Court File and Parties

COURT FILE NO.: FC-14-1028 DATE: 2017/06/09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Laurie Paige McEachran Applicant – and – Jason Anthony Di Tommaso Respondent

Counsel: Self-represented (Applicant) Self-represented (Respondent)

HEARD: January 25 and 26, and April 19 and 20, 2017 at Ottawa

REASONS for decision

ENGELKING J.

[1] This is an Application filed May 8, 2014 wherein the Applicant, Ms. McEachran is seeking custody of the three children of the marriage, retroactive and on-going child support, retroactive and on-going section 7 expenses, retroactive and on-going spousal support, and equalization of the net family property.

[2] By order of October 17, 2016, of Justice Doyle, the issues of custody of and access to the children, and equalization of the family property were resolved on a final basis. Ms. McEachran was granted custody of Lillian Mary Di Tommaso, born the 10th day of April, 1999, Abigail Lynne Di Tommaso, born the 10th day of June, 2002, and Georgia May Di Tommaso, born the 4th day of May, 2005, and Mr. Di Tommaso was granted regular access to them. Equalization claims were noted to be settled and withdrawn from the within court application.

[3] Additionally, at trial Ms. McEachran chose to focus on her claims for retroactive and on-going child support and retroactive and on-going section 7 expenses for the children. Ms. McEachran conceded that she would seek only nominal spousal support to keep alive a future claim for same in the event that Mr. Di Tommaso’s financial situation changes.

[4] Mr. Di Tommaso takes the position that requiring him to pay retroactive child support and section 7 expenses, beyond what he has paid, would cause him tremendous hardship, and should not be ordered.

Issues

[5] Thus, the remaining issues to be determined on the application are:

1. Does Mr. Di Tommaso owe retroactive child support to the date of the parties’ separation? If so, in what quantum?

2. Does Mr. Di Tommaso owe retroactive section 7 expenses to the date of the parties’ separation? If so, in what quantum?

3. Should Mr. Di Tommaso’s current income be imputed to $75,000 annually?

4. What is the appropriate quantum of on-going child support?

5. What is the appropriate quantum of on-going section 7 expenses?

6. Does Mr. Di Tommaso make out a defence of hardship such that no arrears, should any be determined, be payable?

Facts Relevant to the Issues

[6] The parties were married on August 7, 1993. According to Ms. McEachran, they separated on August 30, 2011, and lived separate and apart in the matrimonial home until August of 2013. According to Mr. Di Tommaso, the date of separation is August 1, 2013, when he left the home, which was to be sold with a closing date of August 26, 2013. While the date of separation may have been significant in relation to equalization, for the purposes of calculating support, the date of separation is logically August 1, 2013, as prior to that date, the parties were largely using funds from joint accounts to meet the family’s needs.

[7] Three children were born of the marriage, namely, Lillian Mary Di Tommaso, born the 10th day of April, 1999, Abigail Lynne Di Tommaso, born the 10th day of June, 2002, and Georgia May Di Tommaso, born the 4th day of May, 2005. Ms. McEachran gave evidence that the parties’ agreed after their first child, Lillian, was born, she would be a stay-at-home mom and look after the children while Mr. Di Tommaso would be the income earner for the family. Mr. Di Tommaso took issue with that characterization and indicated that there was no such agreement. He was of the view that Ms. McEachran was very capable of earning a living, but she just decided that she would remain home and be the primary caregiver to the children. Regardless, the end result is that Ms. McEachran did stay home with the children and did primarily attend to their needs during the life of the marriage. Mr. Di Tommaso stated he was a very involved father who has a close relationship with all three of his daughters. He stated that he did participate in fulfilling their needs until he left the family home and continued to have them regularly for access thereafter.

[8] According to Ms. McEachran, all three girls, but more particularly Georgia, are elite gymnasts, and it is from this activity that most of the disputed extraordinary expenses emanate. Mr. Di Tommaso’s view is that the expenses related to gymnastics are excessively high, and the parties simply cannot afford them. It was his evidence, in fact, throughout his testimony, that the family lived well beyond its means while the couple were still together, and this over indulgence resulted in tremendous debt to them, much of which he indicated he is still burdened by.

[9] Mr. Di Tommaso began paying support for the children and Ms. McEachran on August 16, 2013. That support consisted of $1,864 per month in child support and $428 per month in spousal support. There was no written agreement or court order in place at that time.

