CITATION: Mitchell v. Lewkoski 2017 ONSC 4657
COURT FILE NO.: FS-02-013662-03
DATE: 2017-08-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kimberley Lyn Mitchell
E. McLeod, for the Applicant (Responding Party)
Applicant (Responding Party)
- and -
Allen Scott Lewkoski
Self-represented, for the Respondent (Moving Party)
Respondent (Moving Party)
HEARD: July 25, 2017, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Judgment On Motion to Change
[1] Allen Scott Lewkoski (the respondent, moving party) brings a motion to change the consent order of Pierce J. dated October 4, 2010 (the “Order”). The matter proceeded for a full hearing on July 25, 2017 pursuant to an order given by Warkentin R.S.J. on May 24, 2017.
Background
[2] The Order provided that Mr. Lewkoski pay Kimberley Lyn Mitchell (the applicant, responding party) spousal support in the amount of $900.00 per month. The Order provided it could be varied upon a material change in circumstances. Perhaps because the Order was on consent, it did not recite the income of Mr. Lewkoski, or Ms. Mitchell at the time upon which the quantum of spousal support was determined in 2010. The Order itself varied a Divorce Judgment providing for payment of ongoing periodic spousal support given in 2004.
[3] The motion to change was initiated by Mr. Lewkoski on January 30, 2017. The matter was subject to a case conference before Warkentin R.S.J. on May 24, 2017. Warkentin R.S.J. identified in her endorsement that the only issue between the parties was spousal support. It also indicated “the Applicant accepts that support will be reduced but does not accept that it should be eliminated”. The endorsement indicated that on consent of the parties the matter was set down for a hearing on all the issues. Warkentin R.S.J. further provided that no further settlement conferences or trial management conferences were required as the issues were straightforward. No trial record was required but certain documents were required to be produced by Mr. Lewkoski.
Position of the Parties
[4] Mr. Lewkoski claims he does not have an ability to pay $900.00 per month as ongoing support as his employment circumstances have drastically changed since 2010. He asks the court to reduce his ongoing spousal support to “between $200 and $300 per month” effective January 1, 2017. He was in substantial arrears as of that date ($5,019.76) but made no submissions as to a reduction of those arrears. In 2013, he lost his long term employment with TV Ontario (“TVO”). He had been employed to service transmission stations and towers in Northwest Ontario. In that employment he made, on average, $60,000.00 to $70,000.00 per year depending on overtime. His 2013 and 2014 income included severance received from TVO. Mr. Lewkoski claims he was required to deposit these funds in a locked in R.S.P. that he cannot access until he reaches 65 years of age. He is presently 50 and will turn 51 in September.
[5] Following his termination from TVO, Mr. Lewkoski was able to secure full time employment with the City of Thunder Bay maintenance department until January 2016. His 2015 income from that employment was $52,208.06.
[6] In January 2016, he was bumped from his position. His income dropped dramatically for 2016. It consisted of $18,854.33 from the City of Thunder Bay and $9,135.00 from Employment insurance benefits for a total of $27,989.33. Mr. Lewkoski has yet to file his 2016 income tax return.
[7] At the hearing, for the first time, he revealed that he has obtained full time seasonal employment as of May 2017. He expects the job to last until the end of October. He works 40 hours a week and is paid $15.71 per hour. It was not clear if he has continued his casual employment with the City of Thunder Bay.
[8] This late revelation of his new employment is a matter which will be addressed in the costs section below.
[9] Mr. Lewkoski is required to support his thirteen year old son from a former relationship. He entered in to a separation agreement with his former spouse that requires him to pay $475.00 per month for his son. He claimed to be in arrears of $4,275.00 of this obligation as of January 2017, although his former spouse is taking no active steps to enforce either the arrears or the ongoing support. Mr. Lewkoski resumed paying child support in May 2017 in the amount of $220.00 per month which is based on the Guideline amount for an annual income of $27,100.00
[10] Ms. Mitchell resists the motion. In argument, her counsel acknowledged that some reduction of support may be indicated but not to the extent requested by Mr. Lewkoski.
[11] Ms. Mitchell argued that income should be imputed to Mr. Lewkoski. An affidavit from a legal secretary employed by Ms. Mitchell’s counsel containing advertisements for various entry level positions currently available in Thunder Bay was put before the Court in an effort to prove that Mr. Lewkoski is not properly pursuing realistic job opportunities. Mr. Lewkoski was cross examined on his efforts to find employment since he was terminated by TVO.
[12] Ms. Mitchell testified about her ongoing need for support and her own employment circumstances which have not changed since the Order was made in 2004.
