ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D10-498
DATE: 2014/03/17

BETWEEN:

SHELLEY LORI SULLIVAN
Applicant

– and –

PETER COLE SULLIVAN
Respondent

Ronald G. McClelland, counsel for the Applicant

Edward C. Castle, counsel for the Respondent

HEARD: January 30 and 31, 2014

reasons for judgment

LALIBERTE, J.

INTRODUCTION

[1] On September 29^th, 2011, the parties to this Motion were able to resolve a number of issues which had been raised in family court proceedings instituted on April 29^th, 2010. Included in this resolution were terms dealing with child support. The Court accordingly issued a final Divorce Order which contained the following provisions:

“THIS COURT ORDERS THAT based on an imputed income of $26,800.00 the Respondent shall pay child support for Patrick Cole Sullivan born November 7, 2001 and Sadie Lynn Sullivan born November 7, 2001 in the amount of $400.00 per month commencing November 1, 2011 and continuing monthly thereafter ;

THIS COURT ORDERS THAT the arrears of child support are fixed at $3,300.00 repayable at the rate of $100.00 per month commencing November 1, 2011, until the amount is paid in full.”

[2] The Respondent, Peter Cole Sullivan, made such payments up to and including June 1^st, 2012. He has not made any payments since.

[3] On November 5^th, 2012, the Respondent commenced a proceeding by way of a Motion to Change seeking the termination and/or suspension of his above noted child support obligations.

[4] His Motion to Change is predicated on what he urges the Court to accept as a material change in circumstances. Specifically, the Respondent was involved in a motor vehicle accident on November 18^th, 2011. An already existing rotator cuff injury was thereby aggravated. Paragraph 16(h) of the Respondent’s Change Information Form suggests that:

“The Respondent is unable to work and has been unable to work since June 2012.”

[5] In her Response to Motion to Change, the Applicant dismisses the Respondent’s claim that he is unable to be gainfully employed. Her view is that he is intentionally under-employed and/or unemployed. Therefore, she is asking the Court to impute the Respondent with the appropriate income.

[6] The Applicant is also seeking an order securing the child support order by means of the real property located at 604 James Street in Cornwall which is owned by the Respondent. This claim is based on section 12 of the Federal Child Support Guidelines and section 41(10)(e) of the Family Responsibility and Support Arrears Enforcement Act.

[7] Enforcement is also sought by the Applicant through the seizure and sale of the said property by the Director, Family Responsibility Office.

[8] The Applicant is also requesting an Order that the Respondent be prohibited from making any other Motions in the case without the Court’s permission.

[9] The issues for the Court’s consideration are therefore as follows:

1. Did the Respondent establish on a balance of probabilities, the existence of a material change in circumstances that give rise to the making of a variation order in respect of his child support obligations set out in the September 29^th, 2011 final Court Order?

2. Should the Respondent be imputed with income on the basis that he is intentionally under-employed and/or unemployed?

3. Should the Court require security for the child support?

4. Should the Court prohibit the Respondent from making any further motions without leave of the Court?

THE LAW

Material Change of Circumstances

[10] Section 17 of the Divorce Act provides for the variation, rescission and suspension of support orders. It reads:

“17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses.”

[11] The basis for such a review in regards to child support orders is set out in paragraph 17(4):

“17(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.”

[12] Section 14 of the Federal Child Support Guidelines stipulates that:

“14. For the purposes of subsection 17(4) of the Act, any of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(a) In the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof.”

[13] In Willick v. Willick 1994 28 (SCC), [1994] 3 S.C.R. 670, the Supreme Court of Canada interpreted paragraph 17(4) as follows:

“20. This subsection authorizes the court to vary a previous support order if a change of circumstances occurs. The approach which a court should take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances.

21. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the time, would likely have resulted in different terms.”

[14] The party who is seeking to vary the child support order bears the burden of proving, on a balance of probabilities, that the change in some new facts or circumstances which, if known at the time the order was made, would likely have resulted in a different quantum of child support.

Imputation of Income

[15] The Court’s discretion to impute income is found in section 19 of the Federal Child Support Guidelines. It provides, in part, as follows:

“19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) The spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.

[16] In Drygala v. Pauli 2002 41868 (ON CA), [2002] O.J. No. 3731, the Ontario Court of Appeal provided the following principles in reviewing section 19:

“23. In my view, in applying this provision, the trial judge was required to consider the following three questions:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

4. Read in context and given its ordinary meaning, “intentionally” means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word “intentionally” makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.”