[10] In September of 2013, Mr. Di Tommaso obtained a job with the National Research Council (NRC) at $128,000 per year. In November of 2013, the amount of child support he was paying was adjusted to $2,284 per month as per the Federal Child Support Guidelines. The amount of spousal support he was paying remained at $428 per month. From his previous job with Standard Aero Limited, which terminated on September 6, 2013, Mr. Di Tommaso also received vacation pay of $3,861.15, severance pay of $3,706.16, and “transition pay” of $12,972, however, that was not known to Ms. McEachran at the time.

[11] The parties continued to attempt to negotiate a settlement of their issues through the early part of 2014, however, Ms. McEachran filed her application in May of 2014 out of what she described as frustration over Mr. Di Tommaso’s non-disclosure and lack of transparency, which was from her perspective preventing the matter from moving along. A Case Conference was held before Master Roger (as he then was) on September 15, 2014. Mr. Di Tommaso was ordered at that time to provide disclosure within the next 30 days of “his sworn financial statement and notices of assessments for the last three years; a copy of all records of employment from separation to date together with all documents, if any, relating to any termination or severance package, three recent pay stubs and proof of assets and debts listed in his financial statement.”

[12] Mr. Di Tommaso filed for bankruptcy in October of 2014, however, he did not advise Ms. McEachran that he had done so. In the materials before the court in relation to Mr. Di Tommaso’s bankruptcy he also did not name Ms. McEachran as a creditor, nor identify what portion of the support he was paying was spousal support, as opposed to child support. Ms. McEachran only learned of the bankruptcy in February of 2015 as a result of receiving some materials from Mr. Di Tommaso leading up to a motion that was scheduled for April 15, 2015.

[13] At the April 15, 2015 motion, Justice Minnema ordered, effective January 1, 2015, Mr. Di Tommaso was to pay child support in the table amount of $2,304 per month on his gross income for 2014 of approximately $129,300, 72% of the children’s section 7 expenses, 72% of the children’s competitive gymnastics costs and spousal support in the amount of $982 per month. Minnema, J. also made a fairly extensive and specific order as to the disclosure that was to be provided by Mr. Di Tommaso to Ms. McEachran.

[14] On March 11, 2015, Mr. Di Tommaso received a layoff letter from his employer, the NRC with an effective date of May 22, 2015. Mr. Di Tommaso received an $80,000 severance payment, as well as a payout of $17,800 for accumulated pension upon his termination from NRC. Again, there was nothing in the evidence that would demonstrate that Mr. Di Tommaso shared the particulars of the severance and pension payout with Ms. McEachran at the time. Indeed, when Ms. McEachran finally received Mr. Di Tommaso’s 2015 Income Tax Return on September 16, 2016, line 130 noted that there was $110,109.57 of “Other Income”, indicating simply: “SEE LIST”, but it was her evidence that there was no list provided to her. The other income referred to included, in addition to the severance and pension payout, a cashed in RRSP of $12,121.

[15] Mr. Di Tommaso remained unemployed from May 22, 2015 until October 1, 2015, when he secured a position with Canadian Development Consultants International (CDCI). He was to make $80,000 per annum to the end of December, 2015, and then commencing January 1, 2016, he was to make $60,000 as base salary plus commissions.

[16] The parties went to a Settlement Conference in October of 2015, leading up to which Mr. Di Tommaso provided an estimate of his 2015 salary as being $162,000, as opposed to the $197,865 that it actually was. Additionally, on December 23, 2015, Justice Parfett granted an interim without prejudice order on consent of the parties reducing the child support payable by Mr. Di Tommaso to a table amount of $1530 per month, commencing January 1, 2016, based on an income of $80,000. Parfett, J.’s order also amended Justice Minnema’s order to reduce his pro rata percentage for s. 7 expenses to 64%, and stayed his obligation to contribute to the girls’ gymnastics and to pay spousal support.

[17] Since the date of separation, Mr. Di Tommaso had been exercising regular access to the children, including weekend overnight access. However, in March of 2016, one of the girls informed Ms. McEachran that Mr. Di Tommaso was moving. Thereafter, Mr. Di Tommaso indicated to Ms. McEachran that he would not be exercising overnight access to the girls until he had a suitable place in which to do so, but that he would continue to see them for day time visits as per their usual schedule. Ms. McEachran expressed frustration that Mr. Di Tommaso would not give her is new address, and that his more sporadic access meant that the children were then with her “100% of the time”. Mr. Di Tommaso’s evidence was that, in fact, after he gave up his apartment at the end of April 2016, he was homeless for six months and essentially lived out of his car.

[18] To make matters worse, in June of 2016, Mr. Di Tommaso was again laid off from his job with CDCI effective June 9, 2016. On June 12, 2016, he wrote an email to Ms. McEachran advising her of the layoff and indicating that he would be going on Employment Insurance. His Record of Employment for CDCI indicates that Mr. Di Tommaso received $856.01 in vacation pay and $2,307.87 as pay in lieu of notice upon his termination.

