COURT FILE NO.: 1667/05

DATE: 20200221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sarabjit Gill

Applicant

– and –

Bhupinder Gill

Respondent

Bhupinder Gill, Self-represented

HEARD: January 21, 2020

Kurz j.

Overview

[1] Sarabjit Gill (“the father”) applies to reduce his child support obligations to his former spouse, Bhupinder Gill (“the mother”), for their three children: Jessica Gill, born April 30, 1994 (“Jessica”), Sableena Gill, born September 17, 1996 (“Sableena”), and Sherman Gill, born July 4, 1998 (“Sherman”) (collectively “the children”). The order that he seeks to vary was granted on consent by Baltman J. of this court on July 15, 2009. Baltman J. ordered the father to pay $420.00 per month in child support, based on an annual income of $20,200 per year. That order varied the earlier order of Gray J. dated August 30, 2007, which required the father to pay table support of $838 per month, based on an income of $43,000 per year.

[2] The father now lives in Alberta, where he commenced this proceeding. The mother and two of the children (Sableena and Sherman) reside in Ontario, where Baltman J. granted her order. My jurisdiction to vary Baltman J.’s order arises under ss. 17-19 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) and r. 37.1 of the Family Law Rules, O. Reg. 114/99 (“FLR”).

[3] The present procedure for the interprovincial variation of a support order granted under the Divorce Act is complex and anachronistic – it is a pony express process for a digital teleconferencing age. The current process involves an original variation proceeding in the superior court of the province of the moving party, leading to a provisional order of that court. The provisional order must ultimately be confirmed, varied, or rejected in the superior court of the responding party. The order of the responding court is the binding one. This type of multi-staged proceeding often leads to delays and added complexity that would not be found if the variation proceeding were simply conducted in one court, using modern telecommunications facilities. That would allow all parties to participate in just one proceeding at the same time. It is to be hoped that this will be the general result of the amendments to the Divorce Act that will come into force on July 1, 2020.

[4] On December 12, 2017, Jeffrey J. of the Alberta Court of Queen’s Bench conducted provisional hearing of the father’s application to vary the Baltman J. order. A feature of such a provisional hearing is the absence of evidence or submissions from the responding party; here, the mother. Jeffrey J. provisionally reduced the father’s table child support obligations to $154 per month, commencing January 1, 2018. He found that:

1. The father’s income for support purposes was $7,356 for 2017 and $13,600 for 2018;

2. The father first notified the mother of his request to vary the Baltman J. order in July 2017;

3. Jessica ceased to be a child of the marriage as at May 1, 2016.

[5] Based on these findings, Jeffrey J. made the following provisional order:

1. The father shall pay child support of $154 per month “base” (i.e. table) child support for the children, commencing January 1, 2018;

2. The father’s obligation to pay any child support for the children for the months of July – December 2017 is terminated.

3. The father’s child support arrears are reduced to $2,520.

4. The provisional order is of no force and effect until confirmed by this court.

5. The provisional support order is to be enforced by the Alberta Director of Maintenance Enforcement (“MEP”).

6. The parties are required to exchange tax returns and notices of assessment annually.

[6] I now have the benefit of the evidence and argument of the mother as well as the responding evidence of the father, none of which were available to Jeffery J. In light of that evidence and argument, I do not approve the provisional order, other than its terms regarding enforcement by MEP and annual tax disclosure.

[7] Rather, I find that the father engaged in two forms of blameworthy conduct. He was intentionally underemployed for the period of time in which he claims to have suffered a reduction of his income for support purposes. He also regularly failed to pay the child support that he had been ordered to pay.

[8] That being said, I do agree that Jessica stopped being a child of the marriage, at least for a period of time that commenced on January 1, 2017. However, it is not yet clear whether Jessica resumed her status as a child of the marriage when she enrolled in law school in Britain, commencing September 2018, or whether the court will even be called upon to determine that issue. Thus, I suspend the father’s obligation to pay any support for Jessica from January 2017 onward.

[9] Accordingly, I order the father to pay ongoing child support for two children, Sableena and Sherman, for the period of January 2017 onward. The issue of the mother’s entitlement to support for Jessica, if claimed, will have to be the subject of a further hearing. As I do not have sufficient information to determine what support arrears the father presently owes, I will also require that that issue also be determined at a further hearing. The directions for that hearing and the evidence to be relied upon are set out below.