[17] Drygala also makes it clear that “intentionally” does not require proof of a deliberate course of conduct for the purpose of undermining or avoiding the parent’s support obligation. There is no bad faith requirement.

[18] While imputation of income is a matter of discretion for the Court, there must be a basis in the evidence to support the amount. The Court’s tasks is to identify the payor’s capacity to earn income based on age, education, experience, skills, health and past earning history.

(Lawson v. Lawson 2006 26573 (ON CA), [2006] O.J. No. 3179).

[19] Justice Chappel in Favero v. Favero 2013 ONSC 4216, [2013] O.J. No. 2882 provides a useful summary of some of the principles to be considered by the Court in determining “capacity to earn income”. At paragraph 102, she states the following:

“102. In determining a party’s capacity to earn income, some of the principles which the court should consider and which are relevant to this case include the following:

a. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children;

b. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

d. When a parent experiences a change in their income, they may be given a “grace period” to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.”

[20] The Court must also consider the issue of “onus” when a party seeks imputation of income and whether the same “onus” applies in cases, such as this matter, where the original order was already based on an imputed income.

[21] The Ontario Court of Appeal in Homsi v. Zaya 2009 ONCA 322, [2009] O.J. No. 1552 stated the following on the issue of “onus”:

“28. The approach mandated by this court in Drygala v. Pauli…requires a consideration of whether the spouse is intentionally unemployed or under-employed, and, if so, what the appropriate income is under the circumstances. The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding.”

[22] However, as suggested by Justice Pazaraty in Trang v. Trang 2013 ONSC 1980, [2013] O.J. No. 1618, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change when the original order was based on imputed income. The Court adopts his reasoning that in such cases, “The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.”

Security for Child Support

[23] The Federal Support Child Guidelines provide for a means to secure the payment of child support. Section 12 states:

“12. The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.”

[24] The Court may order such security if there is evidence of a payor deliberately disobeying orders or that he or she is likely to do so in the future.

-Brown v. Brown (2004) 2004 12750 (ON SC), 6 R.F.L. (6th) 43

-Kollmuss v. Kollmuss, 2012 BCSC 709, 2012 BC SC 709

[25] Counsel for the Applicant relied on Justice Gray’s endorsement of December 17th, 2009 in Trebilcock v. Trebilcock. The Court had ordered that the Respondent’s real property be vested absolutely in the Applicant in default of payment of a $150,000.00 lump sum child support within 15 days. This ruling was appealed to the Ontario Court of Appeal and reported as Trebilcock v. Trebilcock [2012] O.J. No. 2911. The appeal was allowed in part. The Court found that the vesting order was not appropriate in this case since the value of the payor’s house significantly exceeded the amount of the lump sum support order. However, the Ontario Court of Appeal replaced the vesting order by an order for security under section 41(10)(e) of the Family Responsibility and Support Arrears Enforcement Act. It is to be noted that the Director was not involved in these proceedings and yet section 41(10)(e) was used as a means to secure child support obligations.

No Motions Without Court’s Permission

[26] The Court is required to monitor the use made of the Court process by litigants. It is duty bound to ensure that cases are dealt with justly. Rule 2 of the Family Law Rules provides the following:

“2(1) The primary objective of these rules is to enable the Court to deal with cases justly

2(3) dealing with a case justly includes

(a) ensuring that the procedure is fair to all parties

2(5) The Court shall promote the primary objective by active management of cases, which includes:

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial.”

[27] There are a number of means by which the Court can scrutinize the use of judicial resources to ensure use in a manner which is “just”. For example:

• Rule 15(27) which incorporates Rule 14(21) for Motions to Change.

“If a party tries to delay the case or add to its costs or in any other way to abuse the Court’s process by making numerous motions without merit the Court may order the party not to make any other motions in the case without the Court’s permission.”

• Section 140 of the Courts of Justice Act

“Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court, or

(b) conducted a proceeding in any court in a vexatious manner, the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued, except by leave of a judge of the Superior Court of Justice.

[28] The basis for the Court’s supervisory role was articulated as follows by the Ontario Court of Appeal in Ballentine v. Ballentine 2003 27775 (ON CA), [2003] O.J. No. 2589 at paragraph 39:

“As noted by Polowin J. in Beattie v. Ladouceur, 2001 28166 (ON SC), [2001] O.J. No. 4852… There is a significant body of case law with respect to the issue of vexatious litigation. It is perhaps not surprising that many of the cases involve family litigation where emotions often run very deep.” Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied.”

