Ladouceur v. Dupuis, 2020 ONSC 8048

COURT FILE NO.: 148-2018

DATE: 20201222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marie-France Ladouceur

Applicant

– and –

Alain Dupuis

Respondent

Frederic P. Huard, counsel for the Applicant

Russell A. Molot, counsel for the Respondent

HEARD: December 11, 2020

lacelle j.

RULING ON MOTION TO VARY CHILD SUPPORT

Introduction

1The Respondent applies to vary the interim child support order made on October 19, 2019 because his income has changed. He seeks to vary the order that he pay $415.00 per month to the Applicant and confirm an order that the Applicant pay him a set-off amount of child support in the amount of $89.00 per month from and after January 2020. This is based on the parties’ respective incomes for 2019. As a corollary, he seeks an order that the overpayment of child support he has made to the Applicant in the amount of $6, 048.00 be payable to him forthwith. These figures reflect adjustments to the evidence made in the course of the hearing and do not accord with the figures in the notice of motion.

2The Applicant opposes the motion, both as regards ongoing child support and any adjustment for arrears. She asks that the Respondent’s motion be dismissed.

3The case is on the trial list for April 2021.

The positions of the parties

4The Applicant argues that he has met the test in s. 14(1) of the federal Child Support Guidelines and may seek to vary the existing child support order because his change in income between 2018 ($138, 658.00) and 2019 ($98, 679) is a change that would result in a different order. He says that while his income is lower than in 2018, this is because he received a promotion to a managerial position and is no longer eligible to work overtime. He emphasizes that he applied for and was awarded this position at a time when the parties shared joint custody of their children. He submits that at the time, child support had not been claimed by the Applicant or ordered by the court. He urges the court to find that his conduct in accepting a promotion to a managerial position cannot credibly be characterized as “under employment”. In any case, he says that the Applicant cannot succeed in her effort to have income imputed to him because she has not requested that relief in a motion of her own.

5The Applicant argues that the Respondent has not demonstrated a material change in circumstances that would permit interference with the existing interim order. She emphasizes the proportionality of litigating this motion on the eve of trial when there are a number of outstanding issues between the parties. Her counsel emphasizes the equities of this situation, where the Applicant has now been cleared of criminal charges that resulted from a complaint by the Respondent (who she says used the criminal process for his advantage in the family proceedings), and the fact that she is unable to access the equity in the matrimonial home because of ongoing conflict about its sale.

6In any case, the Applicant says it was not reasonable for the Respondent to reduce his income. Regardless of the timing of that decision, the Respondent has an obligation to provide for his children to the maximum of his ability. His income should be imputed to be at least what it was in 2018 ($138, 658.00) since it is consistent with the approximately $130, 000.00 average income he had between 2016-2018.

7The Applicant also argues that the Respondent has not disclosed the details of his recent inheritance from his mother’s estate and he has therefore failed to make the disclosure that he is required to at law. In all the circumstances, the court should find the Respondent is intentionally under employed (as per s. 19(a) of the CSG)), and that he likely has property that can be used to generate income (as per s. 19(e) of the CSG). The failure to disclose the details about the inheritance mean that neither the Applicant or the court can address whether s. 19(e) applies. Since the court is unable to determine the Respondent’s income on this record, and affidavit evidence is not sufficient given the issues raised in the motion, any recalculation of child support owed for 2019 should be addressed at trial.

8In the event the court does not agree with her position, the Applicant accepts the Divorce Mate calculations submitted during the hearing as the basis for determining child support and arrears owing.

9In reply, the Respondent submits that his inheritance only becomes an issue if it could become an income source, and it is, in effect, irrelevant to this motion. He points out that his mother died in May of 2020, and any income generated from the proceeds he inherited from her estate (about which the court has no evidence) could only become relevant to his income for 2020.

The existing child support order

10In September of 2019, the parties agreed on terms for retroactive and ongoing child support. That agreement was incorporated into the order made by Laliberte J. on October 11, 2019 in his ruling on other issues which had been argued at a motion before him.

