Kirkwood v. Laderoute 2023 SCJ mini 17

COURT FILE NO.: 09-0287

DATE: 2023/12/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Crystal Gale Kirkwood

Applicant

– and –

Paul Joseph Laderoute

Respondent

Gregory Best, for the Applicant

Respondent, Self-Represented

Mr. Eastwood, Family Responsibility Office (friend of the court)

HEARD: June 7, 2023, further submissions November 24, 2023, Brockville

REASONS FOR DECISION - IMPUTING INCOME FOR CHILD SUPPORT

SOMJI J.

Overview

1This decision addresses the Respondent father’s continued child support obligations. In particular, the court must determine whether income should be imputed on the father for child support going forward for the parties’ two teenage children. The father acknowledges he is employable, but claims he unable to work because of his responsibilities in caring for an adult child aged 27 from another relationship. The father also argues the Family Responsibility Office (“FRO”) did not properly credit him for deductions from his wages and tax refunds.

2The mother requests the court to impute income on a part-time basis.

3There are three issues to be decided. (i) Should income be imputed against the father? (ii) If so, what amount of income should be imputed? (iii) Did the FRO properly account for deductions?

Factual and Procedural Background

4The parties commenced a common law relationship in June of 2004. They are parents to two children, J.L., age 17, and O.L., age 15 (“children”). The parties separated in November of 2009. The children have remained in the mother’s primary care since that time. The father has three children from other relationships, including a 27-year-old adult son, B.L.

5On June 7, 2010, Pedlar J. issued a final parenting order (“Final Order”) following an uncontested trial requiring the father to pay child support based on an imputed income of $41,000. The father was also ordered to pay for 67 per cent of the children’s s. 7 expenses in proportion to the parents’ incomes. He has not paid any s. 7 expenses.

6Between 2010 to 2021, the mother received just over a quarter of the approximately $80,000 in child support she was expected to receive. According to the mother, child support has been a source of considerable stress, anxiety, and conflict between the parties. In June of 2018, she commenced a Motion to Change to change certain terms of the Final Order and requested a new order governing retroactive and ongoing payable child support.

7The court issued temporary orders pending a full hearing of the matter. On March 18, 2019, Robertson J. suspended ongoing support on a temporary, without prejudice basis, and ordered payment of child support arrears at a rate of $50 per month. Any tax refunds or federal garnishments were to be credited toward the child support arrears owed by the father. The father had not filed tax returns for over a decade and was ordered to provide updated income disclosure. In March of 2020, Johnston J. reduced the child support payable on a temporary basis to $100 per month with a review of that amount to be scheduled for January of 2021.

8The father is self-represented. He raised three issues at the motion. (i) Should his child support arrears be retroactively decreased back to 2010 in accordance with his actual income? (ii) What amount of child support should the father pay going forward? (iii) Did the Director of the FRO properly account moneys garnished in its Statement of Arrears (“SOA’s”)?

9The first issue regarding child support arrears was addressed in my decision of August 2, 2023 where I fixed child support arrears at $39,000: Kirkwood v Laderourte, 2023 ONSC 4290. I also ordered on a temporary, without prejudice basis, that the father continue to pay $150 per month for arrears and ongoing child support and that his tax refunds continue to be credited toward his child support arrears. I reserved on the two remaining issues pending further evidence and submissions which were heard on November 24, 2023.

Evidence on the Motion

10In arriving at a decision on this motion, I have relied on the following evidence:

a. Mother’s Amended Motion to Change dated December 21, 2022;

b. Mother’s Affidavits dated June 1 and November 13, 2023;

c. Mother’s Financial Statement dated June 1, 2023;

d. Mother’s Factum dated June 1, 2023;

e. Mother’s Trial Record, Volumes 1 to 3;

f. Father’s Response to Motion to Change dated January 17, 2019;

g. Father’s Affidavits dated August 22, 2022, May 31, 2023, and November 13, 2023 (Exhibit 1 of the Motion hearing is select documents from the May 31, 2023, affidavit);

h. Affidavit of Alyssa Detone, FRO Team Lead, dated October 26, 2023;

i. Affidavit of Alexandra Domaradzki, FRO Articling Student, dated May 3 2023;

j. FRO Statement of Arrears dated May 29, 2023;

k. Father’s Financial Statement dated May 31, 2023;

l. Father’s Testimony dated November 24, 2023; and

m. Testimony of Muriel Laderoute, paternal grandmother, dated November 24, 2023.

Issue 1: Should income be imputed against the father?