[29] Justice Henry in the case of Lang Michener v. Fabian 1987 172 (ON SC), [1987] O.J. No. 355, summarized the relevant principles as follows:

“(a) the brining of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just where there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.”

DISCUSSION

Material change/Imputed income

[30] By its very nature, the Respondent’s motion to vary on the basis of a material change in circumstances requires the Court to review the actual circumstances as they existed when the order was made. Specifically, the assumption is that the income of $26,800.00 imputed by Justice Lafrance-Cardinal in the September 29th, 2011 order reflects the Respondent’s circumstances and his actual ability to pay child support accordingly.

[31] The Court accepts as proven that following the said final order, the Respondent was involved in an accident. As evidenced by the Motor Vehicle Accident Report prepared by Constable Barber of the O.P.P., the Respondent struck a deer while operating a motor vehicle on November 18th, 2011. There is no question that this event was unforeseen when the order was made.

[32] The evidence is also supportive of the Respondent’s position that this accident aggravated a pre-existing right shoulder cuff injury. The Court notes that Doctor Wayne Pell refers to this injury in his June 8th, 2011 report (Tab 10 - Volume 6). This injury is also referred to by Doctor Ryan Bicknell who is an orthopaedic surgeon (Tab 1-E, Volume 4) and in the April 15th, 2012 report of the Montfort Hospital (Tab 5 - Volume 6).

[33] The Respondent’s undisputed evidence is that in October 2012, his right shoulder injury was further aggravated when he was arrested by a police officer. He had recently gone through surgery for same.

[34] The Court’s tasks on the question of material change in circumstances is to measure the impact of the motor vehicle collision on the circumstances as they existed when the order was made. His inability to pay child support as ordered by the Court on September 29th, 2011, must be directly related to the consequences resulting from the November 18th, 2011 motor vehicle collision.

[35] The record before the Court reveals that the Respondent has long standing and varied medical issues. These ailments are described as significant. A number of these were work related and resulted in WSIB claims. The Respondent’s documented medical history is found in good part at Tabs 5, 6, 9, 10 and 11 of Volume 6 of the Continuing Record.

[36] The Respondent had provided an inventory of his numerous medical issues at paragraphs 10 and 11 of his Answer filed in the initial court proceedings which he signed on August 17th, 2010. He refers to his inability to work by reason of a depression. He also describes the following physical injuries:

− His injury when he was 12;

− Lower and upper back injury resulting from a motorcycle accident in 1991;

− Issues with his knees;

− Amputation of the tip of a finger resulting from an industrial accident;

− Being exposed to chemical contamination in 1998;

− Damages to right shoulder over the years which was further aggravated while working in construction in 2009.

[37] In a report dated June 8th, 2011, Doctor Wayne Pell, who has provided chiropractic care to the Respondent since December 18th, 1996, states the following:

“As to employability, Mr. Sullivan’s frequent chronic work related injuries to the left and right shoulders, neck, left and right elbows and low back pain, combined with the very high likelihood of recurrence make it unlikely to find an employer with a paying labour intensive job who could accommodate him.”

[38] In a report dated September 19th, 2013, Doctor Pell provides the following opinions:

“…The reason for Mr. Sullivan’s chiropractic and therapy treatments for constant and continuing right shoulder pain is directly related to a MVA of 2011/11/18… Peter Sullivan’s ability to return to a physically, repetitive, labour intensive job has been permanently and severely compromised…. Due to the fact Mr. Sullivan’s condition is permanent; his ongoing shoulder condition precludes him from returning to work….”

[39] In his examination of December 10th, 2013, Doctor Pell quite fairly admitted when questioned by counsel for the Applicant that his mandate was to treat the Respondent and not find work for him.