The Law
[13] Both the Order and section 17(4.1) of the Divorce Act require a finding of a material change in circumstances before a variation of an existing spousal support order can be made. If the test for a material change has been made out, the court must determine what variation to the order needs to be made and should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it was an initial application for support. (L.M.P. (Appellant) and L.S. (Respondent) and Women’s Legal Education and Action Fund and Disabled Women’s Network Canada (Interveners), 2011 SCC 64, [2011] 3 S.C.R. 775 at para. 50).
[14] The onus of proving imputed income is on the recipient spouse. The court may impute income to a payor spouse in appropriate cases including where the payor spouse is intentionally underemployed. The test for imputing income for child support purposes is applicable in circumstances where a party seeks to impute income to a payor of spousal support (Poirier v. Poirier 2010 ONSC 920 at paragraphs 83 and 85). A three part test for the imputation of income was articulated by the Ontario Court of Appeal in Drygala v. Pauli, 2002 41868 (ON CA), 61 O.R. (3d) 711. The first step in the test is to determine if the payor is intentionally under employed or unemployed.
Disposition
[15] In my view, there was really no dispute that Mr. Lewkoski has experienced a material change in his economic circumstances as of January 1, 2017. This was set out in the endorsement of Warkentin R.S.J. and acknowledged in argument by counsel for the respondent. Further on the evidence presented, I find that Mr. Lewkoski’s loss of permanent employment in 2013 coupled with his inability to find new permanent employment which pays him an amount approaching his previous income over the past three years or so, represents a material change in circumstances sufficient for me to vary the quantum of support paid by Mr. Lewkoski.
[16] At this hearing, during submissions, Mr. Lewkoski did not ask for support to be terminated. I accept the evidence of Ms. Mitchell and find that she continues to be in need of spousal support. During submissions, Mr. Lewkoski did not ask for any reduction in arrears. He simply asked for a reduction of ongoing support to between $200.00 and $300.00 per month effective January 2017. In my view, he is entitled to a variation. Having heard all the evidence tendered the issue of quantum is relatively straightforward.
[17] Mr. Lewkoski is now employed full time. In my view, Ms. Mitchell has not met the onus of proving Mr. Lewkoski is intentionally under employed. I find he has made reasonable efforts to replace the income he previously had while working for TVO but has simply been unable to do so through no fault of his own. He found full time employment with the City of Thunder Bay shortly after being terminated. It was in a different field from that which he had been employed previously but it was for a salary that almost approximated that which he made from TVO. I take judicial notice of the change in technology that resulted in Mr. Lewkoski’s termination. Television is no longer delivered through analog transmission and has not been done so for some time. Mr. Lewkoski testified he was involved in decommissioning transmitter sites after 2010 and up to his termination. The work he trained to do for his lengthy career disappeared when he was in his mid-forties. In my view it is unfortunate, but not unexpected, that he could not find work for a similar level of income.
[18] I am not prepared to accept the affidavit evidence tendered by Ms. Mitchell as somehow reflective of alternative career choices that Mr. Lewkoski could or should be pursuing. On cross- examination, he was asked to comment on the jobs set out in the affidavit. He answered he was not qualified to do any of those jobs. No other evidence was tendered on that point. Therefore I am left only with his explanation which I accept.
[19] In any event, he has found a seasonal job which will provide a reasonable income at least for the short term. Mr. Lewkoski was not particularly clear if this job could actually turn in to something long term. It is however enough to have allowed him to resume paying child support for his son as of May of this year.
[20] Mr. Lewkoski’s obligation to pay child support was present when the Order was made in 2010. His ongoing obligation is a factor to consider now but not the only factor regarding quantum. Mr. Lewkoski has not sought to reduce his support obligations for the period following his termination (2013) to January 1, 2017. It is clear to me on the evidence that it really was not until 2016 that the effects of the termination from TVO began to negatively impact Mr. Lewkoski’s economic circumstances. Accordingly, I find it is appropriate that the variation should affect only ongoing spousal support after January 1, 2017.
[21] It remains to determine Mr. Lewkoski’s income for the purposes of determining an appropriate quantum of support as of January 1, 2017 and ongoing. I am not prepared to accept the income levels suggested by Ms. Mitchell, ranging from $55,000 to $70,000.00 per annum. The evidence before me was not sufficient to establish that Mr. Lewkoski has intentionally avoided taking employment that would him to either make this kind of income or allow the court to impute it to him.
[22] At the hearing, the only evidence before the court that I was prepared to accept as reflective of Mr. Lewkoski’s income during the relevant period was that of his T-4’s for 2016, his sworn financial statement and his vive voce evidence about his new job. This unfortunately required the court to “do the math”. Mr. Lewkoski did not provide the expense outline ordered by Warkentin R.S.J. on May 24, 2017. He did provide a sworn financial statement in his initial motion to change which set out an annual income of $26,009.76. Interestingly, in the expense portion of the budget it disclosed annual expenses of $31,375.80. Mr. Lewkoski was cross-examined on contributions he was receiving from his common law partner. Presumably this is how he is funding the deficit.
