COURT FILE NO.: FC-10-3116-4
DATE: 20210409
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMANDA LOUISE HOPE
Applicant
– and –
DAVID JAMES CASSIDY
Respondent
Self-Represented
Self-Represented
HEARD: in writing
REASONS FOR decision
Audet J.
[1] This is a motion brought by the applicant mother seeking to vary the respondent father’s child support obligations retroactive to January 1, 2013. She also seeks an order that the father be required to maintain medical and dental insurance for the benefit of the child. Her motion was filed in May 2018, in British-Columbia.
[2] The parties are the parents of Eleonore, who was born on May 15, 2003. At the time the mother’s motion to vary was filed, she was 15 years old. She will turn 18 in less than two months. She has been in her mother’s sole care throughout her life (the parties separated before she was born). Eleonore currently lives in British-Columbia with her mother. Up until 2016, Eleonore and her mother lived in Australia. In August 2016, mother and child permanently moved to BC.
[3] On March 5, 2012, Beaudoin J. from the Ontario Superior Court of Justice made an order, on consent, confirming the registration of the Order from the Australian Government Child Support Agency (“CSA”) made on December 10, 2010 (“the 2010 Australian Order”), pursuant to s. 19 of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, Chapter 13.
[4] The Australian Order confirmed arrears of child support owing by the father to the mother in the amount of $27,545.36 CAN for the period of May 14, 2007 to October 1, 2010. The father’s support for that period was based on his disclosed income for those years, varying from $116,270 AUD to $36,504 AUD (roughly $105,000 to 32,000 CAN). I am unaware as to how the Australian CSA determined the father’s income for those years, but I note that, although it was based on a significant income for the years 2007 and 2008 (over $100,000 AUD for each year), the father’s income for the following years, and beginning in August 2008, was significantly reduced.
[5] The child support owing by the father each year was determined and calculated in accordance with the child support legislation in effect in Australia. Based on the periodical assessments produced by the Australian CSA, it appears that the legislative formula considers both parents’ incomes, how much it costs to raise a child, the percentage of care each parent provides, and follows an eight-step process. Based on that formula and based on the registration of the 2010 Australian Order in Ontario, the father’s child support obligation was reassessed periodically over the years and enforced by the Family Responsibility Office (“FRO”) in Ontario.
[6] It is the mother’s contention that since 2013, the father has always refused to provide the Australian CSA with updated information about his income. In order to prove that she has made three requests for updated income information from the father through the Australian CSA and the FRO and upon which the father’s child support obligations could be reviewed, the mother has made significant efforts to obtain a copy of the CSA’s files through the Australian’s access to information legislation, with limited success.
[7] I accept that the mother has made efforts, dating back to 2013, to obtain the father’s updated income information through requests made to the Australian CSA and the FRO. The father does not dispute that when requested to provide his income information by the Australian authorities beginning in 2012, he did not do so. He explains that he had been continuously requesting a paternity test from the mother before agreeing to pay any child support, something that the mother consistently refused to do until he hired a lawyer and same was provided in 2014. He does not deny that, after his paternity was confirmed in 2014, he still did not provide his income information to the Australian authorities. He acknowledges that from 2012 onward, he was required to pay child support, and explained that he did what he could, given his limited financial means at the time (he filed for bankruptcy in 2014).
[8] I find that the Australian CSA’s assessment of the father’s income for the years 2013 to 2016, as detailed below, was made on a “without prejudice basis”, without having received any income information from the father. This is why the periodical child support assessments made by the Australian CSA for those years clearly indicate that they were based on a “provisional” determination of the father’s income, and as such resulted in “provisional” child support orders. The father’s provisional child support obligations for the years 2013 to 2016 were based on the following provisional income determinations:
May 2012 to August 2013: $43,243 AUD
August 2013 to November 2014: $44,758 AUD
November 2014 to September 2015: $47,046 AUD
September 2015 to February 2016: $47,046 AUD
[9] The currency converter filed in evidence by the FRO for enforcement purposes indicates that the exchange rate during those years was almost at par ($1 CAN = $1 AUD).
[10] The father’s income based on his income tax returns for the years 2015 and 2016 confirms that he has earned much more than the income that was assessed by the Australian authorities.
[11] When this motion to vary first came to the attention of Shelston J. in January 2019, he sought the following additional information from the father:
Copy of his 2013- and 2014-income tax returns and notices of assessment;
Copy of his December 2018 business financial statement and 2018 income tax return;
Copy of his existing contract for services with Maplesoft and any new contract effective April 1, going forward.
[12] Although he filed an additional affidavit in response to Shelston J.’s endorsement, the father did not provide a copy of his 2013 and 2014 income tax returns, his December 2018 business financial statement, or his existing contract for Maplesoft (or an explanation as to why one could not be provided). He reiterated his position that Justice MacEachern had, on November 27, 2018, confirmed that he owed arrears in the amount of $20,833.19 (as of that date), and that her decision disposed of all issues related to the mother’s adjustment claim retroactive to 2013.