[19] Despite this, and despite that according to his own testimony he would not have been paying rent for the months of May and June, for the first time since August of 2013, Mr. Di Tommaso defaulted on a support payment for the month of July 2016. Ms. McEachran testified that she had no prior knowledge that this was going to happen and it put her in precarious position with the children as her rent was falling due and she was unable to pay it.

[20] In July of 2016 Mr. Di Tommaso brought a motion requesting leave for an urgent adjustment to his child support payments on the basis that he was now on EI and making approximately $19,990 per year, and that he had received a garnishment notice on same. On August 9, 2016, Justice Shelston reduced the child support payable to $800 per month based on Mr. Di Tommaso’s EI income. Justice Shelston also ordered that significant disclosure be provided by Mr. Di Tommaso to Ms. McEachran by August 28, 2016. Ms. McEachran’s evidence was, as with previous court orders, she did not receive the disclosure ordered, unless at the very last minute immediately before or during court, up to and including for this trial.

[21] Although eligible for EI until February of 2017, in November of 2016, Mr. Di Tommaso secured employment with Dymon Storage, for which Mr. Di Tommaso is paid significantly less than in his previous positions. Mr. Di Tommaso testified that he works 80 hours over two weeks for Dymon Storage, and he has between 20 and 30 hours per month in which he can do some consulting work or hunt for a better and more lucrative job. Mr. Di Tommaso indicated that his base salary with Dymon Storage is $26,225 per year and with commissions he can make six to seven thousand above that per annum. He also indicated that he has made another four to five hundred dollars a month consulting.

[22] Mr. Di Tommaso testified that he moved into a basement apartment in Gatineau on December 1, 2016 in the home of a friend. His testimony was that his rent was $500.00 per month for December of 2016 and January and February of 2017, then $800 per month for March, April and May of 2017, with the anticipation that it will rise to $900 per month from June onwards.

[23] In March of 2017, Mr. Di Tommaso entered into an arrangement with the Family Responsibility Office wherein he agreed to pay $100 per month on the arrears owing ($1,326.44 as of March 22, 2017), in addition to his $800 child support payments, for a total of $900 per month.

[24] Mr. Di Tommaso described his current situation as “survival mode”. He indicated that he would never want to revisit the six months which he spent homeless, essentially living in his car. Mr. Di Tommaso described his days during this period, and indicated that it was a struggle to just keep going. He fears returning to a similar situation if too many financial demands are made of him in his current situation.

[25] Mr. Di Tommaso outlined his current debt as follows:

(a) $14,000 resulting from his Conditional Discharge from bankruptcy dated January 23, 2017.

(b) $15,000 that he owes the Canada Revenue Agency for unpaid taxes; and,

(c) $5000 of credit card debt.

[26] Mr. Di Tommaso testified that he is currently paying $105 per month on his credit card debt, and he is not making any payments on his bankruptcy discharge or his debt to CRA. His evidence was that he is “barely surviving” and that his priority, besides making his support payments for the girls, is to keep a roof over his head. He stated that monthly he will be paying $900 for rent as of June 1st, $900 for child support and arrears, $400 in car insurance, $200 in gas, and for storage of his belongings that do not fit in his apartment.

[27] With respect to his employment situation and his efforts to improve it, Mr. Di Tommaso testified that he works diligently at trying to find a more suitable and more ruminative position. He indicated that before taking the position with Dymon Storage, he applied for many, many jobs. He describes himself as someone with “soft skills”, in areas such as business marketing, developing, and lobbying. He indicated that he is facing the reality that it is difficult, as a 50 year old, unilingual man, to find employment commensurate with his skills and past experience. Sometimes he is too qualified for the jobs for which he is applying, other times he is not the right fit or the company is simply looking for someone newer and younger. Mr. Di Tommaso provided a chart (Exhibit 62) that set out all of his efforts to find work, both in 2015 when he was unemployed between May and September, and in 2016 after he was laid off from CDCI. It included a list of 55 senior level jobs he applied for in June and July of 2016, and a print out from LinkedIn which showed he had applied for 216 jobs. Mr. Di Tommaso indicated that he currently does weekly, even daily, searches for jobs and dedicated the time where he was not working for Dymon Storage to improving his situation. Mr. Di Tommaso stated that it was in everyone’s interest, including his own, that he get a better paying job, and although he indicated that he had come close a few times, with call backs or second interviews, the reality is that he has not to date been successful.

