COURT FILE NO.: FC-19-586
DATE: 2022/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
H.G.
Applicant
– and –
J.R.N
Respondent
William R. Clayton, for the Applicant
Scott Grainger, for the Respondent
HEARD: Heard April 13, 14, 20, 21, 22, 25, 26, 27, 28, 29 and May 4, 2022
The honourable justice d.j. gordon
REASONS FOR DECISION
[1] The parties resolved the parenting issues prior to the commencement of trial, leaving child support, ownership of a vehicle, and the request for a restraining order requiring determination.
Factual Background
[2] The parties cohabited from July 2008 to June 5, 2019. The never married. H.G. is presently 41 years of age. He operates a small concrete business in Waterloo Region, having worked in the construction field most of his adult life. J.R.N. is 33 years of age. She is employed as a marketing and event co-ordinator for a company also located in Waterloo Region.
[3] A child was born to the relationship in 2014, O.L.G, now 7 years of age, spends equal time with each of her parents, an arrangement established shortly after separation. An investigation was made by the Office of the Children’s Lawyer with a report delivered on February 2, 2021. The investigator concluded O.L.G had a good relationship with each parent and that each of the parties was a devoted and committed parent. The resolution of the parenting issues is consistent with the recommendations presented by the Children’s Lawyer.
[4] The parties met in May 2007. J.R.N had completed the first year of a photography program at Humber College. She returned to her mother’s residence in Grey County and obtained a position as a waitress of a local restaurant owned by the parents of H.G. H.G. was then living at his parents’ residence, operating a small landscaping business in the area. The parties dated that summer.
[5] J.R.N. returned to Humber College in September 2007 for the second and final year of her program. She would drop out of school in March 2008 as she was not achieving success in one course and did not want to repeat the academic year. J.R.N. returned to her mother’s residence and to her position at the restaurant.
[6] Cohabitation commenced in July 2008 after H.G. had renovated the lower level of his parents’ restaurant. He continued in his business. She would obtain employment that Fall as a photographer.
[7] In 2009, the parties moved to a rental accommodation in Waterloo Region. Both parties had lived here in their youth. J.R.N. continued her work as a photographer. H.G. established a small excavation and landscape business.
[8] In 2010, the parties decided to explore opportunities in Alberta, having previously visited friends there in the winter of 2008. H.G. moved in March. J.R.N. followed in May once the lease had expired and she had resigned from her employment.
[9] The parties lived in Alberta from 2010 to 2015. J.R.N obtained employment with a chartered bank initially, later at a daycare facility until going on maternity leave in 2014. H.G. worked in construction as a labourer for several companies but encountered difficulties getting paid for his work as these businesses were going bankrupt.
[10] In 2012, H.G. and his brother, K.G., established an excavation business. A company was incorporated for this purpose. They acted as sub-contractors on several replacement projects, leasing equipment and hiring operators. The business failed when the company was not being paid. Attempts to collect on the contractor’s lien bond were unsuccessful. Having relied on cash flow to operate the business, failure to remit employee deductions resulted in a debt to Canada Revenue Agency of $176,000.00. H.G. and K.G. were liable for the debt as directors. K.G. paid it in full in 2019 as a result of a lien being placed on his residence.
[11] In 2011, H.G. and K.G. incorporated another company to export used construction equipment to Ghana for sale in the gold mining industry. H.G. took a trip to Ghana and was satisfied there were opportunities for such a venture. Investors were needed as H.G. and K.G. had no money. Eventually, the brother of J.R.N. provided a $19,000.00 loan in 2011. A used excavator was purchased. It was not sent to Ghana, for reasons not explained. The business failed. The excavator was sold several years later for $30,000.00. H.G. reported repayment of the loan.
[12] Throughout their time in Alberta, the parties were in financial difficulty. H.G.’s employment income was minimal and his business ventures all failed, leaving him with debt. The parties lived on the income generated by J.R.N. But it was insufficient even before the birth of O.L.G. in 2014, worse after. They were desperate, not even having the funds to pay the rent. The mother of H.G. provided financial assistance. K.P., a lifetime friend of J.R.N., also contributed to assist in paying living expenses to a total of $25,000.00 from 2013 to 2017.
[13] The relationship started to decline by 2013, in part as a result of their financial stress. Perhaps there were other reasons. Regardless, the parties decided to start a family. O.L.G. was born in 2014, a healthy baby, later described by all as a lovely child.
[14] The parties and O.L.G. returned to Ontario in 2015, needing financial assistance to do so. They lived with the mother of J.R.N. that summer, moving to her father’s residence in Waterloo Region in September and again re-locating to Grey County to live at the apartment under his parents’ restaurant in November. In May 2016, the parties obtained an apartment in Waterloo Region.
[15] After returning to Ontario, H.G. did not seek employment. He reported doing one concrete driving installation in 2016, earning about $10,000.00 gross. In 2017, he worked for a farmer and installed one driveway, earning about $12,000.00. Similar activity in 2018 resulted in income of approximately $18,000.00. These efforts continued until separation. H.G. was not paying income tax, his debt to Canada Revenue Agency increasing every year.
