EDWARDS v. BENDER, 2019 ONSC 4958

COURT FILE NO.: FC-18-FO244-00

DATE: 2019 08 26

ONTARIO

SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT

BETWEEN:

Adam Edwards

Applicant

– and –

Amy Bender

Respondent

Self-representing

Self-representing

HEARD: July 24, 2019

Breithaupt Smith, J.

decision

1This is a Motion to Change the Final Order of Justice D. R. Timms dated March 6, 2015 brought by the Applicant Father, Adam Edwards. Both Mr. Edwards and the Respondent Mother, Ms. Amy Bender, are self-representing. Together, they are the parents of Aiden Matthew Bender born November 8, 2000 (“Aiden”). While the original Motion to Change issued April 9, 2018 and found at Vol. 1, Tab 1 of the Continuing Record also raised the issue of on-going child support payable for Aiden, that issue has been resolved before today. Consequently, Justice R. MacLeod ordered at the Trial Management Conference that this hearing was to proceed as a long motion on the sole issue of child support payable for the period from August 1, 2016 through August 31, 2018. The issue of the mathematical apportionment of special and extraordinary expenses for Aiden was not raised, and the parties agree that the existing equal apportionment of such expenses between them should continue.

Background

2The parties resided together from 2004 until 2006. They were not married. Currently, Mr. Edwards resides in Kitchener and Ms. Bender resides in Oshawa. Aiden resides with Ms. Bender and turned eighteen (18) on November 8, 2018. As noted above, issues regarding on-going child support for Aiden have been settled and are not before this Court.

3Mr. Edwards’ position is that no child support should be payable by him for the period from August 1, 2016 through August 31, 2018 (the “Arrears Period”) as he was unable to work for medical reasons throughout that time. He seeks to have any amounts obtained by the Family Responsibility Office during the Arrears Period returned to him.

4Ms. Bender’s position is that Mr. Edwards should have been working in some comparable capacity during the Arrears Period and resists any decrease in the arrears of child support that accumulated. She further claims reimbursement owed to her by Mr. Edwards for one-half of certain expenses for Aiden in the total amount of $173.50, of which Mr. Edwards’ share is $86.75, documentation regarding which is attached to her Form 15B Response to Motion to Change found at Vol. 1, Tab 5 of the Continuing Record. Otherwise, she makes no claims for any review or adjustment of the quantum of child support payable.

5In preparation for the hearing of this Motion to Change scheduled for July 24, 2019, the Court reviewed the entirety of the Continuing Record. Further, Mr. Edwards took the witness stand to provide additional viva voce evidence at the hearing. Ms. Bender declined to testify or to call any witnesses, but cross-examined Mr. Edwards on his evidence.

Admissibility of Expert Evidence

6In a Progress Note (Exhibit 4) and a letter addressed to Mr. Edwards’ family physician, Dr. Wendy Reimer (Exhibit 5), Orthopaedic Surgeon Dr. Paul Mathew sets out the history of Mr. Edwards’ problems with his left wrist. The Progress Note is dated January 5, 2018. The letter is dated June 17, 2019. The letter includes a standardized restriction as follows: “This letter is not to be forwarded by anyone other than the family physician to; insurance companies, ODSP, or any third party or legal counsel. These requests should be forwarded to our office directly.” However, at the Trial Management Conference before Justice MacLeod on July 11, 2019, His Honour endorsed the following: “Mother concedes that the doctors’ notes and records included [in the Continuing Record] are admissible for the purposes of the hearing.” Having regard to the principle of proportionality and the Court’s over-arching responsibility to deal with this case in a just manner as mandated by Rule 2(3) of the Family Law Rules, and despite the absence of a Form 20.1 signed by Dr. Mathew, the Court finds that Dr. Mathew’s Progress Report and letter are Expert Reports as contemplated by Rule 20.1(10) and are admissible in evidence as per Rule 20.1(11).

Evidence at the Hearing

7Mr. Edwards completed approximately half of his Grade 10 year. About three years ago he undertook a high school upgrading course in an attempt to obtain his Ontario Secondary School Diploma but was unsuccessful. He testified that his work history was mostly in the areas of construction and manufacturing, inclusive of a position at a landscaping company that he held for approximately four years. By 2015, Mr. Edwards had secured a contract position with Toyota Motor Manufacturing Corporation (“TMMC”). On April 1, 2016, he was placed on a “Contract Medical Leave” as a result of severe pain in both wrists, the details of which are set out below. He did not work thereafter, receiving Sickness benefits through Employment Insurance at the rate of $537.00 weekly from April 17, 2016 through to July 31, 2016. He was unemployed and receiving no income from that date through to March of this year, his claims to the Ontario Disability Support Plan and the Canada Pension Plan disability benefits having been denied on the basis that his fiancée’s income was too high. On March 1, 2019, he commenced part-time employment at Mr. Lube on Highland Road in Kitchener where he earns $14.50 hourly. This rate of pay translates into an annualized income of approximately $17,250.00 based upon the 45.75 hours worked bi-weekly as set out on his paystub dated June 21, 2016 (appended to his Financial Statement found at Vol. 1, Tab 16 of the Continuing Record).