[28] Ms. McEachran took great issue with Mr. Di Tommaso’s efforts, indicating that when she was without work, she applied for 800 jobs, and got one within weeks. Her expectations of Mr. Di Tommaso in this regard, however, were somewhat inconsistent, as she believes that he is underemployed and should be making an income of $100,000 +, based on his experience and recent history. This being the case, it would not make sense for Mr. Di Tommaso to apply for every job that is available on the market, but only for those which match his skills, experience and expectations.

Analysis

Issue #1: Does Mr. Di Tommaso owe retroactive child support to the date of the parties’ separation? If so, in what quantum?

[29] Mr. Di Tommaso’s line 150 income in his 2013 Notice of Assessment was $126,737. As of November 2013, he was paying $2284 in child support commiserate with the table amount for three children at an income of $128,000. (This was based on his new income with the NRC). No arrears for child support are thus owing for November and December of 2013, and he was in fact paying $20 per month more than the table amount.

[30] For August, September and October, Mr. Di Tommaso was paying $1,864/month in child support, where the table amount on $126,737 would be $2,264. There was thus a shortfall for those three months of $400 per month, for a total of $1,200, less the amount of $40 that he overpaid for November and December, would result in a shortfall of $1,160 for 2013.

[31] In 2014, Mr. Di Tommaso paid $2,284 per month throughout the year. Despite several court orders, up to and including at trial, Mr. Di Tommaso never produced his 2014 Income Tax return nor Notice of Assessment. His reason for this was that the Trustee in Bankruptcy, BDO Canada Limited, prepared his 2014 return and presumably received his notice of assessment. Mr. Di Tommaso indicated that he did not have it, and had never had it. Clearly, he also made no effort to obtain it from BDO, because it was never provided to Ms. McEachran. As part of his own evidence, Mr. Di Tommaso prepared a chart (Exhibit 71) in which he placed his 2014 income at $131,798. According to the FCSG table, child support of $2340 per month would have been payable on three children at that gross income. That results in a shortfall of $52 per month for a total of $672 for the year.

[32] In 2015, Mr. Di Tommaso was required to pay both child and spousal support pursuant to the order of Justice Minnema dated April 15, 2015, effective as of January 1, 2015. Thus, Mr. Di Tommaso paid child support in the sum of $2,304 per month on a gross income of $129,300, which he did through to December of 2015. Mr. Di Tommaso’s actual income in 2015, however, was $197,865. As I have indicated above, it included Mr. Di Tommaso’s employment income from both the NRC and CDCI, as well as his severance package of almost $80,000 from the NRC, his pension pay back of $17,800 from the NRC, and his cashed in RRSP of over $12,000. According to the FCSG table, Mr. Di Tommaso would be required to pay $3300 per month for three children on a gross income of $197,865. That represents a shortfall of $996 per month, totalling $11,952 over 12 months.

[33] Mr. Di Tommaso’s own evidence with respect to his expected income in 2016, again in Exhibit 71, was $46,857. According to the FCSG table, $895 is payable for three children at that gross income. Pursuant to the order of Justice Parfett dated December 23, 2015, effective January 1, 2016, Mr. Di Tommaso was paying $1,530 per month between January and July (with one missed payment in July), and $800 per month from August to December. There was thus an overpayment of $635 per month for seven months, totalling $4,445, and a shortfall of $95 per month for the remaining five months, for a total shortfall of $475. The net result is an overpayment by Mr. Di Tommaso of $3970 for the year.

[34] The deficits for the years 2013, 2014 and 2015 equal $13,784, less the surplus for 2016 result in an overall deficit of $9814 owed by Mr. Di Tommaso to Ms. McEachran for retroactive child support.

[35] As has been found many times, unlike spousal support, child support is the right of the children; it is owed to them, and but for the question of hardship, which I will examine below, I see no basis for finding no entitlement to retroactive child support.

Issue #2: Does Mr. Di Tommaso owe retroactive section 7 expenses to the date of the parties’ separation? If so, in what quantum?

[36] In 2013, Mr. Di Tommaso’s income was $126,737 and Ms. McEachran’s was $25,773. Mr. Di Tommaso’s pro rata share of the children’s section 7 expenses would thus have been 83.1%. However, the parties’ reached an agreement that the children’s outstanding gymnastic expenses would be shared 50/50 and paid for out of the proceeds of the sale of the matrimonial home, which they were. I cannot undo such an agreement four years later, and I thus find there are no retroactive section 7 expenses for 2013.

