Court File and Parties
COURT FILE NO.: FS-09-8329-02
DATE: 20140321
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christine Baberakubona, Applicant
AND:
Chiluba Kanso, Respondent
BEFORE: Nolan J.
COUNSEL: Sheila A. Beaumont, for the Applicant
Chiluba Kanso, acting in person
HEARD: December 3, 2013
ENDORSEMENT ON MOTION TO CHANGE
Introduction
[1] This is a motion to change commenced by the respondent, Mr. Kanso, to terminate the child support provisions in the order of Gates J. made May 17, 2012, in which Mr. Kanso was ordered to pay child support in the amount of $336 per month effective June 1, 2012, for Chrisenga (“Freddy”) Kanso, born May 9, 2006. Mr. Kanso was also ordered to pay 48.8 per cent of the s. 7 expenses for Freddy based on his income at that time.
[2] Mr. Kanso commenced a full-time degree program in mathematics in September 2012 at the University of Windsor. He has an expected graduation date of the spring of 2016. It is his position that his child support obligation should be reduced to $59 per month from the time he returned to school in September 2012, at least until he graduates from his program in 2016.
[3] Ms. Baberakubona, Freddy’s mother, the applicant, opposes any change to the current child support on the grounds that Mr. Kanso is deliberately under-employed. In fact, she proposed that the child support in the order of Gates J. should be increased based on the income that Mr. Kanso would have made in 2012 had he not quit his full-time employment at the end of August 2012.
Background
[4] Sometime prior to Freddy’s birth in 2006, Ms. Baberakubona and Mr. Kanso went through a form of marriage and she sponsored him for permanent resident status in Canada. In April 2008, Mr. Kanso learned from Canada Immigration that Ms. Baberakubona had been still married to someone else at the time that she “married” him. The parties separated shortly after that time and Ms. Baberakubona commenced an application in 2009 for custody, access, child support and other relief. A trial took place culminating in an order of Patterson J. which dealt with child support, among other issues. The child support was enforced through the Family Responsibility Office.
[5] The litigation between the parties did not end with that order. Mr. Kanso continued to commence litigation against Ms. Baberakubona including a proceeding in Small Claims Court, an appeal to the Divisional Court and several motions to change child support. It was one of Mr. Kanso’s motions to change child support that resulted in the order of Gates J. of May 17, 2012, which provided that Mr. Kanso was to pay child support for Freddy in the amount of $336 per month commencing June 1, 2012.
[6] In December 2012, Mr. Kanso commenced the current motion to change which ended with a trial before me at which Mr. Kanso had the assistance of a French interpreter.
[7] The material change in the circumstances relied on by Mr. Kanso is that he had left his full-time employment on August 13, 2012, to enter a full-time degree program at the University of Windsor. It appears, however, from his oral evidence and the documents he provided as exhibits at trial that he had been planning for several years to attend university full time and had been taking courses to upgrade his qualifications in order to apply for entry into the program. From those documents, it is also clear that at the time of the hearing before Gates J., Mr. Kanso would have been aware of that possible change in his circumstance. It is not clear whether he made that fact known to Gates J.
[8] After Mr. Kanso served his most recent motion to change on December 5, 2012 with a return date of January 10, 2013, Ms. Baberakubona immediately contacted the lawyer who had acted for her throughout the litigation and has continued to act for her in this most recent motion to change. Because of scheduled surgery of counsel, it was not possible for Ms. Baberakubona to have her response to the motion to change prepared and served on time. The responding materials were prepared on January 2, 2013, and served on Mr. Kanso by mail that same day. Counsel also spoke with Mr. Kanso by phone on three occasions during which she requested that the motion to change be adjourned. Mr. Kanso was non-committal. On January 9, 2013, Mr. Kanso phoned Ms. Baberakubona’s counsel and told her that he was consenting to nothing because she had had 30 days to file a response.
[9] The matter proceeded on an uncontested basis before Pomerance J. on January 10, 2013. On the basis of the information before her, Pomerance J. varied the order of Gates J. of May 17, 2012, and ordered that effective September 1, 2012, that Mr. Kanso was to pay child support in the amount of $59 per month for Freddy.
