Court File and Parties

Court File No.: FS-15-0122-01 Date: 2017-03-16

Ontario Superior Court of Justice

Between:

Robin George William Lee, Applicant

• Adam Schenk, for the Applicant

- and -

Angela Marie Lee, Respondent

• Not appearing

Heard: March 2, 2017, at Thunder Bay, Ontario

Before: Mr. Justice F. B. Fitzpatrick

Reasons For Judgment on Uncontested Trial

[1] This is a motion to change the Order of Pierce J. dated April 28, 2016 (the “Order”). It comes before the Court by way of an uncontested trial.

[2] The respondent, Angela Marie Lee (the “Respondent”) was served by special service with the Motion to change and supporting materials on September 1, 2016. The Respondent did not file any responding materials as the result of being served with these documents.

[3] The applicant Robin George William Lee (the “Applicant”) therefore obtained a date for an uncontested trial pursuant to rule 15(14). The Applicant did not choose first to attempt to resolve the matter by scheduling a case conference.

[4] Pursuant to the Order, the Applicant has sole custody of two children of the relationship now aged 14 and 11.

[5] The Order provides that neither party pay the other child support. This was based on the fact that at the time of the making of the Order, the Respondent’s sole source of income was Ontario Works. The Order provided for an annual review of child support which was to commence in May 2017. However the Order does provide at paragraph 12:

In addition to the above annual review, if either spouse experiences a material change in circumstances relevant to the issue of child support, including a material change in income, they shall advise the other spouse and child support shall be reviewable forthwith.

[6] In affidavit evidence sworn January 27, 2017 filed at this trial, and not served on the Respondent, the Applicant deposes that in the end of June/beginning of July 2016 he “inadvertently learned via his children that the Respondent has secured meaningful employment.” He further gave vive voce testimony at the uncontested trial that due to his access to the Respondent’s Facebook account he has “recently” learned that the Respondent is working at, at least two veterinary hospitals in the south west area of the province. He did not provide screen shots from Facebook or any documentary evidence to show how he reached that conclusion. His evidence did not detail what was the nature of her work, other than to suggest she was trained as a veterinary assistant and had worked in that role in the past. He did not offer any evidence on her actual present income.

[7] The Applicant’s affidavit evidence (not served on the Respondent) set out the income tax assessments for the Respondent for the years 2008, 2009, 2013 and 2014. In 2008 and 2009 the Respondent worked as a veterinary technician. Her line 150 income for those years was $34,544.15 and $31,855.00 respectively.

[8] In 2013 and 2014 the Respondent worked as a cleaner. Her line 150 income for those years was $29,402.00 and $26,322.00 respectively.

[9] The Applicant seeks an order requiring the Respondent to pay retroactive child support, retroactive section 7 expenses and ongoing child support. The Applicant seeks to have the Court impute income to the Respondent in the amount of $40,000.00 per year.

[10] The Court is placed in a difficult circumstance by the conduct of both parties in this matter.

[11] To begin, the Respondent has breached a clear directive of the Order to advise the Applicant of a material change in her circumstances relating to child support. Text messages placed before the Court by way of affidavit evidence of the Applicant show a clear acknowledgment that she was working in some capacity after the Order was made. In the texts that Respondent was not prepared to specifically tell the Applicant how much she was earning.

[12] The Court is therefore left to speculate about the Respondent’s income based on less than satisfactory evidence given by the Applicant.

[13] The Applicant asks the Court to impute income to the Respondent in the amount of $40,000.00 per year. This is based on the 2008 and 2009 earnings of the Respondent and taking in to account “inflation” according to counsel for the Applicant. Counsel did not provide any evidence of what was the rate of inflation from 2009 to 2017.

[14] I am not prepared to accept the Applicant’s submission about imputed income based on the evidence provided. What I am prepared to do is impute an income to the Respondent based on the average of the four years of income information which the Court has been given.

[15] The average of the four years income evidence provided to the Court for the Respondent is $30,530. This finding will form the basis of a temporary ongoing child support order and the basis for an order for retroactive support. The Table amount specified by the Federal Child Support Guidelines for two children (Gabriella Elizabeth Lee (dob June 24, 2002) and Gavin Gary Lee (dob February 7, 2006)) is $445.00 per month.

[16] Based on the evidence at trial, I am only prepared to order retroactivity to September 1, 2016, the date the Respondent received the Motion to Change materials. The Respondent will be ordered to pay the Applicant periodic child support for the two children of the marriage in the sum of $445.00 per month commencing September 1, 2016. This order and the finding of imputed income is without prejudice to the rights of either party to seek a variation either higher or lower based on actual income information provided by the Respondent.