[37] In 2014, Mr. Di Tommaso’s income was $131,798 to Ms. McEachran’s $32,005 for a pro rata share of the children’s section 7 expenses of 80.46%. By order of April 15, 2015, however, Justice Minnema required that Mr. Di Tommaso pay 72% of the children’s competitive gymnastics expenses from August of 2014 to April of 2015 in the sum of $10,370.94, which he did.

[38] In 2015, Mr. Di Tommaso’s income was $197,865 to Ms. McEachran’s $42,829, for a pro rata share of 82.21% of the children’s section 7 expenses. As was indicated above, in April of 2015, Justice Minnema ordered that Mr. Di Tommaso’s proportionate share of the section 7 expenses was 72%, based on an income of $129,300.

[39] Mr. Di Tommaso’s income for 2016 was $46,857. According to her Financial Statement sworn on January 3, 2017, Ms. McEachran’s gross income for 2016 was $51,983. Thus, Mr. Di Tommaso’s pro rata share of the children’s section 7 expenses for 2016 would be 47.41%.

[40] Ms. McEachran created a chart, which was entered as Trial Exhibit #39, of expenses which from her perspective qualified as s. 7 expenses (beyond actual enrollment in gymnastics) in 2014 and 2015. In 2014, they totalled $6121.70, 80% of which is $4897.36. According to Ms. McEachran, Mr. Di Tommaso contributed $867.90 to those expenses in 2014, leaving a deficit of $4029.46.

[41] In 2015, those expenses totalled $5977.50, 82% of which is $4901.55. Again, according to Ms. McEachran, Mr. Di Tommaso contributed $2770.80 towards them in 2015, leaving a deficit of $2130.75.

[42] Most of the expenses alluded to relate to the children’s competitive activities regarding gymnastics. Section 7 (1) (f) of the Federal Child Support Guidelines (SOR/97-175, as am.) provides as follows:

7. SPECIAL OR EXTRAORDINARY EXPENSES – (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expense may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation:

(f) extraordinary expenses for extracurricular activities.

[43] In the definition of extraordinary expenses in Section (1.1) of the Act, the court is to take into consideration; (i) the nature of the extracurricular activities, (ii) any special talents of the child or children, and (iii) the overall cost of the activities.

[44] In determining the amount to apportion to each spouse, the court is also to consider any subsidies, benefits or income tax deductions or credits relating to the expense pursuant to subsection (3) of Section 7. The evidence was clear that Ms. McEachran claimed the Child Tax Benefits for the children in their entirety. In 2016, she recorded a total of $1,720.91 in her Financial Statement under the heading “Child Tax Benefits or Tax Rebates”, and in 2017 she recorded a total of $1,814 for same.

[45] The children’s gymnastics expenses certainly qualified as “extraordinary expenses” under section 7 of the Act. I would say that this was particularly so as it relates to Georgia, who now competes at a provincial level. Having said that, I am required by the Act to take into consideration “reasonableness of the expense in relation to the means of the spouses”, and the means of Mr. Di Tommaso have changed considerably post-2015. As I have indicated above, it was Mr. Di Tommaso’s position that the parties lived beyond their means while married, and that pattern continued post-separation. Mr. Di Tommaso argues more particularly that gymnastics is an extraordinary expense which the parties can no longer afford, if indeed they ever could. I cannot disagree. While I am prepared to find that Mr. Di Tommaso owes Ms. McEachran for his pro rata share of the section 7 expenses for 2014 and 2015, I cannot find that he is required to pay for gymnastics related expenses post-December of 2015. Based on the available disposable income of the parties, decisions have to be made about what is affordable to them and what is not. Gymnastics, regrettably, may fall into the latter category.

[46] The total sum for which Mr. Di Tommaso is still responsible for 2014 and 2015 for section 7 expenses is $6,160.21. However, I would reduce that by $1,500 per year to account for the child tax benefits received by Ms. McEachran, leaving a total of $3,160.21 owing to her by Mr. Di Tommaso.

Issue #3: Should Mr. Di Tommaso’s current income be imputed to $75,000 annually?

[47] It is the position of Ms. McEachran that Mr. Di Tommaso’s income should be imputed to $75,000 per year. She reasons that that figure represents one half of Mr. Di Tommaso’s average salary over the previous five years, and argues that he because he held “six figure salaries” in recent years, he is capable of and should be doing so again. Mr. Di Tommaso’s position is that his salary is what it is, and it should not be imputed to be more. His position, in fact, is that if he could be employed in as lucrative a position as he has had in the past, he would. Mr. Di Tommaso argues that he has made tremendous efforts to obtain such employment, but has unfortunately not succeeded to date.