11The mother is 40 years of age. She is presently unemployed and on social assistance. Her annual social assistance income with the Child Tax Benefit and government rebates is $36,770. She is presently supporting two teenage children. She owns a vehicle valued at $2,000 and does not have any other assets. The mother has less than $1,000 in savings. Fortunately, she has been able to set aside $13,000 for the children’s R.E.S.P. which they will require should they attend post-secondary education. Finally, the mother lives alone and has no other sources of support.

12As noted in my August 2nd decision concerning retroactive support, the mother has been very sympathetic to the father’s challenges with his adult son. The father failed to file income tax returns from 2010 to 2021 until the commencement of the motion, to share income disclosure with the mother over those years, and to pay the full support amounts ordered for the children. Despite these failures, the mother was agreeable to both reducing his arrears in accordance with his actual income and foregoing full support when the father had to cease working to care for B.L.

13The father testified that he has post-secondary education including one year of university. He has done a wide variety of jobs across the country in the construction field, but his area of expertise is as an exterior elevator technician. His employment records and tax returns indicate he has been gainfully employed for the past 12 years, but as seen in Table 1, his employment income, has fluctuated. His highest earnings were in 2020 where he made almost $63,000.

Table 1: Father’s Reported Income

Year	Reported Income $
2010	35,774
2011	23,582.88
2012	20,790
2013	53,828
2014	34,080
2015	30,472.40
2016	39,404
2017	39,432
2018	4,359
2019	11,907
2020	62,994.13
2021	32,523.92
2022	7,056 (social assistance)

14The father testified that he quit working in December of 2021 because his employer required a COVID vaccination which he was unwilling to take. Since then, he has not returned to work because B.L. went into hospital. The father testified that B.L. is at risk of harm because of a drug addiction and that he has now fallen into trouble with the law. Both the father and B.L. have moved in with the paternal grandparents.

15The paternal grandmother, Muriel Laderoute, is 80 years of age. The father believes the paternal grandfather is 70. Both are retired. B.L. lives in the house and the father lives in a trailer in his parents’ yard where he states he is still able to keep an eye on his son. The father testified B.L. earns $1,200 in disability payment, but does not believe he contributes anything to the grandparents for residency. The family’s hope is that B.L. will be able to obtain treatment at a rehabilitation facility as part of his criminal legal proceedings. In the interim, the father sees himself as the only person capable of controlling his son’s behaviour. He feels he cannot leave B.L. unattended to go to work.

The father testified that he presently earns $7,056 per year in social assistance and that he pays $550 per month to his parents for rent and food expenses. It is clear that on this level of income, no child support is payable. The father acknowledges he is employable and but for the situation with B.L., he would choose to work. While the father stated he has cognitive challenges from a 2007 accident, he did not file any medical evidence, has not applied for government disability, and has continued to work since 2007.

16The paternal grandmother corroborated the father’s evidence regarding B.L. She testified that B.L. is schizophrenic and has substance abuse issues. B.L.’s behaviour can be very volatile, and it is getting more difficult for the grandparents to manage him. Ms. Laderoute testified that B.L. is much better behaved when his father is around. Ms. Laderoute confirmed that B.L. has been living with the grandparents on and off over the years, but returned to reside with them most recently following his criminal charges. She acts as a surety for her grandson. She indicated that attempts have been made in the past to get B.L. into treatment but he has refused. She testified that this is the first time they have hope that B.L. will engage in programming. Ms. Laderoute fairly acknowledged she has memory issues to her age. Nonetheless, I found her to be a credible witness.

17While B.L. is not her child, the mother was agreeable to a reprieve from child support at the start of B.L.’s crisis. It was not until she heard testimony at the motion hearing that she learned B.L. continues to be in crisis. Based on the testimony, the mother modified her position with respect to support and requests that part-time income be imputed. Counsel reminded the court that notwithstanding the mother’s empathy for the current situation with B.L., the mother continues to support the parties’ two teenage children and has received inconsistent support since the Final Order and nominal support since the temporary orders were put in place.

18In D.B.S. v S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 38, the Supreme Court of Canada identified the core historical principles governing child support as follows:

These core principles animate the support obligations that parents have toward their children. They include: child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent.

19More recently, the Supreme Court of Canada reiterated in Colucci v Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, “the long-established principles that support is the right of the child and that parents have a financial obligation to their children arising at birth and continuing after separation”: at para. 36.

