SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-09-567-3
DATE: 2014/04/28

RE: BORIS SHINGAROV, Applicant

AND

VALERYA SHINGAROV, Respondent

BEFORE: Kane J.

COUNSEL: Boris Shingarov, Self-Represented

Annemarie Roodal, counsel for the Respondent

HEARD: April 15, 2014 (at Ottawa)

ENDORSEMENT

BACKGROUND

[1] The applicant father’s motion seeks elimination of arrears of support owed by him and access to his children who he has not seen for approximately five years. There are three children of this couple aged, 12, 9 and 6 years of age. Both parties live in Ottawa. The children have lived with their mother during the last five years.

[2] The father holds a Master’s degree in Physics. Since separation, the father has remarried and is the father of a child of that relationship.

[3] The father has held numerous positions as an employee or consultant in what may be described as the high tech and information technology field. His past employment responsibilities include software design and integration of software with related products. He has filed or obtained in the interim two related patents.

[4] The father’s employment or contractual engagements since 2009 have been intermittent and accompanied with short and lengthy periods of unemployment. He is reluctant to take just any employment given his qualifications and experience. While working since 2009, his annual income has been approximately $90,000.

[5] The father is currently unemployed and has been without a job or contractual remuneration since February, 2013. He is hopeful of obtaining employment, contractual or otherwise in the near future.

[6] The respondent mother received benefits from Ontario Works between May, 2009 and September, 2013. She currently works as a Russian interpreter and as an administrative assistant. Her current annual income, including child tax benefits, is approximately $20,000.

[7] Due to benefits from Ontario Works, a representative from the City of Ottawa participated today and provided a statement of payment receipts and arrears of spousal and child support since 2009. A copy of that statement was filed during argument as Schedule “A”. It lists the current child and spousal arrears total as $105,000. The father while seeking elimination of the arrears accepts the mathematics in Schedule “A”.

[8] The father’s motion seeks cancellation of the arrears, relief against ongoing liability for support and access to his children. His motion was filed in February, 2012. It was perhaps more of a shield as he did not pursue having the motion heard. The mother brought her current motion in order to get determination of the issues in the father’s motion.

[9] The mother identifies the issues in the two motions as:

(a) Should the court impute $60,000 annual income to the father for the purpose of his motion to vary his support obligations?

(b) Should any arrears of the father be rescinded?

(c) Is supervised access to the father in the best interests of the children?

[10] The mother acknowledges that some adjustment should be made to current arrears total but she insists it be limited to child support arrears because the father’s motion boxes list only that subject and not spousal support. The mother argues the arrears of spousal support can be dealt with via a separate motion to vary or upon the return of this motion as this Court indicated the need for a further date. The father in response to this objection seeks an amendment of the motion form to include variation of spousal support and cancellation of arrears based on the same periods of his unemployment and to avoid a further motion to vary based on the same facts.

[11] The child and spousal support payment obligations originate in a separation agreement between the parties dated November 19, 2008, pursuant to which the father, based on his then annual income of $90,000, is required monthly to pay:

(a) Child support of $1,668; and

(b) Spousal support of $300.

[12] The same agreement contains material change variation clauses (5.21 to 5.23), which includes a material change in either party’s financial position as a ground to seek such variation.

[13] Paragraph 5 also entitles each party annually to seek via written request, a review of the child support provisions.

[14] The same agreement in 2010 was filed with this Court for enforcement purposes.

LAW

[15] This Court has jurisdiction to review and amend both forms of support obligations under the separation agreement: Family Law Act, R.S.O. 1990, c. F.3, sections 33 and 37.

[16] Absent special circumstances, the court should not vary or rescind payment of or reduce or eliminate arrears unless satisfied, on a balance of probabilities, that the payor cannot then or in the future pay the arrears. As to this issue, the court must consider: (a) the nature of the obligation, contractual or otherwise; (b) capacity to pay; (c) need; (d) delay by the payor or payee to seek relief or enforcement; and (e) hardship and capacity as to payment of the full arrears given the means of the parties: DiFrancesco v. Couto (2001), 2001 8613 (ON CA), 56 O.R. (3d) 363, 2001 CarswellOnt 3858 (C.A.) paras. 22-23.

ANALYSIS

[17] Having spent some 2.5 hours today in argument of these motions, it would be artificial to not grant the amendment to the father’s motion and insist upon another motion and hearing to deal with the related issue of spousal support based on the same facts. Accordingly, I granted the amendment to the father’s motion to vary and rescinded spousal arrears. Specifically, paragraphs 7 and 8 of the father’s motion to change is amended to include his request that his obligation to pay spousal support be suspended during his periods of unemployment and that the accumulated arrears for those periods be rescinded.

