COURT FILE NO.: FC9/23

DATE: June 14, 2024

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Brittney Hope, Applicant

AND:

Christopher Styles, Respondent

BEFORE: MITROW J.

COUNSEL: Robert A. Haas for the Applicant

Erin O’Leary for the Respondent

HEARD: March 27, 2024

ENDORSEMENT

INTRODUCTION

[1] Each party brings a motion. The sole remaining issue is interim child support.

[2] Each party’s motion had included other claims, but those claims were resolved pursuant to the consent order of Henderson J. dated March 13, 2024, said order providing that the issue of child support, including section 7 expenses, “remains to be argued.”

[3] The central issue in dispute is whether income should be imputed to the applicant, and if so, in what amount. The respondent submits that income should be imputed to the applicant on the basis of the income the applicant was earning while working full time prior to leaving her employment to attend teacher’s college. The applicant resists any imputation of income, and submits that her income for child support purposes should be her actual reported income.

[4] For reasons that follow, the respondent shall pay interim child support to the applicant as specified in the order below.

RELEVANT FACTS

[5] The significant relevant facts relating to the issue of child support are not in dispute.

[6] The parties are not married to each other. They began to cohabit in 2014 and they separated in April 2022. The parties have one child, a daughter, born in 2019 (“the child”) who was age four when the motions were heard.

[7] The parties agree that since separation, they have implemented a parenting plan where the child spends equal time with each parent. The parties are commended on being able to focus on the child’s best interests by agreeing to a parenting plan.

[8] The respondent’s complaints regarding the applicant’s failure to provide the court with relevant details regarding her studies at teacher’s college are understandable. In her initial affidavit, the applicant deposed, simply, that she is attending teacher’s college and that she expects to finish her degree by June 2024.

[9] In his responding affidavit regarding the dearth of evidence from the applicant, the respondent deposes that he “understands” that after separation, the applicant quit her job as a forklift driver and returned to school to pursue an online degree through Brock University. He deposes that the applicant provided very little detail concerning her schooling, including her schedule or how she was able to fund her education. The respondent adds that to his knowledge, the applicant “voluntarily quit her job” to attend school. He points out that when they separated, the parties’ incomes were very similar, so no child support was paid by either party to the other.

[10] The applicant, undoubtedly recognizing and being concerned about the paucity of her evidence regarding her schooling, decided to address this issue with more particularity in her reply affidavit, somewhat unfairly to the respondent I would note. The applicant deposed that she “left” her job “in 2021” (even in reply failing to tell the court the date that she left) after receiving admission to teacher’s college. During the hearing of the motions, the applicant submitted that “2021” was an error. Accordingly, the only evidence is that the applicant started teacher’s college after separation had occurred in April 2022. The applicant “attended” Brock University because that university has “a focus on shop.” The applicant fails to state whether she attended in person, but does not dispute the respondent’s characterization of her attendance as “online.”

[11] The applicant further explained that she wished to “better herself” just like the respondent did when he was apprenticing and pursuing an education as an electrician while the parties were cohabiting.

[12] The applicant explains that she will be completing her practicum in March and that she expects to finish her course work in May 2024. She deposes further that she will be graduating in June 2024, and that she can expect her income “will significantly rise” when she obtains a job as a teacher.

[13] The foregoing is the extent of the applicant’s additional evidence. The applicant does not address details including: courseload; hours spent “in school”; availability of time to work during the school year; how long her practicum was; availability to work during the summers; the dates of her academic semesters; and whether the program was full time or whether it was part time spread over a longer period of time.

