Court File and Parties
Court File No.: FS-20-47-01 Date: 2022 Jan 10 Superior Court of Justice - Ontario
Re: Chantelle Nicole Belanco, Applicant And: William Stewart Grummett, Respondent
Before: Justice D.A. Broad
Counsel: Emily Van Looyen, for the Applicant Robert Sager, for the Respondent
Heard: December 8, 2021
Endorsement
Background
1The parties are the parents of three children Brody Grummett-Belanco born August 31, 2014, Cody Grummett-Belanco born May 10, 2017 and Jayden Grummett-Belanco born October 28, 2018 (the “children”).
2The respondent (the “father”) was noted in default and by final order of Harper, J. dated October 28, 2020 (the “Harper Order”) the applicant (the “mother”) was granted sole custody (decision-making responsibility) and primary residence of the children with access (parenting time) to the father on alternating weekends and on such further times as the parties may agree.
3By the Harper Order the father was ordered to pay child support in the sum of $1081 per month based on an imputed income of $55,000 per year with section 7 expenses to be shared 35% to the mother and 65% to the father.
4The Harper Order also directed the sale of the jointly owned matrimonial home and the division of the proceeds of sale.
5The Harper Order required the father to pay costs to the mother in the amount of $7000, made payable to Legal Aid Ontario.
6The father brought a motion to set aside the Harper Order. Pursuant to the Endorsement of MacLeod, J. dated November 25, 2020 the child support terms of the Harper Order were set aside with the balance to remain in full force and effect.
Mother’s Motion
7By Notice of Motion dated August 24, 2021 the mother moved for summary judgment pursuant to rule 16(6) of the Family Law Rules on the basis that there is no genuine issue requiring a trial with respect to the father’s obligation to pay child support and the quantum thereof. The mother seeks an order that the father pay child support commencing November 1, 2020 in the table amount of $613 per month based upon an imputed minimum wage income of $29,618.40.
8In the alternative, the mother sought an order that the father’s pleadings be struck for failure to pay the cost component of the Harper Order.
Evidence
9The mother deposed that the father is trained as a welder, previously earning between $50,000 and $60,000 per year in that trade. Although the father indicated that he was unemployed and had previously been in receipt of Ontario Works, his Financial Statement dated January 4, 2021 attached only a single paystub from Ontario Works dated September, 2020. The father provided no notices of assessment or tax returns. His Financial Statement lists his yearly expenses as $26,779.92.
10The mother deposed that the father has not provided any evidence of attempts to seek employment and that he had told her on several occasions that if he does not work, he will not have to pay child support. The mother asserts that there is no reason why the father cannot work at a minimum wage position.
11Respecting s. 7 expenses, the mother deposed that the children require eye examinations, drops and new glasses, and she also incurs daycare costs as she works full time and the children are in her primary care. She stated that she currently earns $30,000 per year and earned $31,687 in 2020.
12The father deposed that he has not received his full income tax returns, however he does have notices of assessment for 2017, 2018 and 2019 which disclosed that he had income of $49,977 in 2017, $27,935 in 2018 and $22,959 in 2019.
13The father further deposed that in 2020 he received Ontario Works in sum of $1128 per month, however, since the receipt of his share of the proceeds of the matrimonial home he has been cut off Ontario Works.
14Father stated that he has put his “resume out to there to try to get a job” and named two potential employers he has applied to and received interviews/testing.
15The father asserts that it is not necessary for the mother to put the children in daycare as he is available to look after them, as he has done in the past.
16In her reply affidavit, the mother pointed out that the father misstated his 2018 and 2019 incomes, and that his Notices of Assessment disclosed line 150 income in those years of $40,434 and $35,095 respectively.
17The mother noted that the respondent has not provided the required financial disclosure of his income in 2020, and she is asking the court to make an adverse inference, stating that the father is not only capable of working but may have been working in 2020 but has not yet disclosed this.
Principles governing motions for summary judgment
18Rule 16(1) of the Family Law Rules provides that a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. Subrule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
19The basic principles governing motions for summary judgment, as explained in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, are well known and apply whether the motion is brought in a civil context under the Rules of Civil Procedure or in a family context under the Family Law Rules.
20The Court shall grant summary judgment if it is satisfied that there is no issue requiring a trial. This will be the case where the summary judgment motion process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure.
21As provided in subrule 16(6.1), in determining whether there is a genuine issue requiring a trial the court may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only in a trial.