8Mr. Edwards earned (per his Line 150 Total Income entries on his Notices of Assessment, filed):

a. $56,343.00 in 2015;

b. $21,403.00 in 2016;

c. $NIL in 2017; and

d. $NIL in 2018.

9Early in 2016, Mr. Edwards was experiencing significant pain in both wrists. The orthopaedic surgeon to whom Mr. Edwards was referred by the TMMC in-house Health Centre, Dr. Paul Mathew, recommended a course of physiotherapy. During that time, Dr. Mathew placed Mr. Edwards on “light duties” and gave Mr. Edwards a list of actions that he could not undertake including: pinching, gripping, grasping, pulling, tugging and lifting. TMMC was initially able to accommodate “light duties” on a full-time basis, but on April 1, 2016 Mr. Edwards was dismissed from his regular employment and placed on Contract Medical Leave. The terms of his potential recall were set out in a document entitled “Toyota: Contract Medical Leave: Terms and Conditions” dated April 1, 2016 and signed both by Mr. Edwards and by a representative of the company’s Health Centre (Exhibit 3). Mr. Edwards undertook physiotherapy for several weeks but the pain did not improve, and so MRIs and X-rays were ordered which revealed cracked cartilage in both of Mr. Edwards’ wrists and carpal tunnel syndrome in his left wrist.

10Surgery for Mr. Edwards’ left wrist took place on December 20, 2016. The purpose of the surgery was to repair the cartilage, which included the shortening of one of the bones in Mr. Edwards’ left arm by approximately 2 millimeters, and to “release” the carpal tunnel thus alleviating the pressure and, hopefully, the pain. Mr. Edwards testified that Dr. Mathew was quite clear in advising him that the surgery was very extensive and came with no guarantee of success. Mr. Edwards testified that he chose to proceed with the surgery because he did not want to take prescription painkillers over the long term if he could avoid doing so.

11Following the surgery, Mr. Edwards’ left arm was in a cast up to his shoulder for two months and, thereafter, in a shortened cast up to his elbow for a further six weeks. When the shorter cast was removed, Mr. Edwards started physiotherapy again immediately but, as he was not able to move his wrist at all at that time, it was recommended that physiotherapy be delayed until his wrist had been given further opportunity to heal. A concern was raised by Dr. Mathews that Mr. Edwards’ bone had not fully healed, and thus Mr. Edwards was prescribed the use of a “bone-density machine” which encourages bone growth by means of the application of X-ray (electromagnetic) radiation to the affected area. Bone healing was noted with the use of the bone-density machine, but Mr. Edwards was still afflicted by pain and thus it was recommended that the “hardware” surgically inserted during the original procedure be removed. A second surgery on Mr. Edwards’ left wrist was scheduled and took place on June 20, 2018. Thereafter, Mr. Edwards’ left arm was again casted, although only around the wrist itself on this occasion, and months of physiotherapy again followed the removal of the cast.

12As the pain still had not subsided, Mr. Edwards met again with Dr. Mathew on June 17, 2019. It was on that date that Dr. Mathew provided Exhibit 5, the letter addressed to Dr. Reimer, in which he wrote:

… As of March 1, 2019 [Mr. Edwards] obtained a part-time job at Mr. Lube doing light-type duty. He is not full time as his upper extremity on the left cannot withstand the repetitive force and I believe this is a permanent problem. He has reached maximum medical recovery as he is now 1 year from his second surgery. Unfortunately he has not been able to sustain a steady income and this will affect him in the future. Unfortunately there is no other surgery that is available at this time. If things change I will be more than happy to reassess.

13Mr. Edwards’ evidence is that throughout the Arrears Period he was financially supported by his fiancée, and that his treatments (medications; the bone-density machine; etc.) were funded by extended medical insurance benefits available through her employment.

14Ms. Bender’s evidence in support of her position that Mr. Edwards should have been working during the Arrears Period came in the form of her capable and organized cross-examination of Mr. Edwards. She did not testify. Under cross-examination, Mr. Edwards admitted that there was no document before the Court confirming that he was completely unable to work during the Arrears Period. She further elicited his confirmation that he had not looked for other, less physically demanding, work during that period.