[10] Counsel for Ms. Baberakubona brought a motion the following week to stay the order of Pomerance J. until proper materials could be provided by the applicant. That order was granted by Thomas J.
[11] The issue to be determined by me is whether or not Mr. Kanso’s circumstances in relation to his return to school justify a change in the child support that he is to pay for Freddy, at least on a temporary basis.
The Evidence
[12] Mr. Kanso was the only witness at the trial. He testified that he received an offer of admission from the University of Windsor into the Bachelor Mathematics-General Program commencing September 2012 sometime after April 27, 2012, the date on the offer. He was given until May 18, 2012 to accept the offer which he did. Mr. Kanso also provided as an exhibit an enrolment certification from the University of Windsor confirming that he was currently enrolled full time in the 2013 fall semester of his second year in the same program and that his expected date of graduation will be June 2016.
[13] With respect to his employment, Mr. Kanso provided a letter from his employer, Drain-All Ltd., dated October 15, 2013, advising that Mr. Kanso had been an employee of that company since December 13, 2004. From that date until August 31, 2012, Mr. Kanso held a full-time position as a Lead Hand Chemical Technician, earning an hourly rate of $16.75 for an average of 40 hours per week. The letter continued that commencing September 1, 2012, “due to his full-time academic commitments, Mr. Kanso is employed on a part-time basis as a Chemical Technician/Labourer, earning an hourly rate of $13.25, for an average of 15 hours per week”. In addition to his part-time income from Drain-All, Mr. Kanso receives a student loan of approximately $14,000.
[14] It was Mr. Kanso’s evidence at trial that he had always intended to return to university to be able to obtain an education that would allow him to provide for his family more adequately. This included his obligation to provide child support for Freddy. Mr. Kanso also testified that because his first language is French, he has an excellent chance of being hired as a teacher or as a consultant in the French school system almost immediately after graduation, earning a salary of between $60,000 and $80,000 per year. He explained that there is a program to train teachers offered by the University of Ottawa which would permit him to become qualified in the summer after he graduates from his program so that he could begin teaching in September 2016. There was no evidence presented at trial to contradict this evidence.
[15] Mr. Kanso’s annual income to date has been as follows:
2009 - $30,495
2010 - $33,511
2011 - $36,858
2012 - $32,614
The Law
[16] The Family Law Act, R.S.O. 1990, c. F.3, allows for variations of child support pursuant to s. 37(2.1) where the court is satisfied that there has been a change in circumstances within the meaning of the Child Support Guidelines (emphasis added). Section 37(2.2) provides that a court making an order under s. 37(2.1) must do so in accordance with the guidelines.
[17] The Child Support Guidelines, O. Reg. 391/97, offers guidance as to what the court should consider in proceeding to vary child support. Section 19(a) is applicable to the case before me:
The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
This provision provides that a spouse may be intentionally under-employed where it is required by the reasonable educational needs of the spouse.
[18] Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), is the leading case considering this provision of the Guidelines. In that case, the Court of Appeal set out a three-part test at para. 23 to apply this provision. Although this case deals with the federal guidelines, the same analysis would apply to the provincial legislation and regulations as they are identical. The test is as follows:
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to number 2 is in the negative, what income is appropriately imputed in the circumstances?
The court found in that case that the husband choosing university over remaining in his job did satisfy the first prong of the test, that is that the husband intentionally chose to be under-employed.
[19] On the second prong of the test, the burden is on the payor spouse to establish what is required by his educational needs. There are two aspects to this requirement:
The trial judge must first determine whether the educational needs are reasonable by considering the course of study and by considering whether the spouse is aspiring to a realistic or productive career.
The trial judge must then determine what is required by virtue of those educational needs. This involves an inquiry as to whether under-employment is required by virtue of the educational needs. The court must look at how many courses are to be taken and when, how much time is required in and out of the classroom, whether part-time work can be done, can the program be taken part time and is summer employment reasonable.