The Father’s Position and Evidence at the Alberta Provisional Hearing

[10] In his Alberta variation application, the father gave two reasons for seeking to vary Baltman J.’s order: a drop in his income and a change in Jessica’s status as a child of the marriage. When explaining his alleged fall in income, the father referred to two factors. He primarily argued that he had suffered from a cataract problem that resulted in surgery in both eyes. He also referred to his move to Alberta. The father further argued that Jessica ceased to become a child of the marriage, entitled to child support, when she graduated from York University’s Schulich School of Business in 2016. He asserted that she then began full-time employment.

[11] The father moved to Calgary, Alberta in late 2015 to join his second wife and their child. He and the mother disagree about his employment prior to that move. While the mother claims that he had managed his second wife’s Mr. Submarine franchise in St. Catherine’s, Ontario, he stated that he had worked in the United States. But he offered no details of his employment, his income, or even the reason for working in the United States. In a similar vein, the father never explained the reason that his family moved to Alberta.

[12] The father told the Alberta court that he earned less than $20,200 per year in 2015-17. He also asserted that Jessica left school and began working full-time in May 2016. He claimed to be unaware of the status of his other two children.

[13] The father now works part-time as a cashier for Lowe’s Canada, earning less than a full-time minimum wage income. Nonetheless, according to a pay stub that he submitted to this court in April 2019, he had earned $22,170.72 as of December 14, 2018. Extrapolated over 52 weeks, his 2018 income would be approximately $23,000. That is about 12% more than the $20,200 annual income that Baltman J. attributed to him.

[14] In his oral evidence before Jeffrey J. of the Alberta Court of Queen Bench, the father claimed that he had been unemployed since September 2016 due to impaired vision. He stated that his vision became worse at the beginning of 2017. He referred to his tax returns of 2014-16 which showed the following line 150 figures:

2014: $ 4,960

2015: $15,427

2016: $24,592

[15] The father asked the court to retroactively reduce his child support obligations for those years based on a three-year average income figure of $15,000 per year. He claimed that he expected his 2017 income to be $7,355.55, as a cashier at Rona/Lowe’s hardware, based on an income of $14.10 per hour. He claimed that his income be $13,000 per year moving forward, based on 18 hours of work per week. I note that the lowest income figure that would call for a table support order under the applicable Child Support Guidelines (“CSG”) table is $12,000 per year.

[16] The father explained his delay in moving to vary the support order by claiming that he had been working in the United States. The father failed to tell Jeffery J. what he had been doing, how long he had been doing it, or how much he had earned in the U.S. He certainly did not explain why he left a mother and child in Canada for the U.S., only to allegedly make far less than minimum wage. There is no evidence that he offered the mother any income disclosure before bringing his application in Alberta.

[17] The father testified that he had written to the mother “in the past few months” about his desire to reduce his support obligations. The mother wrote back, rejecting his request. The father offered no evidence that he had raised the issue any earlier than in the “past few months”, or that he had offered the mother any prior income disclosure.

[18] The father’s sworn disclosure statement of November 29, 2017, belied his claim that his income for that year was $7,355.55. In that statement, he claimed to earn $1,150 per month (or $13,800 per year) and that he had monthly expenses of $2,576.66 per month (or $30,919.92 per year). The only debts that he claimed were $14,405 for Canadian Tire and $1,901.88 for Visa. How he was able to spend almost $31,000 per year on an annual income of (depending on which of his versions is to be believed, $7,355.55 or an average income of $15,000 per year), remains unanswered. Further, the father failed to explain how a person with his supposedly low income could obtain $14,000 in credit from Canadian Tire.

[19] At the time that he commenced the Alberta proceedings, the father was $8,704 in arrears of child support payments under the Baltman J. order.

[20] With regard to Jessica, the father testified that his daughter was working full-time after her graduation in April 2016. He asked the court to order him to pay support for only two children from May 2016 onward.

[21] Having heard and read the father’s evidence and submissions in the absence of that of the mother, Jeffrey J. granted the provisional order set out above. Jeffrey J. does not appear to have given any reasons that I could find. He did tell the father that he would not eliminate all of his support arrears because of the delay in making his variation application.

The Mother’s Position and Evidence

[22] The mother filed a response after Jeffery J. granted the provisional order, opposing this application. In her affidavit of April 25, 2018, the mother questioned the father’s assertions about his income and his reliance on his cataract surgery to justify a reduction in his income for support purposes. She pointed out that the father has not contributed any money towards the university expenses for any of his three children. Implicit in her partly handwritten materials, which appear to have been prepared without the assistance of counsel, is the assertion that the father is not earning what he could.

