Richer v. Freeland, 2019 ONSC 6840

COURT FILE NO.: FS-12781-14

DATE: 2019-11-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Leena Cecile Richer

Applicant

– and –

Harry Jack Freeland

Respondent

C. McInnis, for the Applicant

Mr. Freeland, representing himself

HEARD: November 13-14, 2019

A.D. kurkE j.

Overview

1The applicant and the respondent lived common law from 2006 until 2014, when they separated. They have two children together, twin boys Kygen Harlee Freeland and Wesly Richer Freeland, born September 7, 2007 (“Kygen”, and “Wesly”, collectively “the children”).

2A consent order entered on the first day of this trial gives the applicant sole custody and primary residence of the boys and deals also with issues of the respondent’s access, his right to information about the children from the applicant and others, and of the applicant’s ability to travel to the United States with the children. The trial proceeded on testimony from the applicant and her father, the respondent, and documentary evidence filed by the applicant.

3This trial mainly involves issues relating to child support and extraordinary expenses. As to child support, issues include: its quantum going forward; and adjustments to amounts of child support that have been paid by the respondent from 2016 to the present, based on the imputation of income to the respondent and the correction of underpayments by the respondent. With respect to extraordinary expenses, at issue is the respondent’s obligation to contribute to rep hockey costs under s. 7 of the Federal Child Support Guidelines. The applicant also requests that the respondent register the children for workplace benefits and insurance and seeks that the costs award of $600 payable to her by my order of July 25, 2019 be re-characterized as “legal costs relating to child support,” so that it may be enforced by the Family Responsibility Office.

Issue 1: Child Support

4The applicant seeks adjustments of child support based on the respondent’s unilateral reductions from the amount ordered by Hennessy J. in her temporary order of November 26, 2015. She also asks that appropriate income amounts be imputed to the respondent for 2016 and 2019, for the purpose of establishing arrears and a going-forward quantum of child support.

5By the order of Hennessy J., the respondent was to pay child support of $785 per month for the children, starting December 1, 2015, based on a reported income of $52,854. However, a further condition of the order added that “the temporary support may be reviewed after receipt of the 2015 T4 proof of income.”

6By January 2016 the respondent had reduced his payments to only $711 per month, without consent from the applicant. The respondent further reduced this amount to $520 per month as of January 2018 and continued to pay at that rate through May 2019. From that point, the applicant invoked the assistance of the Family Responsibility Office, which collected some $1,619 in total as child support from the respondent between June 2019 and the date of trial.

7For his part, the respondent explained that he reduced his child support to $711 when he found out that his 2015 income was only $47,700. He reduced his child support to $520 per month based on his actual 2016 income of $34,288. And more recently he ran out of money to continue support.

Imputation of income for 2016 and 2019

Positions of the parties

8The applicant asks that the court impute an income of $51,166 to the respondent for the 2016 and 2019 tax years, though she is content with his claimed income for 2017 and 2018. The applicant argues that the respondent was intentionally unemployed for part of 2016 and should therefore have an appropriate income imputed to him. She argues that the same figure should apply for 2019, based on the respondent’s income history and his 2018 earnings.

9In submissions at trial, the respondent conceded that $51,166 is an appropriate assessment of what his 2019 income will be. However, he submits that the applicant’s proposal of that amount for 2016 is too high. He suggests instead his 2015 income of $47,700 as a more fitting amount, if a higher amount must be imputed than the current 2016 figure.

Facts concerning the respondent’s income and employment

10The respondent has an AZ driver’s licence and has generally worked at plowing snow and doing road maintenance for companies that hold contracts with the MTO. He has also done stints as a long-haul truck driver and carting waste.

11In 2016 the respondent collected employment insurance after being laid off from work; the respondent was voluntarily laid off from his Sudbury snowplowing job in 2016 after the winter season, so that he could assist in the sale of his then-spouse’s home and arrange to move with her to Thunder Bay. When the house did not sell, the respondent returned to work.

