he can realize his equity in it.
[95] He suggested that the mother can secure as nice or even a nicer home than the matrimonial home for her and the children. This proposition is difficult to understand. The father states the home has a value of $370,000.00 while the wife puts its value at $320,500.00. The mortgage against the home is currently $170,000.00.
[96] When the home is sold, the net proceeds will be divided between the parties, after the adjustments provided by Justice Taylor for retroactive support and the equalization payment are made. It is highly unlikely that the mother will be able to secure a home worth between $320,000.00 and $370,000.00 on her income, especially if she is not receiving meaningful spousal and child support.
[97] I find the father is thinking only of himself and not the children or the mother when he suggests the parties will each be better off when the home is sold.
[98] The father claims to suffer from sleep apnea and emotional difficulties which have impacted his ability to find employment in his field. He acknowledged he is not under a doctor’s care for these issues. He did not file any medical reports to substantiate his assertions.
[99] His financial circumstances since the date of the order have improved, in that, he is now employed on a full time basis.
[100] As the mother’s counsel pointed out during cross examination, if the father secured better paying employment, he would be in a position to rent an apartment or perhaps even buy a condominium. The father’s position is that he must have the apartment or condominium to be in a position to secure the higher paying employment.
[101] The father bears the onus of establishing what has changed since the date of the order that warrants the change to it he seeks.
[102] I find there is no change in the father’s circumstances that warrants the early termination of the period of exclusive possession of the matrimonial home and the immediate sale of it. I find, further, there is no change in the circumstances of the mother and the children warranting any change to the order with respect to the matrimonial home.
[103] The issue of the matrimonial home is governed by the Family Law Act (“FLA”) at Part II. The court’s jurisdiction to make orders for exclusive possession of the matrimonial home is set out in s. 24.
[104] The FLA provides at s. 25 for variations of possessory orders. This section provides that the court may discharge, vary, or suspend orders made under s. 24, if the court is satisfied that there has been a material change in circumstances.
[105] The father has not alleged any change in circumstance particular to the issue of the order for possession of the matrimonial home made by Justice Taylor.
[106] The father’s position is that he needs his equity to secure housing and, thus, his argument seems to be grounded in his financial circumstances. As noted above his financial circumstances have not deteriorated since the date of the order.
[107] The father’s concern that he have his own shelter does not address the concern of Justice Taylor that he would not pay the child and spousal support being ordered. Justice Taylor considered the mother’s claim for exclusive possession and stated the following in his reasons, at paragraph [23]:
The position of the respondent is that she should not be required to move the children, particularly Mahima, from the home where they are currently residing and the neighbourhood where they have established friendships. I am not convinced that an order for exclusive possession is justified on this basis due to the ages of the boys. However, I am concerned about the applicant not fulfilling his support obligations pursuant to my order. For that reason, I will make an order that the respondent have exclusive possession of the matrimonial home and its contents. It would not be right for the respondent to receive his share of the equity in the matrimonial home and then not honour his support obligations. On the other hand, if he is true to his word and secure appropriate employment and establishes that he will support his wife and children, he will be entitled to realize on his equity. If he does not honour his support obligations, the accumulated arrears can be a charge against his equity in the matrimonial home.
[108] The father’s evidence impressed me as being somewhat nonsensical. The father states if he had the equity from the house he can get a better job. There is absolutely no assurance that such would be the case. Justice Taylor’s concern that the mother have exclusive possession of the home for a little more than three years after trial to provide security for the for the father’s support obligations was well founded.
[109] The father’s position is that he cannot afford to pay the spousal support in the order or at all. He relies on the fact that his current income is less than the current income earned by the mother.
[110] The father has not discharged his onus to establish that his circumstances have changed in a material way since the date of the order, warranting the change he seeks.
[111] Nothing has changed in the father’s circumstances affecting his ability to earn income and thus there is no evidence to suggest he cannot earn the income imputed to him by Justice Taylor.
[112] The father’s MTC must fail because he has not established any material change in his circumstances warranting the changes he seeks to the order.
[113] For all of these reasons, the MTC dated November 23, 2012 is dismissed.
[114] The mother is presumptively entitled to her costs as the successful party. If the parties cannot resolve the issue of costs, written submissions may be filed as follows:
The Respondent mother may file her submissions with a Bill of Costs by March 23, 2014;
The Applicant father may respond by April 8, 2014; and,
The Respondent may reply by April 15, 2014.
C. Lafrenière J.
Date: February 26, 2014