COURT FILE NO.: 685/19

DATE: 20210308

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Katharine Jane Dalgleish, Applicant

AND:

Robert David Spencer, Respondent

BEFORE: Mr. Justice Robert B. Reid

COUNSEL: C. Runco, Counsel, for the Applicant

No one appearing for the Respondent – Ex parte

HEARD: January 27, 2021; written submissions received February 9, 2021

ENDORSEMENT as to provisional order

[1] The applicant has made a motion to change the order of Justice J. Walsh of the New Brunswick Court of Queen’s Bench dated April 13, 2018. She seeks an order retroactively varying the child support provisions contained in that order and rescinding arrears.

[2] The motion to change is dated September 16, 2019. At that time the applicant was a resident of the province of Ontario. She currently resides in the province of Saskatchewan. The matter comes before this court under the provisions of s. 18 of the Divorce Act (the “Act”) pursuant to which this court may make a variation order in the absence of the respondent which is provisional and has no legal effect until it is confirmed pursuant to section 19 of the Act.

[3] The applicant gave evidence at an oral hearing conducted virtually on January 27, 2021 and counsel provided written submissions dated February 9, 2021.

Background:

[4] The parties are the parents of two children: Oscar Cole Spencer, born on June 28, 2004 and Hillary Paige Spencer, born August 2, 2005.

[5] The respondent has decision-making responsibility for the children and their primary residence is with him.

[6] The order of April 13, 2018 requires the applicant to pay child support to the respondent in the monthly amount of $611 based on her 2017 income of $41,580.

[7] The motion was scheduled to be heard March 6, 2020 but was adjourned due to the illness of counsel. Following several further adjournments, a motion was granted permitting the matter to be heard virtually and on December 3, 2020, the hearing was set for January 27, 2021.

Changes to the applicant’s earnings:

Narrative History:

[8] At the time the parties consented to the order, Ms. Dalgleish was a resident of New Brunswick but was about to move to Ottawa, Ontario with her new partner (now husband) who had relocated to Ottawa several months earlier due to changes in his employment situation.

[9] The applicant had been an employee of Rogers Communications in its call centre in Moncton. She arranged for a transfer to the Ottawa branch of Rogers in a similar role and for similar pay.

[10] On relocation to Ottawa she discovered that her residence with her partner was at the opposite end of the city from the location of her employer. As result, she experienced a longer than anticipated commute to and from work. Further, she had an unfriendly reception at Rogers. She was assigned an aspect of Rogers’ customer service work with which she was not familiar and without training or orientation. Her designated shift was from 4:00 p.m. to 12:00 midnight requiring her to commute home at night.

[11] As a result, Ms. Dalgleish became anxious. The Rogers human resources department was unable to accommodate her concerns. She was granted a short-term leave from the company to address her worsening mental health.

[12] She sought medical advice through a walk-in clinic. The resulting medical note was not detailed enough for the satisfaction of the Rogers human resources department, and she had no family physician. She was advised that she was not eligible for any type of Rogers’ disability benefits under its health care plan.

[13] The applicant resigned from Rogers on April 27, 2018 and immediately secured a full-time counter service position at a local Tim Hortons franchise in Ottawa. That location was closer to her home and provided regular daytime hours from 6:00 a.m. to 2:00 p.m.

[14] In November 2018, the applicant relocated with her partner to the city of St. Catharines in the Niagara region of southern Ontario. The move was to accommodate her partner’s employment following his layoff in Ottawa. The applicant secured a one-year position with a lawyer in Hamilton, Ontario effective from January 11, 2019, at an hourly rate of $18 plus 4 percent in lieu of vacation.

[15] As a result of the changes in her income, the applicant tried to negotiate a reduction of her child support obligation with the respondent. When negotiations failed, she commenced this motion to change.

[16] In August 2019, the applicant resigned from her employment in Hamilton. She alleged that she was being emotionally bullied by another staff person at the law office. As well, she described a high financial and emotional cost to the 45-minute commute each way between her residence in St. Catharines and the Hamilton workplace.

[17] She was unable to find alternate employment for the balance of 2019 and could not claim Employment Insurance benefits because she voluntarily left her previous employment. From March 2020, possible employment opportunities were limited further due to the onset of the COVID-19 pandemic. She applied for and received CERB benefits.

[18] Her husband accepted an opportunity for employment in Saskatchewan in April or May 2020 and they relocated there from Ontario.