15In addition, a detailed review comparing Schedule “A” to the Director’s Statement of Arrears issued by the Family Responsibility Office (the “FRO”) (Exhibit 2) to the Summary of Payments created by Mr. Edwards (Exhibit 1) was undertaken in the course of Mr. Edwards’ testimony.

16Although neither party has served a Notice pursuant to the Evidence Act seeking to introduce the documentation produced by the FRO as a business record, this Court finds that Schedule “A” to the Director’s Statement of Arrears dated June 10, 2019 and filed as Exhibit 2 is a business record and is admissible into evidence without further proof of its contents.

17Exhibit 2 shows the support payment accrual and credits applied thereagainst throughout the Arrears Period. The first Debit Amount entry dated September 23, 2016 is for support accruing in the amount of $200.00 for August of 2016 and the last Debit Amount entry dated November 25, 2018 is for support accruing in the amount of $200.00 for November of 2018, but this is followed by an adjusting entry dated December 5, 2018 reversing the accrual of the amount of $600.00, representing the months of September, October and November 2018 (3 x $200.00 = $600.00). The Credit Amounts relate predominantly to funds diverted to the FRO from other government sources with the following important exceptions:

a. $20.00 credited for each of the months of August, September, October and November of 2016 (total of $80.00);

b. $200.00 credited for the month of January 2018 (which triggered a “direct payment fee” of $100.00 levied by the FRO against the support recipient); and

c. $40.00 credited for the month of February 2018; such that

d. Overall the actual amount of arrears owed for the Arrears Period, calculated as of March 21, 2019, was $3,184.86.

18The total payments credited by the FRO as having been paid voluntarily (albeit directly by Mr. Edwards to Ms. Bender and not through the Director’s office) is $320.00. Mr. Edwards’ Summary of Payments shows payments totaling $360.00, a difference of $40.00.

Intentional Underemployment – Application of the Law

19In Lavie v. Lavie, 2018 ONCA 10, Mr. Justice Rouleau on behalf of the Ontario Court of Appeal reviewed the application of section 19(1)(a) of the Federal Child Support Guidelines and its discussion by the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 OR (3d) 711 (Ont CA). Section 19(1)(a) of the Federal Child Support Guidelines contemplates the imputation of income to an intentionally under-employed parent. It reads:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

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

20The analysis takes two steps: (1) the payor parent must be intentionally underemployed; and (2) if so, the underemployment can be excused due to childcare obligations or to educational or health needs of the payor parent.

21At paragraph 26 of his reasons, Mr. Justice Rouleau confirmed that there is “no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment,” writing:

The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

22The Court finds Mr. Edwards to be a credible witness. He testified that he was rendered unable to work as a result of the limitations placed upon him arising from the pain in his wrists, for which pain he did not want to be on medication for the rest of his life. It stands to reason that, had Mr. Edwards been willing to take pain medication, he could have continued with his duties at TMMC. Therefore, strictly speaking, he was “intentionally underemployed” at the time of his dismissal from TMMC. However, having regard to the evidence of the lengthy and difficult treatment period for Mr. Edwards’ left wrist, all of which treatment period overlaps the Arrears Period, the Court finds that his intentional underemployment was reasonably required by his health needs. Not only had Mr. Edwards exhausted all available treatments for his left wrist during the Arrears Period, he had also attempted to qualify for his high school diploma shortly before or at the start of the Arrears Period but was not successful. Thus, during the Arrears Period, Mr. Edwards’ intentional underemployment is excused by operation of section 19(1)(a) of the Federal Child Support Guidelines.

23The issue remains as to the manner in which to address the amounts obtained by the FRO through its diversionary powers. On the one hand, Mr. Edwards takes the position that no support should have been payable during the Arrears Period and therefore any funds obtained by the FRO (other than those paid by him voluntarily and directly to Ms. Bender) should be returned to him. On the other hand, it has been Ms. Bender who, throughout the Arrears Period, appears to have consistently reported the amounts received directly from Mr. Edwards with the possible exception of $40.00. This is significant as it is to her detriment to accept payments directly when enforcement by the FRO is ongoing, as is made clear by the “Direct Payment Fee” levied by the FRO in the amount of $100.00 on February 20, 2018. It is further important to note that Mr. Edwards did not commence his Application seeking to address child support during the Arrears Period until April 9, 2018. To require Ms. Bender to pay back to Mr. Edwards the amounts collected by the FRO during and/or relating to the Arrears Period would not, in my view, amount to “dealing with a case justly” as is the primary objective of the Family Court as set out at Rule 2(2) of the Family Law Rules.

Order

24Based on all of the foregoing, the arrears currently calculated on the records of the Director of the Family Responsibility Office are fixed at $0.00 ($NIL) effective July 30, 2019. No further adjustment or reimbursement by either party to the other is required.

25Having regard to the mixed success in this matter, there shall be no order as to costs.