CITATION: De Matos v. De Matos, 2017 ONSC 5063

COURT FILE NO.: FS-12-76328-01

DATE: 2017 08 24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marcia De Matos

P. Bateman, Counsel for the Applicant

Applicant

• and -

Nelson De Matos

S. Philbert, Counsel for the Respondent

Respondent

HEARD: In Writing, Submissions Completed May 26th, 2017.

REASONS FOR JUDGMENT

LEMAY J

1This is the third, and final, decision in a series of decisions that I have issued in this case over the past year. This matter was originally before me in May of 2016, and I heard a ten day trial addressing issues of custody, access and support. My decision was released on August 15th, 2016 (see 2016 ONSC 5138). In that decision, I reserved jurisdiction to address issues of the ongoing calculation of child support. I also made an interim order with respect to custody, because of my concerns with the conduct of both parents.

2I had hoped that making interim orders and providing the parties with my strongly worded views on the manner in which they were approaching their relationships with their children (and each other) might lead to a change in conduct. However, in the fall of 2016, counsel asked me to render a final decision on the issues in the case. The parties argued the issues by way of Affidavits and oral submissions on December 22nd, 2016, and I issued a further endorsement on April 4th, 2017 (see 2017 ONSC 2045).

3My April 4th, 2017 decision left the following issues open for further argument and adjudication:

a) The terms of the final order relating to access and custody.

b) The calculation of ongoing support from April of 2016 to the present.

c) Costs

d) The retroactivity associated with Ethan’s Disability Tax Credit, if and when retroactivity was received.

4In terms of the final order relating to custody and access, the parties were given a deadline to advise me if they could not agree on the terms of the final Order. I received a draft final Order attached to Nelson’s submissions. This draft was provided well beyond the timelines for doing so. Similarly, Marcia filed a draft final Order with her submissions.

5I had set out a different process that the parties were to follow to address the draft final Order. I had directed them to contact my office to schedule a conference call in order to determine how to resolve the terms of the draft Order if they could not agree on its terms. Part of the reason that I made that direction is that I am not prepared to simply edit each side’s order to identify what the issues in dispute are. Identifying the areas of agreement and disagreement is work that should be done by the parties, and I am directing them to complete it.

6As a result, I am providing the parties with the following directions in terms of the final Order:

a) The parties, through counsel, are to discuss the differences in the proposed Final Order within seven (7) days of the release of these reasons.

b) Each party is to prepare an edited version of their Order outlining the places, if any, where they are unable to agree with the other party on the terms of the Order. Each version is to be black-lined, showing the areas of disagreement.

c) If the parties, by completing the exercise above, are able to agree on the terms of the Order, they are to file a fully signed consent to it with the Court office, and provide a copy to judge’s reception in Brampton by September 8th, 2017.

d) If the parties have not agreed upon the terms of the draft Order, they are to attend before me in person with counsel at 9:00 am on Friday, September 15th, 2017 in Brampton. This is a mandatory attendance. Each party is to bring their proposed Order with them in both electronic (word) and hard format, along with the black-lined versions.

e) At the appearance on September 15th, 2017, we will determine how to address submissions to fix the terms of the Order that remain in dispute.

7I will make one observation about the final Order in an effort to assist the parties. I am not prepared to either revisit any part of my final decisions or to use a hearing over the terms of the final Order to enforce compliance. There are separate procedures to address these issues. Revisiting my final decisions can either be done by an appeal or a motion to change. Enforcing compliance can be done by way of an enforcement motion. The hearing on September 15th, 2017 will address neither of these issues. It will simply set the terms of the final order as based on my decisions of August 15th, 2016 and April 4th, 2017.

8In terms of costs for the trial and the appearance in December of 2016, the parties were given a deadline to provide submissions on both issues. I did not receive submissions in accordance with the timelines set out in my decision. As a result, there will be no costs to either party for the trial or the December 2016 appearance.

9There is then the issue of the Tax Credit. Citing Harder v. Her Majesty the Queen (2016 TCC 197), both parties agree that each party needs to have an actual order to pay child support. Accordingly, an appropriate order to address this issue is to be included in the final Order, and the support calculations I have set out below take this issue into account.

10There seems to be some dispute between the parties as to who is entitled to claim disability and tax credits for the children. In my view, the benefit of the tax credits should go to the parent who had custody of the child at the time of the credits. If the parties require more specific direction on this issue, they can also address that matter in the September 15th, 2017 appearance.