[23] The mother swore that she had been disabled from work for the two years between August 2013 and August 2015 “due to torn rotator cuffs”. While she was disabled, she had to provide for her children. She questioned why the father could not do the same. She added that the father has a history of avoiding support payments and then seeking to reduce his arrears. As she plaintively put it after recounting his history of support arrears:

Mr. Gill is a qualified person and used to earn $50,000 plus annually and surprisingly, Mr. Gill’s income continues to go down with little effort seen towards finding permanent employment. How does he plan on supporting his children?

[24] In essence, without using the term found in s. 19(1)(a) of the CSG, the mother claimed that the father was intentionally underemployed.

[25] With regard to Jessica, the mother stated that Jessica was still living with her. She stated that Jessica had graduated with a business degree from York University’s Schulich School of Business in October 2016 and began contract work in January 2017. Jessica’s tax returns, later produced by the mother, show that she earned only $2,649.30 in 2016. But in 2017 she earned $35,048. This confirms the mother’s contention that Jessica did not earn any meaningful income until she started her job in January 2017.

[26] The mother further asserted that Jessica was scheduled to begin law studies at the University of London, England, in September 2018, at a cost of $52,000 per year. At the January 21, 2020 hearing before me, the mother orally confirmed to this court that Jessica has commenced those studies. She has not filed any documentation confirming Jessica’s attendance or the details of her programme.

[27] The mother also stated that Sableena and Sherman were both university students, enrolled in undergraduate programs that end in 2020. Sableena is completing a Social Sciences degree at McMaster University in Hamilton, Ontario. Sherman is studying Humanities at the University of Toronto Mississauga campus.

Issues

[28] In determining whether to confirm the order of Jeffrey J., I must consider the following issues:

1. Can this variation proceeding be appropriately determined under the two-stage provisional/final variation procedure set out in s. 18(2) of the Divorce Act and FLR r. 37.1?

2. Has there been a material change in circumstances since the Baltman J. order of July 15, 2009?

3. If the answer to question no. 1 is yes, what support should be ordered?

4. Should the court reduce the father’s support arrears, and if so, to what amount?

Issue No 1: Can this variation proceeding be appropriately determined under the two-stage provisional/final variation procedure set out in s. 18(2) of the Divorce Act and FLR r. 37.1?

[29] The jurisdiction to vary a child support order made under the Divorce Act, such as the order of Baltman J., is set out in s. 17 (1) – (3) of the Divorce Act:

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Application by other person

(2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Interprovincial Applications to Vary under the Divorce Act

[30] For interprovincial applications to vary an Ontario support order under the Divorce Act, the following provisions of that statute apply:

Provisional order

(2) Notwithstanding paragraph 5(1)(a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and

(a) the respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and

(b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,

the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it.

[31] In Davidson v. Davidson, 2019 ONSC 6727, Sanfilippo J. of this court, citing Dent v. Flynn (2005), 2005 14317 (ON SC), 15 R.F.L. (6th) 126 (Ont. S.C.J.) and Albinet v. Albinet, 2003 MBCA 22, 33 R.F.L. (5th) 275, summarized the four requirements of a provisional order under the Divorce Act as follows:

(1) The respondent resides in a different province than the applicant;

(2) The respondent does not accept the jurisdiction of the court where the applicant resides;

(3) Both parties do not consent to proceed under s. 17.1 of the Divorce Act; and

(4) The presiding judge is satisfied that the matter can be adequately determined through the two-phase provisional/ confirmation procedure.

[32] The party requesting the provisional order bears the onus of establishing that all four requirements under s. 18(2) are met. Failing that, the provisional order can neither be rendered nor confirmed (Davidson v. Davidson, at para. 58-59).

[33] Here, there is no evidence that the court making the provisional order engaged in an enquiry of the four requirements of a provisional order. Nonetheless, I can say the first requirement is clearly met. Without saying so, Jeffery J. clearly was willing to accept that the fourth part of the test was met. But there is a paucity of evidence in regard to the second and third requirements.

[34] The self-represented mother has offered no position with regard to the appropriate procedure for this application. But she has effectively attorned to the procedure commenced by the father by responding to it without objection. This proceeding has already consumed well over two years. It is in no one’s interest to delay it further.

[35] In addition, in considering whether this matter can be adequately determined through the procedure set out in s. 18(2), I am guided in part by the primary objective of the FLR. I consider the FLR’s primary objective because the procedure under which this matter is determined in Ontario is set out in r. 37.1 of those rules. Under r. 2(2), the primary objective of the FLR is to deal with cases justly. The notion of dealing with cases justly includes the following considerations set out in r. 2(3):

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[36] In looking to those considerations, I am aware that the FLR are regulations enacted under Ontario’s Courts of Justice Act, R.S.O. 1990, c. C.43, rather than the federal Divorce Act. But as set out above, they are the mechanism under which the process called for by the Divorce Act is actually carried out in Ontario. Thus, they assist the court in determining what process can offer procedural justice to the parties, or in the words of the FLR, allow this court to deal with this case justly.

