COURT FILE NO.: 38494/05
DATE: 2014-01-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rajvinder Johal
Charles Morrison, Counsel for the Applicant
Applicant
- and -
Mandip Johal
Tracy L. Miller, Counsel for the Respondent
Respondent
HEARD: October 8, 2013
THE HONOURABLE MR. JUSTICE G.A. CAMPBELL
REASONS FOR JUDGMENT
I. Introduction and Facts
[1] The culmination of the last trial hearing of this dispute is unique in its complications. It offers an example of how the years of litigation have unfolded between the parties that has persisted since their separation in 2005.
[2] The parties married in 1993 and separated 12 years later on June 8, 2005. They have three daughters, Terinder, age 16, Danisha, age 13 and Simran, age 12.
[3] Mr. Johal is a police detective, who in 2012 earned $108,416. He is projected to earn almost $121,000 in 2013.
[4] Ms. Johal works factory work at Frito Lay. She earned $64,072 in 2012. (including overtime) Her income for 2013 is expected to be the same.
[5] Mr. Johal commenced living common law with Tanya Harris soon after separation. Ms. Harris has four children, the two eldest of which live with their father in Nova Scotia. They visit their mother for access every year. She works part-time as a server at a local restaurant. Mr. Johal and Ms. Harris have two children of their own, currently ages 7 and 4.
[6] After separation, Mr. Johal’s elder daughters were understandably unsettled. At first, when Mr. Johal left, all three girls lived with their mother and their paternal grandparents in the matrimonial home owned by Mr. Johal’s parents.
[7] Ms. Johal moved from that home into a women’s shelter in December 2005 at which time she commenced these proceedings. Mr. Johal has been living with Ms. Harris since he separated from his family on June 8, 2005. He paid no spousal or child support at all in 2005.
[8] After December 2005, the three children continued to reside in the matrimonial home with their grandparents, with both parents living elsewhere. Neither parent paid any spousal or child support to each other or (as best I can determine on the evidence) to the grandparents.
[9] Ms. Johal bought herself her own place and moved from the shelter in 2006.
[10] Finally, on December 18, 2006, based upon competing claims for custody from both parents, Hambly J. granted Ms. Johal custody of the girls; child and spousal support ($1,528/month child support plus $280/month for section 7 extraordinary expenses and spousal support of $100/month) totalling $1,908/month, retroactive to October 6, 2006.
[11] By September 12, 2007, according to a F.R.O. statement, Mr. Johal’s support arrears had accumulated to $8,163.67. Those arrears remain unpaid.
[12] All three girls started living with their mother in 2006, then Terinder started dividing her time equally between her parents. Ultimately, in August 2009, she decided to live full-time with her father. She remains there at present.
[13] Danisha also moved about somewhat after separation. After living with her paternal grandparents, she moved into the care of her mother, then she also shifted to an equal-time parental-care arrangement for a while. But in July 2011, she also moved into the full-time care of her father. She remains there at present.
[14] Simran, followed a similar regime (i.e. grandparents, mother, equal time). She presently spends equal time in the care of both of her parents.
[15] Although Ms. Johal is much chagrined by (and strongly objects to) her firm belief that Mr. Johal used coercion and subterfuge to entice the two eldest girls to shift their allegiance to him, the realty remains that, in fact the parenting status described above has been in place for over three and four years. As a result of the various shifting parenting arrangements of the girls, it is the unravelling of the retroactive child support and spousal support obligations that must be resolved.
[16] Although counsel cannot agree on the income amounts to be inserted into them, fortunately they have offered charts that compare the party’s incomes in each year since separation, as well as support (both child and spousal) amounts calculated upon the Child Support Guidelines (CSGs) and the Spousal Support Advisory Guidelines (SSAGs). I have relied upon these aids, for which I thank them.
[17] Soon after separation, and with the girls moving about, many interlocutory proceedings were generated. After the Hambly J. Order in December 2006, the circumstances were next addressed by Ramsay J., when, on September 12, 2007, he varied the Hambly J. support Order. Ramsay J. ordered Mr. Johal to pay child support of only $750/month; 67% of the s.7 expenses; suspended F.R.O. enforcement (of the $8,163.67); and continued spousal support at $100/month (total of $850/month). Apparently, Ramsay J. was convinced that by September 2007 the parties were caring for the girls equally and that the higher child support order was causing Mr. Johal financial hardship.
[18] During 2007 Mr. Johal made an assignment in bankruptcy. His pre and post-bankruptcy income for that year totalled $89,281. Ms. Johal earned $37,879 that year.
