Moulton v. LaSalle, 2021 ONSC 346

COURT FILE NO.: 47/06

DATE: 2021/01/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wendi Moulton

Applicant

– and –

Jason LaSalle

Respondent

Drew L. Bowyer, for the Applicant

James Battin, for the Respondent

HEARD: December 1 and 2, 2020

Turnbull, J.

1The parties co-habited from 1995 and were married in 2002. They separated in 2005. They negotiated and signed a separation agreement in 2006.

2There are two children of the marriage: Shian, born June 21, 1998; and Skylar, born July 23, 2002. After separation, the children eventually moved to live with their father (Mr. LaSalle, the respondent), and their mother (Ms. Moulton, the applicant) had regular access visits with the children. She agreed to pay child support in accordance with the Child Support Guidelines.

3The applicant has brought a motion seeking a variation in the child support ordered by Sherwood J. on July 10, 2013. That order was based on Minutes of Settlement signed by both parties with each party being represented by counsel.

4In her application she alleges that Shian ceased living with the respondent on or about September 1, 2017 and began residing full time with her concurrently with Shian beginning studies at Mohawk College. Accordingly, the applicant seeks the aforesaid child support variation and an order imputing income to the respondent. The respondent has been unemployed for over ten years.

5The respondent has brought a cross-motion seeking production of the applicant’s income tax returns and child support for the child Skylar. He contends that Shian only left full time residence in his home on or about February 1, 2018. The respondent seeks an order for retroactive child support from 2013 and imputation of income to the applicant.

6On February 25, 2019, Hilliard J. made a “temporary, without prejudice” order in which she terminated paragraph 7 of the order of Sherwood J. and ordered the following:

2. The Applicant shall pay to the Respondent child support in a set-off amount of $339.000 commencing February 1, 2019, which amount is the set-off of 1 child with mother at Child Support Guidelines Table amount of $418.00 based on an annual income of $45,000 and 1 child with father at Child Support Guideline Table amount of $79 based on an imputed income of $15,000. Support Deduction Order to issue.

7The parties decided that the issues should be presented by viva voce evidence.

Overview of the Facts

8At the time the order of Sherwood J. was made, Shian and Skylar were living with the respondent father, and the applicant mother was ordered to pay child support of $541 per month based on her purported income of $37,600 for 2013. Paragraph 8 of that order required the applicant to provide the respondent with a copy of her income tax return and Notice of Assessment no later than June 1^st of every year starting in June 2014. She failed to do so. The evidence shows that she earned more than $37,600 in 2013 and each year thereafter. I have no doubt why she chose not to do so.

9The applicant testified that the parties separated in 2005. At the time, the respondent was employed full time at Canfil Ltd. in Simcoe. He remained employed there for a year or two longer until his employment was terminated.

10Gail Anderson testified that she met the respondent in 2005 and they began co-habiting in November of that same year. They since have had two sons from their relationship who are presently 9 and 7 years old. She is gainfully employed full time at Toyota where she has had a successful career. She is presently a team leader in her place of work and is paid approximately $90,000 per year.

11The respondent has not held gainful employment since about 2008 and resists any imputation of income to him for child support purposes.

12The applicant has been gainfully employed at Autoneum Canada for over eight years. Her annual line 150 income from that employment is as follows:

• $43,236 for 2013;
• $49,854 for 2014;
• $52,694 for 2015;
• $49,955 for 2016;
• $45,008 for 2017;
• $51,146 for 2018; and
• $47,010 for 2019.

13The applicant swore that she had no other income from any other employment during the years 2013 to 2020.

Imputing Income to the Applicant

14The respondent alleges that in 2018, 2019 and 2020, the applicant worked “on the side” in three other income earning jobs and such income should be imputed to her. The respondent seeks an order imputing income of approximately $68,000 per year to the applicant based on the evidence of her work in a restaurant and other evidence found online that she is operating home businesses under the names of Modern Creations and Hot Spinz.

(a) Employment at Mai and Pai Restaurant

15In her examination in chief, the applicant testified that she had worked at a friend’s restaurant as a favour to him. She was uncertain but estimated that it opened sometime in 2019. That restaurant is located in Delhi and is called Mai and Pai. The respondent and Ms. Anderson both testified that they attended in the restaurant and saw her working there. The applicant said she would help out regularly on weekends when she did not have to work at Autoneum, but she was not paid and gave any tips to her daughter who was also working at the restaurant. She said that she frequents the restaurant and it is a place to hang out as her mother and daughter both work there. She said that she would help when it became busy. She estimated that in a one month period she would help out four or five times.