[37] With those factors in mind, and in light of the delay to date and the materials that have already been provided to this court, I am satisfied that (imperfect as it is) this variation proceeding can appropriately be determined under the two stage provisional/final variation procedure set out in s. 18(2) of the Divorce Act and FLR r. 37.1. Hopefully, future legislative and regulatory changes will effectively streamline the procedure under those two enactments.

Issue No. 2: Has there been a material change in circumstances since the Baltman J. order of July 15, 2009?

Factors for Consideration in a Child Support Variation Application

[38] The factors that a court must consider in a support variation application are set out in Divorce Act s. 17(4) onward. Those factors are different for child and spousal support. The applicable provision reads as follows:

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

[39] The guidelines cited by the Divorce Act are the CSG. Under s. 14 of the CSG, the test for a variation of a child support order is set out as follows:

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

16. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

17. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

18. In the case of an order made under the [Family Law] Act, the coming into force of subsection 33 (11) of the Act.

Legal Test for Material Change in Circumstances

[40] In Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, the Supreme Court of Canada spoke of the steps to be taken to determine whether a support order should be changed. The first step is to determine whether there has been a material change in circumstances. Only then will the court consider what change ought to be made in light of that change.

[41] In order to determine whether there has been a material change in circumstances, the court must consider the issue of foreseeability. As Sopinka J. wrote for the majority at para. 21 of Willick, a material change in circumstances:

... means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

[42] The change cannot be merely transitory (L.M.P. v. L.S., 2011 SCC 64 at para. 35.) An inability to make support payments for short periods of time is not sufficient. The change must be "significant and long lasting; whether it was real and not one of choice." (Corcios v. Burgos, 2011 ONSC 3326 at para., 33, citing Brown v. Brown, 2010 NBCA 5; Haisman v. Haisman, 1994 ABCA 249; leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)).

[43] Once a material change in circumstances is made out, the court must consider the impact of the change on the parties and children in order to realistically determine the quantum of a new order. That consideration must be based on the full matrix of facts regarding the parties' and children's present circumstances, including the overall impact of any change (Willickat paras. 102-104).

[44] The court has jurisdiction under s. 17(1) of the Divorce Act to retroactively vary a child support order, even after a child ceases to be a child of the marriage (Colucci v. Colucci, 2017 ONCA 892 (“Colucci 2017”), at para. 30).[^1]

[45] In Gray v. Rizzi, 2016 ONCA 152, the Ontario Court of Appeal set out the principles that a court must rely on to determine an application to retroactively decrease child support payments or arrears. In doing so, it adopted those principles set out in by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, (“D.B.S.”), as more fully articulated by Chappel J. in Corcios v. Burgos, cited above.

[46] First, the “ultimate issue” in such a proceeding is the best interests of the child. As Chappel J. wrote in Corcios at para. 55:

Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.

[47] Second, the court must distinguish between an application to reduce or eliminate arrears based on a present inability to pay from one based on an inability to pay at the time that the arrears accumulated. The latter is more likely to attract relief.

[48] Writing for the court in Gray v. Rizzi, Brown J.A., went on to adopt the seven following factors for the determination of an application for retroactive relief, including the date of retroactivity and the quantum of relief set out by Chappel J. in Corcios:

(1) the nature of the obligation to support, whether contractual, statutory or judicial;

(2) the ongoing needs of the support recipient and the child;

(3) whether there is a reasonable excuse for the payor's delay in applying for relief;

(4) the ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

(5) the conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has co-operated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J. [at para. 55]: "Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";

(6) delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

(7) any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J. [at para. 55]:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given [page218] the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

[49] With regard to the date of retroactivity, the court in Gray, following D.B.S., stated that:

… a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

[50] In Colucci 2017, Spence J.A., summarized four factors cited in D.B.S. and Gray v. Rizzi that a court must consider in determining a request to retroactively vary a child support order:

The factors the court will consider include whether there has been unreasonable delay in seeking the variation, any misconduct of the payor parent, the circumstances of the child, and hardship to the payor.

[51] Spence J.A. made clear in Colucci 2017 that special circumstances apply when a payor seeks to retroactively reduce his or her support arrears, writing:

The issue of arrears calls for special consideration: see [D.B.S.] at para. 98, stating that the factors are not meant to apply when arrears have accumulated. “[T]he payor parent cannot argue that the amounts claimed disrupt his/her interest in certainty and predictability; to the contrary, in the case of arrears, certainty and predictability militate in the opposite direction.”

