Court File and Parties
COURT FILE NO.: 2440/12 DATE: 2017-01-06 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON BROTHERS Applicant – and – TIM LEBLANC Respondent
Counsel: Self-Represented (Sharon Brothers) Self-Represented (Tim LeBlanc)
HEARD: January 3 and 4, 2017
RASAIAH J.
Reasons for Decision on Motion to Change Final Order
OVERVIEW
[1] On June 12, 2013, Koke J. made an order under the Family Law Act, R.S.O. 1990, c.F.3. (“Family Law Act”), ordering fixed lump sum non-taxable spousal support, payable by Mr. LeBlanc to Ms. Brothers, in the amount of $129,002.46 (“the Order”). Koke J. ordered that this support be paid commencing July 1, 2013, at the rate of $1,000 per month. Commencing July 1, 2014, he ordered that the payment be increased to $1,500 per month. In calculating the rate, Koke J. imputed income to Mr. LeBlanc of $80,000 to $90,000.
[2] Mr. LeBlanc, by motion to change, seeks a reduction of the $1,500 payment (which is the current payable amount by the Order).
[3] In his motion to change filed February 1, 2016, Mr. LeBlanc seeks to have the payment reduced to $400 per month.
[4] A trial of the motion to change was ordered.
[5] At trial, Mr. LeBlanc, in his opening, asked to have the payment reduced to $400 per month as set out in his motion to change. However, in the alternative, he asked for a reduction in accordance with the Spousal Support Advisory Guidelines. He also asked that any reduction be made effective June 12, 2013, the date of Koke J.’s order. In closing, Mr. LeBlanc suggested, if I was satisfied that a material change had been established, that the payment be reduced to zero and made reviewable in one year on the basis that at this time he has no income.
[6] Mr. LeBlanc submits that drastic changes occurred within two months following the date the Order was made and he has not ever made the income imputed to him by Koke J.
[7] Ms. Brothers opposed any change in the payment amount. Ms. Brothers argued that Mr. LeBlanc was underemployed and was underemployed intentionally to avoid payment of what is owed to her. Ms. Brothers asked that I make an enforcement order jailing Mr. LeBlanc for non-payment and an order against Cynthia Thomas, Mr. LeBlanc’s former common law spouse requiring her to pay the Order.
[8] Mr. LeBlanc and Ms. Brothers are self-represented litigants.
BACKGROUND TO THE ORDER
[9] On March 21, 2012, an application was commenced by Ms. Brothers against Mr. LeBlanc to enforce a separation agreement between them dated February 1, 2008.
[10] A trial of the application was held before Koke J. June 3 and 4, 2013.
[11] Koke J. released written reasons for decision on June 12, 2013.
[12] The background information that Koke J. relied on was set out in his reasons at paragraphs 2 to 13, as follows:
[2] The parties lived together in a common law relationship in Sault Ste. Marie, Ontario from September, 1987 through October, 2007, a period of approximately 20 years.
[3] The respondent, Mr. LeBlanc was a heavy equipment operator and during the relationship he operated an unincorporated business called Tim LeBlanc Construction. This business was engaged in the work of building and maintaining bush roads for logging companies in Northern Ontario. During the winter months it carried out snow removal and snow clearing operations in and around Sault Ste. Marie, Ontario.
[4] Ms. Brothers performed clerical and bookkeeping services for the business from home. She also worked on a part time and sometimes full time basis outside the home. She [at the time of trial] was employed in a clerical position with a local school board.
[5] Prior to separating the parties purchased a home at 1520 Peoples Road (the “home”) in the City of Sault Ste. Marie.
[6] When the parties separated they entered into a separation agreement (the “Agreement”), which they signed on February 1, 2008. Generally, the Agreement provided that Mr. LeBlanc would keep the business assets and that he would transfer his interest in the home to Ms. Brothers. The agreement further provided that Mr. LeBlanc would pay spousal support to Ms. Brothers in the sum of $1.00 per year and in lieu of additional support he would continue to make the mortgage payments due on the home. He also agreed to discharge the mortgage by February 1, 2012, which was four years from the date of the agreement.
[7] Mr. LeBlanc transferred his interest in the home to Ms. Brothers and continued to make the bi-weekly payments on the mortgage as agreed through February 1, 2012. When the mortgage was not discharged on February 1, 2012 Ms. Brothers wrote Mr. LeBlanc a letter dated February 2, 2012 regarding his intentions. In response Mr. LeBlanc contacted Ms. Brothers’ lawyer on February 13, 2012 and requested a 6 month extension to discharge the mortgage, stating he did not have any money and wanted to try to negotiate a settlement. Ms. Brothers refused and commenced this application.
[8] On April 30, 2012 the parties attended at a Case Conference before Justice Gareau at which time an order was made on consent that Mr. LeBlanc continue to make the mortgage payments on an interim basis.
