Everitt v. Marcelino, 2021 ONSC 6919

NEWMARKET COURT FILE NO.: FC-20-557-00

DATE: 20211018

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Naomi Sheila Everitt, Applicant

AND:

Jason Carreira Marcelino, Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: I. Apter, Counsel for the Applicant

D. Tobin, Counsel for the Respondent

HEARD: October 13, 2021

ruling on motion

Relief Requested

1The Applicant brings a motion, requesting the following relief:

(a) in accordance with paragraph 4 of the Order of Justice Douglas dated June 9, 2020, the parties shall review child support as of September 1, 2020 for the two children of the marriage, namely Ashton Everitt Marcelino, born February 14, 2014 and Lucas Everitt Marcelino, born September 14, 2016 (“the children);

(b) the Respondent Father, Jason Carreira Marcelino (“the Respondent”) shall pay the Applicant Mother, Naomi Sheila Everitt (“the Applicant”) without prejudice Table child support arrears for the period of September 2, 2020 up to and including September 1, 2021 in the amount of $13,015;

(c) commencing October 1, 2021 and on the first of each month thereafter, the Respondent shall pay to the Applicant Table child support in the amount of $3,277 per month, based on an income imputed to him of $250,005 (being $154,016 grossed up to account for the fact that the Respondent does not pay income taxes on his income while residing in Qatar);

(d) the Respondent shall reimburse the Applicant for his proportionate share of the children’s special or extraordinary expenses that the Applicant incurred from May 2019 to date in the amount of $9,368.77;

(e) the Respondent shall pay 76% of the children’s ongoing special or extraordinary expenses, within five days of being provided with confirmation that the Applicant has paid the expense. The parties agree that the children’s current special or extraordinary expenses include but are not limited to childcare, therapy, skiing, and boy scouts;

(f) the Respondent shall pay without prejudice spousal support arrears owing for the period of June 2019 up to and including September 2021 in the amount of $56,316;

(g) commencing October 1, 2021 and on the first of each month thereafter, the Respondent shall pay to the Applicant $1,476 per month in without prejudice spousal support, based on an income imputed to him of $250,005 (being $154,016 grossed up to account for the fact that the Respondent does not pay income taxes on his income while residing in Qatar); and

(h) the Respondent shall pay the Applicant costs for her urgent motion brought on the issue of the children’s tuition in July 2021 on a full-indemnity basis, in the amount of $5,037.50.

2The Respondent brings a motion and requests the following relief:

(a) an Order varying Justice Douglas’ June 9, 2020 divorce Order with the respect to the quantum of table child support;

(b) commencing August 1, 2021, the Respondent’s child support obligation for the children, Ashton Everitt Marcelino, born February 14, 2014 and Lucas Everitt Marcelino, born September 14, shall be nil based on his current income of $0.00;

(c) an Order that the Respondent will forthwith advise the Applicant if/when he secures employment; and

(d) an Order that when the Respondent begins earning an income, he will immediately pay child support in accordance with the Guidelines without the need for the Applicant to bring a motion.

Brief Background

3The parties began cohabitating in April 2010 and were married on May 6, 2016.

4The parties’ date of separation is disputed.

5The Applicant states the parties separated May 16, 2019 and the Respondent states the parties separated December 28, 2019.

6There are two children of the relationship namely, Ashton Everitt Marcelino (“Ashton”) born February 14, 2014, and Lucas Everitt Marcelino (“Lucas”) born September 14, 2016.

7The Applicant and the Respondent are trained pilots.

8The Applicant has been employed by Air Transat as a pilot since 2011. The Applicant states that she is currently on medical leave from her position as a pilot. No medical evidence was provided to the court. For the purpose of this motion, the Court expected medical evidence outlining the diagnosis, treatment plan and prognosis. There is no medical information indicating the Applicant is unable to work in any capacity.

9From 2015 through to July 27, 2021 the Respondent worked for Qatar Airways. The Respondent files correspondence dated July 27, 2021 that Qatar Airways terminated his employment effective July 27, 2021.

10The Respondent states that he has mental health issues that impact his ability to work as a pilot. Undated correspondence from a clinical psychologist for Qatar Airways Medical Clinic, Antoinette Adam, confirms the Respondent self-presented to the psychology department at Qatar Airways Medical Clinic in April 2021.

11Psychologist, Ms. Adam, states that the symptoms the Respondent presented were consistent with Adjustment Disorder which impacts “his ability to sleep, think clearly, regulate himself emotionally and concentrate.” The medication the Respondent takes, he states, precludes him from flying. According to Ms. Adam the Respondent was not fit to work at the time of the undated letter. In terms of prognosis, Ms. Adams states that “he is unlikely to be fit to resume his duties unless and until the problems outside work are fully (or at least substantially) resolved.”

