Andre v. Van Gentevoort, 2015 ONSC 1753
COURT FILE NO.: FC-08-2031-2
DATE: 20150318
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MANNY ANDRE, Applicant
AND
MARLENE ANN VAN GENTEVOORT, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Philip Augustine, for the Applicant
Mark P. Shelston, for the Respondent
HEARD: February 19, 2015
ENDORSEMENT
[1] The Applicant seeks to vary the Orders of Justice Kershman dated December 18, 2013 and Justice Lalonde dated April 12, 2010.
[2] The following matters are at issue:
the residential location of Nathan during the period from May 1, 2014 to August 31, 2014;
the residential location of Lucas during the month of September, 2014;
the 2014 incomes of the Applicant and Respondent;
s. 7 expenses for 2012 and 2013;
Child support for Chloe while she attends an educational program outside of the country.
[3] The parties have agreed that if I make these determinations, they will be able to calculate any arrears of child support, spousal support and amounts owing for s. 7 expenses.
[4] At the outset, the parties agreed to an Interim and Without Prejudice Order that the Respondent would pay the sum of $8,839.05 for spousal support commencing January 1, 2015, and that the Applicant would pay child support in the amount of $668.00 for the month of January, 2015 (for two children); and commencing February 1, 2015, he would pay $862.00 (for three children).
The Incomes of the Parties
[5] The Applicant is a licensed electrician and worked full-time in a highly paid position on a particular project since March 2012. He was laid off in May, 2014 due to lack of work.
[6] According to the Applicant, after being laid off in May 2014, he searched for a highly paid position on a long duration project. He claims that this approach has been successful and that he would start work on February 17, 2015. He expects this new project to continue for 2.5 to 3 years and to earn an income in the range of $85,000-$90,000 depending on the hours of work and overtime.
[7] He claims that if he had settled for a low-paying short-term contract, he would be ineligible to apply for highly paid long-duration projects if they became available when he was working on another project.
[8] He argues that his actual 2014 income, for the purposes of calculating child support, was $43,490.30 comprising of $31,340.38 in employment income and $12,150 in employment insurance benefits.
[9] The Respondent seeks to impute income of $75,000 to the Applicant for 2014. The Applicant earned approximately $76,000 in 2012 and $101,000 in 2014. Upon learning that the Applicant was out of work, she sent him an email on August 19, 2014 advising him about a fiberboard plant reopening which was seeking industrial electricians. He responded:
If you like breathing formaldehyde, working nights in a non-union environment; then feel free to apply yourself. I don’t need you to help me find employment.
The Law
[10] Section 19(1) (a) of the Federal Child Support Guidelines, S.O.R./97-175, allows a court to impute such amount of income to a spouse as it considers appropriate in certain circumstances:
- (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;
[11] In Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711, the Ontario Court of Appeal set out, at paragraph 23, the following test in applying section 19(1)(a):
is the spouse intentionally underemployed or unemployed?
if so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs?
If the answer to question 2 is negative, what income is appropriately imputed in the circumstances?
[12] There is no need for specific intent to evade child support obligations before income can be imputed. There is a duty to seek employment were a parent is healthy. The section does not apply to situations through no fault or act of their own, spouses are laid off or given the reduced hours of work.
[13] The Respondent’s counsel provided two examples of a court imputing income. In Burke v. Burke, (2003), 2003 2290 (ON SCDC), 42 R.F.L. (5th) 24 (Ont. Div. Ct. ), the husband earned $53,000 before losing a job and refused job at $40,000 and sought no other job. The court imputed income of $25,000. In Quintal v. Quintal, (1997), 1997 9576 (ON SC), 73 A.C.W.S. (3d) 484, (Ont. Gen Div), the father lost his job as a police officer and his income dropped from $51,577 a year to $12,288. The court found that he could earn at least $25,000 as a security guard or in other employment.
[14] In this case, I consider the Applicant’s refusal to consider any other temporary employment or short-term contract as unreasonable. There is no convincing evidence that he could not continue to seek other strategic long-term employment while being employed somewhere else or that he would be ineligible to do so. He has an obligation to support his children and he had a capacity to earn more than the limited amounts available to him through unemployment insurance. Having regard to the amounts he had previously earned in 2012 and 2013, I believe it is reasonable to impute an income of $75,000.
The Income of the Respondent
[15] The Applicant argues that in 2014, the Respondent’s income for support purposes was:
income before taxes: $409,394;
plus salaries and wages $127,437 (income splitting);
investment income $64,570
For a total of $601,401
[16] The Applicant notes that the Respondent also received a personal benefit through numerous discretionary expenses for items such as meals and entertainment, advertising, rental, telephone and vehicle expenses. He asks that her income be set at $600,000.
