Court File and Parties

Court File No.: 45427-22 Date: 2024 04 18

Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y6

Re: A. I. v. J. R.

Before: Justice Conlan

Counsel: M. Madott, for the Applicant L. Belkin, as agent for the Respondent

Date: April 18, 2024

Endorsement on Motion

[1] The Applicant mother, A.I., moves for a temporary order for both child support and spousal support commencing on May 1, 2024. The motion was heard today, on a regular motions list.

[2] For the following reasons, the mother’s motion for child support is allowed in part. The request for spousal support is dismissed.

The Background

[3] The parties share three children ages 15, 12, and 10 years. They married in November 2006 and separated in March 2021. The children live with the mother and have parenting time with the Respondent father, J.R., on alternate weekends. The mother earns about $55,000.00 as a child care worker. The father has for many years worked in the auto sales industry. Post-separation, he started his own business in that same industry after losing his job in finance with Direct Nissan, effective at the end of March 2022.

The Issues to be Decided

[4] There are two questions for this Court to answer:

(i) should the father be imputed an income for support purposes that is higher than what he alleges he is earning currently through his self-employment ($44,000.00), and if so, how much; and

(ii) is the mother entitled to spousal support?

Decision

[5] Parties must earn what they are reasonably capable of earning. Otherwise, we risk harm to children in that the parties are failing to adhere to their responsibilities to support their children. One way in which we determine income is by imputing an income to the payor. We do that after a consideration of three questions:

i. is the payor intentionally unemployed or, in the case of this father, under-employed;

ii. if so, is the intentional unemployment or under-employment by virtue of the payor’s reasonable education or health needs; and

iii. if not, then what income is appropriately imputed to the payor?

[6] Gordon v. Wilkins, 2020 ONCJ 115, at paragraphs 23-24, citing Drygala v. Pauli, [2002] O.J. No. 3731 (C.A.).

[7] The burden of proof on this motion rests with the mother – the party seeking to have income imputed to the other side. The standard of proof is on a balance of probabilities. An evidentiary basis is required to be put forward by the moving party, although the responding party’s failure to disclose their finances may mitigate that obligation to some degree. Once a prima facie case for imputation of income has been established, then the onus shifts to the responding party to defend the income position that they are taking. Gordon, supra, at paragraphs 25-26, citing Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (C.A.), Graham v. Bruto, 2008 ONCA 260, Lo v. Lo, 2011 ONSC 7663, and Charron v. Carriere, 2016 ONSC 4719.

[8] If a party, like the father in our case, chooses to pursue self-employment as an alternative income earning path, the question becomes whether that choice was reasonable in all of the circumstances. If not, imputation of income to that party may be the result. Reasonableness is the key theme – parents are required to act responsibly when making decisions that may impact on the level of child support available. Tillmanns v. Tillmanns, 2014 ONSC 6773, at paragraphs 77 and 81, citing various authorities including Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.).

[9] Particularly on a motion like this one, as opposed to a trial, where the evidence is limited and where credibility cannot readily be ascertained, it is prudent to be reasonable, perhaps even conservative, on the third line of inquiry noted above, that is, what income is appropriately imputed to the payor. Chatur v. De Los Reyes, 2012 ONCJ 367, at paragraph 41, citing Stoyshin v. Stoyshin, [2007] O.J. No. 1772 (S.C.J.), at paragraph 13.

[10] Is the father intentionally under-employed? This Court would answer that question in the affirmative. When he was terminated from Nissan Direct, it was not reasonable for him to try to start his own business rather than capitalize on his many years of experience in the auto sales industry, specializing in finance, and try to obtain another job that would likely have brought him earnings comparable to those obtained by him between 2015 and 2019 (when he earned an average of about $175,000.00) or, at minimum, between 2020 and 2022 (when he earned an average of about $129,000.00). To cut his gross annual income so drastically, from those averages to just $44,000.00 per year, in the face of his ongoing child support obligations, was an unreasonable choice, in my respectful opinion.

[11] Is the intentional under-employment by virtue of the father’s reasonable education or health needs? Clearly, no, and that argument has not been advanced on behalf of the father.

[12] What income is appropriately imputed to the father? In my view, a prudent amount is $99,969.50. That figure is the mid-way point between the range of earnings ($62,399.00-$137,540.00) available to someone like the father, according to the father’s own evidence at paragraph 5 of his affidavit sworn yesterday, April 17, 2024.

[13] This Court orders that the father shall pay ongoing monthly child support, commencing on May 1, 2024, as per the Guidelines and the table amount for three children and an annual gross income of $99,969.50.

[14] This Court orders further that the parties shall contribute to all section 7 expenses for the children in accordance with their respective incomes - $99,969.50 for the father and $55,328.00 for the mother. Each party that intends to ask for contribution from the other shall seek the other’s approval for the section 7 expense in advance, and the party who is asked for approval shall not unreasonably withhold it.

[15] With regard to spousal support, the evidence is very scant on the mother’s entitlement, whether on a compensatory or a non-compensatory basis. The child support order made herein will provide the mother with some much-needed financial relief. In all of the circumstances, the Court declines to make an order for temporary spousal support at this time. To the credit of Mr. Madott, the issue of spousal support was not pressed in his submissions. Both counsel spent the vast majority of their time dealing with child support.

[16] On costs of the motion, I would be inclined to order no costs on account of fairly evenly divided success on the matter, overall. If either counsel wishes to try to persuade me otherwise, an appointment may be booked through the trial office for brief oral submissions on costs to be made.

[17] To be clear, this is a temporary order that is subject to adjustment by the trial judge. In other words, the trial judge is not bound by the income determination for the father that was made herein, even on a retroactive basis.

Conlan J.

Released: April 19, 2024