[9] Monthly payments on the mortgage totalled $1462.33 comprised of payments on account of principal and interest of $1267.20, a life insurance premium of $52.35 and a critical illness premium of $142.78. Mr. LeBlanc continued to make these payments after the case conference and the parties continued to discuss a resolution of the issues until September 12, 2012 when Ms. Brothers’ was notified by a Trustee in Bankruptcy that Mr. LeBlanc had declared bankruptcy effective September 7, 2012, and that he had named both Ms. Brothers and the mortgagee as creditors.
[10] As of the date of Mr. LeBlanc’s bankruptcy the sum of $129,002.46 remained owing on the mortgage, which was the amount claimed by Ms. Brothers in the application.
[11] Shortly after the separation Mr. LeBlanc entered into a new relationship and began living with Cindy Thomas. Ms. Thomas was a nurse by training and continued to work in this capacity. Effective June 7, 2012 Ms. Thomas registered a sole proprietorship under the name TLC Construction and she purchased some of the equipment owned by Tim LeBlanc Construction.
[12] Since his bankruptcy Mr. LeBlanc was employed by TLC Construction which paid him a salary of $2000 per month. His discharge from bankruptcy was scheduled to occur on June 7, 2013.
[13] Ms. Brothers earned approximately $42,000 annually as an employee of the school board.
[13] Koke J.’s reasons reflect that:
(a) At the time of the application TLC Construction had secured a contract to provide services to Clarida Construction in New Liskeard Ontario. Mr. LeBlanc presented to Justice Koke, his belief that this contract would enable him to get back on his feet financially. At this time Mr. LeBlanc was being paid $2,000 per month by TLC Construction.
(b) Koke J. found that Ms. Brother’s entitlement to support was compensatory, non-compensatory and contractual, and that her entitlement continued to the date of his order. He found that Mr. LeBlanc was obligated to pay to Ms. Brother’s as support, the full amount owing on the mortgage he was required to pay by the separation agreement.
(c) In analyzing and determining payment, Koke J. was satisfied that the evidence supported a finding that Mr. LeBlanc was in precarious financial circumstances and that Mr. LeBlanc’s reduction in income was not self-induced and not intentional. However, Koke J. was also satisfied based on Mr. LeBlanc’s work experience and skills; Mr. LeBlanc’s good health; the evidence setting out what an experienced heavy equipment operator could earn; and the evidence of available work, that Mr. LeBlanc should be able to generate income between $80,000 and $90,000.
(d) Koke J. emphasized that although Mr. LeBlanc always worked for himself and was reluctant to work in a union environment, Mr. LeBlanc bound himself to pay Ms. Brothers and he should be prepared to accept union work if this is required for him to meet his obligation. The focus of imputing income was on Mr. LeBlanc having an obligation and doing what was required to meet it.
(e) When determining the monthly payment payable by Mr. LeBlanc, Koke J. did not question that Mr. LeBlanc had struggled financially in the years preceding the Order and that he would need some time to recover.
(f) Koke J. was not inclined to view Mr. LeBlanc’s financial situation at that time as permanent. He noted that Mr. LeBlanc still had skills to operate heavy equipment; that he was 51 years of age at the time; and in apparent good health.
(g) In terms of the imputed income, Koke J. considered the evidence filed of Mr. Robert Catling, business representative for the union; a letter which outlined wage rates for shovel backhoe operators, in the range of $26.85 to $47.75 per hour depending on the job. Koke J. notes that Mr. LeBlanc did not take issue with this information. Mr. LeBlanc however testified that he had always worked for himself and that he would not be able to deal with the restrictions and other limitations which would be imposed on him as a union employee. He was reluctant to work in a union environment.
(g) At that time, according to Robert Catling, the construction season was busy and expected to be busier over the next decade in Northern Ontario.
(h) Koke J., in summary, wrote that Mr. LeBlanc was an experienced operator of heavy equipment. The evidence was that there was work available for someone with his skills and that he should be able to generate income an income of $80,000 to $90,000.
KOKE J.’S ORDER AND VARIATIONS
[14] The wording of Koke J.’s order based on his reasons dated June 12, 2013 was as follows:
Tim LeBlanc shall pay to Sharon Brothers the sum of $129,002.46 (the amount owing on the mortgage) as support, payable in the amount of $1,000 per month commencing July 1, 2013. This is based on an imputed income of $80,000 to $90,000 per year.
Commencing July 1, 2014 and thereafter support payments are increased to $1,500 per month.
Interest shall accrue on the outstanding balance owing to Sharon Brothers at the rate of 3.4% annually. This interest is to be calculated annually on December 31st of each year, commencing December 31, 2012. Interest it to be based on the principal sum owing on December 31st of each year, and is then to be added to that principal amount owing.
The principal amount on which interest will be based on December 31, 2013 is $130,507.49 (amount owing for principal plus interest as of December 31, 2012) less any payments made during 2013.
The principal amount owing as of December 31, 2016 (less any payments made thereafter) together with 6 months interest is to be paid on July 1, 2017.