16I do not believe her evidence. I have no doubt she was working to earn some additional money “under the table”. She did not call the owner of the restaurant or her daughter to verify her story. I also note that on her Facebook page, found at the last page of Exhibit 7, tab 2, she has written that she is a cashier and waiter/waitress at Mai and Pai’s Restaurant and Café, June 2, 2020, to present. She testified that she stopped working in the restaurant when COVID-19 shut it down in March 2020.

17I impute income to her from this part-time employment in the sum of $380 per month (5 hours per shift at $14 per hour for four shifts per month plus tips of $25 per shift) from August 1, 2019, to December 31, 2019. Her 2019 income shall therefore be increased by $2,280.

18I impute the same monthly income to her from January 1^st to February 28, 2020. I am satisfied that she would not have been working in the restaurant from March 1, 2020 to June 30, 2020 due to COVID-19 restrictions. I impute the same monthly income from July 1, 2020 to December 31, 2020. Thus, for the year 2020, her imputed income is eight months at $380 per month, or $3,040 total.

(b) Hot Spinz

19Ms. Anderson found documents related to the applicant’s alleged involvement in a business venture called Hot Spinz when checking her Facebook page. The applicant agreed that she started operating this venture when she was on COVID shutdown from work. She agreed that she was the controller of the site where a limited number of people are given a chance to purchase a number of tickets on an item advertised as the prize. Its market value is shown on the site. If the item costs $300 and if 20 tickets at $25 each are sold, the gross revenue is $450. The lucky winner among the ticket purchasers can take the item or, in some cases, cash in lieu. In any event, the issue is what happens to the $150 profit. The applicant testified that it is then put in a free, lucky draw and distributed that way. To support that contention, she pointed out the rules reproduced at page 125(a) of Exhibit 7, tab 4. Those rules are dated May 28, 2020. She swore that she did not make any profit running this site.

20Ms. Anderson stated that when she discovered that the applicant was operating this venture in April 2020, those rules were not posted on site. Ms. Anderson took the pictures found at Exhibit 7, tab 4. She estimated that the profit arguably earned by the applicant in April and the first week of May, 2020, amounted to just over $6,000, which is found at pages 60 and 61 of tab 4. In cross examination, she agreed she did not know if all the items did sell, or if there were items with a two-for-one ticket bonus, which would have reduced the profit. Furthermore, she estimated the profit for each item by going on the Amazon.ca website and applied the lowest price on Amazon to the item displayed on each page. She agreed with Mr. Battin that, by doing that, it effectively meant the highest possible profit was being attributed to each item.

21Ms. Anderson believed that, due to prosecutions in Texas against people running the same venture, the applicant had to post the rules found at page 125(a) on the site to bring it into compliance with our laws. She stated that the site was taken down after the first week of May 2020 and not put back up until late in May, when the new rules were posted. She assumes that the applicant did make a profit in April and early May, and agreed that she could not be specific on the amount earned.

22I am satisfied that the plaintiff was operating this site for profit in April and during the first week of May 2020. I impute $3,000 of income to her for the year 2020 as a reasonable estimate of the income earned from Hot Spinz.

(c) Modern Creations

23Modern Creations is a small business which offers eye catching decorative signs with messages engraved in wood. The respondent produced copies of the Facebook page of this business, which was first posted on July 15, 2019. The applicant agreed that she did do this kind of work, but that it was for her niece who owns the business. At page 48 of exhibit 7, it is written on the applicant’s Facebook page under the Modern Creations name, “I can defiantly make it the right size for you [sic]”.

24The respondent and Ms. Anderson both agreed that they could not prove that the applicant had made any money from this site, nor that Modern Creations did not belong to her niece.

25I am not satisfied on a balance of probabilities that the applicant is the owner of Modern Creations and that she has been earning income from that business.

Imputing Income to the Respondent

26The respondent testified that he has been unable to work at any job since he was fired from his job at Canfil Ltd. in late 2007 or 2008. He attributed that termination to his inability to regularly attend work due to his medical condition.

27He indicated that when he was younger, he suffered a number of concussions in ATV accidents and in fights. In due course, his headaches from these injuries became increasingly worse and made it difficult for him to function from day-to-day. Ms. Anderson testified that when he wakes up each day, one never knows what is going to happen with him. Initially, he can appear to be fine; and an hour or two later, he is being sick to his stomach due to the severe headaches. He has seen numerous specialists in company of Ms. Anderson and to this stage, no-one has been able diagnose and treat the problems. In addition, the respondent was hospitalized in November 2019 for atypical chest pain and coronary vasospasm.¹ In the same report, the respondent was recorded as complaining of right-hand numbness, which the doctor attributed to his recent angiogram.

