Court File and Parties

COURT FILE NO.: FS-08-12669-02 DATE: 2022 Jan 6

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Edward Tyndall, Applicant AND: Miyuki Tyndall, Respondent

BEFORE: The Honourable R. J. Harper

COUNSEL: Self-Represented for the Applicant Vivian James, Counsel, for the Respondent

HEARD: May 17, 2021

Endorsement

[1] This is a motion pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISO”). The Applicant, James Edward Tyndall (“James”), sought to:

a. Terminate child support for the child, Jake Tyndall, born May 31, 2002. b. Terminate enforcement of child support. c. Adjust his arrears of child support to zero.

[2] The Respondent, Miyuki Tyndall (“Miyuki”), sought to:

a. Have James’ motion dismissed with costs against him. b. Have income imputed to James because of his purposeful underemployment/unemployment. c. Have James pay the proper child support.

Chronology of Deception and Non-Compliance by James

[3] Miyuki is a citizen of Japan. James has both an American and Canadian citizenship. James and Miyuki met in Japan while James was teaching English. They cohabited and had a child on May 31, 2002, namely Jake Taiga Tyndall (“Jake”).

[4] In or about 2006, James was terminated from his job teaching English. He lied about his having a university degree and had forged the certificate that he represented to be his degree.

[5] According to Miyuki, she and James fled Japan on April 17, 2006 along with their son, Jake. They fled to avoid his possible arrest and criminal charges.

[6] They travelled to North Carolina to live with James’ father. James obtained employment there and they resided in North Carolina until October 2007.

[7] Miyuki stated in her affidavit sworn December 15, 2012 that James’ mother came from Canada to visit them in North Carolina in October 2007. It was intended that James, Miyuki, and Jake would travel back with them to Canada. However, Miyuki was denied entry into Canada as she did not have the proper Visa for her to enter. She was under the impression that James had filed all of the proper paperwork in order for her to enter Canada. She had even signed papers to get the proper Visa. James never filed them.

[8] Miyuki was forced to fly back to Japan alone.

[9] On or about December 12, 2007, Miyuki obtained a six-month Visitor’s Visa to enter Canada. She arrived in Brantford that same day.

[10] James, Miyuki and Jake resided in James’ mother’s home in Brantford. Miyuki was never given a key to that home. James refused to sign sponsorship papers for her to obtain a more permanent Canadian immigration status.

[11] One day, when Miyuki took Jake to school, James locked her out of the home. She was concerned that her temporary visitor status would require her to go back to Japan, however, she was granted permanent residency in Canada in order for her to maintain close contact with Jake.

[12] Miyuki agreed that Jake would have primary residence with his father in order for him to stay in the same school.

[13] James sent a letter to Miyuki in July of 2014, stating that he was considering moving to Ottawa. Jake was 12 years old at the time and did not want to move to Ottawa. The Office of the Children’s Lawyer (“OCL”) was appointed in order to obtain the views and preferences of Jake. Despite the appointment of the OCL, James made arrangements to sell his home and he notified Miyuki in a letter, received on August 16, 2014, that he was moving to Ottawa with Jake and he was starting a new job on August 19, 2014.

[14] On August 22, 2014, the matter came before me. I told James and his lawyer, who were both present at that court attendance, that the child was not to be moved without further order of the Court. Despite my direction, James took Jake to Ottawa. Miyuki needed to obtain the assistance of the Ontario Provincial Police (“OPP”) to get Jake back. Jake was finally returned to live with Miyuki on August 26, 2014.

[15] On September 3, 2014, I ordered that the child remain in Brantford and reside with Miyuki.

[16] There was a disclosure meeting with the OCL. It was attended by James and his new wife and their daughter. James was angry that Jake wanted to remain in Brantford. He stated at this disclosure meeting that he no longer wanted to have anything to do with Jake.

[17] James has had no contact with his son Jake since approximately Christmas of 2014.

Other Relevant Court Orders

[18] James and Miyuki were divorced on April 6, 2010 by the Order of Justice Lococo.

[19] The Order of Justice Lococo gave primary residence of the child Jake to James. Access to Miyuki was also set out in as part of the terms of the Order.

[20] Pursuant to paragraph 23 of the Order of Lococo J., James had an obligation to pay spousal support to Miyuki. However, based on the current income, Justice Lococo set the quantum at zero.