22The party responding to a motion for summary judgment is required to put his/her “best foot forward” and the court is entitled to assume that the evidence led on the motion for summary judgment will be the evidence at trial.
Imputation of income to the respondent
23The applicant relies upon paragraphs (a) and (f) of subsection 19(1) of the Federal Child Support Guidelines in order to support her claim that minimum wage income should be imputed to the respondent. Those paragraphs read as follows:
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 the child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;…
(f) the spouse has failed to provide income information when under a legal obligation to do so.
24Some of the principles which apply where a party seeks to impute income to the other party for the purpose of determining the quantum of child support pursuant to the Federal Child Support Guidelines (“CSG”) were usefully reviewed by Dennison, J. in the recent case of Saeed v. Khalid, 2020 CarswellOnt 1809, 2020 ONSC 939 at paras. 96 and 98-102 as follows:
Sections 15-20 of the Federal Child Support Guidelines are the starting point for the calculation of child support. The goal is to ascertain current income of the payor spouse.
Section 19 of the Federal Child Support Guidelines permits the court to impute income that the court thinks is appropriate in the circumstances, including circumstances where the spouse has failed to provide financial disclosure when under a legal obligation to do so: s. 19(1)(f).
Determining the amount of income to impute to a party is a matter of discretion for the trial judge. The only limitation on the discretion of the court is that there must be some basis in the evidence for the amount that the court has chosen to impute: Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.), at para. 43.
Although the onus is on the party seeking to impute income, once the party has established a prima facie case, the onus shifts to the person seeking to defend the income position the payor takes. The reason for this is that the information that can actually determine the person's income is in their possession and no one else's. It is not fair to expect the person seeking to impute income to bear the entire onus of proving the imputation of income: Lo v. Lo, 2011 ONSC 7663 (Ont. S.C.J.), at para. 57.
Where a party fails to provide income information, s. 23 of the Federal Child Support Guidelines allows the court to draw an adverse inference and to impute an income to the spouse that the court considers appropriate based on the evidence available: Jassa v. Davidson, 2014 ONCJ 698 (Ont. C.J.), at para. 35; [Smith v. Pellegrini [2008 CarswellOnt 5475 (Ont. S.C.J.) ], 2008), at para. 34; Sharma v. Sharma, 2018 ONSC 862 (Ont. S.C.J.), at para. 71.
Providing disclosure is especially important where a party is self-employed because the lack of disclosure may prevent the recipient and the court from fairly assessing their income. That is why the failure to provide complete disclosure may result in the court drawing an adverse inference: Khan v. Parlee, 2012 ONCJ 60 (Ont. C.J.), at para. 38; Meade v. Meade, [2002 CarswellOnt 2670 (Ont. S.C.J.)], 2002)](/on/oncj/2015/244), at para. 49; Galea v. Galea, 2017 ONSC 6335 (Ont. S.C.J.), at para. 55.
25In the case of Zawalreh v Alkhoury, 2021 ONSC 7956 A. Himel, J. stated as follows with respect to paragraph 19(1)(a) at paras. 59-60.
The leading case that defines intentional under-employment in Ontario is Drygala v. Pauli. "Intentionally" means a voluntary act. The person required to pay support is intentionally under-employed if that person chooses to earn less than he or she is capable of earning. The person required to pay support is intentionally unemployed when he or she chooses not to work when capable of earning an income.
When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors include age, education, experience, skills and health of the parent. The availability of job opportunities, number of available work hours (in light of the parent's overall obligations including educational demands), and a reasonable hourly rate may be considered.
26In the case of Michaud v. Kasali, 2016 ONSC 443 McGee, J., noted at paras. 49 and 51 that, although the amount to be imputed must be grounded in the evidence, the evidentiary basis may be less than satisfactory, provided that it is sufficient for a court to judicially exercise its discretion.
27As indicated previously, in response to the motion for summary judgment the respondent is obliged to “put his best foot forward” and the court is entitled to assume that the evidence on the motion will be the evidence at trial.
28In the case at bar, I find that there is a sufficient evidentiary basis for the court to judicially exercise its discretion to impute income to the father.
29The father is evidently healthy and is a trained welder with a history of gainful employment in that trade. Although he deposed that since October 2020 he has been “very depressed” following the making of the Harper Order, he provided no medical documentation to support a suggestion that he was unable to work as a result.
