Lapierre v. Kovalyk, 2016 ONSC 7775

CITATION: Lapierre v. Kovalyk, 2016 ONSC 7775

COURT FILE NO.: 355-14

DATE: December 9, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE RENE LAPIERRE

Applicant

– and –

PAMELA KOVALYK

Respondent

FAMILY RESPONSIBILITY OFFICE

In person

In person

Donald Morris, for Family Responsibility Office

HEARD AT PERTH: November 17, 2016

RULING ON MOTION

PEDLAR J.

[1]

Background

This is a Motion to Change brought by the applicant seeking to vary an order of Justice Minnema made on September 9, 2013 at Brockville, Ontario, at which time the respondent on this motion was the applicant, and the applicant on this motion was the respondent, who failed to appear at the hearing on the day the order was made. That order granted sole custody of the child, Chyanne Kirstian Sheila Lapierre, to the respondent mother in this action (hereinafter referred to as “the mother”).

2There is no date of birth provided for the child in the September 9, 2013 order and no date of birth in any of the material filed on this motion by either party, except for a reference in the mother’s income tax return to the child being born in 2004.

3That lack of information which can be relied upon by the Court was a significant concern when the motion was argued.

4The applicant father herein (hereinafter referred to as “the father”) is seeking to have the amount of child support and arrears reduced, on the grounds that the income attributed to him at paragraph 3 of the September 9, 2013 order of $38,400.00 is in excess of his actual income for either the years, 2012 and 2013, referred to in the order, or for any year since. He claims he made considerably less income, even filing income tax returns for years when he claimed to have no income at all.

5Another complicating factor is that the father has two other children, whose eligibility for support is unclear. I was given very little information about the existence of any court order, or written agreement, relating to those children, other than the fact that there is an enforcement proceeding scheduled to continue on February 10, 2017, relating to those two children. I was not provided with adequate details of obligations for those children except as set out below. Apparently, he is involved in an enforcement proceeding and, therefore, there must be an existing order or written agreement. He is contesting their eligibility for ongoing support as they are both adults and there is an issue whether one is in fulltime attendance at a post-secondary education program and there is also an issue of some type of disability for the other, which may have implications for ongoing support.

6In the absence of resolution of the ongoing obligation for support for those children, if any, and also what arrears may be enforced against the father, it is impossible for me to resolve this case on any other basis than treating the dependent child, Chyanne, as if there will be no ongoing obligation for the father to pay support for the other two children, or any ongoing payments required regarding outstanding arrears for support that is not paid.

7If the result of the court proceedings regarding support for those other two children does require an ongoing payment for one or either, that should be dealt with in the usual way, as requested by the father in his latest affidavit, of dividing the responsibility for each child from the amount payable for the number of children for whom the payment is made. If he is required to continue to pay support for one of those dependants, then his responsibility for the child who is the subject matter of this application would be one-half of the amount required for two children based on his income.

8It is unfortunate that these two matters were separated as it would have been much more effective to have all three potential claims for support resolved in one motion rather than bifurcating the proceedings.

9The other option would have been for me to simply defer and combine this motion with the other motion to change, regarding those two children, but I am proceeding to resolve this matter as if there will be no further ongoing obligation for those two children. If it turns out to be that an ongoing obligation for support does exist for those two children, or either one of them, then that will have to be taken into account and the necessary adjustments made as indicated above.

[10]

Analysis and Findings

For the purposes of this motion, and with the above-noted caveat, based on the information available to me at the time of the motion being argued, I make the following findings.

11The income attributed to the father in the September 9, 2013 order of $38,400.00 appears to be, on the evidence available, far in excess of his actual income. For the year, 2012, the father declared zero income and for the year, 2013, he declared $17,959.00, as found at line 150 of his 2013 income tax return.

12I do not accept that the father earned no income in 2012. He does speak about having some health concerns since the parties separated and the fact that he has had his driver’s licence suspended by the Director of the Family Responsibility Office, which has made it difficult for him to gain employment, and an injury that he suffered falling off a roof which kept him out of work for some months at some point since separation, but that was not clarified.

