BARRIE COURT FILE NO.: FC-13-1121

DATE: 20150807

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Alexander Ikonikov, Applicant

and

Sarrah Ikonikov, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Joseph Powers, for the Applicant

Fay Mcfarlane, for the Respondent

HEARD: July 23, 2015

ENDORSEMENT

Introduction

[1] This motion is brought by the applicant father for an interim order that the respondent mother pay retroactive (for the period of July 1, 2014 to July 1, 2015) and ongoing child support in accordance with section 9 of the Federal Child Support Guidelines (the Guidelines), and for an interim order that the parties contribute to s.7 expenses proportionate with their share of income.

[2] Support has been an ongoing issue in this case since the parties separated in August 2013. The applicant has not had consistent employment and the respondent alleges that he has been underemployed (see endorsement of Justice Olah, dated December 19, 2014). Delays in the case have been significant because the respondent failed to make timely disclosure and file appropriate court documents, resulting in significant costs orders against the respondent (see endorsement of February 18, 2015). Justice Olah’s endorsement of February 18, 2015 expressly stated that if the matter did not proceed to trial on an urgent basis in May/June 2015, the applicant could bring a motion for child and spousal support.

[3] By May 19, 2015, the parties had resolved parenting issues on a final basis and agreed to a consent order in this regard. The issues of support and property were not, however ready to proceed to trial and counsel for both sides agreed to a trial management conference (TMC) on those issues. A TMC on those issues has been scheduled for August 25, 2015. One of the issues raised by the respondent in this motion is that I should not entertain this motion for interim support brought just one month prior to the TMC.

Background

[4] The parties have two children, born September 2008 and February 2011. Since June 26, 2014, the parties have shared custody with the children residing with each parent 50% of the time. The applicant was laid off of his job in June 2014, and his 2014 line 150 income was $62,644 (including Employment Insurance from June to November 2015). The respondent’s was $83,869. The applicant has been unemployed throughout 2015, and states that he has earned no income or unemployment insurance for this year, while the respondent’s financial disclosure from July 2015 indicates that she is now earning $86,166.

[5] The applicant is forty-six years of age and has Bachelor of Arts degree. His employment since graduation has always been in sales. His affidavit states that he has found it difficult to find employment in the past twelve months and has been told by a number of prospective employees that he was overqualified and/or that they were going with a younger candidate.

[6] In his affidavit he states: “In my employment search I have found jobs available have salaries of between $55,000 to $75,000 at best. While this represents a base salary and there is the possibility of obtaining commission income, there is never any guarantee of commissions…” The applicant indicates that he has “never turned down a lucrative job”, but has not sought out these lower paying jobs because he believes that “such a job would act as an impediment to finding work that I am best suited for.”

[7] The applicant claims that he has been able to meet his children’s financial needs through financial gifts from his grandmother.

[8] As I understand the applicant’s motion for child support, his position is that even if the court imputes minimum wage to the applicant, the respondent’s monthly child support under the guidelines, based on a set-off between the applicant’s imputed income and the respondent’s income, would be $902 per month.

[9] The respondent’s position is that the applicant is intentionally underemployed or unemployed. She takes the position that he should take the $55,000 - $75,000 jobs he refers to in his affidavit, and that income should be imputed to him at least at that level. If he has found such jobs to be available but not pursued them, she states that this is evidence that he is not burdened by financial need. If income were imputed to him at $75,000, the monthly child support owed by the respondent under the Guidelines (based on a set-off between the applicant’s imputed income and the respondent’s income) would be only $140.

[10] The applicant continues to live in the matrimonial home in Midhurst, Ontario, which has been valued at approximately $500,000. The respondent rents an apartment for $1,000 per month. The respondent takes the position that the children’s standard of living is superior when they are living with the applicant in the matrimonial home, an issue which must be considered in a child support case where there is joint custody.

Analysis

[11] This motion raises two issues. The first is whether I should consider the applicant’s motion for child support just one month before the TMC, the second, assuming a positive answer to the first, is whether income should be imputed to the applicant and, if so, at what level. In my view, these issues are related. The stronger the applicant’s case for interim support (for example the greater the disparity between their incomes), the greater the urgency and the more appropriate it is for me to determine the applicant’s motion on an interim basis.

Timing of Motion

[12] With regard to the first issue, the respondent states that there are several factual disputes relating to child support which will be relevant to the Court’s exercise of its discretion and, therefore, the issue of child support is best left to a trial rather than being dealt with on an interim basis on a motion. The first issue is the imputation of income and why the applicant is unemployed. The second issue is respective standards of living, which is an important issue in cases of 50/50 custody. A third issue is whether the retroactive support will create a hardship for the respondent mother. It is her position that resolution of these disputes “requires resolution by a trial judge following a trial between these parties with full opportunity to assess the credibility of these parties and the evidence they proffer”. See: Bullock v. Bullock 2007 59150 (ON SCDC), [2007] O.J. No. 5225, at para. 25 (Ont. Div. Ct.)