[18] The father has been unemployed or without contractual remuneration on several occasions. He points to the current surplus of employment candidates with similar qualifications in the Ottawa area given the demise of companies like Nortel, companies he has worked for or with and the cost and employment cutting measures of the current Federal government. These are realities which negatively impact employment, business markets and ability to pay.

[19] As this Court remarked during argument however, children’s daily needs do not decrease because of decisions made by corporate or political decisions makers. The applicant may prefer to wait for “suitable full time employment”. His children’s needs however are current, ongoing and do not permit waiting for the perfect or preferable employment opportunity. The applicant does not appreciate the urgency of the current situation. For this reason, I am granting some relief to the applicant but requiring he re-attend in two months to report on his then employment or contractual efforts and status.

[20] Unless self-induced, the courts should not ignore unemployment. The arrears accumulated in the present case are extremely high and realistically will not be repaid in the foreseeable future. The mother does not argue that no forgiveness of debt should be granted.

[21] There is no legal or factual justification to impute $60,000 annual income to this applicant during periods of his past unemployment.

[22] I am satisfied on the evidence that there have been several periods of unemployment during which the applicant has not earned income.

[23] The applicant’s obligation under the agreement to pay monthly child and spousal support totals of $1,968. The resulting indebtedness, accruing at the monthly rate of $1,968, is rescinded and cancelled during the following periods of unemployment:

(a) From May 1, 2009 until June 30, 2010, (debt reduction totalling $27,552).

(b) November 1, 2011 until May 30, 2012, (debt reduction of $13,776) and

(c) February 1, 2013 until March 30, 2014, (debt reduction of $27,552).

[24] The applicant’s motion seeking extinguishment of the remaining debt or arrears owed by him in the form of child and spousal support is dismissed. His motion seeking amendment of the current contractual obligation to pay monthly child and spousal support is adjourned for review to June 16, 2014 at 10:00 hours.

[25] The applicant is hereby ordered to serve and file the following by June 2, 2014:

(a) An affidavit of his then current employment or contractual status in anticipation of his statement today that he expects receiving an offer of employment. That affidavit is to include a copy of any offers on hand, his acceptance or rejection of any such offers, any contracts of offers received by him since January 1, 2014, and proof of any salary, compensation or remuneration then being received by him, including government benefits.

(b) Proof of compliance by the applicant of his obligations to disclose information as ordered by this Court on April 24, 2012, March 28, 2013 and August 16, 2013, failing which this Court is prepared to consider appropriate remedies if requested via motion returnable June 2, 2014.

[26] There remains the issue of access. The applicant’s positioning of that issue today and the urgency he now expresses in relation thereto lacks credibility. His lengthy lack of interest towards his three children over five years is his reality for which the children have suffered. That said, these children have a father and the absence of a relationship with their father for five years. The two youngest do not know or have little memory of their father. The applicant’s aversion to a period of introductory supervised access given his lengthy absence is unacceptable.

[27] The applicant is directed to take immediate steps to enlist with the Ottawa community access center to obtain three months of gradually increasing supervised access with his children. The purpose is to control and protect the children during a gradual introduction to their father, which hopefully thereafter can then proceed to unsupervised access. The first three sessions of supervised access should be limited to one hour and thereafter increase in length during the 12 weeks to visits of no more than three hours in length.

[28] Subsequent unsupervised access should be on Saturday every second week commencing at 10 a.m.:

(a) For a 4-hour visit (10:00 to 14:00) during the next two months;

(b) For a 6-hour visit (10:00 to 16:00) during the next two months; and

(c) For a 9-hour visit (10:00 to 19:00 during months 8 and 9.

[29] Overnight access without consent of the respondent mother shall not occur until month 10 and only if access is regularly being exercised generally without conflict.

[30] The respondent mother has offered to try to arrange an alternate access supervisor which, if available, might be a faster method to commence re-integrating these children with their father. Acceptability of that individual is to be determined by the respondent mother only. If that person is unacceptable to the father, he and the children will have to wait.

[31] Drop-off and pick-up of the children for unsupervised access is to occur at a public location (store, coffee shop etc.) located within 3 kilometers of the respondent’s residence. The applicant shall be responsible for transportation of the children to and from that location. The next access visit will be cancelled if the applicant is more than 15 minutes late to pick-up or drop-off the children.

Kane J.

Released: April 28, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: BORIS SHINGAROV, Applicant

AND

VALERYA SHINGAROV, Respondent

BEFORE: Kane J.

COUNSEL: Boris Shingarov, Self-Represented

Annemarie Roodal, counsel for the Respondent

ENDORSEMENT

Kane J.

Released: April 28, 2014