[16] J.R.N. obtained employment in the retail sector in May 2016 earning a modest income. In July 2017, she was hired by a firm doing office administration work and earning about $45,000.00. She was still employed there on separation.
[17] The relationship continued to decline. J.R.N. was working full-time and paying most of the family expenses. She obtained subsidized daycare for O.L.G. H.G. was a casual worker in this time period, reporting to be involved in dealing with the failed Alberta ventures, and also starting to make phone calls in an attempt to broker the sale of used construction equipment. This latter project did not achieve any success until after separation.
[18] By May 2019, J.R.N decided changes were required, namely, H.G. had to find employment and contribute to family finances. Such did not occur. There had been many arguments since the return to Ontario.
[19] On June 5, 2019, J.R.N. received a text from H.G. indicating he had been to her place of employment and observed she was not there. In fact, H.G. had not been at her office. Separation occurred that day. J.R.N. arrived home after work, informed H.G. the relationship was over and left with O.L.G.
Litigation History
[20] The following summarizes the litigation history of this case:
(i) October 22, 2019 – Application issued by former counsel for H.G. seeking:
(a) sole custody of O.L.G. with reasonable access to J.R.N., alternatively joint custody;
(b) J.R.N to pay Guideline child support with parties to share section 7 expenses on a proportionate basis;
(c) equalization of net family property [not available as parties were never married];
(d) appointment of the Children’s Lawyer; and
(e) costs.
(ii) November 18, 2019 – Answer served, J.R.N. seeking:
(a) joint custody of O.L.G, primary residence with her and scheduled periods of care for H.G. on terms, including alcohol prohibition and a valid driver’s license, with exchanges at school or in a public location;
(b) Guideline child support payable by H.G. based upon an imputed income of $60,000.00, with parties to share section 7 expenses on proportionate basis;
(c) H.G. to maintain child on any medical/dental benefit plan available through his employment;
(d) H.G. to maintain a life insurance policy in the amount of $300,000.00, naming her as the irrevocable beneficiary for so long as the child is entitled to support;
(e) parties to provide annual income disclosure;
(f) return of vehicle to her or transfer ownership to him;
(g) a non-harassment order; and
(h) costs.
(iii) November 26, 2019 – Reply served, H.G. agreeing to access and the Children’s Lawyer, disputing child support, custody, restraining order and costs.
(iv) July 20, 2020 – Consent Order granted by Piccoli, J. requesting involvement of the Children’s Lawyer.
(v) February 25, 2021 – Section 112 report delivered by the Children’s Lawyer.
(vi) December 2, 2021 – Settlement conference before Sheard, J. and, on consent, matter placed on the trial list for April 2022 for a six-day trial.
[21] An unusual feature of this case is the absence of temporary orders, save as above, despite the purported conflict as hereafter addressed.
Motion to Amend
[22] During final submissions, Mr. Grainger presented a motion to amend the answer to claim Guideline child support payable by H.G. on an imputed income of $90,000.00. For reasons provided separately, 2021 ONSC 3435, that motion was dismissed.
Parenting Issues Resolved
[23] Shortly after separation on June 5, 2019, the parties and their counsel participated in a four- way meeting. On this occasion, they agreed to share parenting on a week-about schedule. Such has continued.
[24] At the commencement of trial on April 13, 2022, counsel reported a resolution of the parenting issues, presenting Minutes of Settlement and a draft Order. This resolution was consistent with the recommendations of the Children’s Lawyer. I approved the settlement and signed the Order.
[25] This consent Order provides for joint decision-making and shared week-about parenting time. There are detailed terms regarding exchanges of the child, communication using Our Family Wizard, school, physician, counsellor and other matters. This parenting regime is child focused.
Issues
[26] The issues requiring determination pertain to:
(i) a vehicle;
(ii) child support; and
(iii) the request for a restraining order.
[27] There are other claims in the pleadings that were not addressed in the Minutes of Settlement on the parenting issues or at trial. Presumably, the parties are content those claims be dismissed.
[28] The trial was initially scheduling for six days to address all issues, including parenting. Despite resolving the primary issues, the trial still required eleven days, far too long for the remaining issues. There was considerable opinion or editorial comment presented, inviting further questioning but having little, if any, relevance to the issues. Such went beyond providing background information. Indeed, in my view, a trial was not required. These issues were resolvable.
[29] Hereafter, I will focus on the evidence that pertain to the specific issues requiring determination.
Credibility and Reliability
[30] The issue of credibility and reliability was raised by counsel in final submissions, particularly by Mr. Grainger. To be clear, there are some concerns with the evidence of each party, much of it related to their financial stress. The Children’s Lawyer speaks highly of each party in terms of parenting. The clinical investigator was well aware of the parental conflict and the complaints each presented as to the other’s conduct. The resultant recommendations of the Children’s Lawyer are a positive comment on the parties’ credibility.