28Ms. Anderson, who I found to be a forthright and direct witness, confirmed that he has experienced significant health issues over the years. She doubts that any employer would hire him because he is unable to regularly get up and work due to headaches, dizziness and associated neurological problems. Ms. Anderson agreed that, despite attending with numerous specialists over the years, no-one had been able to diagnose his problems or offer any meaningful treatment.

29The respondent agreed, as did Ms. Anderson, that no physician has ever expressed the opinion that he is medically unable to work. The best proof of his inability to work, in my view, is that Ms. Anderson is the total breadwinner for the family. She has held a good job at Toyota for over ten years and earns just over $90,000 per year. She manages all the finances and all assets are registered in her name. The respondent provides no income for the family. It is difficult for me to accept that, but for his evident medical distress – which she witnesses daily or frequently – she would not insist that he find a job if he was able to do so.

30The respondent – almost obsessively – has absolutely no assets in his name. His 2004 Trailblazer automobile remains registered in his mother’s name, even though she no longer is able to drive. He does not have a bank account. The house in which he lives with Ms. Anderson is not in his name. He does not have a credit card. He has arranged with FRO that child support payments, to which he would ordinarily be entitled to receive into his bank account, are deposited in Ms. Anderson’s account. When he was eligible for the Canada Child Benefit, he directed that income be made payable to Ms. Anderson. In other words, he has made himself income and asset poor.

31The applicant argues that, at least, the court should impute the amount to which he would be entitled if he applied for and received ODSP. The respondent said that he does not want to live “off the system” and that is not the way he was raised. Ms. Anderson stated that he had not applied because they have sufficient funds from her employment to live comfortably.

32I accept the evidence of the respondent’s inability to work at a full-time job. However, instead of “living off the system”, he has chosen to “live off his former wife”. The fact that he chooses not to apply for ODSP when there is not a financial need for him or his second family is admirable. However, that does not help in supporting his children from his marriage to the applicant and casts the entire burden of their joint child support obligations upon the applicant.

33Mr. Boyer provided information in his submissions, to which no objection was raised by Mr. Battin, that ODSP benefits for a couple with one child were $1864 per month in 2017, rising to $1935 per month in 2020. The minimum wage figures for the same years show $23,200 in 2017 to $28,000 in 2020.

34Alternatively, Mr. Boyer urged the court to impute at least a minimum wage to the respondent in light of the fact there is no doctor who has stated that he is fully or partially disabled from working. Mr. Boyer noted that, in the report of his family doctor dated November 29, 2019, Dr. Ghesquiere quoted the treating cardiologist Dr. Sibbald, who stated the following in his discharge summary:

“We have encouraged Jason to go back to his active lifestyle.”

35I concur with Mr. Boyer that the court should impute monthly income to the respondent, equivalent to what ODSP would pay him if he applied and qualified. Alternatively, having seen and heard him testify, and absent any cogent medical evidence to the contrary, I have no doubt that he is capable of some part time work. He is able to care for his two children when they are not at school and that, in itself, is most often a demanding and tiring responsibility.

Analysis:

36The Supreme Court of Canada had reviewed the issue of retroactive child support payments and the various factors for the court to take into account.² I do not intend to repeat them all here. However, the court emphasized that child support is for the benefit of the child – not the parent who has custody of the child. It is incumbent on the custodial payee parent to do all that is reasonably possible to enforce the appropriate payment under the Child Support Guidelines. In this case, the respondent sat on his hands until this application was brought. It was at that time, he initiated his cross-application for retroactive child support and imputation of income to the applicant.

37The applicant testified that the respondent never asked her for her income tax returns when he was speaking with her on the phone. However, because he does not use a computer, he did not use email or other forms of electronic communication, which would create a record of their dialogue. Frankly, I do not know who to believe on this issue. The one thing that is certain is that the court ordered the applicant to produce her income tax returns and she did not do so. She said that she did not send him her income tax returns because she was unaware she was obliged to do so. I do not believe that. In 2013, she earned $43,236. She certainly had to be aware that her child support was based on an anticipated 2013 income of approximately $37,000 because she signed those Minutes of Settlement just six months prior to the end of the 2013 fiscal calendar year. She knew that as her income increased, so did her child support obligations.