11The court ordered that commencing on September 1, 2019, the Respondent would pay the Applicant monthly set-off child support for the benefit of their two children in the amount of $415. This amount was based on the Applicant’s income of $104, 678.00 for 2018 and the Respondent’s 2018 income of $138, 658.00. It accords with the Child Support Guidelines.

12As for arrears owing, these were fixed for the period of June 1, 2017 to August 31, 2019 at $11, 395.00. The court ruled that “[t]hese arrears of child support shall be either added to any amount owing to the Respondent on equalization or subtracted from any amount owing to the Applicant at the end of proceedings or once the parties have agreed on the numbers”.

Factual background

The evidence of the Respondent

13The parties married in 2008 and separated in 2017. After the separation, they agreed to a shared custody arrangement for their two children.

14On August 3, 2018, after the Applicant was charged criminally, the children became primarily resident with the Respondent. The Applicant’s criminal charges were withdrawn by the Crown on July 31, 2019. At a subsequent motion before Laliberte J., a week-on/week-off parenting schedule was ordered by the court. The parties have shared custody since that order.

15The Respondent works for the Government of Canada in the House of Commons. He began his career with this employer in 2006 as a Senior Analyst. He had reached the top level of promotions available to an analyst by 2016.

16Eventually, the Respondent applied to be a manager. He states that a managerial position would allow him to forward his career. He asserts that over the course of the marriage, he and the Applicant discussed his career prospects. He says the Applicant encouraged and supported his decision to move up the government career ladder because it would mean not only increased salary, but increased retirement benefits down the road.

17In 2018, the Respondent was working as a Senior IT Analyst with a base salary of $88, 420. With overtime hours, his income for 2018 was $138, 658.00. In 2018, he worked nights and weekends, which paid double his usual rate, to assist with work upgrading the network infrastructure in the House of Commons.

18In the summer of 2018, the Respondent applied to become a “team leader”. On October 29, 2018, he was selected for the position “IT Operations Team Leader”. While this position did not give him the option of overtime hours, his base salary increased to $93, 231.00.

19The Respondent says it is patently false that he took a lower-paying position because he did not want to pay child support. He says he took the position because it is higher status and opens up more opportunities for career growth. At the time he applied for the position, he says he and the Applicant had been operating on the basis of a shared custody scenario. He says that they had both agreed that neither would be seeking support from the other because their salaries were relatively close and it would make little difference to either household.

20The Respondent expects that the dip in his income is temporary as he continues his career growth. He states he is excelling in the position and given his experience as an Acting Team Leader for two years before obtaining the official position, he is being eyed by the department manager and deputy director for movement “up the ladder”.

21The Respondent’s 2019 line 150 income in this new position was $98, 679.00.

The Applicant’s evidence

22The Applicant denies that she and the Respondent discussed the prospect of him accepting this kind of position during the marriage. She states that to the contrary, the Respondent suggested to her on many occasions that he would most likely not be a suitable candidate for a management position because of a prior brain injury which she says left him with certain deficits.

23The Applicant states that for the past 7-8 years, the Respondent has been making over $100, 000. She asserts that he only accepted a management position in 2019 in an attempt to avoid his responsibilities to pay child support. When she served her Application on July 31, 2018, she says the Respondent was well aware that she was seeking child support on an ongoing basis and retroactively.

24The Applicant indicates that the Respondent’s line 150 income was as follows between 2015 and 2018: 2015 - $105, 197.00; 2016 - $130, 000.00; 2017 - $136, 702.000; 2018 - $138, 658.00. This results in an average income of $135, 120.00 for the years 2016-2018.

25The Applicant confirms that her 2019 income was $105, 897.00.

26The Applicant states that given the discrepancy in the last financial statement filed by the Respondent and his 2019 income, she suspects he is funding his lifestyle by using money from an inheritance from his mother, who passed away on May 9, 2020.