20Child support is determined in accordance with the Child Support Guidelines, O. Reg. 391/97, which are legally binding. The Guidelines establish the goals, principles and provisions governing child support: Colucci, at para. 33. Section 1 of the Guidelines sets out the objectives of child support as follows:

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

21Section 19(1) of the Guidelines allows a judge to impute income in various circumstances. One circumstance is where a judge finds that a spouse is intentionally under-employed or unemployed unless the unemployment is required because of the needs of another child under the age of majority: s. 19(1)(a) of the Guidelines.

22There is no exemption in s. 19(1) of the Guidelines for unemployment because a payor parent is caring for an adult child, as is the case here. Nonetheless, the decision to impute income is a discretionary one, and the only limitation to that discretion is that there must be some evidentiary basis for the amount of income imputed: Monahan-Joudrey v Joudrey, 2012 ONSC 5984, at para. 21; see also Homsi v Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at paras. 27-28; Duffy v Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, at paras. 35-36.

23In Drygala v Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) at para 23, the Court of Appeal for Ontario set out a three-part test for imputing income because of intentional unemployment or under-employment as follows:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is this required by virtue of his or her reasonable educational needs, or the needs of the child of the marriage, or arising from reasonable medical needs?

3. If the answer to #2 is “no”, then the court must decide whether to exercise its discretion to impute income and, if so, in what amount.

24The courts have recognized that intentional unemployment is particularly complex. The court need not be satisfied that a payor spouse has acted in bad faith before it imposes a support order based on imputed income: Drygala, at paras.29-30, and 36. Rather, the court must look to see if the parent’s decisions around work choices are reasonable: Drygala, at paras. 38-40; see also Duffy, at para. 25; Tillmans v Tillmanns, 2014 ONSC 6773, at paras. 59-60.

25In Drygala, the judge was determining whether the payor’s choice to reduce child support to meet his own educational needs was reasonable, and explained the following at para. 38:

There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

26I find the same approach would apply in assessing a payor’s choice not to work for other reasons such as caregiving of another person, i.e., is it reasonable: Tillmanns, at paras. 59-60. The concept of reasonableness must be viewed in light of the joint ongoing legal obligations of parents to financially support their children. As aptly stated by Pazaratz J. in Tillmanns, at para. 81, upon review of the principles governing income imputation: “All of these principles have a common theme: reasonableness. Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children.”

27In this case, I find the father is healthy and employable and consequently, is intentionally unemployed. I also accept the father and grandmother’s evidence that B.L. is in a crisis mode and consequently, the reason for the father’s intentional unemployment is to care for B.L.

28However, I am not satisfied on the evidence before me that B.L. requires 24-hour care. While the onus is on the person requesting imputation of income to establish an evidentiary basis for such a finding, this does not relieve the parent against whom income imputation is sought, i.e., in this case the father, from making full and complete financial disclosure to ensure the court has the information required to make a decision: Szitas v. Szitas, 2012 ONSC 1548, at para. 55. The father has filed repeated affidavits over the course of two years in response to the mother’s Motion to Change. These affidavits and supporting financial records relate to the father’s grievances with the FRO. There is no evidence in the affidavits about B.L.’s crisis, residency, and resulting caregiving responsibilities on the father. Given the variety of employment skills the father has, there is also no evidence that there are no jobs in his field of construction within the jurisdiction.

29While I accept that B.L. may need supervision, I am not satisfied based on the evidence before me that B.L. could not be cared for by others for portions of the day/night to allow the father to work on at least a part-time basis. For example, during the hearing, B.L. was being monitored by the paternal grandfather. The father has not presented any evidence as to why, in addition to his parents, he has not considered hiring other caregivers so that he can return to work.

30As stated by the Supreme Court of Canada in Colucci, the Guidelines rest on the principles that spouses have a joint financial obligation to maintain and support their children in accordance with their relative abilities: at para. 34; s. 26.1(2) of the Divorce Act. Here, the father has two teenage children who have been entirely cared for by their mother. The mother has received just over a quarter of the support she was expected to receive. The support payments were largely garnishments from the father’s employers and/or tax refunds. The father has not paid for any s. 7 expenses even though he was gainfully employed for many years. The mother has been very sympathetic and supportive of the father’s challenges with his adult son, but remains a single parent of limited financial means raising two teenage children. These children, like B.L., are also entitled to support from their father.

31I find that the father is, by his own admission, employable. Notwithstanding the challenges of his adult son, I find he has not demonstrated that he is unavailable for at least part-time employment. In this regard, I find the father is intentionally unemployed and exercise my discretion pursuant to s. 19 of the Guidelines to impute income for the purposes of child support.

Issue 2: If so, what quantum of income should be imputed?

32As stated in Drygala, s. 19 of the Guidelines is not an invitation to the court to select an arbitrary amount of income to be imputed. The court has an obligation to explain how it arrived at the amount of imputed income: at para. 50.

