Court File and Parties

COURT FILE NO.: F175/16-1 DATE: August 10, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEE N:

Rachelle Lynn Landry Rachelle Lynn Landry not appearing Applicant

• and -

Alfredo Estevan Davila Alfredo Estevan Davila not appearing Respondent

HEARD: proceeding dealt with in chambers on written material

MITROW J.

Reasons for Judgment

1The respondent filed a variation application, while residing in Alberta, to vary his child support obligation and accumulated arrears.

2This variation application proceeds in this court pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”), s. 31(1)(b).

3The application proceeds on written material. The applicant (who is the responding party on the variation application) resides in London, Ontario; she was served personally with a Notice of Hearing stating that the court will conduct “a written hearing”; the applicant filed responding material as required by s. 33(1)(b) of the ISOA, including an affidavit sworn February 22, 2018 deposing that the respondent has been residing with his parents in London, Ontario for “the last six months” and that the applicant has been visiting the respondent and his family in London. The applicant made no request for an oral hearing.

4The respondent further seeks an order for a DNA test regarding the paternity of the child for whom he is paying child support. I decline to order this relief. It is not the proper subject of a variation order: see s. 36 ISOA.

5The order sought to be varied is the final order of Korpan J. dated June 17, 2016, made in this court at London, Ontario. The respondent was ordered to pay child support in the amount of $450 per month commencing February 1, 2016 for the child, Ashton Joshua Landry, born May 8, 2015 (“the child”). The final order also ordered sole custody of the child to the applicant. The final order was made pursuant to the Family Law Act, R.S.O. 1990, c. F.3 and the Children's Law Reform Act, R.S.O. 1990, c. C.12.

6In making the final order, the endorsement of Korpan J. includes the following: (a) that an annual income of $50,000 was imputed to the respondent; (b) that the respondent has not complied with his obligation to make financial disclosure, as a result of which an adverse inference was drawn against the respondent; and that the hearing before Korpan J. proceeded in the absence of the respondent.

7The respondent’s evidence is that his income at the time of the variation application (July 2017) was $36,400, not $50,000 as set out in the final order. The only tax disclosure included in the respondent’s application are his “T4” slips for 2016. The respondent submits he should pay child support on his current income.

8If a party has an imputed income, then on a subsequent variation application, that party has an onus to establish why the imputed income level is no longer appropriate. Simply stating that current declared income is less than the imputed income is not sufficient. This was discussed by Pazaratz J. in Trang v. Trang, 2013 ONSC 1980, 2013 CarswellOnt 4069 (Ont. S.C.J.), at paras. 51-60:

51 When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on — or wait for — representations from the payor.

52 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either: a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before. Or, b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53 If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications — as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

55 Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

56 If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.

57 If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.

58 Imputed income matters. The reason why income had to be imputed matters.

59 If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60 But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct — and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

9The Court of Appeal for Ontario in Gray v. Rizzi, 2016 ONCA 152 (Ont. C.A.) quoted Trang with approval at para. 34:

34 To allow a party who ignores his or her financial disclosure obligations to later satisfy the requirement and argue that the late disclosure constitutes a material change in circumstances would eviscerate the financial disclosure regime. The practical dangers of such an approach were well-described by Pazaratz J. in Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364 (Ont. S.C.J.), at paras. 53, 54 and 59, discussing motions to change where the final order imputed income to the payor:

If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications — as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

10The respondent did not appear at the hearing before Korpan J. He provided no financial disclosure. There was no evidence that the respondent either appealed the final order or sought to have it set aside.

11The respondent has failed to adduce sufficient evidence to discharge his onus to establish that there should be a change in the way his current income should be calculated, and why it should be reduced from $50,000.

12Aside from the foregoing, it appears questionable that the ISOA remains applicable given the applicant’s evidence that the respondent has been residing in London, Ontario.

13I make the following final order:

1. The respondent’s variation application pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 is dismissed;
2. The clerk of this court shall forward these reasons, and the signed and issued order, by regular mail, to the designated authority and to the respondent and shall file proof of service.