H-L v. L, 2022 ONSC 345

COURT FILE NO.: FS-19-393

DATE: 2022 01 14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: L.R.H.-L. v. N.L.

BEFORE: MANDHANE J

COUNSEL: Michelle Raithby for the Applicant

Selin Hankali for the Respondent

HEARD: January 11, 2022 via Zoom

ENDORSEMENT

1The only issues on this motion relates to parenting time for the Father and whether to order a s. 30 assessment of the three children of the marriage.

2The parties were married on July 14, 2012 and separated on May 1, 2019. They have three children: C. (DOB Nov 6, 2015), and A. and E. (DOB Nov 7, 2016).

3The parties appeared before me on the Applicant/Mother’s motion for ongoing child and spousal support. She asks me to impute income to the Father and order him to pay $1,828 per month in interim child support, pay 96% of the children’s childcare expenses, and $515 per month in spousal support (high end).

4At the outset, I refused the Mother’s request to adjourn the motion to file new materials responsive to disclosure she received in December. There was sufficient opportunity to submit an updated affidavit in advance of today’s hearing. It is also not in the interests of justice to further delay the hearing of this motion another six months or more. Finally, given that neither party resides in this jurisdiction any longer, this matter should be transferred to London at the earliest opportunity.

Overview

5Since separation, both parties have relocated to London. The Mother moved to London first to be closer to her parents. The Father moved subsequently to be closer to the children. The children live primarily with the Mother and see the Father on alternating weekends (Friday through Sunday). The three children are enrolled in before- and after-school care ($1262.50 per month), at the sole cost of the Mother.

6The Mother stopped working as a teacher after having children. She was out of the workforce for 12 years. The Mother is now working in London as a part-time supply teacher. She earned $3565 in 2020. She says that she is looking for full-time work but does not provide any evidence of the same. I would expect that she would be successful in obtaining more stable employment by the time this matter proceeds to trial.

7The Father is an industrial millwright. Prior to separation, the Father worked at Nestle in Guelph, earning $97,090. He said that his base salary was between $60,000-$70,000 and that he managed to earn more through extensive overtime. There is no employment documentation to support this assertion. Immediately post-separation, the Father was paying $1828 in monthly child support.

8Upon moving to London in late 2020, the Father began working for Natra Chocolate. The Mother did not know how much he was earning in that position, however, in January 2021, he unilaterally reduced his child support to $1448 per month.

9The Father quit his position at Natra Chocolate, and commenced looking for other employment. He continued to pay monthly support.

10The Father eventually accepted a job. However, on September 1, 2021, he once again unilaterally reduced his support to $1207.

11Before me, the Father says that his annual income is now $60,977 and that he only owes child support of $1214 per month. In his materials filed before this court, the Father says that he is currently employed at London Health Sciences Centre as a millwright. He provides an unsigned “employment letter” and two pay stubs as proof.

12The Father says that there are less opportunities for overtime at his new employer and that he now suffers from a hernia that limits his ability to work extra shifts. He provides no medical documentation to support his limited ability to work overtime.

13The Father has never paid any spousal support and asks me to dismiss the Mother’s request for the same.

Analysis

14Given the best information before me, I am prepared to impute the Father’s income to be $97,000.

15Subsection 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 allow me to impute income in “appropriate circumstances,” including where a spouse is intentionally under-employed, except where the under-employment is required by their “reasonable health needs.”

16According to s. 19(1) of the Federal Child Support Guidelines, I may impute income in appropriate circumstances, including where a spouse is intentionally under-employed or where he has “failed to provide income information when under a legal obligation to do so”. The imputation of income for support purposes is discretionary and fact-specific: Levin v. Levin, 2020 ONCA 604, at para. 12.

17The Mother has satisfied me on a balance of probabilities that this is an appropriate case to impute income to the Father.

18Overall, I am concerned with the Father’s pattern post-separation of unilaterally decreasing child support without providing any proof of his employment. This behaviour raises alarm bells.

19Even here, I find strange that the Father relies only on an unsigned employment letter and two pay stubs in support of his position on income. He offers no medical evidence to suggest that he is impaired or unable to work overtime. Given the lack of information filed in support of his position, I suspect the Father may very well be working overtime or working two jobs. As the Father only has parenting time on weekends, there is no reason that he cannot do more to support the family.

20That said, I am not prepared to order that the Father contribute to the childcare expenses at this time. The Mother is working minimal hours and there is no need for daily childcare. To the extent that the Mother may need occasional help, she admits that she can rely on the Father and her family. In August 2021, when the Father refused to contribute to childcare expenses, the Mother wrote: “If you do not want to contribute financially, fine. Please just leave things as they are. My parents and I will handle the cost.”

21The Mother is entitled to spousal support on a compensatory basis. The Father shall pay spousal support at the mid-range of the Spousal Support Advisory Guidelines based on an imputed income of $97,000.

Order

22On or before January 28, 2022, the Mother shall provide the disclosure to the Father set out in his Notice of Moton dated October 19, 2021 at para. 3.

23The Father shall pay the Table amount of child support based on an imputed income of $97,000.

24The Father shall pay spousal support at the mid-range based on his imputed income of $97,000.

25On consent, this matter shall be transferred to the Superior Court of Justice, London. The property issues shall be determined by that Court. In relation to the transfer, order to go as drafted by counsel and reviewed by this Court.

26The Mother was successful on this motion. She is entitled to costs on a substantial indemnity basis in the amount of $6000, inclusive. This motion would not have been necessary had the Father provided timely and ongoing disclosure of his employment status.