12The respondent did relocate to Thunder Bay in 2017, and his 2017 income reflects amounts from employment in Sudbury and Thunder Bay at different companies, and a period on EI after another layoff, this time involuntary.

13After separating from his Thunder Bay partner in 2018, the respondent returned to Sudbury, and he has been employed with companies that hold the MTO snowplowing contract. He is currently “on-call”, rather than full-time; in this position he is paid more per hour but is guaranteed fewer hours per week than full-time employment. It is uncertain whether the respondent will be moved up to full-time employment and whether he will be kept on after the conclusion of the winter contract.

14Documentary evidence filed at trial, and the respondent’s concession about 2019, show the respondent’s income to be as follows from 2013 to the present:

a. 2013 $56,678 b. 2014 $52,854 c. 2015 $47,700 d. 2016 $34,288 e. 2017 $42,386 f. 2018 $51,166 g. 2019 $51,166

Discussion

15Section 19(1)(a) of the Federal Child Support Guidelines (“CSG”) provides for income to be attributed to a parent if the parent is “intentionally under-employed or unemployed”. This provision underscores the policy directive that a parent must earn what he or she is capable of earning, in order to better support his or her child. It imports no requirement for bad faith, and simply recognizes that the needs of a child must be given preference over other personal choices: Drygala v. Paul (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at paras. 32, 36. Imputing income hinges on what is reasonable in the circumstances, based on consideration of various factors, including such things as: the age, education, experience, skills and health of the payor, the payor’s past earning history and the amount the payor could earn if he worked to capacity: Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 36.

16A graph of the respondent’s income between 2013 and 2019 would describe a downward slope from 2013 to 2016, and an upward trend from that date. The respondent’s work history is stable. He plows snow, drives truck, and assists in road maintenance. There is no reason to think that will change. However, as is natural in the breakup of a family and as was spoken of by the applicant in her testimony about her own situation, there is instability in the respondent’s earning capacity between 2014 and 2018. During this period, the respondent necessarily had to adjust to the new realities of his personal life, and naturally explored other relationships.

17The respondent’s voluntary choice to be laid off in 2016 so that he could assist his new partner in selling her home and moving to Thunder Bay can only be viewed as intentional unemployment. The respondent chose to focus on his new relationship, and not on his duty to contribute as best he could to the maintenance of his children. This was not an improper choice, but an impermissible one insofar as it reduced the respondent’s earning capacity and his ability to pay child support. An appropriate income must be imputed to him.

18However, attributing an income of $51,166 to the respondent does not fairly represent the trend of his earnings for 2016, when his personal situation was in flux. I agree with the respondent that an appropriate income to impute to him for 2016 is better set at $47,700, the same as his income from 2015. While the respondent has a duty to provide for his children, the court cannot ignore his personal situation.

Adjustments to child support

19The applicant seeks adjustments of child support from January 2016 to the present, based on the difference between amounts owing according to the respondent’s actual and imputed income, and the amounts that he actually paid. On the wording of Hennessy J.’s order, the respondent had no right simply to adjust his child support based on changes to his income without the consent of the applicant or a court order. However, a payor is generally liable for support as measured against his actual income: s. 3(1) CSG. Justice Hennessy’s order took this principle into account, though it provided for (judicial) review before any change.

20The chart following sets out the differences between amounts paid by the respondent and amounts owing. The totals paid are based on the $711 monthly payments made by the respondent between January 2016 and December 2017, and the $520 monthly payments for January 2018 through May 2019. The chart considers as well that we are already into the eleventh month of 2019, and that following May 2019, the Family Responsibility Office collected a total of $1,619 from the respondent for child support:

Year	Income	CSG Amt.	Yr. Total Due	Yr. Total Paid	Difference
2016	$47,700	$711	$8,532	$8,532	($0)
2017	$42,386	$630	$7,560	$8,532	($972)
2018	$51,166	$775	$9,300	$6,240	$3,060
2019	$51,166	$775	$8,525	$4,219	$4,306

Total arrears due $6,394

21Based on these calculations, arrears of child support will be set at $6,394.

