Court File and Parties
Court File No.: FS-22-0029305-0000 Date: 2023-04-25 Superior Court of Justice – Ontario
Re: Ofejiro Osanebi, Applicant And: Bright Ebinum Osanebi, Respondent
Before: Akazaki, J.
Counsel: Simeon Oyelade for the Applicant Bright Ebinum Osanebi, on his own behalf
Heard: April 25, 2023
Uncontested Trial Endorsement
Introduction
1This was an uncontested trial of a divorce application. The parties were married on March 8, 2008, and separated on November 23, 2014. There are two children of the marriage, daughters, ages 10 and 12. The Applicant lives in Toronto and the Respondent has relocated to Lagos, Nigeria. The Applicant seeks the following relief:
(a) divorce; (b) decision-making responsibility for the children; and (c) child support for the two children.
2The Respondent father has not been involved in the children’s lives since he left them. The Applicant mother has tried to get him to be involved, but he is not interested. The Applicant is prepared to provide him with generous parenting time, on reasonable notice, if he were to change his mind and decide to get involved. In her application, the Applicant stated that the father abandoned the family because she did not give him a male child. Had he properly responded to the proceedings, he could have answered this allegation. He has not done so.
3The Respondent was employed and self-employed during the marriage. However, the Applicant does not know what the Respondent currently does for a living. It is not absolutely clear from the record whether the Respondent resided in Canada, but it appears from the narrative in the Application that he resided with the Applicant and the children for some time before November 23, 2014.
Divorce
4I am satisfied the parties have lived separate and apart for at least one year and that there is no possibility of reconciliation. The Applicant is entitled to a divorce order under s. 8 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
Decision-Making Authority
5The mother clearly is entitled to sole custody including decision-making authority for the children. She needs the court order for decision-making authority to perform basic functions such as applying for passports and official documents, health care decisions, etc. She is the sole custodian of the children and has been the de facto sole caregiver since the children were born. Unless circumstances dictate otherwise, the best interests of the children are rightly presumed to lie with the custodial parent: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para 40.
Child Support
6The less straightforward issue is the matter of child support. It is the obligation of each party to a divorce application, in which children are involved, to provide information about their income: Federal Child Support Guidelines (SOR/97-175), ss. 19 - 25 (CSG). Had the Respondent complied and contended that he earned less than the $12,000 minimum amount for child support under the CSG Table for Ontario, he could have avoided having to pay child support. Because the Respondent has failed to provide information and has not engaged in the court process, s. 23 of the CSG enables the court to draw an adverse inference against him.
7A common imputation of income for a party whose pleadings have been struck or noted closed, and/or who has failed to comply with the information requirements of the CSG and the Family Law Rules, O.Reg. 114/99, is to impute an income equivalent to the provincial minimum wage: Rose v. Baylis, 2018 ONCJ 230, at para 79-93. It has been suggested that for the court to impute any amount above the provincial minimum wage, the court needs to have some evidence: Carmichael v. Abel, 2022 ONSC 7034, at para. 50, citing Dassin v. Perpignan, 2021 ONSC 1066, at para. 8 and Drygala v. Pauli, at paras. 43-52. However, the Court of Appeal decision cited in Carmichael, Drygala, does not go as far as setting the minimum wage as the default position. Rather, the appellate decision refers to various demographic and vocational criteria such as age, education, skills and health of the parent.
8The Applicant has submitted a draft order in which the calculation of child support for the children is $491 per month based on a minimum wage imputation. Neither she nor her counsel are to be faulted for this. It is what some of the reported cases state as appropriate in these instances.
9The idea of minimum wage as the default income to be imputed in these situations troubles me, because there is no principled reason to adopt it as a judicial norm. In fact, there is ample reason to reject it and to use a more average or median earning capacity as the default, in cases where the non-custodial parent has failed to make appropriate disclosure.
10According to Statistics Canada, minimum-wage earners represent only about 10% of the Canadian workforce: Statistics Canada, Maximum Insights on minimum wage workers: 20 years of data. It seems very counterintuitive to assume an earning capacity at the lowest legally allowable wage and reflecting the economic reality of so few earners, when the principled approach requires the weighing of various factors as stated by the Court of Appeal in Drygala.
11In a situation in which the court has little or no information about the earner’s income and the earner has failed to comply with the legal disclosure rules, logic would dictate that the median income would capture a wider net of possible outcomes, based on a balance of probabilities resembling the traditional bell curve. The average hourly wage in Canada is about $30 per hour, or almost double the Ontario minimum wage: Statistics Canada, Average Earnings 1998 to 2021.