Since the payments ordered are in essence a continuation of the previous mortgage payments and are for a fixed period of time, they should be non-taxable. The final decision as to their taxability is the decision of the Canadian tax authorities, and in the event it is determined that the payments are taxable in the hands of Sharon Brothers, Sharon Brothers shall notify Tim LeBlanc forthwith and the amount by which Sharon Brothers’ income tax increases as a result of receiving these payments is to be added to the principal payable by Tim LeBlanc on an annual basis.
Unless the parties agree otherwise, these payments are to be made to the Family Responsibility Office.
Tim LeBlanc shall irrevocably designate Sharon Brothers as the beneficiary of a life insurance policy on his life with a minimum face value of $130,000 for as long as this obligation to make payments to Sharon Brothers continues.
Tim LeBlanc shall send Sharon Brothers proof that the application for life insurance has been made and that she has been designated as the recipient of this amount.
If, at the time of his death, Tim LeBlanc has not complied with his obligation with respect to his life insurance policy, this clause shall constitute a first charge against his estate in an amount equal to the face value of the policy.
The dispute resolution mechanisms set out in paragraph four of the Separation Agreement dated February 1, 2008 remains in force.
If either of the parties desires costs with respect to these proceedings they should file written submissions with the court within 2 weeks of the date of this order and serve the other party with a copy thereof. Replies to submissions in support of costs should be filed and served within 10 days thereafter.
Unless this order is withdrawn from the Director’s Office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
[15] On February 6, 2014, on consent, Varpio J. amended paragraph 5 of the order to remove the words “(less any payments made thereafter)”.
[16] On March 12, 2014, after an issue was raised by the Family Responsibility Office regarding the wording of the Order, Koke J. amended the Order, by ordering that paragraph 1 read as follows:
Tim LeBlanc shall pay to Sharon Brothers the lump sum of $129,002.46 as support payable in the amount of $1,000.00 per month commencing on July 1, 2013. This is based on an imputed income of $80,000.00 to $90,000.00 per year.
[17] Mr. LeBlanc did not appeal the Order.
PROCEEDINGS FOLLOWING THE ORDER
[18] Mr. LeBlanc testified that he had brought a previous motion to change the Order. It was heard by Varpio J. Mr. LeBlanc could not remember the date but thought it was about a year after the Order and his affidavit indicates it was in 2014. He remembered it was dismissed. He could not seem to recall the reasons but felt it was because he was not prepared properly. He claims that Varpio J. dismissed it quickly. In his affidavit Mr. LeBlanc stated he did not fully understand the reasons for the dismissal. Mr. LeBlanc did not appeal Varpio J.’s dismissal.
[19] Mr. LeBlanc has also been involved in default hearings initiated by the Family Responsibility Office which resulted in orders being made by Dunn J. of the Ontario Court of Justice. Default proceedings started October 16, 2014. Mr. LeBlanc’s driver’s licence to date has been suspended three times for non-payment. In addition, Dunn J. has made two default orders against Mr. LeBlanc, one on April 7, 2015 and the other on January 20, 2016. There is a hearing date set for January 30, 2017 on a motion for a warrant for committal in respect of Dunn J.’s January 20, 2016 default order, which included a provision that Mr. LeBlanc be committed to jail for 15 days for each instance of default of payment to a maximum of 180 days.
LAW FOR MOTION TO CHANGE THE PAYMENT
[20] The provisions of the Family Law Act dealing with variations are found in section 37, which provides as follows:
Application for variation
- (1) An application to the court for variation of an order made or confirmed under this Part may be made by,
(a) a dependant or respondent named in the order;
(b) a parent of a dependant referred to in clause (a);
(c) the personal representative of a respondent referred to in clause (a); or
(d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.
Powers of court: spouse and parent support
(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33. 1997, c. 20, s. 6; 1999, c. 6, s. 25 (12); 2005, c. 5, s. 27 (16).
[21] Followed by the court in Ruffolo v. David, 2016 ONSC 754 (Ont. Div. Ct.), in Trang v. Trang, 2013 ONSC 1980, 29 RFL (7th) 364; [2013] CarswellOnt 4069; 2013 ONSC 1980, Pazaratz J. wrote:
40 The starting point for any motion to change support is that the party seeking the change must establish that some important facts or circumstances have changed since the date the order was made. A "material change in circumstances" must be established. This generally entails some new facts or circumstances which, if known at the time, would likely have resulted in different terms in the order.
41 Quite often, motions to change can entail complex and countervailing allegations that more than one thing has changed. Entitlement, need, and ability to pay can all get thrown into the mix.
42 But almost invariably, an alleged change with respect to the payor's income becomes a central issue. Often it is the only real issue. Simplistically, this part of the analysis might be summarized:
a. What was the payor earning then?
b. What is the payor earning now?
c. When did the payor's income change — and why?