[13] For reasons set out in my prior decision in this matter (released on October 10, 2019), I clearly explained to the father that MacEachern J.’s decision, made in the context of enforcement proceedings initiated by the FRO, was not determinative of his child support obligations for those years, and gave him an additional 20 days within which to provide the financial information ordered to be produced by Shelston J., failing which, an adverse inference would be drawn and income would be imputed accordingly.
[14] On November 5, 2019, the father submitted a supplementary affidavit. It still did not include his 2013- and 2014-income tax returns and notices of assessment. The father states in his supplementary affidavit the he first provided his disclosure in 2018 dating back to his bankruptcy in 2014 and that all of his notices of assessment from 2014 to 2018 were provided to the Court and to Alan Hirsch (counsel for the FRO) in the context of the support enforcement proceedings (for the purpose of the hearing before MacEachern J.). I note from reading the Endorsements made by the Court in the context of the FRO’s enforcement proceedings that the father was only ever ordered to provide his income tax returns and notices of assessment for the years 2015 to 2018. I further note that it is not sufficient, nor appropriate, for the father to answer the Court’s request for production by saying that those documents were previously provided in another court proceeding or to another party in that other court proceeding.
[15] Having failed to provide the court-ordered income disclosure for the years 2013 and 2014 as ordered on two occasions, adverse inferences will be drawn against the father, as warned.
[16] I acknowledge that in his supplementary affidavit, the father did provide the balance of the information he had been ordered to produce by the Court.
The father’s Income
[17] The father’s income tax returns for the years 2015 to 2019 confirm that he earned the following income:
a) 2015: $93,373.65, comprising exclusively of employment income from the University of Ottawa;
b) 2016: $94,318.88, comprising exclusively of employment income from the University of Ottawa;
c) 2017: $66,980.11, comprising exclusively of employment income from the University of Ottawa;
d) 2018: $19,500, comprising exclusively of employment income from 2602280 Ontario Inc. (a corporation belonging to the father)
[18] From 2013 to 2017, the father was employed on a full-time basis by the University of Ottawa as a computer programmer. To explain the significant reduction in the father’s income starting in 2017, the father provided evidence, including medical evidence, which confirms that he has suffered from a heart condition which worsened significantly in 2017, leading to a number of small strokes, and eventually leading to a heart surgery which was scheduled to take place one week after the father filed his November 2019 affidavit.
[19] The father argues that his heart condition significantly impeded on his ability to work and to earn income from 2017. In a letter dated August 30, 2018 from Dr. Chamoun from the Ottawa Cardiovascular Centre, he states:
I have been treating Mr. Cassidy for dilated cardiomyopathy since 2004. Dilated cardiomyopathy is a condition that weakens the heart but can be managed. This is a serious condition and Mr. Cassidy has been stable until recently.
In the past year, Mr. Cassidy has developed persistent atrial fibrillation which has further impaired the proper functioning of his heart and puts him at a higher risk of stroke.
Mr. Cassidy has reported episodes of near fainting and weakness. One of these episodes may have been a small stroke or a transient ischemic attack. […]
Mr. Cassidy has reported weakness, dizziness, shortness of breath, fatigue and difficulty concentrating.
Mr. Cassidy is finally responding to medication and I continue to work with an electrophysiologist to improve his symptoms and quality of life.
Mr. Cassidy has reported that he was unable to work while he was experiencing symptoms. We are working to change that.
[20] The father indicates that he stopped working for the University of Ottawa part-way through 2017 as a result of his medical issues. That year, he incorporated a business (2602280 Ontario Inc.) through which he hoped to be able to provide his professional services as a sub-contractor to various governmental organizations and departments.
[21] In his supplementary affidavit, the father provided the two contracts he was able to procure in 2018 and 2019, and through which he worked as a subcontractor in computer programming. The first one, dated August 29, 2018, was with MapleSoft. It was to start on August 29, 2018 and end on May 6, 2019, for a maximum number of 173.14 days, at a per diem of $400 per day. In his affidavit, the father indicates that he did not work the full term of the contract, and that it ended in February 2019.
[22] The father’s evidence is impossible to reconcile with his corporation’s 2018 financial statement, which was produced as part of his November 5, 2019 affidavit. According to his corporation’s 2018 financial statement, he received income from December 2017 to and including April 2018, totaling $50,474. Although the father states that the MapleSoft contract ran from August 2018 to February 2019, there is no income in his corporation for those months.
[23] The father indicates that upon the MapleSoft contract coming to an end, he was able to secure a second contract with a company called Tecsis Corporation, which ran from February 15, 2019 to March 31, 2019, providing for a maximum of 30 working days, at a per diem of $700. According to s. 10.2 of the contract, the term could be extended by mutual agreement of the parties on the execution of an extension of term agreement.
[24] It is clear that the agreement with Tecsis was extended for several months. In his affidavit, the father indicates that this particular contract “ran until October 11, 2019, when they cancelled it”. I take it from the father’s evidence that he continuously received a per diem of $700 per day, five days per week, from February 15, 2019 to October 11, 2019.