12In his affidavit sworn October 12, 2021, the Respondent confirms that he has now received a conditional job offer to work as a pilot for Cargojet. The offer is conditional on the Respondent passing a criminal records check, an employment verification check and a cognitive assessment. If successful, the Respondent shall commence employment the week of October 18, 2021. His staring salary will be $74,285.

Income of the Applicant

13The Applicant currently receives $3,711 in monthly long-term disability payments which are not taxable. When grossed up this amounts to approximately $68,000 in annual income.

14The Applicant also receives rental income from the apartment in the matrimonial home. The Applicant states the income is modest. The Respondent states that many of the Applicant’s personal expenses are deducted from the income that should be added back.

Income of the Respondent

15The Respondent’s employment with Qatar Airways was terminated on July 27, 2021.

16Confirmation of the termination has been provided to the court. Pursuant to the July 27, 2021 letter from Qatar Airways, the Respondent was to receive 90 days salary in lieu of notice. Accordingly, his salary would be terminated at end of October 2021. The Respondent states that he did not receive the 90-day salary and he expects that he never will.

17I am not satisfied with the medical evidence presented by the Respondent.

18The correspondence is undated. The correspondence indicates the symptoms presented by the Respondent are consistent with Adjustment Disorder. Other than that, there are no details as to diagnosis, treatment or prognosis. There are no medical notes. The author, I believe, is in Qatar. I am not certain that she is qualified to make a diagnosis.

19The Respondent states that he is on medication which precludes him from flying. The medication is unidentified. There is no information, following his return to Canada, of any medical follow-up or renewed prescriptions.

20The Applicant requests that the Court impute income to the Respondent on the basis that he is intentionally underemployed.

21As stated, the Respondent received a conditional job offer to work as a pilot for Cargojet. There is no reason to believe that the Respondent will be unable to meet the conditions and he will commence employment the week of October 18, 2021 earning $74,285.

Commentary

22This was scheduled as a one-hour motion.

23The motion includes requests to:

(a) impute income to the Respondent;

(b) determine temporary and ongoing child support;

(c) determine temporary and ongoing spousal support;

(d) determine child support retroactive to September 2, 2020;

(e) determine spousal support retroactive to June 2019;

(f) determine section 7 expenses retroactive to May 2019;

(g) apportion ongoing section 7 expenses; and

(h) determine costs of the July 2021 emergency motion as well as costs of this motion.

24As stated to counsel at the outset of the motion, I was not prepared to deal with the retroactive requests at 23 d), e), and f).

25Pursuant to the Notice to the Profession, only short, one-hour motions are being scheduled in the normal course.

26Long motions are scheduled to be heard during the trial sittings in May and November of each year.

27This is not a short, one-hour motion.

28Throughout the motion, when the court noted deficiencies in the evidence presented, the general response and theme was that the page limits precluded the filing of additional material.

29Had the Applicant filed a one-hour motion, as directed in the Notice to Profession, the page limits would not have been a barrier to the filing of sufficient evidence. The difficulty arose because the Applicant brought a long motion, disguised as a one-hour motion. This is contrary to the Notice to Profession and is not acceptable litigation behaviour.

Analysis

Imputation of Income - Respondent

30Section 19(1) of the Federal Child Support Guidelines, SOR/97-175 reads as follows:

Imputing income

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

31The Applicant argues that the Respondent is intentionally underemployed, exempt from paying income tax as a result of his employment abroad, lived in a country that has tax rates significantly lower than Canada and has not provided disclosure.

32The Respondent has now returned to Canada and, on Friday, was offered conditional, employment.

33Consequently, in terms of ongoing support, I considered whether imputation should occur based on underemployed and lack of disclosure.

34I am not satisfied, on the evidence before me, that the Respondent is intentionally underemployed.

35His employment was terminated on July 27, 2021.

36The reason for the termination, pursuant to the evidence, is contained in an email from Qatar Airways dated August 25, 2021 wherein it states: “As per your offer of employment REF: QR/HR-65055/OFR/68445 dated 2^nd of March 2015 under clause number 10. Termination ‘Either party shall have the right to terminate the employment, at any time, by giving the other party at least ninety (90) days notice in writing or payment in lieu’.”

37The reason for the Respondent’s termination is unknown. The Respondent states that he believes his termination was as a result of his mental health issues, the poor financial health of the company and because the Applicant contacted Qatar Airways many times telling them very negative things about him.

38The Applicant speculates that the Respondent’s unemployment was manufactured on the basis of mental health issues. The only medical information provided is the undated letter aforementioned and authored by Ms. Adam.