43 The first question — "what was the payor earning then?" — requires a fundamental (and often overlooked) determination:
a. Was the support order based upon the court accepting the payor's "declared" income?
Or,
b. Was the support order based upon the court "imputing" income to the payor?
44 This preliminary determination is vital to an analysis of whether there has been a material change in circumstances relating to ability to pay. It will affect the onus on the moving party. It will prescribe what new or changed facts the party will have to establish, to convince the court that support should be changed.
45 If support was initially calculated based on the court's acceptance of a payor's "declared" income, then changes in declared income in subsequent years may be persuasive. If the court was prepared to rely on things like T4 slips and tax returns when it made the original order, T4 slips and tax returns for subsequent years may be sufficient evidence of changed circumstances. This of course would be subject to other considerations, such as the possibility that employment levels or income were deliberately manipulated by the payor.
46 But if the original support order was based upon "imputed" income, a more comprehensive analysis is required on a motion to change. The court must consider:
a. Why did income have to be imputed in the first instance? Have those circumstances changed? Is it still appropriate or necessary to impute income, to achieve a fair result?
b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable?
50 In most variation proceedings, it should be possible to establish why (and how) income was imputed in the original order. Those factual findings and calculations are usually set out in affidavits or transcripts (in uncontested proceedings) and written endorsements or judgments (in contested proceedings). This is relevant information which should be presented to the court on a motion to change. It is essential to an understanding of what factors the court considered when the previous order was made — and whether those factors have changed.
51 When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on — or wait for — representations from the payor.
52 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:
a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.
Or,
b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.
55 Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.
56 If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.
57 If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.
58 Imputed income matters. The reason why income had to be imputed matters.
[22] Followed by the court in Ruffolo, supra, and considered by the Court of Appeal in Gray v. Rizzi, 2016 ONCA 152 (Ont. C.A.), in Trang, supra, Pazaratz J. wrote:
53 If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications — as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.
54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.
59 If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.
[23] In Trang, supra, Pazaratz J. wrote:
60 …if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct — and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court
[24] The Court in Ruffolo, supra wrote:
A material change is one which, if known at the time, would likely have resulted in different terms in the original order. The corollary to this is that if the matter which is relied on as constituting a change, was known at the relevant time, it cannot be relied on as the basis for variation. (See: Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.)).
ANALYSIS AND EVIDENCE AT THIS TRIAL
[25] I have read and considered all of the written material filed by both parties. I have also considered the parties’ oral evidence and the witnesses’ evidence. I have considered the oral submissions, the legislation and the case law.
[26] This case is not about entitlement and need.
[27] The Order was based on imputed income to Mr. LeBlanc.
[28] Mr. LeBlanc did not appeal the Order and faces the presumption that the original order was correct; the original imputation of income was correct.
[29] As such, I must consider the following:
(a) Has the reason why income had to be imputed to Mr. LeBlanc changed?
(b) Why did income have to be imputed to Mr. LeBlanc in the first place?
[30] It is clear from the reasons of Koke J. that income had to be imputed to Mr. LeBlanc because:
(a) Mr. LeBlanc was choosing a specific course of employment out of other employment choices available to him, namely to work for TLC Construction; and
(b) In respect of that employment, he was agreeing to be paid at a rate far below what he would otherwise be paid based for this type of employment, based on his skills and experience, namely $2,000 per month.
[31] By imputing income, it is clear that Koke J. did not accept that it was appropriate to rely on Mr. LeBlanc’s actual or proposed income. The premise behind the imputation of income by Koke J. was that Mr. LeBlanc given his obligations to Ms. Brothers should be required to take market value remunerable work commensurate with his skills and experience.
[32] The imputation was made notwithstanding Koke J.’s acknowledgement of Mr. LeBlanc’s financial struggles preceding the Order and notwithstanding the unknown potential of Mr. LeBlanc’s work with TLC Construction.
[33] Mr. LeBlanc has not established that Koke J. made his decision to impute income to him based on TLC Construction having a five year contract with Clarida Construction. Koke J.’s reasons specifically reflect an understanding that the Clarida Construction contract would go to at least October or November of 2013, and that there was potential for more work.
[34] Accordingly, can it be said that if it was known by Koke J. that the contract would not have worked out and provided more work to TLC Construction, a different order would have been made originally? In my view, based on the reasons for which Koke J. imputed income and his written reasons regarding his understanding of the contract, the answer is no and this cannot be relied on as constituting a change.
[35] The facts set out by Koke J. supporting the imputation included availability of work, Mr. LeBlanc’s apparent good health at the time; his work experience; and the range of income he could earn with his skills and experience.
[36] Mr. LeBlanc stated that he sustained injuries in 2014 and 2015 that affected his ability to work. However he filed no medical evidence of same.
[37] Mr. LeBlanc has not provided medical evidence that he is not in good health now either.
[38] Mr. LeBlanc’s work experience is the same.
[39] As to available work, I considered the following.