[40] At page 29 of the said examination, Doctor Pell testified that the motor vehicle accident aggravated the shoulder injury. He explained:

“And the reason why it’s worse is the fact that the shoulder – the shoulder repair never lasted long enough for him to regain anywhere near his former strength and use in his right arm…”

[41] At paragraph 4 of his affidavit sworn on November 4th, 2013, the Respondent explains how the Court arrived at an imputed yearly income of $26,800.00 in the September 29th, 2011 order as follows:

“4. I agreed to pay $400.00 per month as child support because I believed that I would be able to find employment or do handyman type jobs from which I would earn enough to pay the child support. I obtained employment as a snowplow operator with Kodiac Snow Blowing and Lawn Care Inc. in Ottawa, Ontario in or about September 2011. While this employment was seasonal, I believed that with this work as well as other odd jobs, I would be able to pay the child support which I agreed to pay”…

“8. I continued to pay child support pursuant to the order…to and including June 2012. However, as I was unemployed and unable to work because of the injury to my shoulder, I stopped paying child support in July 2012.”

[42] Having considered all of the circumstances, the Court concludes that the motor vehicle collision of November 18th, 2011 is, on a balance of probabilities, a material change in circumstances giving rise to the making of a variation order. This event was unforeseeable when the order was made and would have likely resulted in different terms. The evidence establishes that the said collision impacted on the Respondent’s ability to earn the imputed income of $26,800.00.

[43] Having found that there is, on balance, merit to the Respondent’s claim for a review of his child support obligations, the next question for the Court is what retroactive and/or prospective variation of the existing order ought to be made in light of the change in circumstances. It is at this point of the analysis that the Respondent’s position becomes less compelling. Intertwined with the question of the proper variation is the issue of imputation of income and the Respondent’s historical efforts at seeking realistic and reasonable employment opportunities to meet the needs of his children in light of his long standing and varied medical issues.

[44] The impact of a material change of circumstances cannot be measured in a vacuum. It must be analyzed in its proper context. The Court accepts, on balance, that the motor vehicle collision impacted on the Respondent’s ability, at a given point in time, to earn the imputed income of $26,800.00. The Court does not accept that this impact stems from July 2012 (which is when the Respondent stopped paying) to now. The Court’s view is that the variation sought by the Respondent is to be measured in light of the following considerations:

i) The Respondent’s inability to perform labour intensive/physical work is not novel; it was raised by him before the motor vehicle collision when the Applicant initiated court proceedings in April 2010 claiming child support; there is very limited, if any, indication that the Respondent has taken steps to address the issue of finding more suitable employment;

ii) Forensic Vocational expert R.J. Skirda met with the Respondent and provided the Court with two (2) reports on the issue of the Respondent’s employability; he provided the following expert opinions:

− “Many decisions made by Mr. Sullivan, as outlined throughout this report, have been thoroughly based on personal choice as opposed to skill, function or ability” (March 21, 2011 Report page 21)

− “In light of Mr. Sullivan’s Worker Qualification Profile (WOP) results suggest that he should be able to reasonably compete for an occupation remunerating at a level of at least $30,000.00 to $35,000.00 per year” (March 21, 2011 Report page 21)

− “Mr. Sullivan is an intelligent, capable, articulate and engaging individual with a wide variety of assets. He has the ability to overcome any diagnosed physical deficits and participate in competitive employment on a full-time basis….There is no evidence at this point in time that Mr. Sullivan’s current physical functional impairment (right upper extremity), constitutes a complete disability from participating in full-time employment even if current and future circumstances dictate that he avoid labour/physically-oriented work. He has the cognitive means to secure a reasonably suitable, sedentary to light level occupation eliminating a requirement for any significant physical activity” (August 27, 2013 Report pages 16-17)

iii) The fact that the Respondent has worked and continues to work on a part-time basis since the November 2011 motor vehicle collision; specifically, the evidence discloses the following:

− Seasonal work operating a snow removal tractor from November to April in 2011 and 2012;

− Performing repair work following the snow removal season;

− Delivering wood on two separate occasion;

− The signing of an employment contract as a supervisor with Kodiac Snow Blowing Inc. for the period of November 2013 to April 2014 for a total of 285 hours at $30.00 per hour;

iv) As already indicated in these reasons, Dr. Wayne Pell has been treating the Respondent since 1996; his reports and evidence during the December 20th, 2013 questioning are supportive of the Respondent’s position; in weighing Dr. Pell’s opinion the Court notes the following:

− His recognition that his mandate was not to assess the Respondent’s employability but to provide him with treatment

− His conclusion at page 15 of the said questioning “…I think he could’ve been gainfully employed, yes. The extent of the labour intensive involvement of the work, well, that’s another matter, you know…”

− The information given to him by the Respondent; as an example, the Court noted the following exchange at page 26 of the questioning:

“Q. Do you know if Mr. Sullivan was working or employed during this period from November 2011 through to the fall of 2012?