[48] In his recent decision in the case of Verhey v. Verhey, 2017 ONSC 2216, Shelston, J. set out the legal framework for the imputation of income in paragraphs 30 through 42 as follows:

Legal Framework

[30] On the issue of imputation of income, Section 19 of the Ontario Child Support Guidelines, O. Reg. 391/97, as am. [“Guidelines”] provides:

19. Imputing income.—(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent’s or spouse’s property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[31] The Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.), at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:

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

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

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[32] Though the Court in Drygala dealt with imputing income for the purposes of child support, this test is equally applicable to claims for spousal support as determined in Crowe v. McIntyre, 2014 ONSC 7106.

Is The Spouse Intentionally Under-Employed Or Unemployed?

[33] A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala, at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (Drygala, at paras. 29-36).

[34] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).

[35] When considering the spouse’s capacity to earn income, the court should consider, among others, the following principles:

(a) There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2014 ONSC 5500, at para. 99);

(b) A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zaipola, 2013 BCCA 433, 344 B.C.A.C. 133, at para. 37);

(c) A spouse can be found intentionally under-employed or unemployed if he or she quits employment for selfish or bad faith reasons, or engages in reckless behaviour that results in a reduction of his or her income earning capacity (Scott v. Chenier, 2015 ONSC 7866, at para. 48);

(d) A spouse cannot avoid support obligations by a self-imposed reduction in income (Le Page v. Porter (2002), 7 R.F.L. (5th) 335 (Ont. S.C.), at para. 27);

(e) Where a spouse experiences an involuntary loss of employment, courts will grant a “grace period” to allow the spouse to seek out replacement work. However, the absence of a reasonable job search will leave the court with no choice but to find that the spouse is intentionally under-employed or unemployed (Filippetto v. Timpano).

Is The Intentional Under-Employment Or Unemployment Reasonable?

[36] The second step of the Drygala test is generally treated as an overall test of reasonableness. In Jackson v. Mayerle, 2016 ONSC 72, at para. 702, the court held that:

Once intentional underemployment is established, the onus shifts to the payor to show one of the exceptions of reasonableness.

[37] Not all career decisions which result in reduced income will be unreasonable. However, when an employment decision leads to a significant reduction in child support, it must be justified in a compelling way as set out in the Court of Appeal decision Riel v. Holland (2003), 61 O.R. (3d) 417, at para. 23.

[38] In Thompson v. Gilchrist, 2012 ONSC 4137, 27 R.F.L. (7th) 83, at para. 35, the court held that a spouse must demonstrate that the decision was “reasoned, thoughtful and highly practical”.

[39] Justice Pazaratz notes in Jackson v. Mayerle, at para. 715:

Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children.

What Income Is Properly Imputed?

[40] Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis, as detailed in the Court of Appeal case of D.D. v. H.D., 2015 ONCA 409, 335 O.A.C. 376.

[41] The main factors a court should consider are the age, education, skills, and health of the spouse, along with the number of hours that can be worked in light of competing obligations and the hourly rate the spouse could reasonably obtain (Drygala, at para. 45).

[42] A factor to take into consideration in arriving at an amount of income to be imputed is evidence of a spouse’s previous income as was done by the Court of Appeal decision of Lawson v. Lawson (2006), 81 O.R. (3d) 321, at para. 38.

[49] Mr. Di Tommaso did not voluntarily leave his former employer, CDCI, nor did he voluntarily leave the NRC. Rather, Mr. Di Tommaso was affected by an unfortunate coupling of lay-offs, both of which had to do with internal restructuring, several months apart. I accept Mr. Di Tommaso’s evidence that he did immediate and ongoing searches for new employment, consisting of at least 216 job applications subsequent to the second lay-off. I accept that he continues to seek for a higher paying position. In considering whether Mr. Di Tommaso’s efforts to find employment were reasonable in the circumstances, I have taken into consideration that he is a 50 year old male who is unilingual. I find that Mr. Di Tommaso has made reasonable efforts to obtain employment commiserate with his experience and work history.

[50] Mr. Di Tommaso’s lifestyle has not improved since the date of separation, nor has his net worth increased. In fact, the former has gone down significantly, to the point that he spent six months without a home. While Ms. McEachran, quite logically, queried why Mr. Di Tommaso would not have gone to stay with his brother in Montreal or his parents in Hamilton over that period, his evidence was that he lived out of his car between May and November of 2016. Since that date, he has resided in a basement apartment in Gatineau, and struggles to make ends meet. He, additionally, carries significant debt relating to the discharge of his bankruptcy and his unpaid taxes with Revenue Canada.