[40] Mr. LeBlanc is currently 56 years of age and unemployed. In the last two years and four months he has worked 12 weeks. He has been unemployed since December 5, 2015. He has zero income.
[41] TLC Construction was formed in June of 2012. While Ms. Thomas was the legal owner, Mr. LeBlanc does not deny that he was running this company, and Ms. Thomas had no idea how to run a construction company.
[42] TLC Construction operated from July 1, 2012 to August 31, 2014.
[43] According to Ms. Thomas’ 2012 Tax Summary, she earned $87,779.12 gross business income and $38,922.13 net business income.
[44] The Order was made June 12, 2013.
[45] Mr. LeBlanc asserted that two months after the Order, dramatic changes occurred and serious financial hardship.
[46] In respect of the New Liskeard contract, Mr. LeBlanc stated that in September of 2013, Clarida Construction “walked off the job” while owing $192,000 to TLC Construction. He relies on this as a dramatic change; a material change. Mr. LeBlanc expressed this put him in a difficult position to make payments to Ms. Brothers, on the basis that TLC Construction was not able to maintain a seemingly lucrative subcontract with Clarida Construction.
[47] I do not accept Mr. LeBlanc’s evidence and/or find that he has met his burden of establishing his assertion.
[48] In 2013, Mr. LeBlanc, according to his notice of assessment, earned $26,002. The 2013 notice of re-assessment of Cynthia Thomas reports gross business income of $378,622 and net business income of $125,694. Was the $192,000 unpaid amount written off or claimed as a bad debt to arrive at these figures? What really was the income? This was his burden to establish.
[49] In 2014, Mr. LeBlanc, according to his notice of assessment, earned $15,700. Ms. Thomas’ 2014 assessment reports gross business income of $617,887 and net business income of $312,637. These again are significant amounts.
[50] Mr. LeBlanc baldly stated that these 2013 and 2014 income figures did not represent the money in the bank.
[51] Ms. Thomas was not called to explain these figures, and or what or how she dealt with the alleged unpaid 2013 income of $192,000 that TLC Construction was allegedly not paid.
[52] No other documents were filed to explain the tax return figures.
[53] No documents were filed indicating that TLC Construction was left in ruins.
[54] Mr. LeBlanc could have called Ms. Thomas, the owner of TLC Construction as a witness. He elected not to.
[55] Counting the original application, the default proceedings and his previous motion to change, this is at least the fifth time Mr. LeBlanc is before the court on issues requiring him to prove his income. I am of the view that he is aware or ought to be aware that this is an issue he is required to establish.
[56] Mr. LeBlanc left New Liskeard in August of 2014. He initially said this was when the contract ended and was due to the collapse of Clarida Construction. Then later in evidence he said he came back because he was kicked off the job two months early because the Family Responsibility Office suspended his licence.
[57] As for the failed subcontract with Clarida Construction, on September 28, 2015, Ms. Thomas received approximately $30,500 from a holdback settlement in respect of New Liskeard contract between the ABB Inc. and Clarida Construction. This was not noted in her bankruptcy statement of affairs sworn May 13, 2016. Mr. LeBlanc wasn’t paid any of this money.
[58] An individual, namely, Ms. Secord was repaid $35,000 she had loaned to TLC Construction and/or Ms. Thomas. Mr. LeBlanc stated he and Ms. Thomas were trying to pay off debts.
[59] Ms. Brothers received nothing of this money towards the debt Mr. LeBlanc owed her.
[60] I further do not accept Mr. LeBlanc’s assertions about his income in 2015. Inconsistencies exist for 2015. Mr. LeBlanc, according to his 2015 notice of assessment, earned $9,661. However, Mr. LeBlanc was hired by Handiman Clem Construction Inc. from September 14, 2015 to December 5, 2015, who Ms. Brothers asserted was a friend of Mr. LeBlanc’s. For these 12 weeks of work, the records that Mr. LeBlanc produced reflect that Mr. LeBlanc was paid $11,308.90. The pay stubs suggest Mr. LeBlanc was working 88 hours biweekly on average and was being paid $18 per hour. Dunn J.’s January 20, 2016 endorsement was filed by Ms. Brothers. Dunn J. records Mr. LeBlanc as having testified that he was making in excess of $7,000 per month with Handiman Clem Construction Inc.; that he was making a $600 payment each month for a 2014 GMC truck; and was assisting his new partner with the finance of her children and their tuition.
[61] Ms. Brothers suggested to Mr. LeBlanc that he was renting equipment and doing cash side jobs. Mr. LeBlanc however denied doing cash jobs.
[62] Cynthia Thomas’ 2015 notice of assessment reports no business income or loss, and solely her employment income as a nurse. Her bankruptcy statement of affairs sworn May 13, 2016 estimates the value of her assets at $523,000 and liabilities of $477,340. It also indicates that TLC Construction was operated from July 1, 2012 to August 31, 2014 and that 814 Third Line East, Sault Ste. Marie, Ontario was sold February 27, 2016. Ms. Thomas received $47,000 which is reported as being used to pay for agreed upon repairs to the sold property and the remainder for moving and living expenses.