A. I wasn’t aware of any employment at the time, mainly because his shoulder was so uncomfortable and so difficult to use.

Q. Did you ask Mr. Sullivan whether he was employed?

A. Yes.

Q. And his response?

A. He said he wasn’t…didn’t feel suitable, he didn’t feel strong enough, and doctors hadn’t given him a clear indication that he was healthy or well enough to return to any type of his previous work.”

− The evidence discloses that he was in fact working for Kodiac from November 2011 to the end of the snow removal season in 2012;

v) Similar concerns flow from Doctor Brian Young’s evidence who is also, supportive of the Respondent’s position; Doctor Young’s report dated June 11th, 2012 wherein he states that the respondent is “…unable to work for 6 months until has surgery R shoulder”, should be seen in light of his evidence of December 10th, 2013:

“Q. And that’s following the motor vehicle accident that Mr. Sullivan had in November of 2012, correct?

A. That’s correct…

Q. So are you saying he was unable to do any work with his arms?

A. Basically.

Q. Did you know whether he was working at the time?

A. I have no idea.

Q. Did you know whether he worked earlier in the year?

A. I have no idea.” (Pages 21-22)

-“Q. Did you learn at any particular time that Mr. Sullivan was working for Kodiac Snow Blowing?

A. I just found out recently.

Q. When you say recently?

A. It was in…maybe a month ago.” (Page 29)

-“Q. And when you say, “unable to work”, in that phrase, do you mean at any job whatsoever?

A. Well, that’s probably beyond my abilities to testify on…” (Page 30)

-“Q. Yes. So there are…would you agree with me that there was work that he could do?

A. Again, that’s beyond my capabilities. You have to remember, I’m an information gatherer.” (Page 32)

-“Q. Do you know if Mr. Sullivan was working in 2012, and specifically in November/December 2012?

A. I have no idea.

Q. Do you know if Mr. Sullivan was working in 2013?

A. I have no idea.” (Page 35)

vi) Orthopaedic Surgeon Doctor Christopher Brown examined the Respondent on behalf of the insurance company following the collision and concludes in his report of October 4th, 2012 that by reason of the collision, the Respondent suffers an impairment of right shoulder function… “that results in a substantial inability to perform the essential tasks of his employment as a handyman…”; he further describes that this would be expected “to result in limitations with respect to prolonged reaching or above-shoulder function, and heavier lifting and carrying.”; the Court notes that this report does not address the possibility of less physical demanding work nor is the employment with Kodiac discussed.

[45] For the reasons already articulated, the Court comes to the conclusion that the Respondent was intentionally under-employed for a portion of the period following the motor vehicle. In light of his long standing medical issues, it should have been clear to the Respondent that pursuing physical or handyman work was not realistic. His duty was to seek out reasonable employment that would have maximized his income potential so as to meet the needs of his children. Pursuing the same type of physical work coupled with very little effort, if any, to find work suitable to his physical condition was unrealistic. He was required to search outside of the area of his usual type of work in order to satisfy his obligations toward his children.

[46] The Court is left with the sense that the Respondent does not grasp the significance of his obligations towards his children to provide them with financial support. The law is clear that the children’s needs have priority. As stated by the Supreme Court of Canada in Willick, op. cit at paragraph 59:

“…children’s needs ought to be given priority over those of parents when determining support…and that payors must put child care payments before car payments, high mortgage payments, entertainment, tobacco, alcohol, recreation, vacation savings and debts…”

[47] This lack of insight as to the children’s right to support, is consistent with the lack of effort displayed by the Respondent to find more realistic employment. The Court notes the following evidence which would be supportive of this lack of insight:

− On June 4th, 2013, the Respondent consented to a temporary order whereby the $400 monthly child support was stayed until a further order of the Court; he was however to pay $100 per month for the arrears noted in the order of Justice Lafrance-Cardinal of September 29th, 2011; the evidence is that he has not done so;

− The order of September 29th, 2011, confirms by its terms arrears of child support set at $3,300.00;

− The Respondent made his last payment for child support in June, 2012; in July 2012, he received $7,200.00 from the insurer because of the motor vehicle collision; none of this money went towards supporting his children;

− In his sworn financial statements filed in these proceedings, the Respondent states that he spends the following amounts on alcohol and tobacco per month:

• August 17, 2012: $400.00

• October 31, 2012: $400.00

• January 15, 2014 $200.00

− Not insisting for some 64 months that the gentleman who resides with him pay his share of the expenses which were estimated at $400 per month in his October 31, 2012 financial statement;

− When questioned on May 15, 2013, he provided the following responses to counsel’s question:

“Q. So can you tell me, sir, if you are not working other than going to see medical personnel, how do you occupy your days?