[17] The Respondent claims that her professional income for 2014 was $569,000 and relies on a report from her accountant who has indicated that her income for support purposes is $536,394.
[18] It appears that the parties have used items 1 and 2 in the past for the calculation of the Respondent’s income, but they never included dividend or investment income. The Applicant says this was not done because these amounts were not significant. In 2013, the parties agreed that the Respondent’s income for support purposes was $582,507. She has not explained why her income should now be established at a lower amount other than providing the letter from her accountant. He did not include the interest and dividend income and I see no reason why it should be excluded. In this case, I accept the Applicant’s argument that the Respondent’s income should be set at $600,000.
The Residential Situation for Nathan and Lucas
[19] The Order of Justice Lalonde dated April 12, 2010, provided for joint custody of the four children of the marriage. The children’s primary residence would be with the mother, and the father had access on alternate weekends and at other times during the week. The father paid child support for the four children based on an imputed income of $50,000.
[20] Justice Lalonde’s Order of April 12, 2010 was varied on December 18, 2013 by Justice Kershman. The new Order provided that the joint custody arrangement would continue but that the parties’ son, Lucas, would reside with the Applicant. The Respondent would now pay child support for Lucas. Chloe and Eric would continue to reside with their mother. The Applicant’s access rights, as set out in the Divorce Order of Justice Lalonde, remained in effect. The Order was silent with respect to Nathan; presumably because he was already at Queen’s University in Kingston. It appears that no support was payable for Nathan because his university expenses were being met through Registered Educational Savings Plans.
[21] The Applicant claims that Nathan was in a shared custodial arrangement during the summer of 2014. For that reason, he claims that the Respondent owes him child support for Nathan for those four months on a set off basis. The Respondent disputes this claim and argues that the basic residential arrangements had not changed from the preceding year and since the time of the divorce. She claims that Nathan resided primarily with her and that he visited his father, along with Chloe and Eric, on alternate weekends and at other times as set out in the Divorce Order.
[22] In support of his claim, the Applicant has provided a calendar where he has recorded the dates where he claims Nathan was in his care. He claims that Nathan was at his home 51 nights out of 123 nights (41.46%) during the four summer months.
[23] There is an admitted problem with the Applicant’s calendar in that it also includes dates for the month of August. The Applicant’s affidavit is dated July 28, 2014. The Applicant maintains that the calendar was intended to show prospective dates that Nathan would be residing with him. The Respondent notes that the Applicant’s claim for child support for Nathan coincides with the loss of his employment.
[24] Section 9 of the Federal Child Support Guidelines provides:
Where a parent or spouse exercises a right of access to, or has physical custody of the child for not less than 40% of the time over the course of the year, the amount of the order for the support of the Child must be determined by taking into account,
a) the amount set out in the applicable tables for each of the parents or spouses;
b) the increased costs of shared custody arrangements;
c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought..
[25] In Sirdevan v. Sirdevan, 2010 ONSC 2375, 99 O.R. (3d) 424, the Court confirmed that a calculation of time may include time during which the children are not in the immediate presence of the parent. In Froom v. Froom, (2005), 2005 3362 (ON CA), 194 O.A.C. 227, the Court of Appeal stated that there is no universally accepted method for how to calculate access and custody time. In Mehling v. Mehling, 2008 MBCA 66, 228 Man. R. (2d) 145, the Manitoba Court of Appeal indicated that courts should take a flexible approach to calculating access and custody time.
[26] During the months in question, Nathan was 19 years of age. He had attended at the University of Kingston for one academic year. He was a young adult and it is difficult to apply concepts of “custody” or “care and responsibility” in the same way as might be applied in the case of a younger child. Nathan could have chosen where he wanted to stay and sleep during the time in issue. He also appeared to have had some employment but the details are not provided.
[27] The father takes issue with the fact that the mother has no independent document to support her claim that Nathan continue to reside with her during the summer months in the same way as he had the preceding year. On the other hand, I do not put much confidence in the Applicant’s calendar; it is a self-serving document. As noted, he makes claims from a month that is not yet passed.
[28] I do note that the Divorce Order contemplated that the children would be spending alternating weeks with the parents during the summer months and this supports the Applicant’s contention that there was a 50-50 rotation between the two homes. Although this provision would have applied to Chloe and Eric, it is unclear if that shared arrangement took place in 2014. The Applicant does not dispute the mother’s evidence that Chloe and Eric spent every Wednesday with him overnight and every second weekend and every second Tuesday overnight with him. The mother claims that Nathan followed the same schedule.