11This brings me to the one issue where there was clearly a dispute remaining between the parties, which is the child support amount from April, 2016 to the present. I provided the parties with directions on the submissions that they were to provide to me. I have received submissions, but they do not comply with the directions I provided in the following ways:

a) Nelson’s submissions were filed late. This was done with permission.

b) Nelson’s submissions addressed the issues of counselling for Sierra and the payment of section 7 expenses for those counselling sessions. I did not invite, and will not entertain, submissions on those issues other than submissions relating to the terms of the final Order. If there are issues outstanding relating to counselling, its costs and section 7 expenses, or any other issue relating to the implementation of the final Order, these issues can be addressed through an enforcement proceeding.

c) Marcia provided a late and additional affidavit that was not part of the timetable that I set out.

12I have determined that I will consider the submissions of all parties in relation to the issue of the quantum of child support. I will not address any of the other issues raised by Nelson’s submissions or responded to by Marcia’s submissions.

The Underlying Facts

13Marcia is currently employed, but currently on maternity leave. She normally earns an income of $65,659.00. The parties have no dispute over using this number.

14Nelson is also currently employed with Thor Global Industries as a procurement specialist. He has held this position since early February of 2017. His employment offer states that he will start at a salary of $68,000.00 per year, and will move to a salary of $70,000.00 per year after three months if he has a successful performance appraisal.

15Nelson was employed with TAGG Industries from April 11, 2016 to June 7th, 2016 as a purchasing manager. He was released from his employment by the company on June 7th, 2016. Between June of 2016 and February of 2017, Nelson performed some temporary work as well as conducting an extensive job search.

16The parties are also arguing, once again, over the issue of whether Nelson appropriately brought an application for a peace bond against Jennifer Lockhart, and whether this peace bond was the reason that Nelson lost his employment with TAGG Industries.

17I have already indicated, at paragraph 27 of my April 4th, 2017 decision, that I do not have enough information to reach any conclusions about the issues between Jennifer Lockhart and Nelson.

18At this point, however, I have been given documentation relating to the mutual requests that both Jennifer and Nelson made for peace bonds. All these documents establish is the following:

a) Both Nelson and Jennifer sought a peace bond against the other person.

b) There was a hearing in the matter on August 17th, 2016.

c) The applications were both dismissed.

19There is nothing in this summation that suggests that Nelson lost his employment as a result of pursuing this issue. In fact, the one court appearance was on August 17th, 2016, well after Nelson lost his job.

20In terms of whether the pursuit of this issue was justified, I still do not have sufficient evidence to make a finding on this issue one way or the other, and I decline to do so.

21There are a number of facts relating to the calculation of support that are undisputed. First, there is no support that is payable between January and March of 2016. I have already decided that issue. Second, for the purposes of support calculations, there is no challenge to Marcia’s income.

22Finally, in terms of where the children spend their time, between April and August of 2016 it is clear that both children spent more than 60% of their time with Marcia. Since August of 2016, Ethan spends half his time with each parent, so there will need to be support offset between the parents.

23With this factual background in mind, I now turn to the positions of the parties.

The Positions of the Parties

24Marcia is seeking to have support determined on the basis of imputed income to Nelson of $70,000.00 per year from April of 2016 to the present. She is also seeking to have Nelson’s income set at $70,000.00 a year going forward. Marcia advances the following arguments in support of her position:

a) Nelson’s loss of job in June of 2016 is not a significant or long lasting change in his employment circumstances.

b) Income should be imputed to Nelson throughout the time period from April of 2016 to the present.

c) Nelson’s income, when he is employed, averages in a narrow band around $70,000.00 and it is appropriate to establish his income at this amount for support purposes.

25Nelson is seeking to have support determined between April of 2016 and the present based on his actual income. Nelson asserts that his loss of employment after the trial was a material change in circumstances, and that I should reduce any arrears owing to take this material change into account. Nelson also points out that there is no final order relating to support in this case. Finally, Nelson asserts that the Court should not impute income to him because of his extensive job search efforts between April of 2016 and February of 2017, and because he did not voluntarily give up his employment.

26The different facts and submissions that the parties have provided raise the following issues for me to determine:

a) Am I required to find a change in circumstances to change the amount of support that Nelson is required to pay after April of 2016?

b) Should income be imputed to Nelson for the period between July of 2016 and February of 2017?

c) Should Nelson’s income be fixed at $70,000.00 for the foreseeable future?

27Once these issues have been determined, it is then a matter of calculation to determine what support payments should be made for the various time periods in issue.

Issue #1- Is a Material Change in Circumstances Required to Adjust Nelson’s Income after April 2016?

28No.

29Marcia’s argument on this point is based on the decision in Corcios v. Burgos (2011 ONSC 3326). In that decision, Chappel J. set out the principle that, before a change in an ongoing support Order will be made, any change in the payor’s income should be significant and long lasting. I accept both this principle and Chappel J’s analysis.