33The father’s income over the past 12 years when he has worked full-time has varied. During these years he has earned anywhere from $30,472 in 2015, up to $62, 994.13 in 2020. I have excluded 2018, 2019, and 2022, as they do not appear to be full-time working incomes. On this basis, I find the father is capable of earning at least $30,000 per year.

34I accept that the father cannot presently work full-time due to his caregiving responsibilities for B.L., but find that it would be fair and reasonable to impute an annual income of $15,000 for part-time employment. The child support amount payable on such an income would be approximately $195 per month. In addition, I find the father should continue to pay a nominal amount of support toward his child support arrears at $55 per month The total monthly support is $250 per month, which is $100 over and above the current Temporary Order. I note that neither the father nor the grandmother testified that the family was presently facing financial hardship as a result of the Temporary Order.

35There will be a Final Order that includes the following:

a. The father will pay monthly child support effective December 4, 2023 for the child in the amount of $250 per month (replaces para. 5 of the Final Order);

b. The Director of the FRO shall continue to enforce owing and ongoing child support;

c. Any tax credits or refunds will be garnished by the FRO to pay for ongoing support or the father’s child support arrears; and

d. Should the father obtain employment, he will provide the mother within 90 days of employment, copies of three consecutive pays stubs.

36All other provisions of Pedlar J.’s 2017 Final Order, including orders for annual exchange of financial disclosure and s. 7 expenses, shall continue to apply.

37Counsel for the mother will prepare a draft Final Order that is consistent with this decision for my review and signature.

Issue 3: Did the FRO properly account for monies garnished from the father’s wages?

38During the motion hearing, the father produced pay stubs from two former employers in and tax documents which indicated that payments were garnished and given to the FRO. The father argued these payments do not appear on the SOA as having been received and the SOA is, therefore, inaccurate. The father argued his arrears should be reduced accordingly.

39While the FRO counsel did attend the initial hearing to address other anomalies raised by the father (addressed at para. 21 of my August 2nd decision), the father did not inform the FRO of these garnishment issues. At the court’s direction, the father provided the FRO with a copy of the paystubs and tax returns which he claims demonstrates a discrepancy between the garnishments from his employer or tax refunds and the credits on the SOA.

40The FRO filed an affidavit from the Team Lead, Alyssa Detone, stating that upon review of the father’s documents, the FRO is satisfied that the SOA for case #0776404, which relates to the father’s child support obligations in this matter, is accurate for the following reasons.

41First, the father filed a “Garnish Summary” indicating source deductions in 2017 of $2,130. These deductions are accounted for in the SOA credit entries for March 6, 17, and 31, 2017.

42Second, the father filed pay stubs from two employers, Unique Restoration Ltd. and Klimer Platforms Inc. As per the Support Deduction Notices filed, all the garnishments from Klimer Platforms Inc. went to pay for child support with respect to the father’s other children involving a different FRO case, #0666879, and are reflected in the SOA for that case. Those deductions have no bearing on the SOA concerning the mother and children in this case.

43With respect to the garnishments from Unique Restoration Ltd., the FRO is satisfied these deductions have been credited to the father in the SOA entries. The FRO counsel reviewed in court each pay stub identified by the father and where that amount was credited in the SOA.

44Third, the father filed tax documents suggesting that tax refunds were diverted to the FRO and not properly accounted for. The FRO attests that some of these tax documents do not reflect garnishments. Upon review of the documents, I would agree. The only tax document which reflects a garnishment is from the Tax Assessment for 2021 showing a refund transfer to the father of $4,055.70. This deduction was accounted for by the FRO. The FRO divided the refund so that a portion of the refund went toward paying support for the children in this case and another portion went toward the father’s other children. Hence, the deduction in the SOA for this case shows $3,609.21 as opposed to the full amount of the transfer refund. The FRO counsel identified the credit in the SOA in court.

45Finally, the Director also conducted a manual reconciliation of all transactions that have occurred on FRO account #0776404 from February 1, 2010 to July 21, 2022, in relation to the father’s deductions and credits for child support. The outcome of that manual reconciliation and any anomalies identified by the father were explained in the Affidavit of Alexandra Domaradzki dated May 3, 2023 and explained again in Ms. Detone’s affidavit. These anomalies were previously addressed in my August 2nd decision and I will not review them again here.

46Based on the evidence presented, I find that the father has failed to rebut the presumption under s. 41(9) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, that the Director’s SOA is correct.

47The father’s request for a further adjustment to his child support arrears is denied.

Somji J.