COURT FILE NO.: FC-20-65
DATE: 2021/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tanya Fischer
Applicant
– and –
Randy Ali
Respondent
Self represented
Self represented
HEARD: at Cayuga, Ontario, September 28-29, 2021
THE HONOURABLE JUSTICE J. R. HENDERSON
REASONS FOR DECISION
INTRODUCTION
[1] This is my decision after a trial of the motions brought by the applicant and the respondent to change the existing orders.
[2] The parties have two children, Vincent Isaiah Ali, born December 4, 2002, and Vijay Abas Ali, born December 26, 2003. The parties separated in 2007 when the applicant and the two children left the family home.
[3] There are two relevant court orders. The parties acknowledge that in 2007 a judge of the Ontario Court of Justice made an order that, among other things, awarded sole custody of the two children to the applicant with access to the respondent on alternate weekends. The 2007 order also provided that the respondent was to pay an amount for child support, but it appears that arrears of child support started to accumulate shortly thereafter.
[4] On February 6, 2015, Justice O’Connell made an order, on consent, varying the child support provisions. The 2015 order required the respondent to pay child support for the two children in the amount of $566 per month, based upon the respondent’s annual income of $39,200, commencing March 15, 2015. Further, the 2015 order fixed the arrears of child support at $14,200 as of January 31, 2015, and required the respondent to pay $100 per month toward those arrears.
[5] In this proceeding, the parties request changes to both the 2007 and the 2015 orders.
MATERIAL CHANGE IN CIRCUMSTANCES
[6] In any motion to change it is a prerequisite that the party requesting the change establish a material change in circumstances. I find that there are circumstances in this case that collectively constitute a material change in circumstances, and therefore it is appropriate to consider whether the existing orders should be changed.
[7] The first alleged change in circumstances relates to changes in the respondent’s income. Both parties submit that there have been changes in the respondent’s income, but they disagree as to how the respondent’s income has changed and as to the income figures that should be used to calculate child support payable for the years in question.
[8] The applicant submits that the respondent’s income has increased substantially, and therefore the court should order an increase in the amount of child support retroactive to January 1, 2017. This was the central submission made by the applicant in her motion to change.
[9] One of the difficulties in assessing child support over these years is that the respondent did not provide proof of his income on a timely basis. Therefore, when the applicant commenced her motion to change in June 2020, she requested a court order to compel the respondent to produce copies of his tax returns, notices of assessment, and proof of his income for the years 2016 to 2019. After three interlocutory court orders were made for production, the respondent eventually provided copies of his tax returns, notices of assessment, and updated sworn financial statements.
[10] Based on the respondent’s productions and other evidence presented by the applicant, the applicant submits that I should impute income to the respondent in the range of $80,000 per year, and retroactively adjust the child support order accordingly.
[11] However, the respondent submits that his income has decreased since 2015. The respondent’s tax returns show that his declared income for the years in question ranges between $6,850 and $12,974 per year. Therefore, the respondent contests the applicant’s request for an increase in the amount of child support, and he requests a retroactive decrease in the amount of child support.
[12] I will analyse the respondent’s income for child support purposes in detail later in these reasons.
[13] The remaining material changes in circumstances relate to the two children and they are more obvious. It is acknowledged that as of July 2020 Vijay has been living with the respondent, not the applicant. Therefore, the respondent requests an order awarding him custody of Vijay as of July 1, 2020. There is no dispute about this request.
[14] The respondent also requests that his obligation to pay child support for Vijay be terminated as of June 30, 2020, but he is not requesting an order that the applicant pay child support for Vijay. I accept that the applicant’s only source of income is from ODSP, and therefore it is not likely that she would be required to pay child support for Vijay in any event.
[15] Still further, Vincent continues to live with the applicant, but Vincent has not been enrolled in school since December 2020. Therefore, the parties agree that all child support payable by the respondent for Vincent should be terminated as of December 31, 2020.
THE RESPONDENT’S INCOME FOR CHILD SUPPORT PURPOSES
[16] I find that the respondent is a carpenter by trade, and that he generally works doing renovations, new home construction, and odd jobs.
[17] In my view the starting point for determining the respondent’s income for child support purposes, considering that the proceeding before me is a motion to change, is the income level of the respondent that was determined at the time of the 2015 order.
[18] The parties agreed in February 2015 that the respondent’s annual income was $39,200. This agreement was accepted by the presiding judge and incorporated into the 2015 order. That finding remains in place unless and until one of the parties establishes that it should be changed.
[19] In support of his position, the respondent referred to his tax returns. In 2016 he declared income of $6,850. In 2017 he declared income of $12,947. In 2018 he declared income of $9,823. In 2019 the respondent’s actual income declared in his tax return is zero, but he apparently used a personal exemption in the amount of $12,069 as his income for that year.