39The airline industry, no doubt, has been hit hard during this pandemic.

40Mental health issues are as legitimate as physical health issues. However, medical evidence is required.

41The Applicant argues that the Respondent’s claims of panic attacks, anxiety and sleepless nights are fabricated. That is ironic given that she is on long term disability as a result of anxiety and sleep related issues.

42Neither party has produced sufficient medical evidence, satisfactory to the Court, in support of their mental health issues.

43On July 30, 2021 Justice Himel made an Order for disclosure. The disclosure Order has not been fully complied with. The Respondent seems to rely on the fact that it was made without opportunity to respond at a time when his counsel was on holidays. I do not see anywhere in the record that the Order was appealed nor do I see that it was returned before Justice Himel for reconsideration, pursuant to Rule 25(10) of the Family Law Rules.

44While I am satisfied that the Respondent has lost his job, I am not satisfied, on the medical evidence, that he is/was unable to work.

Imputation of Income – Applicant

45A determination of the Applicant’s income is necessary for the proper apportionment of section 7 expenses and for a determination of spousal support.

46The Applicant is on long term disability from her position. There is no medical information available to provide confirmation she is unable to work.

47The Applicant states that she is unable to work due to a sleep disorder and diagnosed anxiety for which she takes prescription medication. It all sounds familiar.

48The Applicant argues that she has satisfactorily established her mental health issues, in terms of disability, by virtue of her long-term disability. She may have established it to the satisfaction of Air Transat, but she has not established it to the satisfaction of the court.

Conclusion

49Both parties are trained pilots.

50Both parties claim anxiety and sleep-related issues.

51The Applicant is on long term disability. She earns approximately $58,000 per annum free of tax. When her income is grossed up for tax and a modest amount added to account for her rental income, the Applicant’s current income is in or around $70,000 per year.

52The Respondent has obtained employment, in Canada, at Cargojet. The employment is conditional on a criminal record check, employment verification and a cognitive assessment. The Respondent’s starting salary will be $74,285 per annum.

53The onus is on the Applicant to establish that the Respondent is intentionally under-employed.¹

54I am not satisfied, on the evidence before me, that the Respondent is intentionally under-employed. Correspondence from Qatar Airways does not support that position. I am also not satisfied that income should be imputed to him as a result of non-disclosure. The Respondent states that he has provided all the information in his control. Perhaps he can provide a direction permitting the Applicant to make her own inquiries with Qatar Airways. In any event, the Applicant has not met her onus and, therefore, a level of income other than his new employment will not be imputed to him on a temporary basis.

55While each parent has a duty to seek employment, if healthy enough to do so, I am not of the view that it is reasonable to expect the Respondent to search for employment in China, as was argued by the Applicant.

56I am mindful of the general principles guiding the exercise of the court's discretion when dealing with support pending trial as they were summarized by Penny J. in Knowles v. Lindstrom,²

It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.

Child Support

57The children reside with the Applicant in excess of 60 % of the time. The Respondent’s income, pursuant to his new job, is $74,285. The Child Support Guidelines indicate that child support for two children at this level of income is in the amount $1,128 per month.

Spousal Support

58In terms of spousal support, even if entitlement is established, both parties, currently, have similar income.

59As stated, I am not prepared, on this interim motion, to impute income to either litigant.

60Accordingly, the request for temporary spousal support is dismissed.

Section 7 Expenses

61As the parties’ incomes are similar, on a temporary basis, all reasonable and necessary section 7 expenses shall be shared in proportion to their incomes.

62The parties shall agree in advance of any section 7 expenses being incurred.

Costs – July 2021

63The parties requested permission to file written submissions on costs for the emergency motion brought before Justice Himel in July. I agreed to the request.

Order

1. Commencing November 1, 2021, and on the first of every month thereafter, the Respondent shall pay to the Applicant, child support in the amount of $1,128 based on an annual income of $74,285.

2. Commencing November 1, 2021, the parties shall share section 7 expenses that have been approved in advance or those that are reasonable and necessary as follows: 49 % to the Applicant and 51% to the Respondent.

3. The Applicant’s request for an Order of temporary spousal support is dismissed.

4. The requests for a retroactive adjustment to child support were not considered and are left to the trial judge for determination.

5. The Applicant’s request for retroactive spousal support and retroactive section 7 expenses were not considered and are left to the trial judge for determination.

6. If the parties cannot agree on the issue of costs regarding this motion and the urgent motion adjudicated by Justice Himel on July 30, 2021, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, her written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, his written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.

Footnotes

1. 1Homsi v. Zaya, 2009 ONCA 322 (Ont. C.A.), para 28
2. 2Knowles v. Lindstrom, 2015 ONSC 1408