22The quantum of child support payable by the respondent for the children going forward will be set at $775 per month, based on the respondent’s imputed 2019 income of $51,166.

Issue 2: Extraordinary expenses

23The applicant seeks from the respondent as extraordinary expenses 50% of the children’s hockey registration and team fees that she paid for the 2018-2019 season and that she is paying for the 2019-2020 season. She also seeks an order requiring the respondent to pay 50% of the children’s registration and team fees for the boys’ future participation in the different levels of the children’s “rep” hockey league play: A, AA, or AAA hockey.

24The respondent resists this request by the applicant. The respondent does not agree that these expenses are necessary or reasonable. He believes that the children should be in “house league” hockey, which is local, less competitive, and much less expensive than rep hockey.

25In her endorsement of November 26, 2015, Hennessy J. held that hockey costs were the “primary issue of contention” in relation to s. 7 expenses, and substantial at more than $5,000 for the prior year. It was her view that this level of expense was “not manageable” on the “very modest incomes of the parties.” Accordingly, Justice Hennessy declined to order any contribution from the respondent.

Legal context for extraordinary expenses

26Section 7(1) of the CSG permits a court to order a parent to cover costs relating to extraordinary expenses for extracurricular activities (s. 7(1)(g)), taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents and the spending pattern of the parents in respect of the child before separation. Expenses are generally to be shared in proportion to the respective incomes of the spouses (s. 7(2)).

27A sports expense becomes “extraordinary” and is therefore capable of requiring the s. 7 analysis if it is an expense that goes beyond what could reasonably be expected to be covered within the confines of the normal CSG table amount: Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.), at para. 79. Rep hockey expenses are extraordinary in the context of these parties.

Additional facts

The applicant’s income and the parties’ current relationship situations

28The applicant is an accountant/bookkeeper who has worked in firms and has also maintained private clients. She indicated her taxable income between 2013 and 2019 as the following:

a. 2013 $60,339 b. 2014 $57,250 c. 2015 $48,173 d. 2016 $14,138 e. 2017 $0 f. 2018 $775 g. 2019 $25-30,000

29The applicant attributes the decline in her income to working time lost because of issues arising from her unfortunate dealings with a fraudulent builder whose alleged thefts from this couple are being dealt with in criminal court. Moreover, the breakdown of her relationship with the respondent and issues with the children also reduced her working hours.

30In January 2016, catastrophic depression led to paralysis on the applicant’s left side, resulting in long-term disability, from which the applicant only emerged in May 2018. At that point, the applicant started her own bookkeeping and tax preparation business. Her income in 2018 was virtually nothing, although she did and does receive child tax benefits of approximately $1,000 per month, which is not to be counted as income for s. 7 purposes (s. 7(4) CSG). The applicant expects $25,000 to $30,000 net income for 2019 and anticipates that her income will gradually increase over time from there.

31Both parties now have new partners. The applicant lives with a man who is a butcher at a local grocery store and who makes approximately $40,000 per year himself and contributes some 65% of the couple’s household expenses. The respondent has remarried; his wife works at the same job as the respondent, and her income also pays a good portion of that couple’s household expenses. The respondent has no car, but his wife has a vehicle that the couple use.

The children and the benefits and costs of rep hockey

32The children were born September 7, 2007. They are now in grade 7. Wesly is the better student. Kygen was diagnosed with ADHD and ODD from a young age. Thanks to indigenous funding because of the respondent’s status, Kygen is tutored and both boys have received counselling at no cost, for such things as low self-esteem and fighting at school. Benefits attaching to the respondent’s indigenous status also have assisted the applicant in purchasing medication for the children.