[29] Even though Justice Lalonde provided that the father was to have the children approximately one half of the time during the summer months, his child support obligations were not reduced or interrupted for that two month period. Justice Kershman’s more recent Order was silent as to child support for Nathan during the summer months. In claiming support for Nathan residing with him part of the time this past summer, the Applicant must acknowledge that support might be payable to the Respondent for four months next summer if Nathan spends more than 60% of the time at his mother’s house.
[30] I have reviewed the competing affidavits. I conclude that Nathan was away until May 9 at Spring Camp. On the evidence before me, I conclude that Nathan spent at least 40% of his time with his father during the months of May, June and July but that he spent most of his available time in August with his mother. For part of that month, he was near Toronto or in the Muskokas and he was in neither parent’s care. I accept the mother’s evidence that Nathan was working for her or looking after the house and her dog while she was in the UK in August.
[31] Luca turned 18 on October 28, 2014. He finished school in June 2014, moved back with his mother on September 11, and returned to School on February 1, 2015. On a without prejudice basis, the parties have agreed that the Applicant will pay child support for Lucas commencing February 1, 2015.
[32] Once again, the Applicant relies on his calendar to establish that Lucas was with him 40 percent of the time in September. In claiming child support for Lucas, it is apparent that the Applicant relies on the fact that Lucas, while not in school, is still under the age of majority. I have little confidence in the Applicant’s calendar. I have been provided with a copy of Lucas’s temporary driver’s license dated September 11, 2014. While I agree that this is not actual proof of residence, it is evidence that he intended to make his permanent residence with his mother. I accept the mother’s evidence that he only visited his father once after September 11, 2014 and that he returned within an hour. The mother’s evidence that Lucas now has little contact with his father was not disputed. I conclude that Lucas was not in his father’s care for 40% of the time in September and the Applicant owes the Respondent child support for Lucas for the months of September and October.
Section 7 Expenses
[33] The parties have attempted to resolve their respective claims for s. 7 expenses without success. I have looked at these claims and I have not been provided receipts or details for many of these expenses. I find that there are items on each side of their respective ledgers that could be discounted. Each of them has claimed for clothing, and small incidental expenses such as skate sharpening and skate repairs which are difficult to characterize as special or extraordinary. The level of detail is not there to permit a useful analysis. In order to resolve the matter, the Applicant indicated in his September 18, 2014 affidavit that each parent accept the s. 7 expenses as claimed by the other and I find that I can do no better on the evidence before me. I allow the amounts claimed by each of the parties. In this case, the more contentious issue is the Respondent’s claim for a contribution for expenses for a vehicle that she provided for Nathan.
[34] Section 7 of the Child Support Guidelines directs the Court to take into account the “necessity of the expense in relation to the child’s best interests in the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family spending patterns prior to the separation.”
[35] In this case, the parties reside in Pembroke and Nathan attends Queens University in Kingston. The Respondent states that she provided this vehicle to allow him to work in the summer months and to travel between houses. He took the vehicle to attend his spring field course at Queen’s. The combined income of the parties is in excess of $700,000. This is a household with four teenagers. It is not unreasonable for Nathan to be provided with a vehicle in these circumstances. The pattern of spending claimed in s. 7 expenses discloses that these parents have been very generous in providing for all of their children’s needs. I allow the vehicle claims as well as the Respondent’s claim for the purchase of a cell phone. I note that these vehicle expenses do not include claims for gasoline.
Chloe
[36] Chloe will be attending an expensive private school in Switzerland in September 2015. The parties agree that the Respondent will be able to access some funds held in trust for Chloe for the payment of part of these expenses. It is estimated that the cost of this schooling will be no less than $63,000 a year. The Respondent will assume all of the other costs for Chloe’s attendance; nevertheless, she asks that child support continue to be paid for Chloe during this time. I agree with that request. Chloe is still under the age of majority. The Respondent is assuming all of the extraordinary s. 7 expenses of Chloe’s attendance not covered by the funds held in trust and the Applicant still has an obligation to provide for the support of his daughter even though she is temporarily away at school.
[37] If they are unable to agree, the parties are to provide me with their brief written submissions as to costs within 20 days of the release of this decision.
Mr. Justice Robert N. Beaudoin
Date: March 18, 2015
CITATION: Andre v. Van Gentevoort, 2015 ONSC 1753
COURT FILE NO.: FC-08-2031-2
DATE: 20150318
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MANNY ANDRE, Applicant
AND
MARLENE ANN VAN GENTEVOORT, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Philip Augustine, for the Applicant
Mark P. Shelston, for the Respondent
ENDORSEMENT
Beaudoin J.
Released: March 18, 2015