[25] As stated earlier, the father confirmed that he was undergoing heart surgery during the week following the swearing of his November 5, 2019 affidavit, and that he expected to be fully recovered by January 2020, at which time he would start working again.
[26] Based on the above, I come to the following conclusions. I accept that the father’s heart condition impeded on his ability to continue to work and to earn the level of income in 2018 commensurate to what he was earning before he stopped working for the University of Ottawa. I am also prepared to accept that the termination of the father’s employment with the University of Ottawa in 2017 was due to his heart condition, although I note that the father’s evidence in relation to the circumstances which led to the loss/termination of his employment with the University is scarce, to say the least.
[27] I find that the evidence provided by the father about the income he earned in 2018 and 2019 through his corporation is significantly lacking in detail, consistency and completeness. The father’s evidence about when his contract with MapleSoft began and ended is inconsistent with his company’s 2018 financial statement. Although his 2018 income tax return discloses an annual income of $19,500, comprising exclusively of the employment income he chose to allocate himself through his own corporation, in his financial statement sworn on December 21, 2018 filed in the context of this proceeding, the father estimated that his 2018 income would be in the range of $48,000.
[28] The burden is on the father to provide clear and compelling evidence supporting the level of income he earned each year, so that his child support obligations can be determined accurately. He has not met that burden. As a result, I am left having to determine his income for those years based on the limited evidence before me, which includes his history of earnings and demonstrated ability to find lucrative employment/contracts.
[29] Based on the incomplete evidence before me, I conclude that the father’s income in 2018 was $50,474, which represents 100% of the income earned by his corporation that year. Although the father makes the general statement that “he has business expenses which are on him to pay”, the nature of the services provided through that corporation (computer programing) and a review of the corporation’s 2018 financial statement make it abundantly clear that most, if not all, of those “business expenses” are personal in nature and must be added back to his income. As such, I find that the father earned an income of $50,474 in 2018.
[30] For 2019, I find that the father earned a total yearly income of $131,000, comprising of the following:
a) $12,000 from the MapleSoft contract, calculated at the rate of 5 days per week, for the weeks of January 7, 2019 to and including the week ending on February 11, 2019 (6 weeks or 30 working days), at a per diem of $400;
b) $119,000 from the Tecsis contract, calculated at the rate of 5 days per week, for the weeks of February 18, 2019 to and including the week ending on October 11, 2019 (34 weeks or 170 working days), at a per diem of $700.
[31] For the years 2013 and 2014, as stated earlier, the father did not produce the court-ordered income tax returns and notices of assessment. I draw an adverse inference from his failure to do so and impute to him the same level of income as he was earning in 2015, being $93,373.
[32] As a result, the father’s child support obligations for the years 2013 to and including 2019 are as follows:
a) 2013: $828 per month, being the Table amount for one child, based on an imputed income of $93,373 per year (2011 Tables);
b) 2014: $828 per month, being the Table amount for one child, based on an imputed income of $93,373 per year (2011 Tables);
c) 2015: $828 per month, being the Table amount for one child, based on an actual income of $93,373 per year (2011 Tables);
d) 2016: $834 per month, being the Table amount for one child, based on and actual income of $94,318.88 per year (2011 Tables);
e) 2017: $613 per month for the first 11 months, being the Table amount for one child, based on an actual income of $66,980 per year (2011 Tables), and $624 for the month of December (2017 Tables);
f) 2018: $465 per month, being the Table amount for one child, based on an imputed income of $50,474 per year (2017 Tables);
g) 2019: $1,154 per month, being the Table amount for one child, based on an imputed income of $131,000 per year (2017 Tables).
h) 2020 onwards: $1,154 per month, being the Table amount for one child, based on an estimated income of $131,000 per year (2017 Tables).
[33] The delays inherent to these inter-provincial proceedings, coupled with the exceptional circumstances created by the COVID-19 pandemic, are such that it took two years from the moment the mother initiated her motion to change for this decision to be released. The father’s most recent affidavit filed for the purpose of this motion was sworn in November 2019. At that time, his 2019 income tax return had not been completed, and as a result it was perhaps harder for the father to provide a more complete and more accurate picture of his income for that year.
[34] For that reason, my order above with regards to the father’s child support obligations for the years 2019 onwards is without prejudice to his right to bring a further motion to change in the future, based on his actual income earned from 2019, and based on complete and detailed financial disclosure.
[35] I have no evidence that the father currently has access to health or dental insurance coverage through his employment. Being self-employed through his own corporation, I very much doubt that this is the case. As a result, the mother’s request that the father be required to maintain medical and dental insurance for the benefit of the child is denied.
Madam Justice Julie Audet
Released: April 9, 2021
COURT FILE NO.: FC-10-3116-4
DATE: 20210409
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMANDA LOUISE HOPE
Applicant
– and –
DAVID JAMES CASSIDY
Respondent
REASONS FOR DECISION
Audet J.
Released: April 9, 2021