13He also stated that he, at one point, was required to pay $210.00 a month for the other two children, which would be reflective, based on the current Federal Child Support Guidelines, of an either found or attributed income of $15,500.00 annually. I have no information as to when that order or written obligation may have been made and he is trying to have it set aside.

14Under all the circumstances and with the uncertainty of the outcome regarding the other two children looming, I find that the most reasonable solution to resolve this matter regarding the one child, who is the subject matter of this application, is to attribute to the father an income, for both 2012 and 2013, of $18,000.00, which is below minimum wage and virtually exactly what he claimed in his income tax return for 2013.

15Then for the years, 2014, 2015 and 2016, I would attribute to the respondent minimum wage of $22,230.00, as I have no evidence that he was not capable of earning at least that much given his work history as a tattoo artist in Ottawa which earned him more than that, but taking into account the fact that he left Ottawa for a smaller community of Smiths Falls and is no longer working fulltime in that capacity, although apparently doing some of that work on the side and working currently for a delivery service in the shipping department.

16The capacity of a person to contribute to the support of a dependent is not limited, necessarily, to an actual income being earned. It includes their capacity to potentially earn more income in some other occupation or by supplementing their fulltime occupation with some work on the side in another trade or profession. In the absence of any reliable evidence that the father has a capacity to earn much more than he is declaring, I find the most reasonable finding about his capacity to contribute support for this child is to attribute a minimum wage, recognizing that he may have had his health problems and interruptions in his actual earnings that his capacity probably exceeds the minimum wage, but I am unable to point to anything more than suspicion that he is actually doing so.

17I am less comfortable attributing an average income for someone in the retail employment market during the relevant years than I am attributing the minimum wage income under these circumstances. There is no real evidence that supports the retail employment market as being the sole criteria for attributing an income to this father. He is currently employed as a shipper for a parcel delivery business. That is not a very comfortable fit to be described as being in that particular market. Even being a tattoo artist may fall within that range, but I do not see it as a comfortable fit either. I just think it is more reasonable under all the circumstances to apply minimum wage.

[18]

Order

Attributing then those findings to the story of this separated couple, I make the following order to vary the September 9, 2013 order, as set out below.

19Based on the attributed income of $18,000.00 per year for 2012 and 2013, the monthly payment due would be $142.00 per month for one child. Based on an attributed income for the years, 2014, 2015 and 2016, of $22,230.00, that would require a payment of $178.00 per month. The arrears fixed in that order of $4,092.00 would also be reduced by $199.00 per month for the twelve months that were included in that number at the rate of $341.00 per month. By varying the original amount and recalculating from September 1, 2012, at those monthly amounts due, the amount of those arrears will automatically be varied with the new calculation and reflected in the total amount due as of the end of December, 2016, rather than as a separate item.

20Applying those attributed incomes to the father, I find the following amounts to be owing:

September 1, 2012 to December 31, 2012, at $142.00 per month = $ 568.00

January 1, 2013 to December 31, 2013, at $142.00 per month = $1,704.00

January 1, 2014 to December 31, 2014, at $178.00 per month = $2,136.00

January 1, 2015 to December 31, 2015, at $178.00 per month = $2,136.00

January 1, 2016 to December 31, 2016, at $178.00 per month = $2,136.00

TOTAL: $8,680.00

21From that amount will have to be deducted any payments made from September 1, 2012 to December 31, 2016.

22The ongoing support will be $178.00 per month based on an attributed minimum wage income of $22,230.00, the first payment, January 1, 2017, payable to the Director of the Family Responsibility Office, Support Deduction Order to issue. I am aware that that is somewhat in excess of the amount the father claims to now be earning from his new employment. Again, I state that he has the capacity to make up the difference as set out above. The respondent is also ordered to pay an additional $100.00 per month on the arrears as set out above after he is given credit for any payments made during the relevant time.

23Again, this order is not able to reflect the results of his motion to vary the order regarding the other two children and once that matter is resolved, any ongoing support for those two children, or either of them, either for arrears or ongoing guideline amounts will have to be taken into account and necessary adjustments made to this order. It is unfortunate that the motions to vary regarding all three children were not heard together so the matter could have been resolved in one hearing.

[24]

Costs