A. I watch court shows on t.v.

Q. Anything significant other than looking after yourself during the day, is there anything else you do?

A. Not really, no.”

− In her affidavit of October 7, 2013, the Respondent sister, Ronda Vaillancourt, states the following:

“Peter Sullivan then stated to members of my family, including myself, that he did not want to work because he did not want to pay child support.”

[48] Notwithstanding the Court’s view concerning the Respondent’s lack of appreciation of his obligation, the Court accepts that while under-employed throughout the relevant timeframe, a portion of this period should be attributed to “health needs” as provided for under section 19 of the Guidelines. The motor vehicle collision was a significant change and that he should be given a “grace period” to adjust to this change and seek out more realistic work in light of his physical condition. Therefore, the issue becomes one of determining how long this “grace period” should be in the circumstances discussed in these reasons.

[49] In his submissions, counsel for the Respondent suggested that the starting point for a reasonable period of time to adapt and seek alternative type of work should start when he was told that there wouldn’t be a third surgery for his shoulder. He argues that the turning point should be September 2013 and that the “grace period” should be for one (1) year. This means that there would be no child support before September, 2014.

[50] As should be evident by now, the Court concludes that the Respondent, in light of his long standing medical issues and the fact that he had raised his inability to pay child support before the order of Justice Lafrance-Cardinal dated September 29th, 2011, should have come to the realisation that he needed to seek less physically demanding work before September, 2013. The Respondent’s position is that he was unable to pay child support as of July 2012 by reason of his medical condition. It is at this point that he should have realized that he needed to find alternate employment in order to meet his support obligations. In fact, it is somewhat difficult to understand why he didn’t seek other types of work before when one considers his long standing and varied medical issues coupled with his position from the start of these proceedings in 2010 when the Applicant mother was initially claiming child support. In the end, the Court is of the view that a reasonable “grace period” which would have allowed the Respondent reasonable time to adjust in six (6) months as of July, 2012.

[51] The Court is further of the view that the Respondent has not met his burden of establishing that the annual income of $26,800.00 imputed by the Court on consent of the parties in the September 29, 2011 should be varied. This view is supported by the terms of the seasonal employment contract signed by the Respondent in November, 2013 as supervisor for Kodiac Snow Blowing Inc. It provides that he is hired as a supervisor paid at a rate of $30.00 per hour.

[52] This finding that the imputed income of $26,800.00 should be maintained is also supported by the opinion of Forensic Vocational expert R.J. Skirda found at page 16 of his August 27th, 2013 report:

“…without any significant upgrading Mr. Sullivan would be able to earn at a level falling, at least, within the $24,000.00-$25,000.00 per year range on a full-time basis.”

[53] Therefore, the end result on the issues of material change in circumstances and imputed income is as follows:

i) The Respondent has established that the motor vehicle collision of November 18th, 2011 resulted in a material change in circumstances giving rise to the making of a variation order;

ii) The order of Justice Lafrance-Cardinal of September 29th, 2011 should be varied so as to relieve the Respondent from paying the $400.00 child support for a period of six (6) months; specifically from July 2012 to December 2012;

iii) The annual income of $26,800.00 imputed on consent by Justice Lafrance-Cardinal in her September 29th, 2011 order is maintained;

iv) The arrears owed by the Respondent for child support for the period of January, 2013 to March, 2014 is $6,000.00 (15 months X $400.00);

v) As noted by Justice Lafrance-Cardinal in her June 3rd, 2013 temporary order, the amount of $1,200.00 remains unpaid for the arrears of $3,300.00 noted in paragraph 3 of the September 29th, 2011 order and nothing in this judgment changes these arrears.

Security for Child Support

[54] The Applicant is seeking an Order whereby the former matrimonial home municipally known as 604 James Street, in the City of Cornwall, Ontario, which is owned by the Respondent be vested in her to secure retroactive and prospective child support and costs for post-secondary education. In support of this claim, a report prepared by chartered accountant Ross M. Markell was filed. The report quantifies the dollar amount of a lump sum payout for child support up to the age of majority and the projected costs of a university education for both children commencing in 2018. The amounts are:

− $28,430.70 for child support from July 2012 to August 2018;

− $139,738.14 for university education starting in 2018.