[31] The evidence regarding income is of concern, H.G.’s views and efforts being difficult to understand or accept. This area is the most contentious from an evidentiary perspective. Nevertheless, I do not see credibility and reliability having a significant impact in the analysis.
Vehicle
i) Evidence
[32] After returning to Ontario in 2015, the parties borrowed a vehicle from the mother of J.R.N. On moving to Waterloo Region, H.G. needed a vehicle for work. A 2001 Lincoln Navigator was acquired in 2016. Ownership was registered in the name of J.R.N. At some point, the Alberta driver’s license of H.G. had expired. For reasons unknown, he did not apply for an Ontario license until after the separation in 2019.
[33] H.G. used the vehicle for business before and after separation. He also used it to transport O.L.G. despite not having a driver’s license. J.R.N. had paid the vehicle insurance without contribution from H.G. In October 2019, she cancelled the policy. H.G. ceased using the vehicle, leaving it in the parking lot at his apartment building. At some point, the landlord had the vehicle towed away. Neither party claims to be aware of what happened to this vehicle.
ii) Claim
[34] J.R.N is concerned with the liability, the vehicle being registered in her name but used by H.G. In her answer, she sought an order requiring the vehicle to be returned to her or, in the alternative, transferring ownership to him. The vehicle has insignificant value, perhaps $500.00.
[35] The draft Order presented by Mr. Grainger on behalf of J.R.N. says:
- The parties shall take such steps as may be required to transfer the ownership of the 2001 Lincoln Navigator into the name of the Applicant, at the Applicant’s expense. In the alternative, the Applicant shall provide evidence to the Respondent that the Lincoln Navigator has been disposed of as scrap metal. In any event, such transfer or provision of disposal of the 2001 Lincoln Navigator shall be completed within 30 days. In the interim, and afterwards, if not in compliance with this paragraph, the Applicant shall indemnify the Respondent for any damages she may suffer or any liability to which she may be exposed by reason of the failure to have the vehicle transferred to the Applicant or destroyed.
iii) Analysis
[36] The issue regarding the vehicle arose in October 2019, the same month this action was commenced. Yet, it appears neither party or then counsel addressed the dilemma. No motion was presented.
[37] Presumably, H.G. received written notice from the landlord before the vehicle was towed away. I have no recollection of him being asked about the event in detail or as to any discussion with the landlord. Neither party presented a vehicle search report.
[38] The parties never married, and in result, Part 1 of the Family Law Act does not apply. There is no constructive or resulting trust claim. Nor is there a claim for damages or declaratory relief. Ownership, therefore, remains in the name of J.R.N., subject to any change that may have occurred as a result of the actions of the landlord.
[39] I conclude, the court lacks jurisdiction to grant the relief sought. Mr. Grainger suggested equitable relief may be available. No such a claim was made and no authority was presented in support of the proposition. This claim is dismissed.
Child Support
i) Evidence
[40] The parties have shared parenting time on an equal basis since shortly after separation on June 5, 2019. Neither party has paid child support to the other, not were there any motions for temporary orders for same. The parties have been responsible for childcare expenses when O.L.G. was in their respective care.
[41] The primary dispute is with respect to the incomes of the parties, particularly of H.G.
a) Income of J.R.N.
[42] J.R.N. had full-time employment throughout the parties’ relationship, save for her maternity leave. Given the failed business ventures of H.G., her income was the primary source for the family’s financial needs. Such, however, did not cover all of their expenses, family and friends providing assistance for a considerable period of time. J.R.N. continued to be employed since separation.
[43] J.R.N. had aspirations to supplement her income by providing photography and other services. Although, H.G. had an inflated view of her endeavours, the evidence revealed only nominal financial return in the past, none since separation of any consequence. Indeed, in final submissions, Mr. Clayton conceded that his client had failed to establish that J.R.N. had other income than from employment.
[44] Of interest on this issue is the income of J.R.N. since 2018. In her income tax returns, J.R.N. reported the following employment income:
2018
$45,408.00
2019
$45,094.00
2020
$47,737.00
2021
$42,877.00
[45] In her financial statement, sworn April 5, 2022, J.R.N. disclosed her current 2022 income to be $43,000.00.
b) Income of H.G.
[46] H.G. dropped out of high school at age 17 and worked in his father’s millwright business as a labourer for two years. He then was employed in the construction field as a labourer and equipment operator for several years. Thereafter, H.G. has been primarily self-employed, initially in excavation and landscaping, most recently in the installation of concrete driveways and patios.
[47] H.G. was employed during the initial two years in Alberta, thereafter attempting to operate an excavation company. There is no dispute, H.G. received minimal payment for his employment efforts and the business ventures were a complete failure. H.G. returned to Ontario in 2015 with significant debt.