[52] This follows a point made at para. 62 of Gray v. Rizzi, that a recipient parent is entitled to the predictability of support payments and to arrange their affairs accordingly. That raises an obligation of ongoing disclosure on the payor. A payor looking to reduce support arrears has the onus of providing reasonable and timely notice, disclosing their inability to honour a support order. That will allow the recipient to meaningfully assess the situation and respond accordingly. The failure to honour this disclosure obligation and meet this onus “… most likely will impact the remedy which the court crafts.”

[53] The failure to refer to or apply the principles cited in D.B.S. and Gray v. Rizzi, amounts to a clear error in principle. (Colucci v. Colucci, 2019 ONCA 561, at para. 23, leave to appeal allowed in part [2019] S.C.C.A. No. 374 “Colucci 2019”)

Imputation of Income and Variation

[54] In considering a support variation application or motion to change, it is open to a court to impute income to a support payor. The CSG sets out a non-exclusive list of criteria that would allow a court to impute income to a support payor, including intentional underemployment. The relevant provision states:

Imputing income

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

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

[55] The leading Ontario case regarding the imputation of income to a support payor is the decision of the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.). At para. 32 of that decision, the Court described the imputation of income as:

... one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[56] As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala v. Pauli:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[57] In reviewing the case law, Chappel J. cites seven principles that apply to the imputation of income to a support payor:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.

2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.

3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

4. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.

5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute. (at para. 57, citations omitted).

[58] Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a payor, that discretion is not untrammeled. As the Ontario Court of Appeal stated in Drygala v. Pauli:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence. (at para. 44).

[59] In Drygala v. Pauli the Ontario Court of Appeal set out the following three questions which should be answered by a court in considering a request to impute income under s. 19 (1) (a) of the CSG:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable or health educational needs?

3. If not, what income is appropriately imputed?

[60] The test set out in Drygala v Pauli was refined by the Ontario Court of Appeal in Lavie v Lavie, 2018 ONCA 10. There, Rouleau J.A., speaking for the court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment (other than health or education needs) are not relevant. He wrote:

26 There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

[Emphasis added]

[61] Although Bastarache J. made no reference to the issue of intentional underemployment in D.B.S., his description of the term “blameworthy conduct” was broad enough to encompass intentional underemployment. As he wrote

106 Courts should not hesitate to take into account a payor parent's blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support…

107 No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct:

[Citations omitted]

In Light of the Applicable Test, has there been a Material Change of Circumstances since the Baltman J. order?

[62] The father’s materials refer to three potential material changes in circumstances since the time of the Baltman J. order. First, he has been unable to obtain employment that pays even the $22,200 per year income that is the basis of the Baltman J. order. Second, the father had eye surgery in 2017. These two issues are arguably related. Third, the oldest child, Jessica, is no longer a child of the marriage. I will deal with these issues in order.

Intentional Underemployment

[63] I must consider each of the first two reasons within the lens of the mother’s argument of his intentional underemployment. When considering the low amount of income that the father was earning at the time of the Baltman J. order, any argument that he was unable to even earn that income requires close scrutiny in the context of CSGs. 19(1)(a). Jeffery J. made his provisional order before the mother raised the issue of intentional underemployment. For that reason, Jeffery J. was not able to consider that issue.

Inability to earn $22,200 per year

[64] The father offers little evidence regarding the reasons that he allegedly was unable to earn even $22,200 per year. He asserts, without any explanation whatsoever, that he earned only $4,960 in 2014, three years before he brought his variation application. He offered no evidence of health or education related reasons for that alleged decrease in income. He also fails to demonstrate that he made good faith attempts to find alternate employment. Recall that he said that he worked in the U.S., while the mother said that he ran his mother’s Mr. Sub Franchise. What the father neglects to say is why he left Ontario to work in the U.S. for an income that is less than minimum wage. What he also fails to show the court is that he offered timely income disclosure to the mother before bringing this application.

[65] The father moved to Calgary in 2015. He stated that he followed his second wife and their child. He does not say why she or they as a family moved so far from Ontario. Nothing in his evidence shows that his move to Alberta was carried out with a thought to ensuring that he could meet his support obligations.

Cataracts and Eye Surgery

[66] The father claims that his cataracts and consequent eye surgery affected his ability to earn income. He does not say where he was working and how he was employed at the time of the surgery. He does not say how his cataracts affected his ability to earn income.

