Court File and Parties

Citation: Emma Plant v. Jason Marshall, 2016 ONSC 7379 Court File No.: FS-63-11 Date: 2016/11/28 Superior Court of Justice – Ontario

Re: Emma Plant, Applicant And: Jason Marshall, Respondent

Before: The Honourable Mr. Justice G. A. Campbell

Counsel: Applicant, Self-represented Gloria Ichim, Counsel for the Respondent

Heard: November 25, 2016

Endorsement

[1] Mr. Marshall brings his Notice of Motion to Change Sloan, J.’s Order of September 11, 2012 wherein he was ordered to pay $250 per month guideline child support for Ashton (born September 2010); plus $74 per month for daycare; plus $50 per month on then accumulated arrears of $3,563.50; plus $50 per month on outstanding costs orders (totalling $4,500), all based on an actual annual income of $39,225.

[2] Mr. Marshall paid on that order until (and after) he was terminated from his employment in July 2013. He has only worked sporadically since then at three, brief (one was for four months) less than minimum-wage sales-jobs (one of which was door-to-door sales).

[3] In 2014, between employment insurance and a low paying job, Mr. Marshall declared taxable income of $15,596. In 2015, he worked from August until January 2016, earning $7,000 with a company called Pyramid. If annualized, that income would gross him $21,000 per year. Clearly a (less than) minimum income job. That job didn’t last and Mr. Marshall and Pyramid have been embroiled in a dispute to determine whether he was an employee (for which they needed to issue him a T4) or an independent contractor. He has not filed any 2015 income tax return as yet. If he is to be believed, his income for 2015 will only be the $7,000 he earned with Pyramid.

[4] The parties and counsel, (after a break to negotiate) agreed that I set outstanding arrears at $5,900 as at November 1, 2016, which amount includes both child support and the old costs orders balance of $2,900 (ie. child support of $3,000 and costs of $2,900)

[5] I therefore set those arrears and declare that the entirety of those remaining costs were expended for the purpose of child support and direct the Director of the Family Responsibility Office (FRO) to enforce same as such.

[6] Accordingly, any adjustments for past child support and a determination of Mr. Marshall’s ability to pay up to this date have been removed from the issue(s) to be decided.

[7] What then remains to be decided is whether Mr. Marshall’s efforts to find any gainful employment over the past three years and at present are adequate. If not, I am to decide whether the court should impute a minimum income. Ms. Plant seeks an order for child support based upon $25,000 per year to Mr. Marshall, despite him currently receiving only Ontario Works of $681 per month.

[8] Mr. Marshall has five children, including one troubled child Latica (now an “adult” chronologically) and Ashton, now age 6. He married his current wife Marla Martin in September 2013. He asserts that he and Marla are again separated (for the fourth time) as of May 2016, but are still living separate and apart in their four bedroom Toronto residence. Ms. Martin earns about $100,000 per year and has effectively been supporting Mr. Marshall since July 2013 when he lost his last full time job.

[9] Mr. Marshall alleges that Ms. Martin has been “financially abusive towards him” and that they are currently embroiled in a dispute as to who will retain ownership/possession of the residence and whether she owes him spousal support. Mr. Marshall also asserts that as a “racialized minority with a criminal record, depression and anxiety, a history of addiction as well as a host of family issues …” that, despite his “B.A. in social work”, he is greatly challenged to find any reasonable employment, other than minimum wage jobs, some of which (because FRO has “taken” his driver’s licence as an enforcement measure) are unavailable ie. driving taxis or any employment remote from his present residence (from which he may soon be forced). To conclude that Mr. Marshall faces multiple impediments to his again becoming fully employed, in his circumstances, is certainly not a great leap. Whether some of his present circumstances can be attributed to some actions taken or decisions made by him(self) I need not make a finding of fact. Whether he has been able to even partially meet his obligation to Ashton until June 2015, then make a payment of $524 in June 2016 only because Marla Martin gave him the money to do so I need not speculate.

[10] The reality exists that Mr. Marshall has sent out hundreds of applications and resumés (he says he has applied for 129 jobs – Ms. Plant asserts that some of his applications filed with his affidavit are duplicates) with no success.

[11] On the evidence before me and on balance, I am satisfied that Mr. Marshall has been actively trying to find some form of employment. His willingness to accept work that only pays commission and even trying door-to-door work convinces me that reasonable efforts are being made. It is his size, ethnicity, criminal record and lack of mobility that have prevented him from finding full time employment.