[48] The business activity of H.G. in excavation and construction since 2015 has not generated much income. His work is seasonal, involving seven months from April to November. H.G. did not file income tax returns until after separation. These returns reveal the following:
Gross Income
Net Income
2016
$10,000.00
$10,000.00
2017
$12,837.00
$12,837.00
2018
$18,235.00
$18,235.00
2019
$28,554.00
$24,154.00
2020
$167,190.00
$126,601.00
2021
$58,331.00 taxable capital gains Total
($7,329.00) $11,000.00 $3,671.00
[49] The above-stated income was derived from his business activity and the following:
2019 - $10,000.00 commission received from his brother’s company (total commission $16,635.00)
2020 - $ 118,000.00 commission
2021 – capital gain was $22,000.00 plus recapture of $3,164.00 regarding sale of equipment.
[50] In his financial statement, sworn March 30, 2022, H.G. reported his current or 2022 income will be $5,567.00, essentially, following his 2021 income above. However, in his testimony at trial, H.G. indicated he expects to earn $35,000.00 to $40,000.00 in his business.
[51] The commission income generated by H.G. is of particular interest. H.G. developed an interest in the sale of used construction equipment when the parties resided in Alberta. The Ghana venture failed; however on return to Ontario, H.G. commenced making phone calls to people he knew in the industry as well as “cold” calls, trying to broker deals by bringing a vendor and purchaser together.
[52] In 2015, he successfully put together a transaction and was to be paid $15,000.00 commission. H.G. did not receive payment nor did he pursue collection.
[53] The phone calls continued thereafter, averaging ten hours weekly, he said. In 2019, H.G. arranged the sale of an excavator for a mining company in New Liskeard. The commission of $16,635.00 was paid tohis brother’s company. He received $10,000.00. H.G. referred to this company as a vehicle to earn income to pay off the $176,000.00 debt with the Canada Revenue Agency, a debt that his brother had recently paid.
[54] In 2020, H.G. put together two transactions for an individual in the United States of America. The total commission received was $118,000.00.
[55] While continuing to be active with phone calls, H.G. has not had any further success.
[56] The commission income appears to have been spent. H.G. made reference to litigation expense for this case. There were also personal expenses, given the minimal income generated by his concrete business.
[57] As to his current concrete business, H.G. reports being pleased with the modest growth over the past few years. He relies on friends and family for referrals. H.G. does not advertise the business, has no signage on his vehicle or at job sites, has no website or any other means to make the business known in the community. H.G. provides quotes before obtaining project work but does not use written contracts or obtain deposits.
[58] In 2021, H.G. completed approximately twelve construction projects. Some invoices remain unpaid.
[59] H.G. has considerable debt with money owed to Canada Revenue Agency, his mother and his brother.
ii) Positions re: Income
[60] Mr. Grainger, on behalf of J.R.N., submits H.G. is intentionally underemployed and that income must be imputed. He refers to the skills of H.G. that would be attractive to employers, the ability to sell equipment for a profit and the success in brokering other sales.
[61] With reference to selling equipment and brokering transactions, Mr. Grainger says H.G. will likely continue to be successful. He argues in favour of imputing income for brokerage commissions between $37,577.00 and $118,000.00 annually. An additional amount, he says, should be added for equipment sale profit, particularly as such receives lesser income tax consequences as a capital gain.
[62] In result, Mr. Grainger suggested imputing income for H.G. at $90,000.00, now reduced to $60,000.00 as his motion to amend pleadings was dismissed.
[63] Mr. Clayton suggests the appropriate income for H.G., for child support purposes, is $40,000.00. The commission income, he says, was an anomaly, there being insufficient evidence to suggest such will probably continue. Three brokered deals, Mr. Clayton argues, is not a real indicator of future success, particularly given the many years H.G. has been making an effort to put transactions together.
[64] Mr. Clayton also referred to the failure of H.G. in operating a business in Alberta and his lack of education, training and employment qualifications. The best H.G. can do, Mr. Clayton suggests, is in operating a small business, without employees, doing the work himself.
[65] There is no dispute regarding the income of J.R.N. for support purposes.
iv) Principles – Determining Income
[66] The following provisions in the Federal Child Support Guidelines are relevant to the determination of the incomes of each of the parties:
16 CALCULATION OF ANNUAL INCOME – Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
17 PATTERN OF INCOME – (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
19 IMPUTING INCOME – (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;
[67] The starting point is to consider income as reported in line 150 of the income tax return, pursuant to section 16. The purpose of this provision is for predictability and consistency and does not allow for consideration of lifestyle. This is the “presumptive income”. See: Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (Ont. C.A.)
[68] Section 17 allows for determination of income where such fluctuates year to year, rendering a section 16 consideration unfair. Here, the focus is on a pattern of income over the prior of three years. The analysis is not based on simply averaging incomes; rather, it allows for a departure from line 150. See: Decaen v. Decaen, 2013 ONCA 218; Mason v. Mason, 2016 ONCA 725; Punzo v. Punzo, 2016 ONCA 957; and Halliwell v. Halliwell, 2017 ONCA 349.
[69] Imputing income under section 19 is based on fairness and where an adjustment is required to the presumptive income. See: Bak v. Dobell, supra.