12Average statistics are used as the default in most other areas of law, such as in the demographic data used in personal injury awards. When the courts award damages for loss of earning capacity, average income is the default floor, not minimum wage: e.g., Soligo v. Turner, 2002 BCCA 73, at para. 26. Judges of this court regularly rely on such median figures, in the absence of better evidence. The law of evidence recognizes government-published demographic data as evidence, either under the public records exception to the hearsay rule or as a matter of judicial notice. Family law should not default to a range of income earned by only one tenth of the labour force, when the court in other fields of law refer to average statistics representing the majority, or at least the largest cross-section of earners.
13The judicial use of minimum wage as the default for imputing income therefore runs counter to the existence of generally available statistical data showing that relatively few earners belong to that cohort. Use of the minimum wage as the default floor amount encourages concealment of income among those who earn substantially more than minimum wage. For example, a construction worker in a strong labour market might be encouraged to earn cash income, pay little or no tax, and defeat the child support regime, by defaulting to minimum wage even though the actual income might be more like a median income.
14Using median income levels as the presumptive range would encourage more engagement in the process. Instead of checking out of the family process knowing that child support would be calculated on an imputation of minimum wage, a payor spouse would have to take part in the proceedings and disclose actual minimum wage earnings in order to have the income imputed at the lower amount.
15The use of minimum wage also appears to reveal an unconscious class bias toward assuming parents who neglect their family support obligations belong to a particular social stratum. This approach only punishes the custodial spouses in working poor families, usually female, by applying downward pressure on child support and increasing the corresponding burden of raising the children on their own. Until an appellate court states that the above reasoning is wrong, my view is that minimum wage should be reserved for cases where there is an actual employment history of minimum wage.
16Complicating the minimum wage approach is the fact that the Respondent resides in Nigeria. While it might or might not be possible to consider the minimum wage in that country, it is based on local political and economic factors that cannot be used to compare with Ontario minimum wage. Perhaps it can be inferred from his return to Nigeria that the Ontario minimum wage provided insufficient economic incentive for him to stay in Canada, compared to what he stood to earn in Lagos and the standard of living that city offered. That piece of evidence would mean that the Ontario minimum wage is insufficient for imputation purposes, except to gauge the needs of the recipient spouse in looking after the children. The Applicant mother must support her children based on the cost of living in Toronto, Canada. If it suits the Respondent to reside in Nigeria away from his children, he should be expected to pay support based on the economic conditions of the location where the children reside.
17Based on the current Ontario minimum wage of $15.50 an hour, the Respondent (if he had remained here) would have been capable of earning $30,000 based on a 40-hour work week and some allowance for days he cannot work and vacation. Alternatively, a minimum wage earner without any time off could earn $32,240. The evidence from the Applicant that the Respondent was previously self-employed and the implication that he was working for cash would result in a gross-up for income tax raising the actual income to be in the order of $35,000. This would effectively be the minimum-wage floor for a self-employed person receiving payment in the form of cash in hand.
18Having regard to the fact that this level of income was insufficient to keep the Respondent in Canada, the fact of his relocation to Lagos would be some evidence that he enjoys a better standard of living there than a minimum-wage earner in the Toronto region. I would therefore impute an income of $50,000 per annum as being a level of income close to the $30 per hour median but probably earned by a larger proportion of the wage-earning public than the proportion who earn more than $30 per hour. The CSG table amount two children aged 10 and 12 based on the $50,000 imputed annual amount is $755 per month. If I am wrong to use factors approaching median wage income as opposed to minimum wage income, the appellate court can use the minimum wage to derive a table amount of $491 monthly instead of $755.
19For the purpose of historical non-payment of child support, the $755 monthly rate is appropriate because it represents the current value of any table amounts, including prejudgment interest, that the Respondent ought to have paid, and of which he had the benefit in spending on himself as opposed to his children. While there might be actuarial evidence that might fine-tune this empirically based on economic data, the principle arrives at a rough-hewn approximation of the actual obligation over time.
20In considering an award of retroactive child support, the Applicant must provide evidence that the children suffered from a lack of support. The ability to pay, as well as need, must be considered: Drygala, at para. 53. The court is generally limited to three years prior to notice of the claim, for the purpose of retractive child support: D.B.S. v. S.R.G. et al., [2006] 2 S.C.R. 231, at para. 123.
21Since the Respondent has not provided any support to the family since separation, and indeed prior to separation, the case clearly warrants an award of child support dating back three years prior to the date of service of the Application, viz. April 28, 2022, or April 28, 2019. I therefore award 48 months of child support totaling $36,240 as of April 2023.
Conclusion
22Based on the foregoing, the Applicant is entitled to an order for divorce and corollary relief in the form submitted, subject to changes I have made to the draft order to reflect the amount of child support I have awarded, including the arrears.
23Based on the default nature of the proceeding, I award the Applicant $5,000 in costs.
Akazaki, J.
Date: April 25, 2023