[13] Where the matter is ready to proceed to trial and there is no urgency, the courts may decline to decide interim motions on matters that will be considered at the trial, since such motions result in duplication and unnecessary costs. Given that this matter has a TMC scheduled for later this month, I anticipate that the trial will be held in the next few months.

Imputing Income

[14] With respect to the issue of imputing income, the approach mandated by the Court of Appeal in AMD v. AJP, (2002) 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) 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.

[15] The court in AMD v. AJP, supra, set out a three-part test to determine whether income should be imputed (at para. 23). The first part of the test is to ask whether the payor is intentionally under-employed or unemployed. The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed (para. 25); the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning (para. 28). The court must look at whether the act is voluntary and reasonable. The court states that in order to meet the legal obligations to support their child “a parent must earn what he or she is capable of earning” (para. 32).

[16] The second part of the test is: “If the payor is intentionally under-employed, is this by virtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs?”

[17] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. Parents can take jobs with less money as long as the decision is reasonable. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations. See Hanson v. Hanson, 1999 6307 (BCSC); Gobin v. Gobin 2009 ONCJ 245, [2009] O.J. No. 2191 (OCJ).

[18] The third part of the test is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 26573 (ON C.A.).

[19] Taking this three part test into account in the present case, I am persuaded that the applicant’s obligation to “earn what he or she is capable of earning” requires that he accept job offers in the $55,000 to$75,000 range which he acknowledges are available. Whether his acceptance of such a job would be an impediment to finding more lucrative employment in the future is entirely speculative. His obligation is to earn what he is capable of earning and if that is $55,000 to $75,000, then he must accept such a job or have that income imputed to him. For the purposes of imputing income I will accept his evidence that there is no guarantee of commissions and therefore no guarantee that his income would exceed the maximum $75,000 range he reports in his affidavit.

[20] On the basis of the evidence contained in the applicant’s affidavit, I impute income to him in the amount of $75,000 per year.

[21] Since this is a case of joint custody, the principles set out in s. 9 of the Guidelines, as interpreted by the Supreme Court of Canada in Contino v. Leonelli-Contino, [2005] 3 SCR 217, 2005 SCC 63 apply. The “starting point” is a “simple (or straight) set‑off: The support payment is calculated by determining the Table amount for each of the parents as though each was seeking child support from the other. The amount payable is the difference between the two amounts.” (paras. 43, 44). As indicated above, if the applicant is imputed with $75,000 income, the straight set-off results in a child support payment from the respondent to the applicant of approximately $140 per month.

[22] The Supreme Court notes, however, that simple set-off is only the starting point:

[T]he court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend. As I said in Francis v. Baker, one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households. …Still, it is not a discretion that is meant to set aside all rules and predictability. (para. 51)

Section 9(c) vests the court a broad discretion for conducting an analysis of the resources and needs of both the parents and the children. As mentioned earlier, this suggests that the Table amounts used in the simple set‑off are not presumptively applicable and that the assumptions they hold must be verified against the facts, since all three factors must be applied. Here again, it will be important to keep in mind the objectives of the Guidelines mentioned earlier, requiring a fair standard of support for the child and fair contributions from both parents. The court will be especially concerned here with the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. (para. 68)

The Court of Appeal enumerates a number of factors to be considered under this subsection:

1. Actual spending patterns of the parents;

2. Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and

3. Standard of living for the children in each household. (para. 69)

[23] Given the factual disputes raised in this motion (in particular disputes relating to respective standards of living in the two households) and the relative equality of income once $75,000 income is imputed to the applicant, I am of the opinion that it would be inappropriate to issue an interim child support order on this motion. The issue of child support in this case is more appropriately dealt with on the basis of a trial.

[24] In this regard, I recognize that the imputation of income is based on my review of the affidavit evidence and it is entirely possible that a judge hearing viva voce evidence may come to a different conclusion (either higher or lower).

Retroactive Child Support

[25] In D.B.S. v. S.R.G., 2006 SCC 37 at paras. 80 to 81, 92 (“D.B.S.”), the Supreme Court sets out the principles to be applied in determining whether to make a retroactive award for child support:

(1) Whether the recipient parent has supplied a reasonable excuse for any delay in seeking support;

(2) The conduct of the payor parent;

(3) The circumstances of the child; and

(4) Hardship occasioned by a retroactive award.

[26] In considering the question of retroactive support, a court must take a holistic view of the matter and decide each case based on its particular facts. None of the four factors is decisive: see D.B.S., at para 99.

[27] In the present case, the retroactive period is relatively brief, since the parties have had joint custody for only one year. Given the delays identified in the endorsements of previous judges, it would appear that the applicant is not responsible for any delay in seeking support. The difficulty with making a retroactive support award in this case, however, is the same as that identified with respect to making an interim support award: there are too many factual disputes to determine the proper amount, if any. There is a dispute in the record regarding why the applicant lost his job in 2014, an issue which is relevant to the question of imputing income for that year.

Conclusion

[28] The motion for interim child support and retroactive child support is dismissed. If the parties cannot agree on costs, the respondent may make costs submissions within thirty (30) days (maximum five pages plus bill of costs) and the applicant may reply within fifteen (15) days with the same page limit.

Justice Charney

Released: August 7, 2015