[19] The history of the litigation reveals that as the obstruction, delay and obfuscation mounted, positions hardened and resolution became unachievable. Despite the distrust between them, through the mists of antagonism and suspicion, with counsel’s help the parties achieved a partial settlement, embodied in a Consent Order of Hambly J., dated May 18, 2012. By that final order the issues of custody, access and property were resolved.
[20] One of the terms (para. 16) of the 2012 Hambly J. Order regarding the property settlement set out specific actions that Mr. Johal was to undertake so that a portion of his OMERS pension was to be transferred to Ms. Johal, pursuant to the Pension Benefits Act and amendments.
[21] Over the next year (May 2012 to May 2013), Mr. Johal appeared (to Ms. Johal) to be unresponsive to his obligation to comply with that specific pension-splitting term of the Hambly J. Order. When regularly pressed by Ms. Johal’s counsel to comply (or to even respond to inquiries), Mr. Johal offered contradictory information, delayed, ignored pleas and generally was unhelpful in resolving this remaining obligation.
[22] By May 2013 when the trial was scheduled to proceed on the remaining ongoing retroactive child and spousal support issues, the transfer of the pension share had still not occurred.
[23] At the outset of trial in June 2013 when Mr. Johal’s counsel re-inserted herself onto the record on his behalf, Ms. Miller was able to focus Mr. Johal’s attention to his pension- transfer obligation. As a result, that irksome issue was resolved. On consent, I issued another final Order that effected the intent and direction of the 2012 Hambly J. Order.
[24] With the encouragement of the court, counsel and the parties invested two entire days negotiating and resolving (they thought) all of the remaining issues regarding ongoing and retroactive child and spousal support, health benefits coverage, s.7 extraordinary expense obligations, life insurance coverages, future income disclosure obligations and costs. At the end of the day on June 12, 2013, counsel presented the court with “final” Minutes of Settlement. Relying thereon, on consent, I granted a divorce and a “final” order regarding all corollary issues.
[25] However, in light of how part of the Hambly J. Order had been ignored and obstructed by Mr. Johal (for over a year), Ms. Johal was skeptical of how this final order might also not unfold as agreed. She (in hindsight, wisely) insisted that the following unusual term be included in that “final” Order, namely that:
- Either party may address any issues or problems arising out of these provisions of the order of Mr. Justice Campbell dated June 11, 2013 (regarding Mandip’s OMERS pension) a copy of which is annexed hereto and marked as Schedule “A”, in summary manner, by appointment with Mr. Justice Campbell.
[26] Immediately after June 12, 2013, Ms. Miller again billed out her file and ceased acting for Mr. Johal. However, Mr. Morrison soldiered on. He arranged (and Ms. Johal paid) for an accountant’s opinion regarding the tax effect of the fixed spousal support/no child support payable/release of all retroactive child and spousal support claims - as agreed in paragraphs 1 & 2 of the June 12, 2013 Order. That opinion apparently brought home to Ms. Johal that none of the expected income tax savings/benefits that both parties and counsel expected and relied upon to achieve settlement could actually occur. As a result of her compromise, instead of deriving a benefit, Ms. Johal was facing a significant tax obligation.
[27] When Mr. Morrison advised Mr. Johal of the accountant’s opinion (Ms. Miller ignored all correspondence to her on the matter) and sought to renegotiate the basis for the resolution of the support issues, Mr. Johal would not focus on the “problem”. (after all, it was Ms. Johal’s problem, not his) Again he delayed, obfuscated and otherwise ignored Mr. Morrison’s many entreaties and threats to return the matter to the court (per para. 16 of the Order).
[28] After many abortive attempts to obtain a consent to place the support (only) issue back before the court, Mr. Morrison forced Mr. Johal to attend before me on September 24, 2013. Mr. Johal arrived unrepresented. After hearing from him, I ordered Ms. Miller (and Mr. Johal) to re-attend before the court on October 8, 2013 to hear evidence and submissions on the ongoing/ retroactive spousal/child support issues and costs. I also made an Order that day setting out the procedure and timing of how evidence was to be presented upon the return of the matter and the October 8, 2013 trial date was made peremptory on Mr. Johal (and his counsel). Costs were ordered against Mr. Johal for the wasted September 24, 2013 attendance, payable by him to Ms. Johal set in the amount of $850 plus H.S.T.
[29] I heard evidence on October 8, 2013 on the support issues. At the end of the day I invited written submissions from counsel within specific time-lines. I have now read and considered those written submissions.