30However, this case is different. As Nelson rightly points out, no final support order has yet been made in this case. As a result, the material change in circumstances standard does not apply to this case.

31In addition, I retain jurisdiction to fix support from April of 2016 forward because I did not make a final determination of support in my August 2016 decision. Instead, at paragraph 180 of that decision, I stated that support would start in April of 2016, and the quantum would be left to the parties to determine.

32As a result, in the unique circumstances of this case, a material change in circumstances is not necessary to adjust Nelson’s income for support purposes. In essence, my responsibility at this point is to fix the arrears in child support in the same way that any trial judge would do.

Issue #2- Should Income be Imputed to Nelson for the Period between August of 2016 and February of 2017?

33No.

34Marcia argues that income of $70,000.00 should be imputed to Nelson because he has been intentionally underemployed. Marcia correctly points out that, to establish that Nelson is underemployed, she is not required to show that Nelson is attempting to avoid his child support obligations or that he is acting in bad faith.

35However, as noted in Homsi v. Zaya (2009 ONCA 332), Marcia bears the onus of establishing that income should be imputed to Nelson. In this case, there is no evidence that, for the period between April of 2016 and the present, Nelson was underemployed. I have already addressed the issue of the proceeding between Nelson and Jennifer Lockhart, and Nelson’s decision to pursue that proceeding is not evidence that he is intentionally underemployed or lost his job as a result of pursuing the issue.

36There are three other reasons why I am not prepared to find that Nelson was underemployed during this time period:

a) Nelson was terminated from his employment with TAGG Industries during his probationary period. It was not a voluntary departure.

b) On the evidence provided to me, it is clear that Nelson conducted an extensive job search.

c) Nelson was actually employed, on a temporary basis, for some of the time between the termination of his employment with TAGG Industries and when he obtained his new job with Thor Global. This strongly supports the conclusion that Nelson was prepared to accept any reasonable employment to ensure the continuation of an income stream

37As a result, I am not prepared to impute income to Nelson for the period from April of 2016 to the present time. This brings me to the question of Nelson’s income going forward.

Issue #3- Nelson’s Income Going Forward

38Marcia argues that Nelson’s income for support purposes should be $70,000.00. Nelson argues that he is currently only making $68,000.00, and that the amount should be revisited regularly.

39For 2017, Nelson began working at Thor Global Industries in mid-February of 2017. His employment contract shows an income of $68,000.00 for the first three months and then, if he has a successful employment evaluation, it will increase to $70,000.00. Nelson argues that this means he is only earning $68,000.00 at Thor. I disagree.

40The employment contract appears to be clear on its face that a successful three month evaluation will result in an increase to $70,000.00. Nelson completed his Affidavit just before this performance increase was required. As a result, I am prepared to infer that this increase took place.

41I am not prepared to order a regular review of support. These parties have litigated even the smallest issues. I am of the view that, in this case, certainty is the best result to ensure that the parties can move forward from this litigation.

42I will address the calculation of Nelson’s income for 2017 in the next section. From January 1, 2018, I agree with Marcia that Nelson’s income should be $70,000.00 for support purposes, and this is my final Order in this regard. Either party is free to bring a motion to change in the event that there is a material change in circumstances. In that regard, each party is to provide the other party with their Notices of Assessment for every calendar year by June 30th in the subsequent calendar year.

The Calculation Methodology and Results

43Normally, the conclusions I have set out above would be sufficient for the parties to make the necessary calculations. However, the parties have had difficulties in achieving agreement on a multitude of issues. As a result, I am going to set out the calculations myself.

44For 2016, I would usually calculate Nelson’s support obligations by considering his actual income for 2016. However, I have already ruled that no support is payable for the first three months of 2016. As a result, it is necessary to gross up Nelson’s income so that his support obligations are fulfilled. Otherwise, I would be using Nelson’s full year income, but only requiring him to pay nine months of support.

45As a result, I will treat Nelson’s income for 2016 as if it was only earned over nine months, and then calculate what this income would have been over a year. His income for nine months was $30,989.00. This produces an annualized income of $41,318.67.

46In order to simplify the calculations, I am going to accept that Nelson earned 11/12 of $70,000.00 for 2017. This produces $64,166.67 as an annual income for 2017. For 2018, I have set Nelson’s income at $70,000.00.

47In terms of Marcia, her income also appears to be stable at $65,659.00. There is no dispute in this number.

48This brings me to the calculation of the amounts owing. This divides itself up into three distinct periods, being April 1-August 31, 2016, September 1-December 31, 2016 and January 1-August 31, 2017.

49In the first period, Marcia had custody of both children and they were primarily resident with her. As a result, for that period Nelson owes Marcia $602.00 per month for five months, which is $3,010.00.