[21] Justice Lococo ordered that each party shall exchange income information on May 1 of each year. The obligation to pay spousal support shall terminate on April 1, 2012.

[22] For the purpose of child support, commencing May 1, 2010 and each May thereafter, each party shall provide to the other copies of their income tax returns and notices of assessment for the prior taxation year.

Subsequent to the Divorce Order

[23] The child Jake continued to be in the primary residence of James until August 26, 2014.

[24] From the date of Justice Lococo’s Divorce Order until February 2014, James never provided his income information to Miyuki and Miyuki never provided her information to James. It was not until February 2014 that James finally asked Miyuki for her financial information.

[25] On February 3, 2014, James’ lawyer wrote to Miyuki seeking to have her provide her income tax returns from 2010, 2011, 2012 and income from all sources from 2013.

[26] On December 22, 2016 this matter came before me. James had not seen or had any contact with his son Jake since December 2014. At that time, I made the following order:

a. Miyuki was granted custody of the child Jake. b. James was to have reasonable access. c. James was to pay child support to Miyuki for Jake in the amount of $734.00 monthly commencing October 1, 2014. d. James was to pay a further sum of $66.67 per month as a contribution to section 7 expenses commencing October 1, 2014. e. The above Order was made on the basis of the Respondent James’ stated income of $85,000 annually. This representation by James was made at a case conference before me during this action.

[27] Each party was also to provide financial disclosure within 30 days of the anniversary date of the Order in accordance with section 24.1 of the Child Support Guidelines, O. Reg. 391/97.

[28] James claimed that he did not receive notice of the court proceedings in Ontario. This is not true. He participated in the proceedings. He was actively involved in motions and conferences. He stopped his involvement when he and his present spouse, Amy Tyndall, abruptly left the OCL disclosure meeting when they were advised that the child wanted to remain in Brantford with his mother.

[29] James wants the court to consider child support payments to him when the child primarily resided with him from 2010 until 2014. There was no order for support at that time. The parties were ordered by Justice Lococo to exchange financial disclosure annually in the 2010 Divorce Order. Neither party complied with this disclosure order. James did not make a request until he had his lawyer send a letter requesting disclosure in 2014. James gave no explanation for the delay in seeking disclosure and an order for child support.

[30] Miyuki states that she had no income during those years.

[31] In 2014, James moved to Ottawa with the child. He did not inform Miyuki of this move in advance. In addition, he disobeyed my court order that he not move the child at that time. Miyuki had to enforce the court order and eventually the child was returned to Brantford to reside with his mother.

[32] James did not tell the court that he had moved with his present spouse to Alberta. The OCL learned of this information and relayed it to Miyuki and the court. After a lengthy delay, due to James’ secretive conduct, the matter proceeded to an uncontested hearing before me in December 2016.

[33] The Applicant, James took no action within the court proceedings nor did he pay any support in accordance with the Order of December 2016. His action before the court only came when enforcement proceedings were commenced against him.

[34] I find that the Applicant, James acted in bad faith. His deceptions were chronic. He attempted to place the mother of his child in such a position that she would not be allowed to parent the child, given her immigration status. He led Miyuki to believe that he applied for the proper immigration status. This was not true.

[35] When that deception did not work, James attempted to move to Ottawa and take Jake with him. He did this despite the OCL being appointed and a clear direction of the court not to take the child to Ottawa.

[36] Most significantly, when James learned that his son wanted to stay with his mother in Brantford, he stated that he did not want to have anything to do with him and he has followed through with that threat.

[37] James has not paid child support pursuant to my Order dated December 2016.

[38] He now states that he never made $85,000 despite his representation to the court. In his most recent disclosure, James provided bank statements in his name, his joint accounts with his wife, Amy, and her sole account.

[39] The statements show the following deposits made to those accounts:

a. 2020 Sole Account – James Tyndall - $34,378.00 b. Joint Account with his wife, Amy, he deposited - $20,886.00 c. Amy’s Sole Account she deposited – $10,634.00 d. Amy deposited into their joint account - $19,634.00 e. Together, James and Amy deposited a total in 2020 the sum of $91,532.00 f. The accounts in 2019 show a total deposit from James and Amy for 2019 in the amount of $141,179.00. that total is broken down as follows: i. James sole account $18,921.00 ii. Joint account $36,577.00 iii. Amy’s sole account $91.681.00

[40] James and Amy also show a total expense for Cannabis for 2019 $7,089.60 and for 2020, $7,077.39. In addition, the bank statements show multiple expenses for liquor, beer, pet and vacations.