33The applicant has ten nieces and nephews, cousins to her children, who play hockey. Her children, especially Wesly, look up to their cousin Justin, who is a goalie for the team at Sault College. Hers is a hockey family.

34Wesly and Kygen very much enjoy engaging in athletic activities. Wesly is a goalie enrolled in AAA hockey. Kygen plays on an AA hockey team and was in A hockey the year before. The rep hockey in which the children engage is intensive and time-consuming. Both boys have at least four hockey tournaments each season out-of-town throughout Ontario at different times. Indeed, Wesly had to drop out of rep baseball, because the applicant simply could not afford the time to attend out-of-town tournaments for two sports. Wesly and Kygen practice multiple times per week and do additional “dry land” training.

35The applicant describes hockey as her children’s outlet; it has made them happy. Kygen has gained self-esteem from hockey, as he knows that he is good at it, and has been able to set more goals. The applicant’s father, Roger Richer, observed that Kygen has friends on his team and is more social. He has “come out of his shell.”

36Wesly has told the applicant that he wants to continue in AAA hockey. He enjoys the structure and discipline. Kygen has occasionally spoken of dropping down into house league play, but the applicant believes that this is simply an attempt by Kygen to please the respondent; Kygen has also mentioned to the applicant that he wants to move up to AAA hockey. Both the applicant and respondent claim that they will let Kygen decide for himself whether he will continue in rep hockey, but the respondent added that if Kygen did house league hockey, he would have more time to spend with the respondent; they could go hunting together.

37The costs for rep hockey are very high. For 2018-2019, the registration and team fees for the children were $4,030 for Wesly but only $2,500 for Kygen, as A hockey and AA are less expensive than AAA. Those expenses were $4,530 and $2,500 respectively for 2019-2020.

38Those fees do not include out-of-town travel for tournaments or equipment, or the additional value of time and payments that the applicant must donate during fundraising drives and mandatory ticket sales. Accommodation at tournaments can run to $150 or more per night for several nights, and the children regularly require new equipment as they outgrow their skates and other hockey gear. Goalie pads are notoriously expensive. Time with a goalie trainer for Wesly costs the applicant $86 per week. 3-month-long summer training programs have cost the applicant $60 per week for each boy. The applicant is not seeking the respondent’s contribution for these additional expenses.

39The applicant has paid for her sons’ hockey almost entirely by herself. She asks for nothing from her parents, although when her father comes to a tournament, he will pay for a night at a hotel and a meal. The respondent has refused to contribute anything to the children’s athletic pursuits. When the applicant asked the respondent to contribute $330, half the cost of a day camp, the respondent told her to talk to his lawyer. As the applicant puts it, she “budgets” for the expenses, pays them over time in installments, and does not buy much for herself. It helps that her new partner pays for so much of their household expenses. She also has received child tax benefits, amounting to some $1,000 per month, and child support from the respondent. However, of late, as the respondent’s child support payments have become less regular, the applicant has increased the balance on her credit cards.

40For his part, the respondent acknowledges that his children love hockey and sports, and he encourages them in that direction. However, he sees the cost of rep hockey as prohibitively expensive, and he cannot afford it. He says that he would gladly contribute as much as $2,000 per year for the cost of house league hockey and perhaps also money for a summer training camp for the children. The respondent agreed that he has paid nothing at all so far towards the boys’ athletic activities. He cannot even afford a vehicle, after having had to scrap his van. Although he is currently self-represented, the respondent still has a large legal bill to pay and has only just started working again. The respondent believes that house league hockey could offer the children the same benefits as rep hockey but would be more affordable.

Discussion

41The determination of necessity in the context of rep hockey expenses must look to the benefits to the children. On the evidence in this case, Wesly and Kygen benefit from their participation in hockey. Self-esteem, teamwork, friendships, family camaraderie, and the ability to operate within a structured setting are important benefits that the children are gaining from their participation in this sport.

