Court File and Parties
KINGSTON COURT FILE NO.: 75/17
DATE: 20181001
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ashley Kayla-Colline Sheridan, Applicant
AND
Michael Jonathan Cupido, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Elizabeth T. French, for the Applicant
Jacob Wright, for the Respondent
HEARD: September 19, 2018
ENDORSEMENT
MINNEMA, J.
Issues
[1] The applicant brought a motion returnable on August 22, 2018 for various heads of interim family law relief. On that date some matters were resolved on consent. The outstanding general issues are interim child support, interim section 7 expenses, and costs. The specific underlying issue is whether I should order interim child support when the payor is incarcerated.
Background Facts
[2] The parties commenced a relationship in 2013, never married, and separated sometime in the first half of 2017. They have two female children ages 5 and 2. The children resided with the applicant following the separation, with the respondent having regular access.
[3] In August of 2017, the respondent began paying child support in the amount of $1,000 per month. In early 2018 his 2017 Income Tax Return disclosed a Line 150 income of approximately $88,000. The corresponding Child Support Guidelines table amount for two children was therefore $1,269 per month.
[4] The respondent has self-disclosed that he has unspecified "mental health issues" for which he receives counselling. The applicant also raises concerns about the respondent abusing alcohol and illicit drugs. The respondent acknowledges that he was having a difficult time coming to terms with the ending of the spousal relationship, and views the applicant as attempting to remove him from the children's lives.
[5] The applicant indicates that the respondent entered the bedroom in her home in the early hours of July 8, 2018 and assaulted her partner with a baseball bat and threw both her and her partner down the stairs. The respondent has not addressed these allegations in his reply materials. He was arrested and charged with numerous offences, and has been denied bail. Counsel speculated that, if convicted, he will likely spend a minimum of two years in jail.
Positions
[6] The applicant is seeking ongoing child support commencing July 1, 2018 (her motion was brought in August) of $1,326 per month based on the respondent's previous year's earnings. As noted above, the correct number appears to be $1,269 per month. She also seeks a proportionate sharing of section 7 expenses based on his income at $88,000 per year and her income at $11,700 per year. Appropriately, given that this is an interim motion, she defers to trial her claims for retroactive support and adjustments back to the date of separation. While she appreciates that the respondent's current and perhaps extended incarceration will eliminate his ability to earn income, she still seeks support based on imputation. She wants the obligation acknowledged and the corresponding debt created such that, if not changed at trial, the arrears will accumulate. She understands the nature of an interim order, namely that whatever order is made on this motion would be revisited by the trial judge.
[7] The respondent acknowledges his support obligation. However, he notes that not only will he have no income while incarcerated, he also has no real assets. He points to his Financial Statement which shows a negative net worth ($22,000 in assets and $28,500 in debts). He argues that creating a significant child support debt for him to face upon his release could bury him financially. He hints that his culpability for the violent assaults he is alleged to have committed would be in question regardless given his mental health issues.
Law and Analysis
[8] As the parties are not married, interim child support is governed by sections 34(1) and 33 of the Family Law Act, R.S.O. 1990, c. F.3, as amended. Section 33(11) provides that the court making an order for the support of a child shall do so in accordance with the Child Support Guidelines, O. Reg. 391/97, as amended ("Guidelines"). The importance of regular and timely child support cannot be overstated.
[9] Support is to be based on the most current income information (Guideline s. 3(3) and Coghill v. Coghill, 2006 CanLII 28734 (ON SC), [2006] O.J. No. 2602 (S.C.J.)), with adjustments once the income for the year is known: L.(R.E.) v. L.(S.M.) (2007), 2007 ABCA 169, 40 R.F.L. (6th) 239 (Alta. C.A.).
[10] Of course, the most current information in this case is that the respondent has no income. The applicant's imputation request is being made pursuant to section 19(1)(a) of the Guidelines, which provides that the court may impute such amount of income to a parent as it considers appropriate where the parent is intentionally unemployed.
[11] The leading case on section 19(1)(a) imputation is Drygala v. Pauli, 2002 CanLII 41868 (ONCA). A good recent summary of factors to be considered and the steps in the analysis is set out in Pey v. Pey, [2016] O.J. No. 1909 (S.C.J.) at paragraphs 85 to 94. As a general rule, a parent cannot avoid a child support obligations by a self-imposed reduction of income. As the Court of Appeal indicated at paragraph 23 of Drygala:
In my view, in applying this provision, the trial judge was required to consider the following three questions.