[41] James income tax returns and notices of assessment are not an appropriate way to determine his income. I accept Miyuki’s testimony that James has a history of working for undisclosed cash. Even if I accepted James’ representation of his income, which I do not, he never made any efforts to pay child support even with the lower income he states that he earned.

[42] James has manipulated his income over the years and he has selectively disclosed only what he chose to disclose if it benefited him.

[43] From 2016 to 2018, James was employed. However, he did not pay any child support. In 2018 he decided that he would no longer work outside his home. His present spouse, Amy, was working and earning $90,000 per annum. James decided that he would stop working and become a stay-at-home dad.

[44] At the time that child support was ordered by me in December 2016, James had not filed a financial statement as he was required to by the Family Law Rules, O. Reg. 114/99 (“Rules”). However, at an earlier case conference that was held in February of 2016, he represented that he was doing well and that his income would be $85,000 per annum. It was on that basis that I ordered child support payments in the monthly amount of $734.00 per month as well as the sum of $66.67 per month for extraordinary expenses. The child support payments were to commence on September 1, 2014. James did not make any payments pursuant to that Order for child support.

[45] James simply ignored the child support Order. He did not disclose his income as he was required to do, nor did he bring a motion to change the Order.

[46] James had moved to either the Northwest Territories or Alberta. He did not tell the court. The OCL obtained that information and advised Miyuki and the court. It was not until there was an attempt at enforcement of the December Order that James finally brought a motion to change.

[47] In his motion, he claimed that he never made $85,000 per annum. He claimed that he was attending school at Mohawk College. However, he never provided proof that he attended school or obtained a certificate or diploma.

[48] Miyuki stated that during the period between 2010 and 2016, James worked as a landscaper in Brantford. He had been doing such work for a long period of time, including when the parties were married.

[49] It was by James’ own representation in February 2016 that he was doing very well and would earn $85,000 annually. However, that representation came at a time that he was pursuing custody of his son Jake. At that time, he was presenting a rosy picture of the home environment that he could provide Jake.

[50] The rose quickly wilted when Jake expressed that he wanted to stay with his mother in Brantford. James did not participate any further in the court proceeding. That matter concluded in December 2016 at an uncontested trial that was held.

[51] I find that James has no credibility. He has been deceptive to his wife since the birth of their son. He lied about preparing the necessary paperwork for her immigration status that resulted in Miyuki being forced to return to Japan without her son.

[52] He set up his own self-help remedy by not disclosing his true intentions to move to Ottawa until it was a fait accompli. He then did not comply with the court’s direction not to take the child to Ottawa. The OPP had to become involved in order to have the child return.

[53] He did not comply with the court’s orders and the Rules requiring financial disclosure and the serving and filing of a sworn financial statement.

[54] After the enforcement proceedings were commenced, his income was reduced with no explanation.

[55] The final step in his nefarious acts was his decision to stop work altogether and decide to be a stay at home parent to his daughter. He stated that he did not have to work as his second wife was earning $90,000 per annum.

[56] I find that he is purposely underemployed and unemployed.

[57] I agree with Miyuki and find as a fact that James works and earns income that he does not report. I find that when it suits him, he can earn, and he represented in the past that he does earn a substantial income. I impute income to him in the amount of $85,000 per annum for child support purposes.

[58] When I gave my oral reasons, I found Jake had never stopped being a child entitled to support. Jake has always been enrolled in full in post-secondary education. He has been entitled to child support from both his parents. Both his parents have a duty to pay child support in accordance with the incomes that they are able to earn.

[59] I accept Miyuki’s evidence that from 2010 until 2014 she did not each sufficient income to pay child support. Therefore, that will be no order for her to pay child support for those years to James.

[60] I will consider my findings as set out above in accordance with the law that I set out below.

The Law and Analysis

[61] The Supreme Court of Canada stated the following in Michel v. Graydon, 2020 SCC 24, commencing at para. 10:

[10 ] In D.B.S. , this Court endorsed certain important principles governing orders for child support (including retroactive child support) that merit restating here:

• Child support is the right of the child , which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents (para. 38);
• Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
• The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38‑45).
• Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
• Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); and
• In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and . . . flexibility”. A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).