II The Evidence and Analysis
[30] At the outset of the trial in June, in an effort to assist counsel and the parties with their negotiations, I indicated that unless counsel had case law or legislation to the contrary, I would set arrears calculations on the actual (hindsight) income in a year as revealed by the party’s Line 150 income, rather than now basing the retroactive support on the previous year’s income to the year being calculated. In other words, for example the calculation that we are undertaking in 2013, should not use the party’s 2004 income to set support payable by Mr. Johal in 2005, but rather (now that we know that his actual income for 2005 was $81,070) use his 2005 income (rather than base the calculations on his 2004 income of only $76,255). However, to calculate future ongoing support, we must use the best evidence available (i.e. their 2012 Notice of Assessment and 2013 pay stubs to date).
[31] Apparently, counsel tried to resolve the whole retroactive and future support issues on that basis (and through compromise) during the June negotiations.
[32] Another difficulty that counsel faced was to try and decide the “start/end dates” for the changes in child and spousal support since, over the years, the girls kept changing their minds about where they would live.
[33] I offered that even though (as both Terinder and Danisha did) the girls changed homes during the summer months, support should not change “officially” until school started in the fall when they started to go to school from their “new” home. Terinder announced her decision in August 2009 and Danisha in July 2011.
[34] I order that support for them should therefore change effective September 1 in each of those years.
[35] According to the various charts offered, I find the parties’ incomes for the relevant years for child and spousal support calculations shall be as follows:
| Husband | Wife | |
|---|---|---|
| 2005 | $ 81,070 | $33,015 |
| 2006 | $ 82,364 | $40,653 |
| 2007 | $ 89,281 | $37,879 |
| 2008 | $ 88,068 | $35,917 |
| 2009 | $ 90,259 | $39,717 |
| 2010 | $ 92,827 | $43,232 |
| 2011 | $101,484 | $53,370 |
| 2012 | $108,416 | $64,072 |
| (Estimated) 2013 | $121,740 | $64,000 |
[36] After reading the parties’ affidavit evidence-in-chief and their cross-examinations at the trial hearing on October 8, 2013, when their evidence conflicts, I prefer that of Ms. Johal. I found that when asked, Ms. Johal was more direct, forthcoming and specific in her responses. Mr. Johal, on the other hand, revealed a lack of attentiveness to the detail of what happened, when certain events occurred and why he did not address the changes in status or meet his primary obligations to his wife and first family before taking on responsibility for Ms. Harris and her children (and fathering two additional children), all for which he is primarily financially responsible (given Ms. Harris’ level of casual employment).
[37] In his affidavit and during questioning, Mr. Johal returned many times to his theme that he is “doing the best that he can” given that he is supporting four children full time; Simran half time; Ms. Harris and her two children partially (to pay for their travel to/from Nova Scotia and full time while they live with them here in Kitchener in the summer); and assuming full responsibility for when his blended family travels together on vacation.
[38] Mr. Johal has a point when he complains that he already has more on his plate than he can handle and that he “can’t afford” retroactive child or spousal support at all (let alone all the way back to 2005). In this regard, Mr. Johal might have been assisted by the recent S.C.C. decision that set out a guideline of three years for retroactive support claims (except for certain circumstances of fraud and intentional non-disclosure in the face of persistent demands for increased support). This guideline is based upon the principle that support is intended to help spouses and children in the present and is not meant to be hoarded for a claim on some future date many years hence. However, the evidence shows that Ms. Johal did not sit idly by and lull Mr. Johal into complaisance by not making any demand for child and spousal support. She started her application in December 2005. That Application is a clear and formal “demand” for support and his obligation surely started at that time. It also does not help his plea of impecuniosity that even in the face of a clear court-ordered obligation, he did not pay the support he was supposed to.
[39] But in order to minimize the present impact upon Mr. Johal for his past behaviour of ignoring his primary financial obligation to his wife and girls and recognizing that F.R.O. has a mandate to collect $8,163.67 for arrears of pre-September 2007 support, I rule that all retroactive support calculations based upon the parties’ actual incomes and shared equal custody of the girls shall commence from September 12, 2007. Those calculations shall continue on that basis until September 1 in 2009 (when Terinder moved full time into her father’s care) and then be readjusted again on September 1, 2011 (when Danisha did the same).
[40] Accordingly, I need not analyze who was living where and with whom in 2005, 2006 and the first part of 2007 and do not intend to do so.
[41] Ms. Johal’s claims for spousal and child support pre-September 2007 are dismissed (except for the $8,163.67 which is still owing to her by Mr. Johal).
