ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F1865/11
DATE: 2014-11-21
BETWEEN:
Cheryl Ann Tillmanns
Applicant
– and –
Frank Joseph Tillmanns Jr.
Respondent
Alisa P. Williams
Counsel for the Applicant
Kanata J. Cowan
Counsel for the Respondent
HEARD: November 12, 13, 14, 2014
THE HONOURABLE MR. JUSTICE PAZARATZ
With thousands of well-paying jobs being lost through plant closures in Ontario, it’s easier to speculate about things a displaced worker could have done to meet child support obligations – but harder to be sure exactly what he or she should have done.
Sometimes imputing income can be relatively straightforward -- where for example the laid off worker makes little or no sincere or practical effort toward income replacement.
But in an uncertain and restructuring economy, often the suddenly-unemployed face no “good” options. Certainly, none of them guaranteed.
We may be able to distinguish between “reasonable” and “unreasonable” efforts to mitigate job loss. But can we rely on hindsight to narrow it down to a single best career choice which should have been followed – and impute income accordingly?
That was the fundamental question on this motion to change which proceeded as a three day trial in which only the parties testified.
FAMILY BACKGROUND
- The family background:
a. The Applicant mother is 42.
b. The Respondent father is 39.
c. The parties were married on October 20, 2000.
d. They separated on November 28, 2005.
e. They have an 11 year old son Matthew who has remained in the Applicant’s custody since separation. The father has regular access.
f. The Applicant now resides with her second husband.
g. The Respondent now resides with his second wife and their two children ages three and one.
SEPARATION AGREEMENT
- On July 19, 2006 the parties signed a separation agreement which included the following provisions:
a. Sole custody to the Applicant.
b. Respondent to have liberal and generous access.
c. Respondent to pay $519.00 per month as table support, and 43 per cent of childcare and section 7 expenses.
d. Child support based on Applicant earning $73,441.00 in 2005 and Respondent’s estimated income (in a new job) being $56,000.00.
e. Until support is formally adjusted by further agreement or order, Respondent to keep making existing support and section 7 payments.
f. Annual income disclosure, including annual child support adjustments by June 1st.
g. Spousal releases.
h. Applicant to buy-out matrimonial home for $42,000.00.
FINAL ORDER
- On September 5, 2012 Justice Brown granted a final order based upon minutes of settlement. The order included the following variation of the separation agreement:
a. Respondent’s access specified to include Wednesdays from after school or 3:30 p.m. to 8 p.m., depending on what shift he is working.
b. Respondent also to have access alternate weekends.
c. Numerous other details for timesharing during vacations, special occasions, etc.
d. Respondent’s contribution to special or extraordinary expenses to include the child’s Rep Hockey Fees and Special Rep Hockey Equipment and other related expenses.
e. Respondent to maintain $100,000.00 life insurance to secure support.
MOTION TO CHANGE
On February 11, 2014 the Respondent brought this motion to change the child support provisions of the July 19, 2006 Separation Agreement.
Although there was some confusion on this point, ultimately counsel agreed there was no request to change the September 5, 2012 order (except that any income redeterminations would affect the percentages by which section 7 expenses would be shared).
SUMMARY OF POSITIONS
- The Respondent’s position may be summarized as follows:
a. He was laid off as a result of a plant closure.
b. His income was unavoidably reduced.
c. He has commenced an apprenticeship in a new field which will entail several years before he gets back up to his former income level.
d. He wants to pay reduced child support (commensurate to his annual income each year) as he slowly gets back on his feet.
e. He also feels some section 7 expenses claimed by the Applicant are no longer appropriate or affordable.
- The Applicant’s position:
a. She admits the Respondent involuntarily lost his job.
b. But she feels he’s made poor and self-serving choices in selecting replacement work.
c. She wants income imputed at his former level.
d. She wants the Respondent to pay 33 per cent of all section 7 expenses, including arrears and certain ongoing items the Respondent doesn’t agree with.
RESPONDENT’S EMPLOYMENT HISTORY
- As stated, there is no dispute about the Respondent’s employment background or the circumstances under which he lost his job:
a. The Respondent finished high school with a 55% academic average.
b. He then entered the workforce as a labourer.
c. For a number of years he worked at a firm known as Spectrum, where he was involved with printing labels.
d. Between February 16, 2004 and December 13, 2013 he was employed in the plastics printing facility of Hood Packaging in Burlington, Ontario.
e. During that time he was laid off on eight or nine occasions totalling about a year.
f. On July 31, 2013 the Respondent received notice that he would be permanently laid off because Hood Packaging was closing its Canadian plastics division (shipping all the jobs and machinery to the company’s American plant).
g. His last day of employment was supposed to be September 27, 2013, but as union grievance chair he was able to extend work to December 13, 2013.
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