[62] The Supreme Court went on to state at para 32:

[32] Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income. Again, D.B.S. is instructive: “a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (para. 107). And where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This is because the methodology adopted by the Federal Child Support Guidelines, SOR/97‑175, which are expressly incorporated in the FLA , results in information asymmetry. Apart from shared parenting arrangements, the Guidelines calculate child support payments solely from the payor parent’s income. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application‑based regime places responsibility on both parents in relation to child support ( D.B.S. , at para. 56), the practical reality is that, without adequate disclosure, the recipient parent will not be well‑positioned to marshall the case for variation.

[63] I find that James knowingly avoided paying child support for Jake. He did not disclose his real income even when ordered to do so. When it became clear to James that the child expressed a preference to stay with his mother, James sought to dimmish and hide his true income. He then made a deliberate decision to stop working despite his obligation to earn an income in order for Jake to live a standard that he is entitled to.

[64] The Supreme Court stated in Colucci v. Colucci, 2021 SCC 24, stated commencing at para. 4:

[4] The applicable framework must give effect to the objectives and provisions of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), particularly the core objective of safeguarding the child’s right to a “fair standard of support” ( s. 1 ). Retroactive variation applications also require courts to weigh the certainty and predictability provided by an existing court order against the need for flexibility in a system that ties support to fluctuating payor income. The framework set out below balances these interests in a way that incentivizes payment of the right amount of child support when it is due and the timely disclosure of financial information — the linchpin of a just and effective family law system. Rules which create perverse incentives to ignore or postpone parental support obligations are to be firmly rejected in favour of legal standards designed with the fundamental purposes of child support in mind.

[65] In Colucci , para. 34 the Supreme Court went on to state:

[34] The enactment of the Guidelines in 1997 marked a paradigm shift in Canadian child support law away from a need-based approach to one which clearly established the child’s entitlement to support commensurate with the payor’s income ( D.B.S. , at paras. 42-45). The Guidelines rest on the principle that “spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (Divorce Act, s. 26.1(2)). Section 3 of the Guidelines provides that the amount of child support is presumptively determined in accordance with the applicable table in Schedule I. Putting aside shared custody arrangements, the tables generally allow parents and courts to calculate the amount of child support owing based on just two numbers: the payor’s income, and the number of children to be supported…

[66] This case is not a case of fluctuating incomes requiring the court to be flexible in deciding what income is appropriate in order to arrive a fair standard of support for the child. James did not participate as he was required to do. He simply ignores court orders and the court process when he did not like the outcome.

[67] When income is imputed to make the original support order, the Supreme Court stated in Colucci at para. 63:

[63] Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order ( Gray , at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364 , at para. 53 ).

[68] In this case, James chose not to participate in these proceedings when he realized his son was not going to reside with him. He did not file the financial information he was required to file. He did not provide sworn financial statements he was required to file. He only made a representation to the court about what his income was when he thought that representation would help advance his parenting case. As stated above in Colucci he cannot rely on his own late disclosure as a change in circumstances to ground a variation order: “that would defeat the purpose of imputing income in the first place” and act as a “disincentive for payors to participate in the initial court process”.

[69] Having regard to the above, I make the following Order:

a. There shall be no child support payable by the Respondent, Miyuki, for the years from 2010 until and including 2014. b. My order of December 2016 shall continue in full force and effect. c. The Applicant, James’ motion to change is dismissed. d. The arrears of child support are fixed as follows: i. For the base amount of support based on income imputed at $85,000 per annum, the sum of $743 per month from September 1, 2014 until December 31, 2021. The total number of months being 88 months at $743 per month for a total arrears fixed at $64,592.00 ii. For section 7 expenses I fix the arrears at $66.67 per month for 88 months being the sum of $5,866.96. e. The Child Support to be paid by the Applicant shall continue from January 1, 2022 based on the Applicant’s income imputed at $85,000.00.

[70] If the parties are not able to agree on costs, they may file brief submissions as to costs no later than January 30, 2022. The submissions cannot exceed 3 pages and a summary of the costs should be attached to the submissions.

The Honourable R. J. Harper Date: January 6, 2022