42However, it falls to the party seeking contribution for rep hockey to demonstrate that rep hockey is necessary for the best interests of these children. The evidence on that score is not without issues. As pointed out by the respondent, there is no evidence before the court that house league play would not accomplish the same benefits, at least to some degree. The praises for the benefits to the children of rep hockey sung by the applicant and her father must be assessed with an awareness that the members of the applicant’s extended family are strong supporters of the sport and rep league play.

43On the other hand, there is also little or no evidence before the court of efforts made by the respondent to attempt to foster the same benefits for his children in other sports or activities, at any level. He has contributed no money at all towards sporting activities by the children. He has spoken with Kygen about hunting, but what benefits might flow from that, other than quality time between father and son, have not been offered in evidence. With no alternative options to speak of, rep hockey must be viewed as at least reasonably necessary to the best interests of these children, given the benefits discussed above.

44But is the expenditure on rep hockey a reasonable expense? Given the age of the children, their level of hockey play was not at issue before the parties separated. The respondent remembers the children being placed in CanSkate, presumably for basic skating lessons. The applicant’s expectations are generated by a different family history than anything that I have heard about the respondent’s family or background. It was the respondent’s position that rep hockey was unreasonably expensive, given his income, debts, liabilities, and limited resources.

45The respondent agreed that hockey was beneficial for his children. He testified that he told Kygen that the decision about participating in rep hockey was Kygen’s. Such a position demonstrates support for Kygen’s decision to enroll in rep hockey, if that is Kygen’s choice. It can only be inferred that the same must apply to Wesly. The respondent also expressed his willingness to spend $2,000 a year on hockey (albeit for house league play), and to assist in paying for a summer camp. All of this indicates that the respondent does acknowledge the reasonableness of some expenses for hockey and his willingness to respect his children’s desire to play rep hockey, even if he feels unable to pay a lot of money for it.

46Paragraphs 7 and 8 of the November 26, 2015 order of Hennessy J. vested in the applicant the authority to make most custodial decisions on behalf of the children. In exercising this power, the applicant chose to enrol the children in rep hockey even though she was of very limited means. The applicant is a devoted parent who has chosen to spend virtually every available dollar to allow the children to enjoy this outlet. Such devotion is extraordinary and inspiring, but it cannot be said to be per se reasonable. Given that this issue was argued before Hennessy J. in 2015, the applicant was well aware how the respondent viewed rep hockey.

47The respondent’s income remains very modest, as described by Hennessy J. in 2015. From his income he will already be liable for child support of $775 per month. The monthly expenses that the respondent lists appear reasonable overall, and he does not have significant sums to spare. His new partner’s ability to assist the respondent with household expenses does not render rep hockey fees reasonable, based on the respondent’s financial situation. The expenses of rep hockey do not seem to represent a continuation of patterns of spending by this couple from prior to their separation, but rather a unilateral exercise of the authority granted to the applicant by the November 26, 2015 order of Hennessy J.

48In such circumstances, I am of the view that the respondent’s concerns about the expense of rep hockey are to some degree justified. However, the respondent’s failure to contribute anything thus far to his children’s sporting endeavours does not correlate to his encouragement of Kygen to engage in rep hockey if Kygen wants to do so. The respondent must “put his money where his mouth is,” taking into account the concerns that have been set out about the respondent’s means. However, the respondent could reasonably expect that Hennessy J.’s refusal to require contribution would apply until a final determination was made at this trial. It would be unfair to force the respondent to now repay expenses that he could justifiably feel he had been relieved of from November 2015.

49In all the circumstances of this case, the respondent will be responsible to repay to the applicant $2,000 for the current registration and team fees for the children for the 2019-2020 rep hockey season. As to rep hockey registration and team fees going forward, the respondent will continue to be responsible for up to 50% of those expenses. This will be to a maximum of $2,400 per season, so long as both boys are involved in rep hockey. If only Wesley or Kygen is engaged in rep hockey for a given season, the respondent will be responsible for a maximum of $1,200 in registration and team fees.