50For the periods between September 1 and December 31, 2016 and January 1, 2017 and August 31, 2017, Marcia had sole custody of Sierra, and Sierra was primarily resident with Marcia. Nelson had sole custody of Ethan, and Ethan was on a week about schedule. As a result, and in order to take into account the decision in Harder, supra, Nelson would pay Marcia for support for two children, and Marcia would pay an offsetting amount for one child.

51For the period from September 1 to December 31, 2016, Nelson is required to pay Marcia monthly child support in the amount of $602.00, which is offset by the fact that Marcia is required to pay Nelson monthly child support in the amount of $601.00. Nelson owes Marcia a net of $4.00 for this four month period.

52For the period from January 1 to August 31, 2017, Nelson is required to pay Marcia support in the amount of $954.00, and Marcia is required to pay Nelson support in the amount of $601.00. The monthly net amount owing by Nelson is $353.00, and the arrears to August 31st, 2017 are $2,824.00.

53Starting on January 1st, 2018, Nelson’s support amount payable to Marcia goes up to $1,037.00 per month, and Marcia continues to owe offsetting support in the amount of $601.00 per month, which produces a net payment of $436.00 per month from Nelson to Marcia.

54If I have made any arithmetical errors in the calculations set out above, or have misapplied the amounts, the parties may address that issue with me in the appearance on September 15th, 2017.

Conclusion

55Based on the foregoing, I make the following Orders:

a) The parties, through counsel, are to discuss the differences in the proposed Final Order within seven (7) days of the release of these reasons.

b) Each party is to prepare an edited version of their Order outlining the places, if any, where they are unable to agree with the other party on the terms of the Order. Each version is to be black-lined, showing the areas of disagreement.

c) If the parties, by completing the exercise above, are able to agree on the terms of the Order, they are to file a fully signed consent to it with the Court office, and provide a copy to judge’s reception in Brampton by September 8th, 2017.

d) If the parties have not agreed upon the terms of the draft Order, they are to attend before me in person with counsel at 9:00 am on Friday, September 15th, 2017 in Brampton. This is a mandatory attendance. Each party is to bring their proposed Order with them in both electronic (word) and hard format, along with the black-lined versions.

e) At the appearance on September 15th, 2017, we will determine how to address submissions to fix the terms of the Order that remain in dispute.

f) There will be no costs to either party for the trial of this matter, or for the appearance before me in December of 2016.

g) The benefit of any tax credits accrue to the parent who had custody of the child at the time that the credit arose.

h) The parties are to provide each other with their notices of assessment for every calendar year by June 30th in the subsequent calendar year. Any adjustments to the support payments set out in this order must be made either on consent or by way of a motion to change.

i) Subject to the previous paragraph, Nelson’s child support obligations for 2018 forward are to be set based on an income of $70,000.00 per year. Marcia’s child support obligations are to be set based on an income of $65,659.00 per year.

j) For the period from April 1, 2016 to August 31, 2016, Nelson owes Marcia child support in the amount of $602.00 per month. The arrears are $3,010.00.

k) For the period from September 1 to December 31, 2016, Nelson is required to pay Marcia monthly child support in the amount of $602.00, which is offset by the fact that Marcia is required to pay Nelson monthly child support in the amount of $601.00. Nelson owes Marcia a net of $4.00 for this four month period.

l) For the period from January 1 to August 31, 2017, Nelson is required to pay Marcia support in the amount of $954.00, and Marcia is required to pay Nelson support in the amount of $601.00. The monthly net amount owing by Nelson is $353.00, and the arrears to August 31st, 2017 are $2,824.00.

m) Starting on January 1st, 2018, Nelson’s support amount payable to Marcia goes up to $1,037.00 per month, and Marcia continues to owe offsetting support in the amount of $601.00 per month, which produces a net payment of $436.00 per month from Nelson to Marcia.

n) Any calculation errors that either party wishes to raise will be addressed at the September 15th, 2017 appearance. After that date, if there are no adjustments, this Order becomes final.

56As noted earlier, there are no costs of the action to either party. However, if either party is seeking costs submissions for the calculation of retroactivity, those submissions are due within seven (7) days of the release of these reasons. Those submissions are not to exceed two (2) double spaced pages, exclusive of bills of costs and case law. Any submission that does not comply with the length requirement will not be considered.

57Reply submissions on cost are due fourteen (14) days from the release of these reasons.

58Any party who is seeking costs for this issue should, in their submissions, address the principle of proportionality. In particular, any costs submissions should address the fact that this was a dispute over less than five thousand dollars.

59The parties may not agree to an extension of time for filing costs submissions without leave of the Court.