[55] The Applicant’s argument is that the said property should be vested to secure the amounts as there is a risk that the Respondent will dissipate his only remaining asset. The monies would be kept in trust and the balance, if any, would be paid to the Respondent.

[56] While the Court is of the view that, on a balance, the evidence tends to show that the Respondent has deliberately not met his child support obligations and will likely fail to do so in the future, the relief sought by the Applicant is disproportionate and excessive. It would amount to the loss of his home. Such a drastic measure is not reasonable and unnecessary. The Court is not granting the vesting Order sought by the Applicant.

[57] However, the Court will provide security for retroactive and prospective child support as contemplated by section 12 of the Guidelines. The security will be in the form of a lien which may be registered by the Applicant on title in the appropriate Registry Office against the Respondent’s interest in the above-described real property. The lien will be in the amount of $7,200.00 being the arrears in child support which have accumulated up to March, 2014. The intent is for the lien to accrue in proportion to the arrears which may accumulate after March, 2014. It will be reduced in accordance with the payments made by the Respondent. The ongoing amount of the lien will be as monitored by the payment history maintained by the Family Responsibility Office. There is no power of sale attached to this lien. It will become payable and have priority, over the Respondent’s interest if and when he sells the property. Nothing in this order restricts the use of any other means to enforce the Respondent’s child support obligations.

[58] The Applicant is to provide the Court with the proper legal description of the said property so that an Order be issued and registered on title.

No Motions Without Court’s Permission

[59] The Applicant is requesting an Order compelling the Respondent to obtain the Court’s permission before making any other Motions. Having considered all of the circumstances, the Court is not granting this Order. The Court is not satisfied that the evidence establishes that the Respondent is delaying the case, trying to add to its costs or in other way to abuse the Court’s process. Specifically, the Court notes that:

− This is the first Motion to vary brought by him;

− He was partly successful in this Motion.

CONCLUSION

[60] For the reasons articulated in this judgment, the Court makes the following final Order:

1. The arrears owed by the Respondent for the support of the children, namely Patrick Cole Sullivan born November 7, 2001 and Sadie Lynn Sullivan born November 7, 2001 are set at $7,200.00 as of March 1st, 2014;

2. The Respondent is imputed an annual income of $26,800.00 and shall pay the Applicant child support for the above-named children in the amount of $386.00 on the first day of each month starting April 1st, 2014;

3. The Respondent shall pay the Applicant $100.00 on the first day of each month starting April 1st, 2014 until the set amount of arrears is paid in full;

4. The Court orders that a lien may be registered by the Applicant against the Respondent’s property municipally known as 604 James Street, in the City of Cornwall, Ontario as security for retroactive and prospective child support. The lien will be in the amount of $7,200.00 being the arrears in child support as of March 1st, 2014. The amount of the lien will accrue in proportion to the arrears which may accumulate after March, 2014. It will be reduced in accordance with the payments made towards the existing and accruing arrears. The amount of the lien will be determined by the payment history maintained by the Family Responsibility Office. There is no power of sale attached to this lien. It will become payable and have priority against the Respondent’s interest if and when the property is sold. Nothing in this Order restricts the use of other means of enforcement of the Respondent’s child support obligations.

5. The Respondent must provide updated income disclosure to the Applicant each year on or before May 30th starting May 30th, 2015.

6. Unless the support Order is withdrawn from the Office of the Director of the Family Responsibility Office it shall be enforced by the Director and amounts owing under the support Order shall be paid to the Director, who shall pay them to the person to who they are owed.

7. A Support Deduction Order shall be issued.

8. This Order bears post judgment interest at the rate of 3% per annum effective from the date of this Order. Where there is default payment, the payment in default shall bear interest only from the date of default.

9. The parties are invited to discuss the issue of costs and attempt to revoke same. If unable to agree, the parties should provide written submissions to the Court on or before April 15th, 2014.

Justice Ronald M. Laliberte Jr.

Released: March 17, 2014

COURT FILE NO.: D10-498
DATE: 2014/03/17

ONTARIO
SUPERIOR COURT OF JUSTICE

SHELLEY LORI SULLIVAN
– and –
PETER COLE SULLIVAN

REASONS FOR JUDGMENT

Justice Ronald M. Laliberte Jr.

Released: March 17, 2014