[20] In Drygala, the Court of Appeal overturned the trial judge’s imputation of income in the amount of $30,000 and made an order to impute income of $16,500 when considering the spouse’s educational requirements and how much time he could devote to part-time work.
[21] This test has become the standard in cases like the one before me. In Drygala, as in the case before me, the spouse chose to attend university with the goal of becoming a teacher.
[22] The second stage of the test will be fact based. In Zagar v. Zagar, 2006 ONCA 296, Karswick J. found that the husband’s unemployment was not by virtue of his reasonable educational needs. In coming to this conclusion, the court was guided by the fact that the spouse’s children would suffer financially. Further, he had not taken steps prior to enrolling in the educational program to provide for his children.
[23] In Mlambo v. Mlambo, 2007 ONCA 240, Karswick J. reached a different conclusion, finding that, on the facts of that case, the husband’s educational pursuits were reasonable. In that case, the husband was facing termination and leaving his job was reasonable to provide for his children long term.
[24] Ultimately, it is the obligation of the payor parent to justify his or her decision to return to school and to provide the court with information on the types of work available and the number of hours that can be worked (Drygala, para. 46). It is open to the trial judge to determine what is reasonable in the circumstances with regards to imputed income.
Analysis
[25] Applying the test set out in Drygala to the facts before me, I make the following findings of fact:
Mr. Kanso is intentionally under-employed. He was not laid off from his work but left his position to return to school.
Based on the second part of the test set out in Drygala, I find that his intentional unemployment is required by virtue of his reasonable educational needs. Mr. Kanso had worked steadily in a position for almost eight years. Had he stayed in his position, he was on track to make approximately $38,000 in 2012. I find that his returning to school was not an attempt on Mr. Kanso’s part to avoid his child support obligations for Freddy, even though I was urged by counsel for the applicant to make such a finding, based on Mr. Kanso’s seemingly endless attempts to reduce his child support obligations for Freddy. Mr. Kanso testified that he is married and has two other children, as a result of which he has other financial obligations. I find that his decision to return to school and study mathematics was not a precipitous one. He testified and I accept that he had been taking courses on a part-time basis in order to become qualified to enter into the program. Since French is his first language, and there is a program available to him when he graduates to accelerate his entry into the teaching profession, his decision to return to school full time is a reasonable one and one that will financially benefit Freddy in a few more years. In that regard, I accept Mr. Kanso’s evidence that when he graduates in 2016, he has a very good chance of obtaining a teaching job for September 2016 when his income will be in the range of $60,000 to $80,000 per year. Based on the current child support guideline tables, Ms. Baberakubona will be entitled to child support for Freddy in an amount between $557 to $719 per month
[26] With respect to his income in 2013, Mr. Kanso provided his pay statements from January 1, 2013 to June 14, 2013 which showed an income from employment of $2,121.00. He had no reasonable explanation for why he had not provided his pay statements for the balance of the year, at least to November 30, 2013. Because of that omission, the only reasonable inference I can draw is that Mr. Kanso worked more hours in the summer months when he was not attending school and made the unwise decision to not make full disclosure to the court about his income.
[27] Throughout this proceeding, Mr. Kanso has had the onus to establish on the balance of probabilities that he is entitled to an order reducing the amount of child support, based on his income. Although he did not provide evidence of the breakdown of the expenses which are included in his student loan, I can take judicial notice of the fact that a portion of his $14,000 student loan is for living expenses, some of which must be allocated to Freddy. Taking that into account, as well as the likelihood that he worked full time or could work full time in the summer, I estimate that his income for child support purposes for the year 2013 was $20,000. I impute that amount to him. .
[28] When asked whether he intended to take classes during intersession and in the summer in order to accelerate the date on which he would be entitled to graduate, Mr. Kanso made it clear that it was not his intention to continue classes from May until September. Accordingly, I find that since he will not be taking courses during the spring and summer semesters, he will be able to work full time during those months in the future. Mr. Kanso appears to be a valued employee at Drain-All. All the evidence confirms that he should be able to continue his employment with that company until he graduates from university and obtains employment as a teacher. If that is not possible, he needs to find other full-time employment in the spring and summer months when he is not taking classes.