[63] Mr. LeBlanc also blames default proceedings as interfering with his ability to/availability of work because his licence was suspended on three occasions for non-payment of support. No one from the Family Responsibility Office and/or any default proceeding documents in relation to the licence suspensions were filed to shed any light on this assertion save and except Dunn J.’s orders. I do not accept this assertion for the following reasons. The Family Responsibility Office commenced enforcement in October of 2014. The reported net business income in 2014 for TLC Construction was $312,637 and Mr. LeBlanc $15,700 in that year. When he returned to Sault Ste. Marie, he was not looking for work and was building a garage at 814 Third Line East. Further, Mr. LeBlanc did not demonstrate that he was in fact making payments voluntarily to the Family Responsibility Office during this time without enforcement. In her endorsement of April 7, 2015 of Dunn J. on the default proceeding wrote that Mr. LeBlanc was aware he could work out an arrangement with the Family Responsibility Office to get his licence back to work but he had not tried since his last efforts in September of 2014.
[64] Even if it can be said that Mr. LeBlanc did not recover financially since the Order was made as was anticipated, Mr. LeBlanc has not established in evidence that the situation he finds himself in now is not as a result of lack of effort on his part and/or not as a result of there being no available work.
[65] The evidence suggests that there were alternatives available to enable Mr. LeBlanc to get on his feet that he did not avail himself of, such as applying for non-union work, or doing other work within his work experience and skill-set, or re-educating himself for other work.
[66] Even though there may not be have been and is not now significant work being offered through the union as stated by Mr. Catling, the evidence establishes there are other jobs that Mr. LeBlanc can apply for if he is truly motivated to find work.
[67] At present, Ms. Brothers argues there is no incentive for Mr. LeBlanc to work.
[68] Ms. Brothers asserts that funds were received to comfortably meet expenses when considering Ms. Thomas’ income, the income made by TLC Construction, the $30,500 from the Clarida Construction settlement, and the $47,000 proceeds from the sale of 814 Third Line East. I suspect this argument may have some merit, however, Ms. Brothers chose not to call Ms. Thomas either regarding the use of these funds to establish her assertion.
[69] What is in evidence, however, is that Mr. LeBlanc resides at the home of his former common law spouse, Cynthia Thomas, with who he claims he is just friends, and that everything is paid for him by Ms. Thomas, and his son with the exception of his car insurance which he states is paid by his niece. He has zero expenses. He transferred all of his property to Cynthia Thomas in July of 2013 when they separated and he waived support. They got back together a year later in 2014 but separated again. While they still engage in social activities together, including trips, he reiterated that he and Ms. Thomas were not together and were just friends. Whether Mr. LeBlanc and Ms. Thomas are “just friends” or something else is not really an issue. However, I do agree that if all of your expenses are being paid without question, even a cell-phone, this may create less of an urgency to appreciate the need to make greater effort to find work.
[70] Mr. LeBlanc claimed he put his name in “everywhere in town”. He then produced a list of eight places only. In his affidavit he listed ten. Ms. Brothers questioned Mr. LeBlanc about eight additional local companies she found listed in the phone book including two new companies. Mr. LeBlanc had not applied to more than half of these. He discounted applying to two of the remaining companies on the basis of his information that they had an established crew, and with respect to the other remaining two others stated he did not get along with them.
[71] Ms. Brothers presented a list of eight local trucking companies; twelve local transport companies; and three snow removal companies. Mr. LeBlanc applied to none of these companies.
[72] Ms. Brothers also presented the results of many computer internet searches she conducted for heavy equipment operators and truck drivers. The most recent search, done January 3, 2017 was showing 379 heavy equipment operator listings for Ontario, 231 of which are full-time positions; 246 positions in Alberta, 145 of which are full-time positions. For truck driving, 2,915 job postings for Ontario, 1,781 are full-time positions; and 765 positions in Alberta, 472 of which are full-time positions.
[73] Ms. Brothers also filed documents pertaining to other work she says Mr. LeBlanc was qualified to apply for and/or was capable of doing. For example, she submitted a posting of a local job vacancy for a labour/operator with the Corporation of the City of Sault Ste. Marie, which closed December 21, 2016.
[74] Mr. LeBlanc stated that any information about truck driving jobs was irrelevant. He stated that he could not drive truck because even if he could regain his AZ licence, he would fall asleep. However, Mr. LeBlanc’s history includes driving a transport. First he testified that he drove to Toronto every once and a while to pick up or deliver a piece of equipment and enjoyed it. Then he testified that he was using Toronto as a “hypothetical” and he really only ever drove to Toronto once and to Sudbury on three or more occasions.
[75] It is clear that Mr. LeBlanc used to own a transport and dump trucks. He has experience operating and driving both.