[19] The applicant looked for work in Saskatchewan, initially without success. She has a limited skill set with a grade 12 education and a one-year college course in administrative support.

[20] In late 2020 the applicant found secure employment in Saskatchewan as an administrative support person with the Saskatchewan Health Authority where she now works on an on-call basis without guaranteed hours.

[21] As of October 15, 2020, her support arrears were $10,197.

Income earned:

[22] The applicant’s 2018 Notice of Assessment shows total income of $31,665. That sum is comprised of her income from Rogers Communications in Moncton and briefly in Ottawa, plus her income from Tim Hortons from April through October.

[23] Her 2019 income totaled $22,320, derived from income at the law firm from January 11 through the end of August, which represented about 33 weeks.

[24] The applicant had not completed her 2020 income tax return at the date of the hearing but advised that her total income from 2020 was $17,600 based on $15,600 from CERB benefits and the balance from her work for the Saskatchewan Health Authority.

Analysis:

[25] There obviously has been a change in the applicant’s income from the date of the April 13, 2018 order. Her relocation to Ottawa was contemplated, but with the expectation that her work at Rogers would continue with a similar rate of pay. The job change to Tim Hortons, followed by two further relocations were not contemplated. Therefore, there appears to have been a material change in circumstances pursuant to s. 17(4) of the Divorce Act subject to the provisions of the Federal Child Support Guidelines.

[26] Under s. 19(1)(a) of the Guidelines, the court may impute income in appropriate circumstances, including a situation where the (former) spouse is intentionally under-employed or unemployed.

[27] In this case, the applicant’s 2018 income was reduced by $9,415 compared to 2017 as a result of her changing employers from Rogers to Tim Hortons and further as a result of her relocation to St. Catharines. I accept that her resignation from Rogers was stress-related and note that she immediately found full-time replacement employment, albeit at a reduced hourly rate. It was not unreasonable for her to relocate to St. Catharines with a resulting short-term reduction in income. Therefore, I do not impute income to the applicant for 2018.

[28] In 2019, the applicant found work beginning January 11 until her resignation at the end of August. Work was available as per her temporary contract through to the end of 2019. Assuming a weekly rate of $676 (established from her income earned between January 11 and August 31), her failure to work the remaining weeks of 2019 reduced her income by $11,492. If a two-week Christmas break is excluded, her potential income was reduced by about $10,000.

[29] There was no medical evidence supporting the applicant’s decision to resign, unlike the situation in Ottawa. Further, she had no alternative employment opportunities available. It seems self-serving and inconsiderate of her support obligation to her children to have quit her job in Hamilton. The additional consideration that she provided, namely that it was a lengthy and stressful commute, was no different at the end of August than it was during the first eight months of 2019. For those reasons, I conclude that the applicant was deliberately unemployed from September through December 2019 and I impute an additional sum of $10,000 to her 2019 income.

[30] In 2020, the applicant was unable to find alternative employment. That situation was exacerbated by the pandemic. It was not unreasonable for her to relocate to Saskatchewan and to have accessed CERB benefits available to her until she was able to find work. Therefore, I accept that her total income for 2020 was $17,600, which amount will presumably be verified by her Notice of Assessment in due course.

Conclusion:

[31] Based on the Federal Child Support Guidelines for Ontario, the applicant’s income for 2018 of $31,665 supports monthly child support payments of $483 for two children.

[32] The applicant’s actual income for 2019 of $22,320 plus imputed income of $10,000 totals $32,320. Based on the Federal Child Support Guidelines for Ontario, that income supports monthly child support payments of $492 for two children.

[33] The applicant’s total income for 2020 was $17,600. For the first four months of that year, she was resident in Ontario. At that income level, the Federal Child Support Guidelines for Ontario provide for monthly child support of $251 for two children. For the last eight months of 2020, the applicant was a resident of Saskatchewan. As such, the Guidelines applicable to that province indicate a required monthly support payment of $254 for two children.

[34] Based on the foregoing, there will be a provisional order that the order of April 13, 2018 be varied to require child support payable by the applicant to the respondent for the two children of the marriage in the monthly amounts of $483 for 2018, $492 for 2019, $251 for the first four months of 2020 and $254 for the last eight months of 2020. Existing arrears will be adjusted accordingly.

Reid J.

Date: March 8, 2021