[42] Therefore, from and including September 2007, child and spousal support is to be calculated by counsel, based upon equal, shared-parenting of the girls by using their actual yearly incomes for that and each subsequent year to and including August 2009.
[43] Then for the last four months of 2009, Mr. Johal had the full time care of one child and half time care of both of the other girls, until the last four months of 2011 when Mr. Johal then had the full time care of two girls and half time care of Simran. Counsel are to calculate the support payable by the parents to each other on the guideline support (as directed by s.8 of the Act) and spousal support based upon the “with children” guideline set in the middle SSAG calculation, owing by Mr. Johal to Ms. Johal. These calculations are to be based upon their actual incomes that I have set out earlier, until this year, 2013.
[44] For all of 2012 and the first five (5) months of 2013, inclusive, the calculations should continue on the basis of 2 ½ (Mr.) and ½ (Ms.), plus the mid-range SSAG support (if any) to Ms. Johal, based upon their actual respective incomes for 2012.
[45] Counsel are directed to make their calculations of the arrears of support as set out above and agree upon, (or if they cannot, I direct that the trial coordinator’s office is to forthwith set a date for them to attend to settle) that amount for inclusion in my final order.
[46] The parties agreed in June that as part of Mr. Johal’s spousal obligation to Ms. Johal, he would waive any future child support from then henceforth, including any post-secondary educational expenses for all of the girls and that he would pay Ms. Johal $321/month spousal support for five (5) years from that date.
[47] Since child support is an entitlement of the child and cannot be bargained away by either of their parents and since the future post-secondary educational expenses are only a possibility and are quite remote as at June 2013 (the eldest, Terinder is only 16), I am disinclined (nor am I bound) to adhere to that resolution of that part of the Johal financial dilemma.
[48] In June, during negotiations it may then have been acceptable to the parties to take all of those competing factors into account (including Mr. Johal’s presently professed impecuniosity, and his inability to pay Ms. Johal any amount of retroactive child/spousal support – except for the $8,163.67 arrears already identified to be collected by F.R.O.) and to “settle” their claims/obligations in that very unique and individual manner. But despite their best intentions, that ingenious resolution “crashed and burned”.
[49] I am unwilling to follow the parties into that labyrinth. I believe that case law strongly suggests that the court should not create an order such as they agreed to regarding child support. Adults are at liberty to knowingly negotiate away their claims (with proper advice and adequate disclosure) but children are not in a similar legal position.
[50] Accordingly, I order that child support shall continue from and including June 2013 with Ms. Johal owing split-custody child support based upon a 2 ½ to ½ s. 8 split-custody guideline calculation, plus her pro rata share of the girls s. 7 expenses calculated on both of the parties’ anticipated 2013 income of $64,000 and $121,000.
[51] Mr. Johal shall continue to pay the “with child” mid-range SSAG support to Ms. Johal for another seven (7) years or until a material change in either party’s circumstances: which change shall include the change of residence of any of their own daughters or when/if any of their own daughters attends post-secondary education, regardless of whether she leaves her father’s home to do so.
[52] At the October trial hearing Mr. Johal and (in her written submissions) his counsel made much of his inability to pay any lump-sum arrears and of the reality that Mr. Johal is the (almost) sole source of support of Terinder and Danisha; one-half of Simran’s living expenses; his two youngest children; Ms. Harris; and a large amount (if not all) of the cost of Ms. Harris getting to see her Nova Scotia-based children. He is/they are quite right to be concerned. Mr. Johal has put himself into quite a box of demands. Everyone wants a piece of his income (including now, the Family Responsibility Office). He has already (in 2007) availed himself of the benefit of an assignment into bankruptcy. But his present dilemma appears to be self-imposed in that, in the face of all of these demands and before resolving his obligations to and with Ms. Johal he:
(a) decided to have not one but two additional children “because Tanya wanted them”;
(b) pays for Ms.Harris’ own children to come to Ontario and live with them every summer;
(c) bought a new $400,000 home (96% of which is financed by a mortgage), then incurred additional debt by:
(i) immediately installing a new roof on that home,
(ii) buying a new vehicle,
(iii) taking Ms. Harris and all of the (5) children to Darien Lake Resort at Cedar Point, New York this summer for two days, at a cost of about $2,000, and
(iv) paying at least another $7,000 to his lawyer to prepare for the October court attendance, rather than adjust the June settlement to avoid two additional court attendances and legal fees (and possibly a costs order as a result of the actual hearing should he not be successful in bettering his offer to settle - assuming of course that he made one).