[67] The only medical evidence that the father provided was not helpful in this regard. He provided two letters from a Dr. Ellen Penno to his eye surgeon, Dr. Gohil. One letter is dated January 5, 2016, and a second is dated February 22, 2017. For the most part, those letters contain information in a form that is not accessible to a layman.

[68] Dr. Penno’s January 5, 2016, letter also states that the father claimed to have been told of cataracts four years earlier. It appears that he told Dr. Penno that he was living in Wisconsin, U.S.A. at the time. He had just received a new glasses prescription but was concerned that his vision was becoming blurry. He was placed on a waiting list for cataract surgery.

[69] The February 22, 2017, Dr. Penno letter shows that the father had a Calgary home address. It confirms that he was scheduled for surgery that fall. The main complaint seems to have been irritation “if [patient] concentrating/staring too long”.

[70] What is noticeable about both reports is that they do not offer any opinion about the father’s inability to work. They also do not set out the extent of the cataract problem in a manner that a lay person can understand. What is set out seems to be to the effect that the cataracts are in the mild range. I say this because Dr. Penno‘s second report offers the following “Impression/Treatment”:

cornea clear ou

ac quiet ou

3+ NS OU with mild cortical and central distortion OS

Discs mildly suspicious with normal OCT

Macula and periphery normal OU

[emphasis added]

[71] While it can be expected that the father would take some time off from any employment to recover from the cataract surgery, he has not provided the court with any evidence of the time required to do so.

[72] The father was scheduled for separate procedures for each eye, one week apart, in August 2017. If there was a lengthy recovery period for each surgery, why schedule the surgeries only a week apart? If not, where is the effect on his income? In the absence of evidence only the father can provide, it is hard to credit any argument that the father’s cataracts had any real effect on his ability to earn income.

[73] Once the mother has raised sufficient reasons to show intentional underemployment, the onus shifts to the father to explain his underemployment (see: Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142 (S.C.J.) at para. 18. If a medical reason is offered to explain the underemployment, cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy their burden (Cook v. Burton, 2005 1063 (ON SC), [2005] O.J. No. 190 (S.C.J) and Stoangi v. Petersen, 2006 24124 (ON SC), [2006] O.J. No. 2902 (S.C.J.)).

[74] The underemployment being clearly demonstrated, even on his own evidence, the father has failed to meet his onus of justifying it.

Jessica no longer a child of the Marriage

[75] Without citing the source of his information, the father claims that Jessica graduated from school in 2016 and started work thereafter. Thus, he argues, she stopped being a child of the marriage, entitled to support immediately after her graduation. Jeffrey J. accepted this argument in provisionally finding that Jessica ceased to be a child of the marriage as of May 1, 2016. With the benefit of the information available to me, I do not entirely accept that finding.

[76] According to the mother, who has the best information, Jessica graduated from York University’s Schulich School of Business in or about October 2016. She earned only $2,614.30 in the year of her graduation, a point borne out by her 2016 tax return. That amount would be the equivalent of a part-time summer job. Jessica started full-time work and stopped being a child of the marriage in January 2017. She later returned to school in September 2018, enrolling in the University of London School of Law.

[77] The remaining two children remain children of the marriage. They are still enrolled in their first undergraduate courses of study.

[78] The issue of whether Jessica’s status as a child of the marriage was reinstated at the time of her return to school in September 2018 may be a triable issue. But as I explain below, I do not know whether the mother is pursuing that issue and in any event, lack sufficient evidence to determine it.

Conclusion on Material Change in Circumstances

[79] In conclusion, and for the reasons set out above, I find that the only material change in circumstances that the father has proven is that Jessica has not been a child of the marriage from January 1, 2017, to at least August 31, 2018.

Issue No. 3: In Light of the material change in circumstances, what support should be ordered?

[80] In light of my answer to issue no. 2 above, I further find that:

1. The mother is entitled to support for three children, based on the father’s income of $20,200 per year until January 2017;

2. The mother remains entitled to ongoing child support for Sableena and Sherman from January 2017 onward;

3. I cannot make any determination in regard to the father’s obligation, if any, to contribute towards any of the children’s university expenses under s. 7 of the CSG as the mother has not made a request for any such payment.

Ongoing Support for Jessica?

[81] Because of the nature of this proceeding and the pleadings prepared by the self-represented mother, I am not even clear that she is still seeking support for Jessica, let alone whether she is entitled to it. The mother swore on April 25, 2018, that Jessica would be pursuing a law degree from the City University of London (U.K.) beginning in September 2018. On January 21, 2020, the mother orally represented to the court that Jessica began her studies at that law school in September 2018. However, this was a submission and not evidence. The mother has not provided the court with any further evidence in regard to the details of Jessica’s programme, the contributions made by each of herself and Jessica to the costs of attending school, and why Jessica is going to school in England as opposed to Canada.