[70] The leading decision on imputing income is Drygali v. Pauli (2002), 29 RFL (5th) 593 (Ont. C.A.), where the support payor had enrolled as a full-time university student. Gillese, J.A. addressed the prior inconsistent applications of section 19(1)(a) and provided helpful direction for trial judges. The following summarized the significant matters:
(a) The trial judge must consider three questions:
(i) is the parent intentionally under-employed or unemployed?
(ii) if so, is such required by reasonable education needs [or the needs of the child]?
(iii) If not so required, what income is appropriate in the circumstances? (para. 23)
(b)“Intentionally” does not mean a deliberate course of conduct for the purpose of undermining a support obligation – there is no need to find such an intent, rather the reference is to a “voluntary” act to earn less than what the parent is capable of earning. (para.s 24-28).
(c) There is no requirement of bad faith (para.s 29-30).
(d)One of the objectives of the Child Support Guidelines is to establish a fair standard of support for the children to ensure they benefit from the financial means of the parents. (para. 31).
(e) Imputing income is one method to give effect to the joint and ongoing obligation of parents to support their children – to do so, a parent must earn what he or she is capable of earning. (para. 32).
(f) When imputing income, a court must consider what is reasonable in the circumstances – factors include age, education, experience, skills and health of a parent. (para. 45).
See, also: Lavie v. Lavie, 2018 ONCA 10.
v) Analysis - Incomes
[71] The income of J.R.N. is from employment. It is straightforward and can be determined on the basis of section 16, Child Support Guidelines and as previously described. The analysis as to the income of H.G. is more complex.
[72] Prior attempts by H.G. to operate a business in Alberta were a complete failure. As J.R.N. described these ventures “he tried and tried and failed and failed”. H.G. has no education, training or experience in business operations. Now, he has considerable debts as a result of these activities. H.G. owes income tax to Canada Revenue Agency as well as for loans from his mother and brother. He is insolvent and should be making an assignment in bankruptcy. The debt of H.G. will not be considered with respect to child support calculations.
[73] Despite the optimism of H.G., his current concrete business is not showing success. It generates little income, less than minimum wage. H.G. has an outdated business model, with no advertising or promotion. He does not use written contracts and does not seek deposits before commencing a project, despite there being considerable expense. Yet, H.G. projects an income of $35,000.00 to $40,000.00 net in 2012, working only seven months of the year.
[74] Since separation, this concrete business has provided little profit, sometimes losing money. However, as hereafter discussed, the declared income in some years requires adjustment for support purposes.
[75] H.G. has sold equipment owned by him in the past, generating a profit. There is no compelling evidence to establish a pattern or any likelihood such will continue, only a suggestion it might. H.G. lacks the capital to acquire equipment for sale. His debt will prevent obtaining loans from financial institutions. To rely on past sales to impute income would amount to speculation. This is not the standard.
[76] The brokerage commissions are a significant component in Mr. Grainger’s submissions on imputing income. This venture commenced in 2015. In the past seven years, there are three sales.
[77] The sale of an excavator in 2019 generated a commission of $16,635.00 being paid to the brother’s company. H.G. received $10,000.00, said to be included in his 2019 income tax return. Mr. Grainger submits the whole of the commission was earned by H.G. and the full amount should be attributed to him. I disagree. The brother had some involvement in the transaction and it was processed through his company. This company was created to produce income for the purposes of paying down the debt to Canada Revenue Agency. The brother’s interests cannot be ignored, at least on the evidence presented.
[78] The other commissions, totalling $118,000.00, result from two transactions brokered by H.G. in 2020 and involving the same client. This income will be taken into account when calculating child support for 2020. I do not exclude it under section 17 as non-recurring income as it was earned by the efforts of H.G. Such is not comparable to stock options as in Arnold v. Washburn (2001), 2001 CanLII 21149 (ON CA), 57 O.R. (3d) 287 (Ont. C.A.).
[79] The commission income in 2020, like that in 2019, falls well short of forming a basis to impute income under section 19, at least at this time. Future commissions may change the analysis. The evidence does not establish a sufficient pattern or a reasonable expectation going forward, given the time period involved. I would neither average under section 17 not impute under section 19. See: Lepine v. Lepine, 2012 ONSC 4153 and Michaud v. Kasali, 2016 ONSC 443.
[80] Having regard to the income generating activities of H.G. since separation, other than with respect to these commissions, there are obvious concerns. From a support perspective, the test is what is he capable of earning. In this regard, less than minimum wage being generated by his concrete business falls well short, at least to date.
[81] H.G. has little formal education and no certification as an equipment operator. But he has considerable work experience in construction and has operated large equipment. There are no health or age impediments.
[82] Mr. Grainger, in final submissions, requested judicial notice to be taken as to information on government websites regarding job postings and hourly wages. I declined to do so as such is evidence not presented at trial. Nevertheless, judicial notice is appropriate as to the construction boom in Waterloo Region and the need for workers on these many projects.