50With respect to other extraordinary expenses, the parties will contribute proportionately in accordance with their incomes and contributions from the children, if any: CSG, s. 7(2). Fees for other rep sports than hockey are subject to the respondent’s contribution only on his prior written agreement to share such expenses, or pursuant to court order.

Issue 3: Insurance and benefits

51The respondent receives various medical and other benefits as a result of his status as a member of the Whitefish Lake First Nation, Atikameksheng Anishnawbek. The children will continue to receive benefits as a result of this status.

52The respondent also agreed at trial that he will designate the children as beneficiaries under any plan for extended health, dental, medical and vision benefits offered to him through his employment for so long as he is required to pay child support for the children.

53In addition, the respondent agreed that he will designate the children as beneficiaries under any group life insurance policies offered to him through his employment to the face amount of $100,000, for so long as he is required to pay child support for the children.

Issue 4: Costs award of July 25, 2019

54The respondent has not satisfied my costs award of July 25, 2019 in the amount of $600. To make the money more easily collectible, the applicant asks that the order be reconfigured as a costs award in relation to child support, so that it can be collected by the Family Responsibility Office. On the agreement of the respondent I will make such an order.

Conclusion – Final Order

55For the above reasons, I make the following final order:

a. Harry Jack Freeland’s child support arrears from January 1, 2016 to November 30, 2019 for Kygen Harlee Freeland and Wesly Richer Freeland (sometimes hereafter “the children”), both born September 7, 2007, will be fixed in the amount of $6,394.

b. Harry Jack Freeland’s arrears of extraordinary expenses for registration and team fees for hockey for Kygen Harlee Freeland and Wesly Richer Freeland, both born September 7, 2007, shall be fixed at $2,000 in total, for the 2019-2020 season.

c. The $600 costs award owed by Harry Jack Freeland to Leena Cecile Richer by the order of Kurke J. of July 25, 2019 will be payable as costs in relation to child support.

d. The total arrears of monies relating to child support, extraordinary expenses, and costs in relation to child support owing by Harry Jack Freeland to Leena Cecile Richer are therefore fixed at $8,994 as of the date of this order. This amount shall be paid by the respondent to the applicant at the rate of $250 per month on the first day of every month, beginning December 1, 2019.

e. Effective December 1, 2019 and on the 1st day of every month thereafter, Harry Jack Freeland will pay to Leena Cecile Richer ongoing child support for Kygen Harlee Freeland and Wesly Richer Freeland, both born September 7, 2007, in the amount of $775 per month, based upon an imputed income of $51,166.

f. Harry Jack Freeland and Leena Cecile Richer will pay their proportionate share of section 7 expenses of the children, in all areas except rep hockey. With respect to rep hockey, Harry Jack Freeland will pay up to 50% of registration and team fees per year, to be capped at $2,400 if both the children are engaged in rep hockey, or at $1,200 if only one of the children is engaged in rep hockey. Fees for other rep sports than hockey are subject to the respondent’s contribution only on his prior written agreement to share such expenses, or pursuant to court order.

g. The parties will exchange their complete income tax returns, including all attachments and Notices of Assessment/Reassessment, and any other documents required by s. 25 of the CSG each year not later than May 31, starting in 2020.

h. Harry Jack Freeland will designate the children as beneficiaries under any plan for extended health, dental, medical and vision benefits offered to him through his employment for so long as he is required to pay child support for the children.

i. Harry Jack Freeland will designate the children as beneficiaries under any group life insurance policies offered to him through his employment to the face amount of $100,000, for so long as he is required to pay child support for the children.

j. All claims, other than for costs, made by either party in this proceeding that are not otherwise dealt with in this order or in my order of November 13, 2019 are dismissed.

k. If the parties are unable to agree on costs, they may file written submissions with the court of no more than three pages within 45 days.