[17] However, this is not the end of matters.

[18] In my view, it would have been preferable had the Applicant made some efforts to alert the Respondent to the fact that he intended to proceed with an uncontested trial. Disclosure is a two way street in family law. It seems to me at a minimum, the Applicant could have written or texted the Respondent to advise he was actually going to Court. The Applicant was quite content to rely on text messages to attempt to prove the Respondent is now working. Apparently the Respondent had an access visit recently but the Applicant did not see fit to let her know he intended to go to Court to seek an order imputing income that was significantly higher than she had made in previous years.

[19] This minimal disclosure may have prodded the Respondent into action and permitted her to make full disclosure eliminating the need for the recent Court attendance. This waste of the Court’s time by the failure to disclose can be compensated in part by way of a costs award, but given the lack of information provided by the Respondent, a further Court attendance will be necessary if the Applicant is dissatisfied with the amount the Court is awarding on a temporary basis relying on the evidence provided at the uncontested trial.

[20] First and foremost the Family Law Rules are designed to promote resolution in the difficult situation of matrimonial breakdown. Financial disclosure is a fundamental part of that process. However, disclosure of intended procedural steps should also be given some consideration particularly in light of the new emphasis on a case conferencing system designed to promote early resolution. Despite the very clear right of a party to be able to obtain an uncontested trial where there is no response to service of process, where there is ongoing contact between parties following service, it does not sit well with the Court to only have evidence from one side where with perhaps a minimal effort, both parties could have been present to address the Court.

[21] With respect to the claims for extraordinary expenses, the Applicant did particularize some of these in the initial affidavit served on the Respondent. In the main, the expenses are for competitive swimming for one child and competitive figure skating for the other. It was difficult on the evidence presented at the trial to determine if these expenses were indeed “extraordinary.”

[22] The Applicant also claimed for braces expenses for both children. This type of expense is more easily accepted pursuant to the definition in section 7(1)(c). However the claim was only speculative in the initial material filed by the Applicant. It is clear from the text messages of the Respondent she was not prepared to contribute to these expenses. That may or may not be ultimately accepted by the Court as a reasonable position.

[23] In all, I am not prepared to determine the issue of section 7 expenses at this point based on the evidence presented. It shall be left for further consideration.

[24] I am prepared to make a temporary order for retroactive and ongoing child support based on an income imputed to the Respondent. This order will be without prejudice to the rights of either party. Either party shall leave to return the matter before me at a case conference on or after June 1, 2017. This is to permit the parties to comply with the May deadline for annual financial disclosure as provided in paragraph 11 of the Order. Should a further attendance be sought, either party may seek to revise the amount of child support payable since September 1, 2016 to that date and ongoing based on actual financial disclosure. Also the issue of retroactive section 7 expenses may be addressed at that point. I am also directing the Applicant to serve a copy of this endorsement and the order to the Respondent by regular mail and by text so that she may be aware of it.

[25] Accordingly temporary order to go as follows:

1. On a without prejudice basis to either party, Angela Marie Lee (nee Faubert) shall have an income of $30,530.00 imputed to her pursuant to section 19(1) of the Federal Child Support Guidelines as of September 1, 2016;
2. Commencing September 1, 2016 and on the first of the month thereafter, Angela Marie Lee (nee Faubert) shall pay periodic child support to Robin George William Lee in the amount of $445.00 which is the Table amount specified by the Federal Child Support Guidelines for the children of the marriage Gabriella Elizabeth Lee (dob June 24, 2002) and Gavin Gary Lee (dob February 7, 2006);
3. The issue of payment of extra ordinary expenses and any adjustments to retroactive or ongoing child support payments is adjourned to a case conference date on or after June 1, 2017 before Fitzpatrick J.;
4. Angela Marie Lee (nee Faubert) shall pay costs of this matter to Robin George William Lee for matters to date fixed in the amount of $2,700.00 payable forthwith;
5. An S.D.O. shall issue;
6. Either party has leave to return this matter to Fitzpatrick J. at a case conference to be scheduled on or after June 1st, 2017;
7. A copy of this order and the endorsement shall forthwith be served on the Respondent by the Applicant by regular mail and as an attachment to a text that the Applicant shall send to the Respondent notifying her of this decision;
8. All other provisions of the Order of Pierce J. dated April 28, 2016 remain in full force and effect.

”original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: March 16, 2017