[83] H.G. could, in my view, seek employment and improve his current income level. But there was no evidence as to hourly rates. Relying on H.G.’s preferred hourly rate of $25.00 these past many years leads to the conclusion he could earn $35,000.00 to $40,000.00 as a construction worker, the same level he projects for his business. These activities are both seasonal, only seven months of the year.
[84] H.G. knows construction equipment, routinely identifying same by make and model. He is, in my view, well qualified to be working in sales. Indeed, listening to him answer questions in examination in chief and, in particular, cross-examination was an experience similar to hearing a sales promotion. H.G. would likely double his income working in a sales position for equipment dealers.
[85] I have no authority to say how H.G. will earn income. But in assessing what he is capable of earning, the above comments warrant consideration.
[86] Returning to the topic of his business, H.G. only works seven months a year. He chooses not to seek any work in the winter months, saying he prefers to spend additional time with O.L.G. This is not justifiable. The child has no special needs requiring a full-time parent. She attends school. Before and after school childcare is available. J.R.N. works full-time. So can H.G. Indeed, I conclude he must to meet his child support obligations. He has worked winter months in the past. H.G. did not present any evidence to support not working.
[87] By working at least four of the five months remaining in the year, H.G. can earn another $15,000.00 to $20,000.00, at a minimum, again using his preferred hourly rate. In result, I conclude H.G. is intentionally underemployed and income must be imputed to him under section 19. I assess such income to be in the range of $50,000.00 to $60,000.00 and impute income of $55,000.00 for 2022 and future years.
[88] As stated previously, there are adjustments that are required for the income of H.G. as declared by him since separation as the section 16 analysis does not provide the fairest determination. Adjustments for child support purposes are permitted by section 17 or Schedule III, as follows:
(a) 2019 – Line 150 income for $24,154.00 resulted after deducting utility expense for the apartment and cell phone, totally $5,400.00. One half, at least, or $2,700.00 should be added, resulting in a total income of $26,854.00; and
(b) 2021 – Line 150 income of $3,671.00 included a taxable capital gain of $11,000.00. The non-taxable component of $11,000.00 must be added back in. The expenses appear excessive, such as supplies of $26,606.00 compared to $1,402.00 in 2020, however, H.G. was not questioned in detail and I cannot speculate. However, the apartment rent of $4,304.00 and half of the utilities, or $1,595.00, must be added. Further, a 2021 receivable of $8,360.00 was paid in 2022 and was not included in the 2021 income nor was it part of H.G.’s 2022 projection. This was a month-long project and, therefore, I asses the income, after expense, to be added in to be $4,000.00. In result, the 2021 income was $24,300.00.
vi) Child Support Calculated
[89] The parties share equal parenting time of O.L.G. Accordingly, section 9 of the Child Support Guidelines applies, namely:
- SHARED PARENTING TIME If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[90] Section 9 does not adopt the presumptive rule under section 3. Rather, it brings into the analysis other factors based on flexibility and fairness. In Contino v. Leonelli-Contino, 2005 SCC 63, the Supreme Court of Canada considered section 9 a complete system in itself, not a variation of the guideline regime, having regard to the factors provided in para.s (b) and (c). This necessitates a review of the budgets and expenditures of each parent for the child, their ability to absorb increased childcare costs and any variation in standard of living. By consideration of the overall situation with shared parenting and taking into account these factors, the court has the flexibility to determine a fair level of child support for this family.
[91] The analytical framework addressed to Contino requires evidence. In this case, neither party provided a budget. Their most recent financial statements suggest comparable expenditures for the child. The standard of living appears similar in each household. In the absence of evidence addressing the additional factors in section 9, I am left with only the parties’ incomes and the ability to calculate set-off child support. Indeed, this is the approach taken by both counsel in their draft Orders.
[92] Counsel also agree child support should be calculated from the date of separation in June 2019. Both parties had immediately retained counsel and a four-way meeting was held to address, at least, parenting time. In result, the parties would have known from the outset as to the potential child support issue and liability.
[93] The following chart summarized the incomes of the parties, as previously determined, with the monthly Guideline amount in brackets:
H.G.
J.R.N.
2019
$26,854.00 ($220.00)
$45,094.00 ($418.00)
2020
$126,601.00 ($1,120.00)
$47,737.00 ($443.00)
2021
$24,300.00 ($194.00)
$42,877.00 ($391.00)
2022
$55,000.00 ($507.00)
$43,000.00 ($394.00)
[94] Calculating child support since separation results in H.G. being required to pay J.R.N. $5,052.00 to June 30, 2022, as follows:
(a) 2019 (seven months) – J.R.N. owes $1,386.00;
(b) 2020 – H.G. owes $8,124.00;
(c) 2021 – J.R.N. owes $2,364.00; and
(d) 2022 (six months) – H.G. owes $678.00.
[95] As H.G. has the cash available, I direct this payment to be made forthwith.
[96] Future support will be based on the current incomes above, resulting in a set off payment by H.G. to J.R.N. of $113.00 monthly, commending July 1, 2022.
[97] Future adjustments to child support will be based on the actual reported income of J.R.N. and the actual but adjusted income of H.G. or the imputed income of $55,000.00, whichever is the greater amount.