[53] It is difficult to find much sympathy for the corner into which Mr. Johal has painted himself, especially when he does not ask Ms. Harris to contribute any significant employment income to their blended family’s needs (her income is disclosed as $8,900 in 2011 and $9,900 in 2012). As Mr. Morrison argues “Honouring his (Mr. Johal’s) proper obligations to his “first family and first wife” appear to have been a low priority to the father”. That critical view of Mr. Johal appears at first blush to be a valid one when one examines the reality that he created, namely that he is currently supporting 4 ½ children and Ms. Harris (and her children sometimes) and his obligation to house the 4 ½ (6 ½) children when they are in his care. Despite his poor decision-making and how that reality came to be, Mr. Johal does need a safe/appropriately-sized vehicle and a proper home (with a roof that doesn’t leak).
[54] But, in the end, I agree with Mr. Morrison that Mr. Johal confuses his obligation to pay with his ability to pay (even though “ability” to pay is a factor to be considered when deciding the quantum of support). I find that he definitely has the former and has placed himself into a position that he does not, at present, have the latter.
[55] In order that Mr. and Ms. Johal can disentangle themselves from the predicament into which Mr. Johal has placed them, and to ensure that their girls’ rights are not further compromised, I would follow the assistance offered in the 1991 case of Greco v. Greco and the 1998 case of Chrintz v. Chrintz which decisions suggest that the court has a discretion to do “what is fair” in the circumstances and to somehow “balance” the competing rights and obligations. Although I find that Mr. Johal has a significant obligation to Ms. Johal for her and the girls’ support since separation, his primary obligation at present is to his children, all five of them. He has no obligation to Ms. Harris’ children. His children’s present needs “trump” Ms. Johal’s entitlement to an immediate payment of the lump sum arrears that Mr. Johal owes her.
[56] I have decided that once the quantum of arrears is determined, that amount will form the basis of a monetary judgment owing to Ms. Johal by Mr. Johal, plus interest from June 2013 at the rate of 10% per annum until paid in full, which monetary judgment may be registered by Ms. Johal against Mr. Johal’s real estate. It may also be collected by F.R.O. (in addition to the $8,163.67) as it deems appropriate (since the entirety of the judgment is for support).
[57] Accordingly, I order that:
The child and spousal support paragraphs and paragraph 10 in my consent order of June 12, 2013 are set aside.
The order of Gordon J. of December 15, 2011 is vacated entirely.
The suspension of enforcement by F.R.O. imposed by Ramsay J. in his order of September 12, 2007 is rescinded and the child and spousal support quantums set by that order are varied, to be calculated as directed herein.
I disallow any/all alleged additional retroactive s.7 extraordinary expenses sought by either party prior to June 12, 2013.
Paragraphs 6 and 7 of the June 12, 2013 Order are confirmed.
Paragraph 4 of the June 12, 2013 Order is set aside in its entirety.
The previous costs order of $850 plus H.S.T. as well as one-half of Ms. Johal’s BDO tax opinion expense of $2,000 are to be added to the retroactive spousal/child support quantum (after deducting, of course, any money actually paid by Mr. Johal to Ms. Johal since September 2007). That $1,850 plus H.S.T. is to be collected by F.R.O. as incurred entirely in relation to ascertain and collect support (see s.1 (1)(9) of the Family Responsibility and Support Arrears Enforcement Act 1996 and Wildman v. Wildman 2006, 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401 (O.C.A.).
All other paragraphs of the June 12, 2013 order not already addressed are also confirmed.
Counsel are to confer immediately and present to me for signature (or set a date before me to settle) this order, within 15 days hereof.
Unless counsel can agree, I will accept brief (four pages or less) written costs submissions, together with any Rule 18 Offers to Settle (or such offers that fall within Rule 18 (16)) as well as statements of account rendered to either party by their counsel:
(a) from Mr. Morrison on or before January 31, 2014;
(b) from Ms. Miller on or before February 15, 2014; and
(c) any reply by Mr. Morrison on or before March 1, 2014.
[58] Any costs awarded arising from this latest chapter of litigation will be embodied into a separate order, to be issued at some future date.
G.A. Campbell J.
Released: January 3, 2014
COURT FILE NO.: 38494/05
DATE: 2014-01-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rajvinder Johal
Applicant
– and –
Mandip Johal
Respondent
REASONS FOR judgment
G.A. Campbell J.
Released: January 3, 2014
/lr