30Although the respondent stated that he “put his resume out there to try to get a job” he did not otherwise explain what efforts he has made and steps he has taken to seek gainful employment. He deposed only that he applied for employment with two prospective employers “in the last few months.” He provided no particulars of the types of positions for which he applied to these two employers, what his job search criteria are, nor even a copy of his resume.
31I find that there is no issue requiring a trial with respect to whether income should be imputed to the father in an amount equivalent to full-time employment at minimum wage.
32In my view the mother has satisfied the onus on her to establish a prima facie case for the imputation of income to the father. The onus therefore shifts to the father to defend the income position he has taken. I find that the father has failed to satisfy that onus.
33There are no issues of credibility between the parties which would require a trial to resolve. The issue for the court is whether the father is intentionally unemployed and, if so, what is a reasonable amount of income to impute to him in the circumstances.
34The summary judgment motion process provides the court with the evidence required to fairly and justly adjudicate these issues and is a timely, affordable and proportional procedure.
35I find that the father is intentionally unemployed and that he is capable of working full time at a minimum wage position.
36The case of Kajorinne v Kajorinne, [2008] O.J. No. 2789 (S.C.J.) cited by the father does not assist him on the issue of imputation of income. The payor father in that case lost his employment and began drawing employment insurance benefits, thus significantly reducing his income. The issue was not whether income should be imputed to the father, but rather whether it was reasonable to average his past income to arrive at a current income figure. At para. 14 Pierce, J. observed that there was no evidence that the father was wilfully unemployed and that it was likely that he would return to work in the future at which time his support obligations can be revisited based on a change in circumstances.
37Pierce, J. found that a child support order fixed at the averaged level that the mother suggested was beyond the capacity of the father to pay and would be a recipe for default. It would also risk engendering acrimony between the parties that would not be in their best interests are those of the children.
38In my view, a similar observation may be made in the case at bar with respect to the question of whether an order for the payment of child support should be made retroactive to November 1, 2020 as sought by the mother. To order the father to pay child support from November 1, 2020 would thrust him into immediate default with no realistic means to cure it. In the exercise of my discretion it would be fair to order the father to pay child support commencing January 1, 2022.
39I find that section 7 expenses should be shared on an equal basis, given the equivalency of the parties’ respective incomes, imputed in the case of the father.
40On the basis that it is anticipated that the father will be working, it is not appropriate to relieve him from the obligation to contribute to the mother’s cost of day care on the basis of his submission that he is available to care for the children.
41Based on the current Ontario minimum wage of $14.35 per hour I impute income to the father in the sum of $29,848 per annum resulting in child support for three children in the sum of $618 per month.
42Given my disposition of the child support issue, it is not necessary to consider the mother’s alternative submission that the father’s pleadings be struck.
Disposition
43On the basis of the foregoing it is ordered and adjudged as follows:
(a) commencing January 1, 2022 and on the first day of each month thereafter the respondent shall pay to the applicant child support for the children Brody Grummett-Belanco born August 31, 2014, Cody Grummett-Belanco born May 10, 2017 and Jayden Grummett-Belanco born October 28, 2018 (the “children”) in the amount of $618 per month based upon an imputed minimum wage income of $29,848 per annum;
(b) the respondent shall contribute 50% towards the children’s special and extraordinary expenses as defined in the Federal Child Support Guidelines, based on the parties’ equivalent minimum wage incomes;
(c) by June 1 in each year hereafter the applicant and the respondent shall each provide to the other copies of her/his most recent income tax return, together with all schedules, attachments and slips, and any notice of assessment or reassessment provided by the Canada Revenue Agency;
(d) A Support Deduction Order shall issue.
Costs
44The parties are strongly urged to agree on the question of costs.
45If the parties are unable to do so, the applicant may make written submissions as to the costs of the proceeding and the motion within 14 days of the release of this Endorsement. The respondent has 10 days after receipt of the applicant’s submissions to respond. The applicant shall have 5 days following receipt of the respondent’s submissions to reply. The initial written submissions of each party shall not exceed four (4) double-spaced pages exclusive of Bills of Costs or Costs Outlines and offers to settle. The reply submissions, if any, of applicant shall not exceed two (2) pages. All such written submissions are to be forwarded to me via email to the Trial Coordinator at Brantford at the same email address as utilized for the release of this Endorsement.
46If the parties are able to settle the question of costs or if a party does not intend to deliver written submissions, counsel are requested to advise the court accordingly.
D.A. Broad, J.
Date: January 10, 2022