[98] The parties have been sharing the child’s counselling expense. J.R.N. referred to other extraordinary expenses, such as sports and ballet, paid by her. She did not request contribution at the time such expenses were incurred nor did she present a claim at trial for payment of prior expenses.
[99] Future section 7 expenses shall be shared in proportion to the incomes of the parties, provided notice is given in advance and consent to the activity and expense is provided, such consent not to be unreasonably withheld. The parties are encouraged to enroll O.L.G. in extracurricular activities to allow her to meet her potential and in her best interests.
[100] The parties shall provide annual income disclosures in the usual terms, or more frequently in the event of an extraordinary change, commencing June 1, 2023 and adjusting child support in accordance with Child Support Guidelines, and the reasons herein. Support Deduction Order to issue.
[101] Each party shall maintain O.L.G. on any medical/dental plans as are available through employment.
[102] The parties are encouraged to obtain life insurance coverage to secure their child support obligations.
Restraining Order
i) Evidence
[103] While the early years of the relationship were not problematic, J.R.N. made reference to H.G. becoming controlling and emotionally abusive, isolating her from family and friends and monitoring her activities and movement. Some examples are as follows:
persuading her to drop out of college
not contributing financially, requiring her to pay family expenses
causing arguments with her parents
monitoring her cell phone and being aware of text messages before she saw them
making negative comments about her, falsely accusing her of affairs
[104] J.R.N. indicated there was never any physical violence yet she is fearful of such abuse “in a sense” given his anger. She reported H.G. putting his fist through a wall in 2012 after her father had left their residence following an argument. J.R.N. spoke of threats by H.G. to throw her out the window when she would not immediately hand over her phone for him to check.
[105] Following separation, J.R.N. said H.G. demanded daily Facetime with O.L.G. as he wanted “proof” the child was where she was supposed to be. J.R.N. also spoke of H.G. “stalking” her when shopping and sending his girlfriend to take photographs of her father’s residence where she was living in 2019.
[106] K.P. is lifelong friend of J.R.N. They communicate with each other regularly, often daily. K.P. presented similar evidence as to H.G.’s anger when he did not get his way. She provided financial assistance to J.R.N. and H.G. during their time in Alberta and for several years after returning to Ontario. She reported H.G. to respond in anger when she asked about repayment or when he intended on finding employment. K.P. also made reference to H.G. having access to the texts received by J.R.N., observing her own text going to both cell phones in her presence.
[107] H.G. denied the allegations of harassment. He acknowledged arguments, including with her family. Punching a hole in the wall occurred after her father departed their residence in the middle of the night. He was upset with the manner the father had treated J.R.N.
[108] Both had access to text messages on the others’ cell phone as they subscribed to a “family plan” with that feature, according to H.G.
[109] In August 2019, H.G. asked a friend, who would subsequently become his girlfriend, to take a photograph of the residence of the father of J.R.N. to determine if her vehicle was there. H.G. said he was then concerned about the safety of O.L.G. and his then lawyer suggested he send someone else to check the residence.
[110] J.R.N. was not aware of this photograph being taken in August 2019 until receiving disclosure of H.G.’s journal in January 2021. She then reported the incident to the police. Officers contacted H.G., reviewed his journal and took no further steps regarding her complaint.
[111] J.P.N. has not disclosed her current address to H.G. or the court as, she said, she was “concerned for her safety”. Yet, H.G. is aware of it as a result of Mr. Grainger forwarding a copy of J.R.N.’s September 2021 paystub to Mr. Clayton. J.R.N. has not seen H.G. near her residence. H.G. says he has never been there and has no intention of so doing.
ii) Positions - Briefly Stated
[112] In support of his client’s request for a restraining order, Mr. Grainger described H.G. as a bully, controlling J.R.N. throughout the relationship and since separation, having anger problems and isolating her from family. He made reference to the continued false allegations by H.G. concerning the lifestyle of J.R.N., monitoring her phone and recording exchanges. Mr. Grainger described the photo taking event in August 2019 as harassment and intimidating.
[113] Mr. Clayton made reference to J.R.N.’s subjective feelings of concern but submits there is no objection basis. There was no evidence of conduct to cause her harm, particularly since separation. Mr. Clayton argues the photograph event cannot be considered harassment when J.R.N. was unaware such had occurred. Further, he says, H.G. was motivated by concerns for his child. Mr. Clayton points out that H.G. was made aware of J.R.N.’s address by disclosure of documents from Mr. Grainger, yet he has never attended at this residence.
iii) Principles
[114] Section 46, Family Law Act provides:
- RESTRAINING ORDER – (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
(2) SAME – A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
(3) PROVISIONS OF ORDER – A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
[115] The relevant principles pertaining to section 46 may be summarized as follows:
(a) the requesting party must establish by evidence reasonable grounds to fear for her safety or that of the child;
(b)there is a subjective and an objective element;
(c) more is required than a bare assertion of fear; and
(d)there must be a compelling factual basis relating to the responding party’s actions or words and a reasonable expectation such conduct will continue without court intervention.