[51] Ms. McEachran questioned Mr. Di Tommaso’s credibility as it relates to his current financial position. While I find her frustration understandable regarding Mr. Di Tommaso’s lack of timely, open and frank disclosure, at the end of day, his current financial situation is what it is. Mr. Di Tommaso took a job at Dymon Storage because he needed a job, and he was not succeeding in finding one of the calibre he previously held. I do not find that he is intentionally underemployed.

[52] Based on all of the above, I am unable to find that an income of $75,000 should be imputed to Mr. Di Tommaso.

Issue #4: What is the appropriate quantum of on-going child support?

[53] Mr. Di Tommaso’s anticipated income for 2017 is $34,000. The Federal Child Support Guidelines provide that child support for three children is payable at $667 per month.

Issue #5: What is the appropriate quantum of on-going section 7 expenses?

[54] Again, according to her January 3, 2017 financial statement, Ms. McEachran expects her gross annual income to be $67,921. For 2017, Mr. Di Tommaso’s share of the children’s section 7 expenses would be 33.36%. For the reasons outlined in paragraph 44 above, in this I do not include extraordinary expenses for gymnastics.

Issue #6: Has Mr. Di Tommaso made out a case for hardship such that no arrears should be payable by him?

[55] Section 10 of the Federal Child Support Guidelines provides that a court may award an amount of child support that is different from the amount determined by reference to the Table if the court finds that the spouse making the request would otherwise suffer undue hardship. Subsection (2) of Section 10 provides as follows:

10.(2) CIRCUMSTANCES THAT MAY CAUSE UNDUE HARDSHIP – Circumstances that may cause a spouse or a child to suffer undue hardship include the following:

a. The spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

b. The spouse has unusually high expenses in relation to exercising access to a child;

c. The spouse has a legal duty under a judgment, order or written separation agreement to support any person;

d. The spouse has a legal duty to support a child, other than a child of the marriage who is

i. Under the age of majority, or

ii. The age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

e. The spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

[56] None of (b) through (e) apply to Mr. Di Tommaso, though he did infer that (a) was applicable to him. While Mr. Di Tommaso stated many times in his evidence that it was his belief that he and Ms. McEachran lived beyond their means during the marriage, and that this continued after the breakdown of the relationship, he did not demonstrate through his evidence that he in particular had “responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to separation”. Ms. McEachran, on the other hand, was able to point to specific instances during the marriage where she had shouldered the burden of the family’s debt. One was when she and Mr. Di Tommaso remortgaged their home to pay off a debt of Mr. Di Tommaso’s of $10,000 from a pre-marriage law suit that she only learned about in 2002. In 2008, Ms. McEachran paid off all the family debts but for the mortgage on the matrimonial home from inherited money after her father and grandmother died. On another occasion in 2012, Ms. McEachran sold a vintage car that she inherited from her father and put the money in the parties’ joint account to keep the family afloat, only to have to move it a sole account after Mr. Di Tommaso removed some to his own account.

[57] By contrast, Mr. Di Tommaso provided no concrete evidence of what debts were owing when, to whom they were owed, or how they were reasonably incurred to support Ms. McEachran and the children. Indeed, Ms. McEachran questioned what happened to the approximately $20,000 Mr. Di Tommaso received in severance, leave and “transition” pay when his was laid off from Standard Aero in September of 2013. She questioned how, when Mr. Di Tommaso was making over $100,000 with the NRC, he went bankrupt in 2014. She questioned what happened to the “extra” $110,000 in income he received in 2015 that came in the form of severance and leave pay from the NRC, and by cashing in an RRSP. She questioned why Mr. Di Tommaso couldn’t afford his apartment in 2016 when he was still employed by CDCI. She questioned why Mr. Di Tommaso couldn’t make his July 2016 support payment when he had just received severance from CDCI, and, according to his own testimony, wasn’t paying rent. She was left without answers, as was I. Mr. Di Tommaso’s evidence with respect to his financial situation was vague, to say the least. He was, moreover, not particularly organized or timely in his provision of financial disclosure. While he did respond to Ms. McEachran’s former legal counsel in providing some disclosure in batches, it was neither systematic nor necessarily all that was requested. Ms. McEachran identified that she received disclosure of certain items for the first time at (or after) the commencement of the hearing, which she expressed hampered her ability to properly present her own case. Mr. Di Tommaso’s financial statements sworn over the course of the proceedings, moreover, contained, at best, errors or inaccuracies, or, at worst, fallacies. The end result of the lack of organization or attention to his own financial situation is that Mr. Di Tommaso did not succeed in presenting any evidence that would lead the court to conclude that he has met the test for undue hardship under paragraph a of Section 10 of the Federal Child Support Guidelines. His argument in this regard, therefore, fails.