[82] If the mother is claiming support for Jessica, she must explain why the father should continue to support their adult child while she is studying for her second degree. Further, she must supply the father and the court with proof of Jessica’s enrollment in law school, evidence of details of her programme, Jessica’s tax return and notices of assessment for 2018 (she has already provided Jessica’s 2016 tax return and 2017 notice of assessment) and proof of any income for 2019.

Suspension of Support for Jessica from January 2017 Onward

[83] Accordingly, I suspend the father’s child support obligation towards Jessica from January 2017 onward. Whether it resumes from September 2018 onward will depend on a number of factors, including whether the mother is still claiming support for Jessica for that period of time, and other factors to which I allude below.

Applicable Factors if the Mother is Seeking Ongoing Support for Jessica While Enrolled in Law School

[84] In Kim v. Kim, 2019 ONSC 4685, Fowler-Byrne J. of this court summarized a number of authorities that set out the factors a court must consider in regard to support for an adult child who continues in school. She stated:

11 The factors to consider when determining whether a child over the age of majority who continues their education remains a "child of the marriage" is well laid out in the decision of Menegaldo. At para. 157, Chappel J. states that the fact that an adult child is still undertaking educational studies may constitute "other cause" within the meaning of section 2(1) of the Divorce Act, but it is not in and of itself determinative of the issue of entitlement to child support. The entitlement analysis is a fact-driven undertaking in each case. The case law indicates that in order for the pursuit of post-secondary education to constitute "other cause" within the meaning of section 2(1)(b) of the Divorce Act, the court must be satisfied that the educational plan is reasonable in terms of the child's abilities, the plans and expectations of the parents in regard to the child's post-secondary education, and the needs and means of the child and the parents. Chappel J. adopted the reasoning of the Saskatchewan Court of Appeal in Geran v. Geran, 2011 SKCA 55, which indicated that the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is "unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child."

12 Chappel J. then outlined a number of factors at para.157 which should be considered in answering these questions. The collective list of factors were derived from the cases of Whitton v. Whitton, (1989) 1989 8868 (ON CA), 21 R.F.L. (3d) 261, (ONCA); Farden v. Farden (1993) 1993 2570 (B.C.S.C.); Geran; Rebenchuk v. Rebenchuk, 2007 MBCA 22; Haist v. Haist, 2010 ONSC 1283 [78] and Caterini v. Zaccaria, 2010 ONSC 6473. The considerations are as follows:

a) Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

b) Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

c) The ability of the child to contribute to their own support through part-time employment.

d) Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

e) In reviewing the child's education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

f) The child's academic performance, and whether the child is demonstrating success in the chosen course of studies.

g) The age, qualifications and experience of the child.

h) The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

i) Whether the child is performing well in the chosen course of studies.

j) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

k) The means, needs and other circumstances of the parents and the child.

l) The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

13 It is not necessary to establish all of the factors set out above to show that the child remains a "child of the marriage": Menegaldo, at para. 158.

[85] Because Jessica worked for about a year and a half before returning to school and because she is seeking a second degree, the factors that a court must consider in determining her entitlement to support are different from those for a child working towards their first degree (Menegaldo v. Menegaldo, 2012 ONSC 2915 & Rebenchuk v. Rebenchuk, 2007 MBCA 22). Further, the obligation of a parent to pay child support towards a child’s second degree is “…very much subject to the parents' ability to pay (Decaen v. Decaen, 2013 ONCA 218, at para. 58).

[86] Here, even if I do not accept the father’s argument of a diminished income, his baseline income is $20,200 per year, which is below a full-time minimum wage. It rose to about $23,000 in 2018, which is still below a full-time minimum wage in Alberta, which increased to $15 per hour on October 31, 2018 (see: https://www.alberta.ca/minimum-wage.aspx). On the other hand, Jessica earned $35,048 in 2017, about 75% more than that the father’s baseline income for that year.

Issue No 4: Should the Court reduce the father’s support arrears?

Father’s Arrears at the Time of this Application

[87] When considering his request to reduce his support arrears, I cannot ignore the fact that he was $8,704 in arrears of child support at the time that he brought this application. He has offered no good explanation, backed by cogent evidence, to explain this level of arrears.

[88] The mother swore that she had to singularly assume the responsibility to send the parties’ three children to university, with little help from the father. Even in the face of a minimal support order, the father was over $4,000 in arrears of Baltman J’s order at the time he moved to Alberta. This fact is borne out in the statement of arrears of the Family Responsibility Office (“FRO”), attached to the father’s November 29, 2017, affidavit. As of the first date set out in that statement, September 1, 2014, he was already $3,337.07 in arrears.