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[12] The applicant's counsel submitted that there is a line of cases where parents were found to be intentionally unemployed having engaged in reckless behaviour that resulted in a reduction of their earning capacity: for example see Hutchinson v. Gretzinger (2007), 2007 CanLII 57089 (ON SC), 48 R.F.L. (6th) 167 (Ont. S.C.J.) at paragraph 23, and Rogers v. Rogers, [2013] O.J. No. 1616 (S.C.J.) at paragraphs 51, 59, and 62(a). In the first case it was the payor's drug use, in the second it was his criminal behaviour. In each the support was calculated based on prior earnings. I should note, relating to the former, that there is also a line of cases suggesting that in some situations the court could consider substance addiction to be a reasonable health need of a parent justifying underemployment or unemployment: see Lindsay v. Jeffrey, [2014] O.J. No. 93 (O.C.J.) at paragraph 39.
[13] I am aware of two decisions where imputation was considered for child support purposes while the payor was incarcerated. In both, the existing orders were in essence continued based on previous earnings: Khentov v. Bieler, [2007] O.J. No. 1159 (S.C.J.) at paragraph 23, and Billingsley v. Billingsley, 2010 ONSC 3381 at paragraph 52. The rationale, as in the above paragraph, was that intentional criminal actions led to the incarceration and resulting unemployment. Incarceration was not considered to be a sufficient reason for the parent being unable to work.
[14] The applicant suggests those latter cases lead to a seemingly hard and fast rule that where a support payor is incarcerated child support is to be imputed based on prior earnings. However, I note that imputation is discretionary under the Guidelines (Drygala at paragraph 44), and the ultimate consideration (per the third part of the test in Drygala) is always reasonableness. A situation where a person's drug and/or criminal behaviour has led to decreased earning capacity may be somewhat different than a situation where a payor is incarcerated and is therefore simply unable to earn any income. In the former, the payor would still have the capacity to do something to address his or her issues, and have the potential to correct the failure to satisfy the support obligation.
[15] While all the 19(1) listed criteria are clearly designed to direct the court in the exercise of its discretion in determining reasonable income, given the way it is applied subsection 19(1)(a) has the added practical role of encouraging or in effect coercing parents to earn to their capacity to support their children. However, an incarcerated parent cannot modify his or her behaviour by finding suitable employment in response to an imputation order. The order proposed by the applicant here would simply create debt. As argued, there is also an underlying element of punishment or penalty for the alleged criminal behaviour.
[16] I am not convinced that there is an absolute rule that the court must always impute income where the payor was working prior to incarceration. The two cases referred to above were fact specific and considered many other contextual elements. In both the payor had already been convicted of the crimes. Most importantly for this motion, those decisions were final orders. This is only a request for interim support. In my view it is preferable to have the trial judge, on better evidence and with more up-to-date information, assess what would be reasonable support going back to the date of the incarceration in the respondent's particular circumstances. No order that I make will assist to get regular support flowing now. If the respondent is ultimately acquitted, there might be an issue about the intentionality of his unemployment. If the respondent is released relatively quickly, full imputation might indeed be found to be appropriate. However, while the court must be mindful of the children's need for financial support, if the respondent will be incarcerated for a long period, for example say 5 years, the circumstances of all those involved will need to be practically and thoughtfully considered before he is saddled by way of imputation with a very large (in this example $76,000) debt upon his release, a debt that would be very difficult if not impossible to vary given that his circumstances while incarcerated are unlikely to change. As noted in Jesse v. Jesse, 2010 ONSC 861 at paragraph 64, a cautious approach to income is appropriate on temporary motions for child support. I also note that the respondent raises his mental health and its connection to his circumstances. Imputation may not be appropriate if a parent is unable to work for mental health reasons: see Fraser v. Fraser, 2013 ONCA 715.
Decision
[17] For the reasons stated, paragraphs 2 and 3 of the interim motion are dismissed, without prejudice. Clearly these requests can revisited before trial should the respondent's situation change.
[18] I am not inclined to award costs in view of the result and given that at the last appearance the other issues were resolved on consent. However, the parties have not had an opportunity to present their positions or argument. If they still want to address me on costs, I will accept brief written submissions from each provided that they are received within twenty days. Both parties are also permitted to make a two page costs reply within five days after receiving the other's submissions.
Mr. Justice Timothy Minnema
Date: October 1, 2018