Additional information

27The date of issue on the Applicant’s Application is July 25, 2018. In that application, the Applicant claims support for the children based on a set-off of the incomes of the parties.

28The Application and other materials were served upon the Respondent on July 31, 2018.

Findings of fact

29While there are significant disputes about certain facts pleaded by each party, it is not necessary to resolve all of those differences to address the issues on the motion. I accept the evidence of each except where it conflicts with that of the other.

30More specifically, I accept that the Respondent applied for his current position on July 24, 2018, given the documentary evidence confirming this timeline. This was before he was served with the Application in this case. I further accept that he was formally offered the position on November 1, 2018 and accepted it on November 6, 2018. This was some months after he had been served with the Application and had been put on notice that child support was a live issue.

31I further accept that the Respondent’s mother died in May of 2020. I have no other information about her estate or what the Respondent will inherit from it.

32The characterization of the Respondent of his current position as a promotion is not disputed by the Applicant. Indeed, a letter attached to her affidavit from the Pay and Benefits department for the House of Commons refers to the Respondent as having been “promoted into a Team Lead position” on October 29, 2018.

33I accept that the Respondent’s new position may be characterized as a “promotion”. I have nothing but the Respondent’s evidence as to the potential impact of this promotion on his career prospects. There is nothing in the evidence that causes me to doubt that even if overtime is no longer available to him, the Respondent’s new position will provide him with greater opportunity for advancement with his employer.

34On a balance of probabilities, it seems fair to conclude that as he suggests, his base salary can be expected to increase if he advances further. In support of this conclusion, I note that the evidence before me is that his salary has increased over $5, 000 annually in the brief time since he took the position.

35The evidence is clear that the effect of this promotion has been that there is a significant difference in the Respondent’s income from 2018 ($138, 658.00) to 2019 ($98, 679.00).

Analysis

36The first issue to be determined in this matter is whether the Respondent has demonstrated a change in circumstances that permits me to review the terms of the existing order.

37This case is governed by the Divorce Act. Section 17(4) of that Act holds that:

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.

38In turn, section 14 of the Federal Child Support Guidelines ( hereinafter “CSG”) provides that

any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; …

39I also consider the case law which has discussed variation of interim orders in the family law context. It confirms that interim orders are not meant to be long term solutions. They are intended to provide a “reasonably acceptable solution to a difficult problem until trial” and are based on limited and typically untested information: Colivas v. Colivas, 2013 ONSC 168 at para. 15; Chaitas v. Christopoulos, 2004 66352 (ON SC).

40The jurisprudence with respect to variation of interim support orders indicates that such applications are not to be encouraged and that a substantial change in circumstances is necessary before such an application should be permitted: Biddle v. Biddle, 2004 52809 (ON SC) at para. 18; Lipson v. Lipson, 1972 CarswellOnt 133 (Ont. C.A.). The onus on such an application is on the person seeking to vary the order: Lipson at para. 3.

41I have considered whether this motion involves an issue which can only be fairly assessed following the testing of the evidence in a trial, and whether the relief sought by the Respondent should be left to a determination by the trial judge. I have decided that it should not. The motion may fairly be decided on this evidentiary record.

42There is no doubt that the Respondent’s income has changed. The change is significant enough that according to the tables used to calculate child support, it results in a set-off payment of $89 to the Respondent by the Applicant, as opposed to his current payment to her of $415. While the parties have healthy incomes, I think it is fair to assume that the differences in these sums are not minor for either and these ongoing payments matter to both households.

43While it is clear that there has been a change in income, what is chiefly in dispute in this motion is whether this change should prompt the court to find that the Respondent is “intentionally under-employed” within the meaning of s. 19(1)(a) of the CSG. If he is, then an imputation of income by the court might be considered (leaving aside the issue of whether the court might do so on a motion where the Applicant has not filed a cross-motion seeking that relief). If the Respondent is not “intentionally under-employed”, then the analysis goes no further, at least in respect of s. 19(1)(a).