[29] In making these findings and coming to these conclusions, I do so in spite of the fact that, at times, Mr. Kanso seemed to be evasive in the manner that he presented his evidence and was not forthcoming about his actual circumstances. For example, his sworn financial statement was incomplete as it did not show his part-time employment income. It was not until he was questioned by the applicant’s counsel prior to trial that he acknowledged he had employment income. I have already made reference to his failure to provide a statement of income from June 2013 up to and including November 30, 2013. Nevertheless, I am satisfied that his intentional unemployment which is actually reduced employment is on account of his reasonable educational needs.
[30] At the same time, because he is not attending school 12 months a year, I find that Mr. Kanso can work full time between May and the end of August each year, as well as part-time during the school year. Accordingly, I find that income shall be imputed to Mr. Kanso in the annual amount of $20,000 for 2014, 2015 and for the first eight months of 2016. I have already imputed income to him for 2013 of $20,000. Based on that income, his child support obligation for Freddy is $172 per month commencing February 1, 2013, the month after the order of Pomerance J. was set aside, up to and including August 1, 2016. I leave it to the Family Responsibility Office to calculate any credits to which Mr. Kanso is entitled, subject to my direction below with respect to outstanding costs.
[31] In addition to paying child support in the amount of $172 per month, Mr. Kanso shall also be responsible for 35 per cent of any section 7 expenses incurred for uninsured medical or dental expenses for Freddy. Mr. Kanso shall also provide to Ms. Baberakubona written proof of his full-time attendance in his current program at the University of Windsor no later than the last day of September and the last day of January each year until his graduation, along with satisfactory proof that he has successfully completed the required courses in each semester. Both parties shall exchange income tax returns and notices of assessment and re-assessment by May 31 each year.
[32] With respect to costs, Mr. Kanso was ordered to pay costs to Ms. Baberakubona of $4,500 by Gates J. in his order of May 17, 2012. Because the costs were directly related to child support, Gates J. directed that the Family Responsibility Office enforce the costs order. In calculating any credit to be given to Mr. Kanso for any over-payment of child support after the effective date of my order, the Family Responsibility Offices shall first apply any credit to the outstanding cost order.
[33] As for the costs of this motion to change, Mr. Kanso was successful to the extent of having his child support obligation reduced but was not successful in obtaining an order in the amount that he was seeking. Ms. Baberakubona sought to have Mr. Kanso’s motion dismissed and to have his child support obligation increased to $350 per month in accordance with the $38,000 she estimated he would have made in 2012 had he not left his job to attend school. She was unsuccessful in obtaining either order. I, therefore, make no order as to costs. As a caveat to that determination, however, if either party served a formal Offer to Settle in accordance with the provisions of the Family Law Rules, O. Reg. 114/99, the party serving the Offer shall provide me with a copy of the Offer and the relevant affidavit of service within 10 days.
[34] In summary, the following order shall issue:
Effective February 1, 2013, the respondent shall pay child support for the child Chrisenga (Freddy) Kanso in the amount of $172 per month based on an imputed income of $20,000 up to August 31, 2016, after which time the amount may be reviewed by either party without the need to establish a material change in circumstance;
In addition, effective during the same dates, the respondent shall pay 35 per cent of the section 7 expenses related to uninsured mental and dental expenses of the child;
Any overpayment of child support by the respondent shall first be applied to any outstanding costs awarded by Gates J. on May 17, 2012;
No later than May 31 each year, commencing 2013, each party shall provide the other with copies of his or her income tax returns, notice of assessment and any notice of reassessment;
No later than January 31 each year except for 2014 when the date shall be March 31, and September 30 each year, the respondent shall provide the applicant with proof of his full-time attendance in his current programme at the University of Windsor and proof of his satisfactory completion of each of the courses in the programme in which he is currently enrolled; and
There shall be no order as to costs; this determination may be amended in accordance with paragraph 33 of this endorsement.
Original stamped “Mary Jo M. Nolan”
Mary Jo M. Nolan
Justice
Date: March 21, 2014