Conclusion

[58] Based on the above findings, Ms. McEachran is awarded child support and Section 7 expenses to the date of separation, which I find to be August 1, 2013. I find that Ms. McEachran is entitled to compensatory spousal support, and there will also be an on-going nominal award for spousal support in the event that Mr. Di Tommaso’s financial situation improves such that Ms. McEachran may in future seek a variation.

[59] With respect to the issue of costs, Rule 24 (10) of the Family Law Rules provides:

Promptly after dealing with a step in the case, the court shall,

(a) Make a decision on costs in relation to that step; or

(b) Reserve the decision on costs for determination at a later stage in the case.

[60] At the motion of April 21, 2015, Justice Minnema made an order of $4000 costs to be paid by the Respondent to the Applicant. At the December 23, 2015 motion, Justice Parfett’s order contained a provision that each party would bear their own costs for the motion. At the motion of August 9, 2016, Justice Shelston indicated he was granting no as to costs. Justice Doyle’s order of October 17, 2016, is silent as to costs and makes no reference to costs being reserved to the next stage of the proceedings. Although Ms. McEachran has asked for costs which include those owed to her former counsel, based on Rule 24 (10), I am able only to deal with costs post October 17, 2016, which are essentially for the trial. While Ms. McEachran represented herself, she had to miss work to do so for four days, January 25 and 26, and April 19 and 20, 2017. She also provided extensive materials to the Court and Mr. Di Tommaso for which she would have had disbursements. Mr. Di Tommaso, as I have indicated above, was less than efficient and candid with respect to his disclosure obligations. Finally, Ms. McEachran is the successful party in this matter and she is entitled to an order for costs.

Order To Go As Follows:

Child Support

1. Commencing August 1, 2013, the Respondent shall pay to the Applicant $2,264 per month being the FCSG Table amount for the support of the three children of the marriage, Lillian Mary Di Tommaso, born the 10th day of April, 1999, Abigail Lynne Di Tommaso, born the 10th day of June, 2002, and Georgia May Di Tommaso, born the 4th day of May, 2005, on an annual income of $126,737. Arrears for 2013 are fixed at $1,160.

2. Commencing January 1, 2014, the Respondent shall pay to the Applicant $2,340 per month being the FCSG Table amount for the support of three children on an annual income of $131,798. Arrears for 2014 are fixed at $672.

3. Commencing January 1, 2015, the Respondent shall pay to the Applicant $3,300 per month being the FCSG Table amount for the support of three children on an annual income of $197,865. Arrears for 2015 are fixed at $11,952.

4. Commencing January 1, 2016, the Respondent shall pay to the Applicant $895 per month being the FCSG Table amount for the support of three children on an annual income of $46,857. The Respondent is credited for an overpayment in 2016 of $3970.

5. Commencing January 1, 2017, the Respondent shall pay to the Applicant $667 per month being the FCSG Table amount for the support of three children on an annual income of $34,000. The Respondent shall be credited for the overpayment of $133 per month from January to May, 2017, and for June 2017 if such overpayment is made prior to the release of this decision.

Section 7 Expenses

6. Commencing January 1, 2014, the Respondent shall pay 80% of the children’s section 7 expenses based on an annual income of $131,798 for the Respondent and $32,005 for the Applicant. Arrears for section 7 expenses for 2014 are $4029.46 less $1500 in Child Tax Benefits, for a total of $2,529.46.

7. Commencing January 1, 2015, the Respondent shall pay 82% of the children’s section 7 expenses based on an annual income of $197,865 for the Respondent and $42,829 for the Applicant. Arrears for section 7 expenses for 2015 are $2130.75 less $1500 in Child Tax Benefits, for a total of $630.75.

8. Commencing January 1, 2016, the Respondent shall pay 47% of the children’s section 7 expenses based on an annual income of $46,857 for the Respondent and $51,983 for the Applicant, exclusive of costs associated with gymnastics.

9. Commencing January 1, 2017, the Respondent shall pay 33% of the children’s section 7 expenses based on an annual income of $34,000 for the Respondent and $67,921 for the Applicant, exclusive of costs associated with gymnastics.

Spousal Support

10. Commencing June 1, 2017, the Respondent shall pay to the Applicant $10 per month in spousal support, which amount shall be subject to variation in the case of a material change of circumstances with respect to the Respondent’s income in the future.

Costs

11. The Respondent shall pay to the Applicant $5000 in costs for the trial of this matter.

12. This order bears post-judgement interest at the rate of _____ per cent per year effective from the date of this order.

13. Unless the order is withdrawn from the office of the Director of 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.

Madam Justice Tracy Engelking Released: June 9, 2017