COURT FILE NO.: FS-18-41124 DATE: 2021 02 16 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: E.J., Applicant AND: K.A., Respondent
BEFORE: Conlan J.
COUNSEL: E.J., Self-Represented K.A., Self-Represented
Endorsement
I. Introduction
The Judgment on the Motion to Change
[1] In Reasons for Judgment reported at E.J. v. K.A., 2021 ONSC 284, I disposed of the Respondent father’s Motion to Change his child support obligation as ordered previously by Justice Gray.
[2] The father’s Motion to Change was allowed in part, and this Court invited further brief written submissions by the parties (both self-represented) on two leftover issues: (i) what income should be imputed to K.A. (the father) starting October 1, 2020, and (ii) costs (see paragraphs 32 and 34 of the Reasons for Judgment).
[3] This Endorsement, therefore, serves to supplement the Reasons for Judgment referred to above.
The Mother’s Position
[4] On item (i), the income question, the mother (E.J.) submits as follows, at paragraphs 2-4 of her affidavit sworn on January 22, 2021.
Based on his LinkedIn page and previous evidence filed with regards to his variation proceeding, the Respondent’s employment as a project Manager placed him is a leadership role as per Exhibit A, which describes his duties to include allocation of adequate resources, scheduling, documentation, budget, and other factors necessary for the project success from Indeed.com.
However, as a person going through mental challenges which is not a permanent disability, the Respondent is still effective in a less decision-making role with modified duties/responsibilities in Ontario or elsewhere. This will include a lesser role as a Construction Coordinator, Project Coordinator or Project Engineer with an annual salary (marked as exhibit B) within the ranges of $53,694.00 and $88,082.00
Furthermore, based on his software skills as an Environmental Engineer, age (50years old), extensive work experience and capacity, I believe that despite his health challenges, the Respondent is employable within the same industry but in a modified role.
[5] On item (ii), costs, the mother did not make any submissions, at least none that has been brought to my attention.
The Father’s Position
[6] On item (i), the income question, the father submits that it should be his pension income or, alternatively, a minimum wage in Canada (see paragraph 1 of his affidavit sworn on January 22, 2021).
[7] On item (ii), costs, the father submits that each side should bear its own costs because success was divided (see the document that he filed titled “Costs Outline”).
II. Decision
The Income Question
[8] On issue (i), the imputed income debate, the father’s primary position is directly contrary to my Reasons for Judgment (see, for example, paragraph 22 therein). The more serious question is whether this Court will accept his alternative position, which would have his income attributed at $27,360.00 [that figure is my calculation based on the current minimum wage in Ontario ($14.25 per hour), forty paid working hours per week, and 48 paid working weeks per year (leaving some room for unpaid vacation time)].
[9] I do not accept that alternative position, either, as the said figure is below what the father himself declared as his annual gross income on his recent Financial Statement. In that regard, reference is had to paragraph 5 of the mother’s affidavit sworn on January 22, 2021, reproduced below.
Although it may be reasonable to impute income to the Respondent based on his recent financial statement sworn on November 9, 2020, I ask the court to defer from relying upon this information which shows a monthly income is $3,023.00 or $36,240 per annual.
[10] The said Financial Statement sworn by the father clearly shows his annual gross income to be more than $36,000.00, and that is for a period of time (November 2019 to November 2020) that he was on sick leave, without pay, from the Government of Nunavut.
[11] I do not accept the mother’s principal position either, however. I am not satisfied on balance, given his medical condition, that it is reasonable to impute an income to the father in the range suggested by the mother – a low of $53,694.00.
[12] In the end, I have decided to adopt the mother’s alternative approach – to fix the father’s income at something higher than what he declared on his recent Financial Statement, on account of what the mother submits at paragraph 6 of her affidavit sworn on January 22, 2021, set out below, which submission I accept.
My rational for the above statement is that the Respondent failed to make proper financial disclosure prior to the hearing of this motion to support his earnings as an uber driver. He also failed to provide reliable information such as bank statements of his pension benefits consistent with his obligation to disclose.
[13] There is a certain degree of arbitrariness to this exercise, which this Court unfortunately cannot avoid. $40,000.00 will be the figure.
[14] Thus, to be clear, with reference to paragraph 35 of my Reasons for Judgment, the Order of Gray J. shall be varied such that K.A., commencing on October 1, 2020 and on the first day of each consecutive month thereafter, shall pay child support in accordance with the Table amount in the Federal Child Support Guidelines based on an imputed gross annual income of $40,000.00. Further, the said Order shall be varied such that, commencing on October 1, 2020, the division of section 7 expenses between the parties shall be 32% for K.A. and 68% for E.J., based on their respective gross annual incomes of $40,000.00 (K.A.) and $85,000.00 (E.J.).
[15] A new Final Order shall issue accordingly, along with a Support Deduction Order, as the child support payments owing by K.A. shall be enforced through the Family Responsibility Office.
The Costs of the Motion to Change
[16] On issue (ii), costs, taking into consideration only the submissions made by the father, I agree with him that there has been divided success, and thus, there shall be no costs ordered payable by either side.
(“ Original signed by ”)
Conlan J.
Date: February 16, 2021