[76] When asked if he had a doctor’s note that indicates he is unable to drive a transport, he indicated he did not. He said he did not like driving a transport and that Ms. Brothers knew it.
[77] Ms. Brothers also submitted that there is no reason why Mr. LeBlanc should look for other work, such as snow removal or other minimum wage work. If he did, she would be getting paid. He chooses to do nothing she asserts.
[78] For snow removal Mr. LeBlanc said he did not have the money to buy equipment to start his own company. As for getting hired, he stated he would not get hired because either there were no vacancies and/or because the owners would be afraid he would steal their business because he used to have a snow removal business. Mr. LeBlanc led no evidence to support this contention.
[79] It is also troubling that Mr. LeBlanc waited to place his name on the “out of work” list with the union. Although out of work, and in the face of Koke J.’s 2013 suggestion that he take union work if required, he waited almost a year and a half to finally put his name on the list. It has only been registered in the last year.
[80] In addition, Mr. Catling as the business representative for the International Union of Operating Engineers in Sault Ste. Marie, Local 793 indicated that Mr. LeBlanc has not placed his name on the lists for out of town work with other eight union offices. While I appreciate that Mr. Catling indicated that some contracts would not pay for room and board for out of town positions making it economically unfeasible to accept, this was only in respect of civil contracts and not all available contracts, and some people do it even though it’s hard. Mr. Catling confirmed that being a member of the union does not prohibit the member from taking other work. He made a comment that when there isn’t work coming through the union, this is what happens. Mr. LeBlanc however after having no work for some time, and having not been called for 9 to 10 months by the union is electing to sit by and wait on the union.
[81] Based on the evidence of Mr. Catling, it appears that Mr. LeBlanc has not advised the union that he has skills beyond running an excavator. Mr. Catling stated he only knew Mr. LeBlanc to operate an excavator and that is what he would be called for. Mr. LeBlanc has operated heavy equipment, dump trucks, transport trucks, dozers, graders, loaders and shovels for over 40 years and operated his own construction company for two decades. He has also owned and operated a snow removal business and has experience with that work.
[82] Mr. LeBlanc provided a copy of his resume to Ms. Brothers during the course of this proceeding which she filed. The resume focuses solely on obtaining employment as an operator in the construction industry. It does not reflect the desire or objective for any other kind of work despite the other skills he possesses.
[83] Mr. LeBlanc in 2014 helped build a garage at 814 Third Line East instead of looking for or doing any other kind of work. He was not paid for this work.
[84] Mr. LeBlanc spent the entire summer of 2016 he said helping his son Paul LeBlanc renovate his home instead of finding any other kind of work. He was not paid for this work. Interestingly, Paul LeBlanc was working for Belanger for the summer until the fall of 2016.
[85] Mr. LeBlanc has made no efforts to educate himself or obtain licences he could utilize to earn income, such as an AZ licence to drive a truck which he has done in the past. In the absence of medical evidence to the contrary, I do not accept that Mr. LeBlanc is incapable of driving a truck.
[86] Mr. LeBlanc’s son, Paul LeBlanc has taken courses through the union, paid for by the union. Paul LeBlanc testified that currently there is a crane operator course available through the union. You need to have your grade twelve to apply. He did not disagree that one could upgrade to get grade 12 to apply for this course.
[87] Mr. LeBlanc, who says he does nothing all day other than maybe cook and/or clean a bit, certainly has time on his hands.
[88] As stated Mr. LeBlanc’s son was called for work by the union in 2016 and worked until the fall before being laid-off by Belanger. He testified that he expects that he will get called for work in the spring. Unlike his father, it appears he registered for work with the union in 2014 after he came back to Sault Ste. Marie after the New Liskeard work ended (he was working also for TLC Construction and was being paid $25 per hour). By doing so, he was able to get work through the union. In addition, unlike his father, it appears that Paul LeBlanc also took initiative to find other work when there was no union work and he did so out of town. He testified that he brought his father to the site but by the time Mr. LeBlanc went there was no work for him there.
[89] Mr. LeBlanc states he had a reasonable prospect of being hired by Robinson Construction but that once they were contacted by the Family Responsibility Office, they declined to offer him a position. No one from Robinson Construction was called to confirm if employment was offered and/or declined and if so, why.
[90] I had trouble accepting Mr. LeBlanc’s evidence the way it was presented by him; because of inconsistencies; and bald statements not backed up by evidence.
[91] In my view, Mr. LeBlanc’s impediments appear to be his personal likes and dislikes, his lack of motivation and interest, and lack of sense of responsibility for his obligations to Ms. Brothers.