[89] In other words, even before moving to Alberta, the father was following the pattern described by the mother, of constantly failing to honour child support orders.

[90] The failure to pay proper support is a form of blameworthy conduct, as broadly described by Bastarache J., in D.B.S. This court cannot consider the father’s failure to pay proper child support, whether through intentional underemployment or simple refusal to pay the support ordered, as anything but blameworthy conduct. That conduct advantaged the father to the detriment of his children and the mother. She was suffering from her own medical issues but was forced to support the parties’ three children with little help from the father. Even in the face of a very modest support order, the mother was disadvantaged in collecting support from the father, not to mention requesting increased support when the children got to university.

[91] The point is made by Roberts J.A., writing for the Ontario Court of Appeal in Colucci 2019:

29 Particularly apposite is Chappel J.'s statement in Corcios, at para. 55, stating "[b]ehaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission of or reduction of arrears".

[92] For the reasons set out above, I am unwilling to reduce the father’s arrears of support retroactively for the period before January 2017. However, I do not have sufficient information to determine the actual arrears that have accumulated since that date, particularly in light of the order that I make below,

Order

[93] In light of my findings above, I do not confirm the order of Jeffrey J. Instead, I make an order upon the terms set out below:

1. The father shall pay child support as set out in the order of Baltman J. for all three children until December 31, 2016;

2. From January 2017-November 2017, inclusive, the father shall pay child support of $350 per month, representing the CSG table support for two children for the Province of Alberta for a payor earning $20,200 per year.

3. As the CSG table support amounts increased on November 27, 2017, the father shall pay to the mother $356 per month from December 1, 2017, to December 31, 2018, representing the revised table support for two children for the Province of Alberta for a payor earning $20,200 per year.

4. The father earned approximately $23,000 in 2019. Under the Alberta CSG tables for a payor earning that annual income, he is required to pay $366 per month in table support for two children. He shall do so from January 1, 2019, and continue doing so on the first day of each succeeding month until further order.

5. The issue of the father’s obligations towards Jessica, if any, are reserved to a further hearing, as set out below.

[94] As I am not in a position to consider the support status of Jessica after January 2017 without further evidence and confirmation from the mother that she continues to seek such support, and because I cannot determine the appropriate quantum of arrears that the father owes her, I further order as follows:

1. The mother shall advise the father and the court within 30 days of the release of these reason whether she is seeking support for Jessica from September 2017 onward. If she advises that she is not seeking such support or fails to advise the father and the court of her intentions in that regard within 30 days, she will be deemed to have abandoned that claim.

2. If the mother is claiming support for Jessica, I will require her to serve on the father and file with the court within 45 days:

i. proof of Jessica’s enrollment in law school,

ii. details of the payment of the costs of law school,

iii. details of the time that Jessica has spent in her home since she commenced school,

iv. Jessica’s tax returns and notices of assessment for the years 2017 onward,

v. details of the contributions made by each of the mother and Jessica to her school costs, details of any scholarships or bursaries, and any other evidence upon which she relies on to claim support for Jessica from September 2017 onward.

3. The father will have the right to reply to this evidence. He shall do so within 30 days of service upon him of the mother’s materials.

4. Also within 30 days, the mother shall schedule a further hearing before me to deal with the issue of arrears of support and support for Jessica, if claimed. If the father wishes, he may participate in the hearing by teleconference call.

5. The mother shall provide the court with an updated FRO statement of arrears going back to at least December 2016 and continuing to date, based on the new amounts set out in this decision. If she is unable to obtain such a statement, she may request the assistance of FRO’s ISO Unit.

6. A copy of this decision will be sent to FRO’s ISO Unit and to the father.

Costs

[95] As this proceeding is not fully completed, it is not appropriate to consider costs at this time. I am willing to do so, if requested, at the completion of this proceeding.

Kurz J.

Released: February 21, 2020

COURT FILE NO.: 1667/05

DATE: 20200221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sarabjit Gill

Applicant

– and –

Bhupinder Gill

Respondent

REASONS FOR JUDGMENT

Kurz J.

Released: February 21, 2020

[^1]: Note: The Colucci 2017,decision arose from the appeal of a summary judgment decision that dealt only with the jurisdictional issue cited above. A second Ontario Court of Appeal decision regarding the same parties, also titled Colucci v. Colucci, was released in 2019. That decision, cited below, deals with the trial on the merits of the father’s motion to change the original support order.