See: Noriega v. Litke, 2020 ONSC 2970 for a discussion of the principles and caselaw.
iii) Analysis
[116] As mentioned previously, there was considerable editorial comment by both parties that was not relevant to the issues. In this regard, I simply mention in this section, as to the many negative comments made by H.G. regarding J.R.N., her lifestyle, affairs, lying and stealing, all without any evidence. This commentary, however, did demonstrate a lack of respect, at the very least.
[117] In his draft Order, Mr. Grainger proposed the following term:
- The Applicant shall not molest, harass or annoy the Respondent, any domestic partner of the Respondent, or any other family member of the Respondent and in particular, the Applicant shall not attend within a 500 meter radius or cause any other individual to attend within a 500 metre radius of any place known to him to be the place of residence, education, employment or worship of the Respondent, any domestic partner of the Respondent, or any family member of the Respondent.
[118] A restraining order is an extraordinary remedy. If granted, the order is filed with C.P.I.C. and available to police officers on any investigation involving the named party. An alleged non-compliance may be dealt with as a breach of a court order under Rules 1(8) or 31 but is more commonly addressed by prosecution pursuant to the Provincial Offences Act. The remedy may include a fine or imprisonment.
[119] The unusual feature of the request in this case is that the parties settled the parenting issues. A consent order was granted for joint decision-making and equal shared parenting time. By virtue of this settlement, J.R.N. has acknowledged the complained conduct of H.G. does not meet the criteria in section 24 (3)(j), (4) and (5) and hence, has no impact on the child or their joint decision-making responsibility. The parenting order contains numerous terms to prevent future problems, for example, a detailed method for exchanges of the child and an alternate dispute resolution process.
[120] The evidence reveals conflict in the relationship since approximately 2014, much of it resulting from their financial crisis and inability to pay family expenses. This conflict escalated until separation and for some time thereafter. Nevertheless, the parties were able to resolve parenting issues on a temporary basis shortly after separation, assisted by counsel, in a four-way meeting.
[121] The evidence also reveals an element of control by H.G. and his propensity to blame others, including J.R.N. His unnecessary comments as to her character confirm such a finding. In this regard, I accept the subjective basis of concern expressed by J.R.N. However, I am not persuaded such a concern rises to the level as to fear for her safety or ongoing harassment. Nor is there an objective basis for her anxiety as to his conduct.
[122] In this regard, there are no matters of significance since August 2019. While sending a friend to photograph the residence of J.R.N. was not necessary, the event did not involve J.R.N. and she was unaware it had occurred until eighteen months later. There is no evidence as to any improper conduct for some time. H.G. is aware as to the residential address of J.R.N. but has not been observed at or near the home.
[123] It is also problematic when the issue is first addressed at trial, three years since separation. If there had been legitimate concern, it is not unreasonable to have expected a motion shortly after separation seeking a temporary restraining order.
[124] In all of the circumstances noted, I am not persuaded there is an evidentiary basis that would support the need for a restraining order. Nor does the evidence suggest a reasonable expectation any such concerning conduct will continue. As mentioned above, the consent parenting order provides sufficient control as to future conduct.
[125] In result, the request for a restraining order is dismissed.
Summary
[126] For these reasons, a final order is granted on the following terms:
(a) H.G. shall pay child support to J.R.N., for the child, O.L.G, from July 1, 2019 to June 30, 2022, in the total amount of $5,052.00, payable forthwith;
(b)H.G. shall pay child support to J.R.N., for the child, O.L.G., in the monthly amount of $507.00, on his imputed income of $55,000.00, commencing July 1, 2022, and J.R.N. shall pay child support to H.G., for the child, O.L.G., in the monthly amount of $394.00, on her income of $43,000.00, commencing July 1, 2022, resulting in set off child support being paid by H.G. to J.R..N in the monthly amount of $113.00, commencing July 1, 2022;
(c) For the purposes of calculating future child support, the income of H.G. shall be the actual reported income as adjusted or the imputed income of $55,000.00, whichever is higher and the income of J.R.N. shall be the actual reported income;
(d)The parties shall share section 7 special or extraordinary expenses for the child in proportion to the incomes of the parties, provided notice is given in advance and consent to the activity and expense is provided, such consent not to be unreasonably withheld;
(e) The parties shall provide annual income disclosure, or more frequently in the event of an extraordinary change, commencing June 1, 2023 and adjusting child support as required;
(f) Support Deduction Order to issue;
(g)Each party shall maintain O.L.G. on any medical/dental plans as are available through employment; and
(h)All other claims are dismissed.
[127] I expect counsel will resolve the issue of costs; failing which brief written submissions are to be exchanged and delivered to my chambers within 30 days of the release of this decision to my attention by e-mail, care of kitchener.scjja@ontario.ca. If no written submissions are received within the prescribed time period, the issue of costs will be considered settled and the file will be closed.
Gordon, J.
Released: June 14, 2022