[12] I have reviewed the well-known test set out by the Ontario Court of Appeal in Drygala v. Pauli (2002) 2002 41868 (ON CA), 61 O.R. 3d) 711 (at para 28) regarding what is meant by “intentional” un/under employment as follows:

“read in context and given its ordinary meaning “Intentionally” means a voluntary act. The parent required to pay is intentionally underemployed if 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 who are laid off, terminated or given reduced hours of work”

[13] I have also considered and agree with Sherr, Prov J’s analysis of the law regarding imputation of income in JCM v. KCM (2016) O.J. No. 4054 (see paras 153-161).

Child Support – Income – Imputing – Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (C.A.) applied – Mother was intentionally underemployed when she elected to leave her job, take severance, and start and continue business venture for over two years despite growing losses and little revenue – Court imputes income to Mother of $70,000 per annum for 2011-2014 – Court sets out comprehensive law regarding imputing income as follows:

[153] 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:

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

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

3.If not, what income is appropriately imputed?

[154] 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.).

[155] 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.

[156] A common situation arises where one of the parents involuntarily loses his or her job though a layoff followed by a lengthy period of unemployment. Where the recipient alleges the payor should have been able to find substitute employment if they had looked hard enough, a contextual analysis is required. The payor’s situation, options, and opportunities must be considered in the context of other individuals – or in the case of mass plant closures, groups of individuals – facing similar circumstances. The Court must be mindful of employment rates and trends, and economic conditions as a whole. The analysis cannot be done in the abstract. See: Charron v. Carriere, [2016] O.J. No. 3877, 2016 ONSC 4719; Gee v. McGraw, [2014] O.J. No. 841, 2014 ONCJ 87; Miller v. Volk, 2009 41356 (ON SC), [2009], 74 R.F.L. (6th) 61 (S.C.J.).

[157] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, 2008 3962 (ON SC), [2008] O.J. No. 417, (S.C.J.).

[158] A person making a decision to start a business in which he or she has no experience may result in a finding that he or she is intentionally underemployed: See: Dang v. Hornby, 2006 12973 (ON SC), [2006] O.J. No. 1634 (S.C.J.); Ruszczak v. Scherbluck, [2012] O.J. No. 116, 2012 ONCJ 14); Charron v. Carriere, [2016] O.J. No. 3877, 2016 ONSC 4719. Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances: Smith v. Smith, [2012] O.J. No. 800, 2012 ONSC 1116.

[159] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, [2011] O.J. No. 6120, 2011 ONSC 7663; Charron v. Carriere, [2016] O.J. No. 3877, 2016 ONSC 4719.

[160] 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] O.J. No. 3901 at para. 23 (C.A.). 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] O.J. No. 3313, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453 (Fam. Ct.); Drygala, supra, at para. 39.

[161] 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] O.J. No. 3179 (C.A.).

[14] Accordingly I find that at present, Mr. Marshall does not have an ability to pay child support, despite the clear and obvious need that Ashton has for it.

[15] I therefore suspend all periodic child support by Mr. Marshall for Ashton for a period of seven (7) months from December 1, 2016 in order to allow him a “support hiatus” to give him a reasonable time to negotiate a resolution of his family dispute with his wife Marla and to find some employment, (any employment) whether in his field of choice, some other field or at some other minimum wage job.

[16] As a parent, Mr. Marshall has a legal obligation to his son and failing some medical or other provable disability that prevents him from any work (he did not produce any medical evidence of his alleged medical issues) he can be compelled to meet that obligation to Ashton by accepting some type of work, perhaps less than his long-range career aspiration or his view of what level or quality of work that he is presently (un)willing to accept.

[17] Accordingly, unless Mr. Marshall, at his instigation after June 1, 2017 (but before July 31, 2017) is able to persuade this court that he is totally disabled and this suspension should be extended, I order that, based upon an imputed income of $25,000 per year, he shall begin to pay $200 per month child support together with $100 per month towards the retirement of the $5,900 arrears/costs set on November 25, 2016, until it is fully paid.

[18] I also order that Mr. Marshall shall serve upon Ms. Plant annually by June 1 in each year, his previous year’s complete Income Tax Return and his Notice of Assessment.

[19] Automatically, Mr. Marshall’s child support shall increase annually (only), based upon his true/disclosed line 150 taxable income effective July 1 each year but such support is never to drop below the minimum base annual income of $25,000 set by this order.

[20] There shall be no costs of these Motions.

G.A. Campbell J.

Released: November 28, 2016