38The payee parent is not necessarily required to immediately and repeatedly institute litigation to enforce a support order. However, the payee should document efforts to obtain the court ordered tax information. He/she should specify to the payor parent the needs of the child (where applicable) that are not being met as a result of the default of the payor. In this case, the respondent alleges that he asked for income tax information from the applicant, but he did not have any documentation to back up his allegations. The payee has an obligation to document his/her efforts for information and appropriate payments in accordance with the Guidelines if he/she is not going to institute proceedings for payment immediately.

39On the other hand, the applicant just ignored her obligations to pay support in accordance with her increasing income and the higher monthly obligation under the Child Support Guidelines. At para 124 of D.B.S, supra, the court spoke of conduct of a parent which is blameworthy. The court made it clear that where a payor parent withholds information, “including an increase in income that one would expect to alter the amount of child support payable” it constitutes blameworthy conduct. The applicant’s conduct is just that: blameworthy. Court orders are to be obeyed. If need be, a motion for variation can be brought if negotiations bear no fruit. But the courts can not just ignore the wanton behaviour of a payor who refuses to comply with provisions of a court order.

40In the circumstances, I am going to follow the direction of the Supreme Court in D.B.S., and only make the retroactive award calculation for a period of just short of four years prior to when this Application was initiated on October 24, 2018.³ The retroactive award shall be calculated from January 1, 2015, to December 31, 2020, largely because the applicant chose to ignore a consent court order, fully aware that she was underpaying.

41I find, based on the testimony of Ms. Anderson, that Shian moved to live with her mother on January 1, 2018. That is somewhat consistent with the applicant’s recollection that she moved at the time of starting a semester of study at Mohawk College.

42I have received helpful calculations from both counsel and have relied heavily on them in making the following findings.⁴ In the table immediately below, I have calculated the amount owing by the applicant to December 31, 2020, to be $8,372.32. In paragraph 43, I have calculated the respondent to owe child support for one child from January 1, 2018, to December 31, 2020, in the amount of $6,528. The net amount owing to the respondent for child support, to and including December 31, 2020, is therefore $1,750.32. The only adjustment to be made to that figure, which I will entrust to counsel, is if the applicant did pay child support for December 2020. In that case, she should be given credit for that payment and the amount payable adjusted accordingly.

Year	Applicant's Income	Payable by Applicant	Applicant Paid	Yearly Balance	Running Balance
2015	$52,694	$782 x 12	$6,566.25	-$2,817.75	-$2,817.75
2016	$48,955	$727 x 12	$5,884.00	-$2,840.00	-$5,657.75
2017	$45,008	$665 x 12	$3,750.00	-$4,230.00	-$9,887.75
2018	$51,145.89	$460 x 12	$9,509.73	$3,989.73	-$5,898.02
2019	$49,290.94	$452 x 12	$5,182.70	-$241.30	-$6,139.32
2020	$53,677.12	$489 x 12	$3,729.00	-$2,139.00	-$8,372.32

43I impute income to the respondent as follows based on ODSP payments for which he may have been eligible or alternatively as imputed income for part-time work which he could have undertaken:

• 2018: $22, 812. For one child, $176 x 12 = $2,112 payable.
• 2019: $23,184. For one child, $184 x 12 = $2,208 payable.
• 2020: $23,220. For one child, $184 x 12 = $2,208 payable.

Payable by the Respondent to the Applicant = $6,528.

Conclusion:

44It is ordered that the applicant shall pay arrears of child support calculated to December 31, 2020, in the amount of $1,750.32.

45It is further ordered that the applicant shall pay to the respondent child support in a set-off amount of $232 per month, commencing January 1, 2021, which amount is the set-off of one child with mother at Child Support Guidelines Table amount of $441 based on an annual income of $47,637 and one child with father at Child Support Guidelines Table amount of $186 based on an imputed income of $23,220. A Support Deduction Order is to issue.

46It is also ordered that, in all other respects, the order of Sherwood J. dated July 10, 2013, shall remain in full force and effect on issues relating to providing annual income tax information and the sharing extraordinary expenses for the children.

Costs:

47There has been divided success in this matter. Both parents did not pay child support in accordance with what the court has determined. It is ordered that the parties shall bear their own costs of these proceedings.

Footnotes

1. 1Exhibit 6, tab 1A, page 1: report of the respondent’s family physician Dr. Mark. Ghesquiere M.D. C.C.F.P.
2. 2See D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231, 2006 SCC 37, especially at paras. 99–135.
3. 3D.B.S., supra, at para. 123.
4. 4I have marked the Applicant’s calculations as Ex. ID 1 and the Respondent’s calculations as Ex. ID 2, and placed them with the other exhibits in this action.