Court File and Parties

COURT FILE NO.: F992/18 DATE: November 4, 2019 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Sandeep Anand Sharma, applicant AND: Chetna Tawar, respondent

BEFORE: MITROW J.

COUNSEL: Scott Gallagher for the applicant Peter D. Eberlie for the respondent

HEARD: November 1, 2019

Endorsement

[1] The parties’ special appointment motions were argued Friday, November 1, 2019. The issues were: (1) interim parenting plan; (2) interim spousal support; and (3) interim child support.

[2] Despite the voluminous affidavit material, the parties agreed on a parenting plan during the hearing of the motions, which was not surprising as the parties were fairly close, each party having proposed a plan where each party had the children for 7 overnights on a 14 day cycle. The catalyst for resolution of interim parenting issues was Morrison Reid’s “Voice of the Child” report for the parties’ 4 children, ages 13 and 11 (triplets). The order for the interim parenting plan was made on consent on November 1, 2019.

[3] It is fair to say that the children will spend equal, or very close to equal, time with each parent, consistent with the children’s wishes as per Morrison Reid’s report. I would confirm in these reasons, as I did during the hearing of the motions, that both parties are to be commended for shielding the children from any parental conflict and not involving the children in the matrimonial issues. Those positive factors were quite apparent from Morrison Reid’s report.

[4] The parties were married in August 2001 and separated early 2018. There is a dispute about the actual date of separation – the applicant stating it is February 1, 2018, while the respondent states it is April 3, 2018. Nothing turns on this factual dispute for the purpose of the motions.

[5] There is no dispute that the applicant has been a stay-at-home parent for many years. The respondent is a dentist.

[6] During the course of oral argument, after the applicant had made submissions regarding the respondent’s income projections for 2019, I indicated to the applicant that it was not necessary for the court to engage in speculation as to what the respondent’s income might be for the current year. There were variables that could affect her income, including her increased parenting time. I ruled that the respondent’s 2018 income should be used, on an interim basis, which could be adjusted by the trial judge or, alternatively, via a motion for interim variation of an interim order when the respondent’s 2019 income is known.

[7] The respondent had no issue with this ruling. The parties agreed that the respondent’s line 150 income is $215,732, as verified by the respondent’s 2018 T1 general income tax return – Ex. A.

[8] The only significant issue for decision on the motions is the income to be imputed to the applicant.

[9] The applicant and the respondent were ages 50 and 46, respectively, when the motions were heard. The applicant’s resume discloses various employment up to 2008, including positions described as business manager, business development, carrier service coordinator, financial consultant and operations support and administration, the latter being with General Dynamics for a brief period ending February 2002, while the parties were living in Calgary.

[10] The applicant’s resume describes him as being the business manager for the respondent’s dental corporation from May 2012 to present. The resume is undated, so it is not clear what “present” means. Moreover, during oral questioning, admissions made by the applicant suggest that this claim of employment may be little more than an attempt to “pad” his resume, as claimed by the respondent, rather than any genuine employment.

[11] The respondent obtained an expert vocational assessment report (“V.A.R.”) regarding the applicant. The author of the V.A.R. opined that the applicant could earn “at the very least” the median wage of various occupations as described in the V.A.R.

[12] As discussed in the V.A.R., the hourly rates range from $17 per hour to $36.54 per hour depending on the occupation. The median income, for males, ranged from $46,945 to $85,568.

[13] The applicant’s education includes: B. Comm. (4 year) from Ryerson University in 2002; Fanshawe College, accounting diploma (2 year) in 1998 with a major in business administration and accounting; 1 year at Fanshawe College, general arts and science certificate; 9 week training course with Investors Group in Calgary and a mutual funds licence.

[14] In his factum, the applicant admits that he has not pursued a home business or sought employment over the period of this proceeding: paragraph 52. This is significant because, in his endorsement dated February 6, 2019, S. Campbell J. stated that the respondent may have to work less to spend time with the children, and the applicant may have to find employment.

[15] It is quite apparent that the applicant has done nothing to look for employment since that time. There is no suggestion that the applicant is not healthy or otherwise unable to work.

[16] The respondent relies on Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (Ont. C.A.), from which the following principles can be summarized:

a) a person is “intentionally” unemployed or under-employed if that person chooses to earn less than he or she is capable of earning: para. 28;

b) in relation to child support, one of the objectives in s. 1 of the Guidelines is to establish a fair standard of support for children to ensure they benefit from the financial resources of both parents: para. 31;

c) there is a duty to seek employment in a case where a parent is healthy; in Drygala, the parent was attending an educational program and, in that context, it was held that once it has become established that a spouse is intentionally unemployed or under-employed, then the burden shifts to that spouse to establish what is required by virtue of his or her educational needs: para. 38; and

d) an imputation of income is not an invitation to the court to select arbitrarily an amount of income; rather, the amount selected is an exercise of the court’s discretion and must be grounded in the evidence: para. 44.

[17] In his factum, the applicant admits he will have to pursue “some sort of employment”; should the court impute an income, the applicant submits an appropriate amount is $20,000 to $28,000 annually based on a minimum wage of $14 per hour, working 28 to 40 hours per week: paragraphs 52, 55 and 56 of the applicant’s factum. It is noted that a fulltime income based on the minimum wage is $29,120 annually ($14 x 40 hours x 52 weeks).

[18] The applicant argued strongly that little weight should be given to the V.A.R. because that report used the “median” wage, which was unfair as the applicant had not worked for many years and the report should have considered entry level incomes. I am unable to put much weight on that submission, as the expert was aware of the salient facts and opined that the median income range was appropriate. There was no expert evidence tendered by the applicant.

[19] The respondent submits that it is fair to impute $60,000, which falls in the lower end of the range suggested in the V.A.R.

[20] The evidence is overwhelming, and I find, that the applicant is intentionally unemployed. He offered no credible explanation to justify his non-action in obtaining employment, even after the warning in S. Campbell J.’s endorsement.

[21] The issue of imputation of income – specifically quantum – can be explored in a more fulsome manner at trial. At this interim stage, an imputation of income in the range of $50,000 to $60,000 annually is an amount that, in my view, is grounded in the evidence. I impute an income of $55,000 to the applicant.

[22] It was the preference of both parties to prepare fresh DivorceMate calculations after the amount of imputed income was determined by the court. Both parties agreed there was no evidence of increased costs within the meaning of s. 9(b) of the Guidelines. Subject to further submissions, I am inclined to the view, considering the parenting schedule, that child support should be the table set-off, and that the combination of child support and spousal support should result in the NDI (net disposable income) being shared equally. During argument, it appeared that both parties were favourably disposed to same.

[23] The parties were content that the interim child support and spousal support payments should commence November 1, 2019. The respondent had been paying only interim child support in the amount of $4,800 per month pursuant to the aforementioned order of S. Campbell J.

[24] Given the foregoing, the parties are encouraged to make efforts to agree on the quantum of interim child support and spousal support.

[25] This matter is adjourned to Wednesday, November 13, 2019 at 10 a.m. before me, subject to setting a new date at that time if both counsel are not available.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: November 4, 2019