Armstrong v Wallace, 2016 ONSC 3037
CITATION: Armstrong v Wallace, 2016 ONSC 3037
COURT FILE NO.: FS-13-75
DATE: 2016-September 15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michelle Lynn Armstrong Applicant
– and –
Paul John Wallace Respondent
Robert MacLeod, for the Applicant
Cornelius Brennan, for the Respondent
HEARD: April 22, 2016
THE HONOURABLE MR. JUSTICE R.J. HARPER
ISSUES
[1] The matter proceeded on the issue of whether or not summary judgment should issue relative to child support and the distribution of the proceeds of sale of the jointly owned property at 936 Windham Road 11, Windham Centre.
CHILD SUPPORT
[2] The Applicant and Respondent separated on April 3, 2011. They cohabited from approximately 1989 to the date of separation. There are two children of their relationship, twin girls; Holly Nicole Wallace and Rachel Wallace now age 17. The children have been in the custody of the Applicant since separation. The Respondent has not been able to communicate with the Applicant or the children as a result of terms of bail following the Respondent pleading guilty to assaulting the Applicant.
Summary Judgment
[3] The Family Law Rules provides as follows:
RULE 16: SUMMARY JUDGMENT
WHEN AVAILABLE
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).
AVAILABLE IN ANY CASE EXCEPT DIVORCE
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).
NO GENUINE ISSUE FOR TRIAL
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).
ONLY ISSUE AMOUNT OF ENTITLEMENT
(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount. O. Reg. 114/99, r. 16 (7).
ONLY ISSUE QUESTION OF LAW
(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8).
ORDER GIVING DIRECTIONS
(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may also,
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). O. Reg. 114/99, r. 16 (9).
Analysis
[4] As per Rule 16(6), if there is no genuine issue for trial, then a summary judgment motion will be successful as the moving party has demonstrated that the written materials are sufficient to satisfy a Court of the necessary elements of the case.
[5] The Respondent had been a long distance truck driver. On January 29, 2014 Justice Gordon ordered child support to be paid by the Respondent in the amount of $968 per month commencing March 1, 2014. This was based on income agreed to by the Respondent in the amount of $66,000 per year.
[6] The Respondent claimed that, approximately one month after the above order, he suffered from a bout of encephalitis which resulted in facial paralysis dizziness, vertigo and some mental impairment. He further claimed that, from that date, he was never able to pay child support.
[7] The clinical notes that he filed with his affidavit of April 9, 2015 were all dated in March 2014. In addition, he filed a report of a Dr. Johnston dated May 19, 2014. That report stated that Mr. Wallace had some residual medical issues due to an infection in his middle ear and mastoid process. He had some facial paralysis of lack of movement and feeling in the right hemi-facial region. He did not have a stroke.
[8] Mr. Wallace did not file any medical reports showing any limitation on his ability to work other than the above mentioned 2 year old notes and reports.
[9] Mr. Wallace left his employment with Loblaw’s as a truck driver and he did not give any reason from leaving that job. For a period of time he was on short term disability. However, he did not provide any evidence as to whether he even applied for long term disability.
[10] I accept the evidence filed at Tab 8 of the continuing record that the Respondent’s income from his tax returns was as follows:
2010- $72,894
2011- $$67,059
2012- $67,059
2013to March 1, 2014 - $66,000
IMPUTING INCOME
[11] Section 19 of the Guidelines permits the Court to impute income to the father if it finds that he is earning or capable of earning more income than he claims.
[12] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli 2002 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).
[13] As Justice Sherr reviewed many of the legal considerations for imputing income in French v. Williams, 2016 ONCJ 105,. He referred to numerous cases that have been helpful guides in considering the proper application of the principles relating to the imputation of income commencing at Para. 37:
[37] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:
a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.
b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.
c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
[38] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
If not, what income is appropriately imputed?
[39] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).
[40] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
[41] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 3433 (ON CA), 2003 3433 (Ont. C.A.), at paragraph 23. The trial judge must determine whether the educational needs claimed by the payor are reasonable. See: Drygala, supra, paragraph 39. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct
[44] The third question in Drygala v. Pauli, supra, 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 CA), 2006 26573 (Ont. C.A.).
[14] I find that the Respondent voluntarily left his employment in March 2014. Despite his being sick for a short period of time. He was still employed at Loblaw’s as a long distance truck driver. He did not lose his driver’s licence. He gave no valid reason why he could not continue in his employment. He chose not to work and not to make the payments of child support as order, on consent, by Justice Gordon on January 29, 2014.
[15] Given my findings I impute income to the Respondent in the amount of $66,000. The arrears of child support at time of the sale of the jointly owned property were $17,600.62. That amount was paid to FRO pursuant to a garnishment in place at the time.
[16] In addition, the Applicant claims that she incurred further expenses in order to get the jointly held property into a state that it could be sold. Those expenses I find to be reasonable and they are set out in Exhibit “D” to the Applicant’s affidavit of February 28, 2016. The amount totals $1,506.24. The Applicant is entitled to one half of that amount from any amount due to the Respondent from the sale proceeds.
[17] No child support has been paid by the Respondent from April 2013 through March 1, 2014 other than the sum of $1,400.
[18] In the years 2011 and 2012, the Respondent earned $67,000 from his employment.
The Honourable Mr. Justice R.J. Harper
Released: September 15, 2016
CITATION: Armstrong v Wallace, 2016 ONSC 3037
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michelle Lynn Armstrong
and
Paul John Wallace
REASONS FOR JUDGMENT
Justice R.J. Harper
Released: September 15, 2016