[20] Initially, the respondent asked this court to calculate his child support payments based upon the income that he declared in his tax returns. However, on the witness stand the respondent admitted that his tax returns are incorrect. He testified that most of his jobs are cash jobs and that he did not declare the income earned from the cash jobs to Revenue Canada in his tax returns.
[21] In my view, the respondent’s failure to declare his cash income in his tax returns is illegal and misleading. He may yet face criminal charges in this respect. However, for the purposes of this proceeding, I find that the respondent’s improper declaration of his income to Revenue Canada undermines his credibility. I agree with the applicant’s submission that the respondent will choose to be deceitful about his income if he thinks that he can get away with it.
[22] More troubling is the fact that the respondent swore financial statements in this proceeding for each of the years 2016 to 2019, and in each case swore that his actual income was the amount of income that he had declared in his tax returns. Thus, the respondent provided false sworn financial statements for each of the years 2016 to 2019.
[23] When I questioned the respondent directly about his actual income, I felt that the respondent was evasive and vague in his response. He readily acknowledged that most of his income was in the form of cash, and that he did not disclose the cash income in either his tax returns or in his financial statements. However, he would not, or could not, be specific about his actual income. At one point he testified that his true income was “in the mid-30s” per year.
[24] Moreover, the respondent could not identify any of the cash jobs that he had undertaken, and he testified that he had forgotten how much money he had actually earned. The respondent spent much of his time on the witness stand telling the court that he did the best he could to obtain cash jobs to pay for rent and food, and that he tried to pay his child support to the best of his abilities.
[25] I find that the respondent has not been forthright about his actual income. He has deliberately misled Revenue Canada and this court about his actual income. I accept that the respondent earns most of his income in cash, but I find that the respondent is well aware of the amount of money he has earned. He has been intentionally evasive with the court about his actual income. For these reasons, I find that the respondent has not provided any reliable evidence that would lead this court to believe that his income has decreased since the 2015 order.
[26] On the other hand, the applicant has not provided any reliable evidence to support her allegation that the respondent earns $80,000 per year. The applicant suggests that respondent is a construction foreman and that he makes $32 per hour, but there is no evidence before the court to support either of those claims.
[27] I acknowledge that the applicant has provided an analysis, which I accept, that suggests that the respondent is not being honest about his income.
[28] In particular, the applicant has shown that the respondent’s expenses in each year far exceed his declared income. The applicant also provided evidence that the FRO became involved in enforcing the child support payments in approximately 2010 with the result that the respondent spent some time in jail for non-payment of support. Thereafter, the respondent started to make significant payments toward the arrears of child support.
[29] I also accept the applicant’s evidence that the respondent was present on three separate construction job sites for several hours each in April 2020. I specifically reject the respondent’s testimony that he was on the job sites solely for the purpose of looking for cash jobs; rather, I find that he was working for cash on those occasions.
[30] Overall, the applicant’s evidence convinces me that the respondent has not been honest about his income, but it does not assist me in determining the respondent’s actual income for the relevant years. Therefore, I have no basis for finding that the respondent’s income has increased from the amount that was referenced in the 2015 order.
[31] For these reasons, for the years from 2017 to 2020, I find that the respondent’s income for child support purposes is $39,200 per year.
CHANGES, ADJUSTMENTS, AND ARREARS
[32] It is agreed that child support payments for Vijay should be terminated as of June 30, 2020. The respondent should have continued to pay $566 per month for the two children up to and including June 30, 2020. The FRO records calculate the arrears as of June 30, 2020 at $14,080.
[33] From July 1, 2020 to December 31, 2020 the respondent should have paid child support for Vincent at the rate of $347 per month based upon his income of $39,200 per year. Thus, the respondent should have paid an additional $2,082 up to and including December 31, 2020, at which time all child support should be terminated.
[34] The respondent has not paid any child support after June 30, 2020. Therefore, the total arrears of child support at present are $16,162 ($14,080 plus $2,082).
[35] I find that the respondent should pay the sum of $566 per month on the first day of every month commencing October 1, 2021, toward these arrears, and that these payments and any arrears should be enforced by FRO.
CONCLUSION
[36] For the reasons set out herein, I make the following orders:
i. The 2007 order is varied such that the respondent shall have custody of the child Vijay Abas Ali as of July 1, 2020, with reasonable access to the applicant.
ii. The 2015 order is varied such that the child support payable by the respondent for Vijay is terminated as of June 30, 2020, and the child support payable by the respondent for Vincent is terminated as of December 31, 2020.
iii. The arrears of child support payable by the respondent are fixed at $16,162 as at the present date.
iv. The respondent shall pay to the applicant the sum of $566 per month toward the arrears, payable on the first day of every month commencing October 1, 2021.
v. A support deduction order will issue.
J. R. Henderson J.
Released: October 4, 2021
COURT FILE NO.: FC-20-65
DATE: 2021/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Tanya Fischer
Applicant
and
Randy Ali
Respondent
DECISIONs for decision
Henderson J.
Released: October 4, 2021