[23] If Mr. Lewkoski’s current hourly wage was extrapolated to assume year round full time employment it would yield an annual income of thirty-two thousand six hundred and seventy six dollars and eighty cents ($15.71 X 40 X 52 = $32,676.80). He did not provide any calculations in support of his suggested monthly support amount of $200 to $300 per month.
[24] Based on a “best evidence” principle, I find Mr. Lewkoski’s income for the purposes of spousal support for January 1, 2017 and ongoing is $32,676.80. I determined this amount is most reflective of what he is capable of making, because he is earning it now and also reflective of what his income will be like for some time. This, it is hoped, will lessen the need for both parties to attend the Court in future.
[25] I then took Mr. Lewkoski’s income of $32,676.80 to generate a Spousal Support Advisory Guideline calculation. I used the annual income amount disclosed by Ms. Mitchell of $19,407. The resulting calculations are set out as Schedule 1 to this endorsement. I did not add the amounts Mr. Lewkoski has to pay for support of his son in to this calculation. This is because he was paying this amount in 2010 and he is still having to pay it now. This particular aspect of his life has not materially changed.
[26] These Guideline amounts were useful only to get a sense of the range of spousal support. Mr. Lewkoski argued for a reduction to anywhere from $200 to $300 per month. The Guidelines would indicate a mid-range for the income I have determined for Mr. Lewkoski to be $213.00 per month
[27] In all the circumstances I determine that the amount of $200.00 per month is an appropriate amount for Mr. Lewkoski to pay Ms. Mitchell for Spousal support from January 1, 2017 and ongoing.
[28] In addition to varying the amount of ongoing spousal support downward, I am going to add an additional provision in the Divorce Judgment governing these parties for ongoing financial disclosure for both parties commencing with Mr. Lewkoski being required to forthwith file his 2016 income tax return and to provide Ms. Mitchell with a copy of his notice of assessment immediately upon receipt. Further, I order that effective July 1, 2018 the parties shall provide copies of their notices of assessment to each other. This requirement shall continue as long as support remains payable. All other provisions of the Order remain in place, including the provision that each party shall bear their own costs.
[29] In the circumstances, Ms. Mitchell has been unsuccessful on this motion to oppose a variation. Usually, in family motions, the “loser pays costs” principle would apply. However, Mr. Lewkoski failed to disclose to Ms. Mitchell a very important material fact. He waited until the opening of the hearing to disclose his current employment circumstances. In my view, this should have been disclosed on the case conference. Ms. Mitchell has been put to the expense of preparing for a hearing missing a very important piece of information concerning Mr. Lewkoski’s position. This lack of disclosure disentitles Mr. Lewkoski to any award of costs which would normally follow a reduction of ongoing support in the quantum awarded here.
[30] Accordingly order to go as follows:
- Paragraph 1 of the Order of Pierce J. dated October 4, 2010 is varied by replacing the entirety of the paragraph with the following:
“The Divorce Judgment of the Honourable Justice G.P. Smith is hereby varied to provide that commencing January 1, 2017, the Respondent, Allen Scott Lewkoski shall pay to the Applicant, Kimberley Lyn Mitchell, as periodic monthly spousal support the sum of $200.00 payable the 1st day of each and every month and continuing until further order of the court. The quantum of this amount has been determined based on Allen Scott Lewkoski’s annual income of $32,677.00 and Kimberley Lyn Mitchell’s annual income of $19,407.”
- The following paragraphs 1(a) and 1(b) are hereby added to the Divorce Judgment of the Honourable Justice G.P. Smith:
“1(a) Allen Scott Lewkoski shall forthwith file his 2016 income tax return. Further he shall forthwith provide a copy of his 2016 Notice of Assessment to Kimberley Lyn Mitchell upon receipt of same.
1(b) Commencing July 1, 2018 the parties shall exchange copies of their annual Notices of Assessment on or before July 1st of each and every year so long as spousal support continues to be paid by Allen Scott Lewkoski to Kimberly Lyn Mitchell.”
All other provisions in the order of Pierce J. dated October 4, 2010 remain in effect.
A Support Deduction Order shall issue in respect of this order.
Unless the Support Order is withdrawn from the office of the Director of Family Responsibility it shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: August 1, 2017
CITATION: Mitchell v. Lewkoski 2017 ONSC 4657
COURT FILE NO.: FS-02-013662-03
DATE: 2017-08-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kimberley Lyn Mitchell
Applicant (Responding Party)
- and -
Allen Scott Lewkoski
Respondent (Moving Party)
JUDGMENT ON MOTION TO CHANGE
Fitzpatrick J.
Released: August 1, 2017
/sab