44As far as the Applicant’s arguments about an inheritance and the application of s. 19(1)(e) of the CSG are concerned, I am not persuaded on this record that any income that may be generated from an inheritance is a live issue as it relates to the Respondent’s income for 2019. I make no finding about how that issue may affect the assessment of child support for 2020. As far as this motion is concerned, I find that only s. 19(1)(a) is relevant to the analysis because the only timeframe I am addressing on this motion relates to 2019.

45As to whether the Respondent is “intentionally under-employed”, I have considered whether viva voce evidence is necessary in respect of the timing of his application for and acceptance of his current position vis-à-vis the filing of the Application and his awareness that child support was a live issue. Ultimately, I agree with Applicant’s counsel that regardless of the timing of the Application and formal notice of the claim for child support in this case, a parent has an obligation to support his or her children and it would be open to a court to find the person was intentionally under-employed based on conduct (or lack of it) that pre-dated any application. In any case, the timing of the Respondent’s acceptance of his new position is not so critical in this case that the outcome might change if viva voce evidence was heard.

46I am of this view because, in the end, I am compelled to the conclusion that the Respondent is not “intentionally under-employed” because I am satisfied on a balance of probabilities that his new position is a promotion taken with a view to advancing his career. While taking this position has had the impact of reducing over-time hours available to him, it has increased his base salary. On one view, it guarantees him a higher salary regardless of the continued availability of overtime hours. For instance, his base salary now is over $10, 000 more than his base salary as an analyst in 2018. I note as well that there was a considerable discrepancy in his salary between 2015 and 2016. While I am mindful that I have no evidence about the reasons for that discrepancy before me, this discrepancy at least demonstrates the variability in his salary in his former position as an analyst.

47In any case, the Respondent has taken a managerial position with the same employer following a work history of acting in the position while the parties were together. It is reasonable to expect that this position will present other opportunities for the Respondent which may be of benefit to his children and their future support. I am not persuaded that further viva voce evidence from the parties at trial might produce a different conclusion given the straightforward evidence about the nature of the new position, its remuneration, and the opportunities for advancement (and increased remuneration) this position might be expected to provide.

48The Respondent has satisfied me on a balance of probabilities that there has been a material change in circumstances within the meaning of s. 14 of the CSG, and that the change in his income has not occurred because he is “intentionally under-employed”.

49While I have considered the Applicant’s submissions about the issues that remain to be decided in this litigation and the cost efficiency of proceeding with this motion now, in the end, having established a change in circumstances sufficient to modify the child support order under s. 14 of the CSG, and having regard to the significance of the ongoing child support payments to both households, I have no principled basis to deny the Respondent the variation he requests.

50Consequently, the child support order shall be varied as requested by the Respondent. From January 2020, it shall reflect the set-off amount following a calculation done with the parties’ incomes for 2019. This results in support owing by the Applicant of $1, 544 and by the Respondent of $1, 455. Applying the set-off, the Applicant owes the Respondent $89 monthly. Applying these new amounts, arrears are owed to the Respondent by the Applicant in the amount of $6, 048.00 for the period of January 1, 2020 to December 31, 2020.

51As for the payment of those arrears, the Respondent requests that payment be ordered on a “forthwith” basis. However, there is an existing order that provides that “arrears of child support shall be either added to any amount owing to the Respondent on equalization or subtracted from any amount owing to the Applicant at the end of proceedings or once the parties have agreed on the numbers”. Given the issues that remain to be addressed between the parties, in my view, it is just to make the identical order in respect of the arrears owing for 2019.

52If the parties cannot agree on costs, submissions of not more than two pages plus attachments may be directed to my attention. The Respondent shall have four weeks from the release of this decision to file his submissions. The Applicant shall have two weeks to respond. The Respondent may file a reply within a week of receipt of the Applicant’s response.

The Honourable Justice Laurie Lacelle