[92] Ms. Brothers has indicated that Mr. LeBlanc has told her that he is never going to pay her. She filed a copy of the April 7, 2015 endorsement of Dunn J. from the default proceeding. It references that Mr. LeBlanc purposely did not apply for E.I. benefits so that monies would not be paid to Ms. Brothers. It references animosity of Mr. LeBlanc towards Ms. Brothers and his unhappiness with the Order. Mr. LeBlanc in his affidavit stated that he felt his statement was poorly worded and misconstrued. Having not applied for or even been in receipt of E.I. benefits at that point he simply did not think to pursue that avenue. He attempted to convey this ignorance to the Court and acknowledged fully that he presented himself in a negative light.
[93] I make note of the fact that the taking of reasonable steps to find work outside what Mr. LeBlanc is used to has been addressed with Mr. LeBlanc by previous judges. Reviewing the decisions of Koke J. and Dunn J. attached to the affidavit material filed, they clearly communicate this expectation. Dunn J. communicated that Mr. LeBlanc had not done enough to find work. Having reviewed the evidence led at this trial, I agree.
[94] Is it still appropriate or necessary to impute income to Mr. LeBlanc to achieve a fair result? Based on the above, in my view, the answer is, yes. Mr. LeBlanc did not meet his onus of establishing that it is no longer necessary or appropriate to impute income and that his representations as to what the court should accept as his income, namely zero, should be accepted.
[95] Is it still appropriate to quantify the imputed income in the range of $80,000 to $90,000 as calculated by Koke J.? Have the factors for determining this amount changed? Has Mr. LeBlanc presented evidence which establishes that a different amount is more appropriate?
[96] The evidence of Mr. Catling was that the same rates that Koke J. considered in imputing income ($26.85 to $47.75 per hour) to Mr. LeBlanc apply, and that locally, Avery Construction was paying $26 or two or more dollars more than that per hour for good operators.
[97] Mr. LeBlanc’s son, Paul LeBlanc testified that he has received work over the past couple of years running a shovel that paid him at the rate of $21 to $30 per hour. Mr. LeBlanc has significantly more experience than his son; more than 40 years of experience.
[98] When Mr. LeBlanc was running TLC Construction, the company had net earnings ranging from $87,000 to $312,000. Mr. LeBlanc is capable of running his own business and with his twenty plus years of experience running a business, he may not have contemplated that there may be other jobs available to him such as managing and supervisory jobs at construction companies. Mr. LeBlanc is fortunate, in that he is not limited to one specific skill.
[99] The job postings filed by Ms. Brothers, while they vary, they indicate that there is work available for heavy equipment operators and truck drivers that pay in the particular range ordered by Koke J. The searches indicate a number of employment opportunities in Ontario and other provinces with a range of salary as low as $30,000 to as high as $170,000. There are a number of opportunities falling in the range of the imputed income.
[100] Mr. LeBlanc according to his evidence is not in a relationship and has no dependents. He presented no reason why he could not move to either start a business or find work other than he is “not interested in travelling half way around the world for work” and there would never be E.I. benefits if that was required. If this was Mr. LeBlanc’s way of suggesting it was unreasonable to expect that he travel for work or apply for work outside of Sault Ste. Marie, I find that it is not in this case.
[101] Mr. LeBlanc did not himself present any evidence of what income if any should be imputed to him or what would be fair.
[102] Based on all of the above, the motion to change is dismissed.
REQUEST FOR ORDER JAILING MR. LEBLANC FOR NON-PAYMENT
[103] Ms. Brothers does not have a motion before the court for this relief.
[104] Further, a request for an order for a warrant for committal in respect of default for non-payment of support in this case is a matter for the Director, Family Responsibility Office to pursue on behalf of Ms. Brothers in the Ontario Court of Justice (which is in fact in progress).
[105] Accordingly, I will not be making the requested order.
REQUEST FOR ORDER AGAINST CYNTHIA THOMAS
[106] Ms. Thomas is not and was never made a party to this proceeding.
[107] Further, Ms. Brothers does not have a motion before the court for relief as against Ms. Thomas personally, namely for an order requiring her to pay what Mr. LeBlanc owes by the Order.
[108] Finally, it was not disputed that Ms. Thomas has made an assignment into bankruptcy this year. The statement of affairs dated May 13, 2016 was filed.
[109] Based on the foregoing, I will not be making this requested order.
AMENDMENT ON CONSENT
[110] Ms. Brothers indicated she had difficulty with enforcement of the Order due to the fact that Mr. LeBlanc’s name in the order does not reflect his given name, namely Timothy Dale LeBlanc. Mr. LeBlanc is reflected as “Tim LeBlanc”, his chosen name.
[111] Mr. LeBlanc did not object to the addition of his given name, and in particular that it be added that he is also known as Timothy Dale LeBlanc.
[112] Accordingly, on consent, paragraph 1 of the Order as previously amended by Koke J. on March 12, 2014, is further amended to read as follows:
Tim LeBlanc, also known as Timothy Dale LeBlanc, shall pay to Sharon Brothers the lump sum of $129,002.46 as support payable in the amount of $1,000.00 per month commencing on July 1, 2013. This is based on an imputed income of $80,000.00 to $90,000.00 per year.
Rasaiah J.