[14] The respondent included in his affidavit a summary of the parties’ historical incomes, which the applicant did not dispute in her reply. This can be summarized as follows:

Respondent’s Income

A. 2019 $32,303

B. 2020 $43,119 (including net rental income of $8,681)

C. 2021 $47,652 (including net rental income of $8,768)

D. 2022 $58,711 (including net rental income of $7,977)

Applicant’s Income

A. 2019 $24,368 (on maternity for part of the year)

B. 2020 $18,753 (on maternity for part of the year)

C. 2021 $45,691

[15] It is the respondent’s unchallenged evidence that the applicant’s financial statement[^1] indicated that the applicant was earning annual employment income in the amount of $52,861. The applicant relied on a paystub attached to that financial statement that showed a year-to-date income as of July 31, 2022 in the amount of $30,836 which equated to an annual income of $52,862. The respondent seeks an order that income be imputed to the applicant for child support purposes based on $52,862 per year.

[16] The respondent deposes that since separation his income has increased as he has now completed his electrician apprenticeship. The respondent has filed a recent financial statement[^2] and has appended a DivorceMate calculation using for himself an annual income of $58,711.

[17] The applicant’s most recent financial statement[^3] disclosed an annual income of $8,202 consisting of student bursaries. However, the applicant deposes that in 2023, she had a total income of $12,055[^4] of which $11,963 was grants and bursaries. There is no evidence from the applicant as to her 2022 income.

[18] Although not directly relevant to the issues on the motions, it is noted that the parties lived in a residence that was registered in the respondent’s sole name. This property is the subject of a trust claim asserted by the applicant in her pleadings. There is a significant dispute between the parties as to the facts surrounding this residence and the respondent denies that the applicant is entitled to any claim in this property based on trust principles.

[19] In relation to this home, there is no dispute between the parties that it was purchased during cohabitation in or about December 2016. The applicant deposes that the purchase price was $283,000 (the respondent does not dispute this amount) and the applicant further deposes that the home now has a current approximate fair market value of $800,000. The respondent in his financial statement, shows this property having a current fair market value of $650,000. This property has an upper-level unit which is rented. The respondent receives the rental income and has included the rental income in his total income.

[20] On separation, the parties agree that the applicant vacated this property, and that the respondent continues to live in this property. The applicant deposes that she was forced out by the respondent and that she went to live in her cousin’s basement. The respondent deposes that the applicant “moved out of the home that I own.”

[21] Each party devotes a significant portion of his or her affidavit evidence to the issues relating to this property and his or her respective views on whether there is a trust claim. None of that evidence is relevant on the remaining issue of child support.

[22] The financial statements of the parties demonstrate that there is a significant difference in each party’s current financial circumstances. The applicant discloses minimal income, total assets of a little over $23,000 and a negative net worth of a little over $2,600.

[23] In contrast, the respondent’s financial statement discloses total assets of a little over $710,000, debts of a little under $218,500 and a net worth of $491,507. The respondent’s assets include investments totalling $24,535 and an RRSP totalling $28,465. As indicated earlier, the other significant asset is the home valued by the respondent at $650,000.

[24] The applicant’s cash assets consist of $11,800 in an RRSP and $1,250 in bank accounts.

[25] The applicant in her reply affidavit makes reference to the significant disparity in the parties’ financial circumstances, pointing out that while the respondent lives in a property “worth many hundreds of thousands of dollars” that she has had to begin again from scratch and is living in her cousin’s basement.

[26] In her application issued January 3, 2023, the applicant claims, in relation to the property, a declaration that she has a one-half beneficial interest in the home owned by the respondent on the principles of constructive and resulting trust and in the alternative, claims damages for unjust enrichment. As noted earlier, the respondent disputes these claims.

DISCUSSION

[27] The starting point is section 19(1)(a) of the Ontario child support guidelines (“guidelines”)[^5]:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse

[28] While the parties referred to various cases[^6], each party also cited Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (Ont. C.A.), a leading case dealing with imputation of income in circumstances where the payor parent was attending university with the goal of becoming a teacher.

[29] Drygala establishes that “intentional” under-employment or unemployment within the meaning of section 19(1)(a) requires no need to find a specific intent to evade child support obligations before income can be imputed (paras. 25 and 26). A plain reading of section 19(1)(a) is that there is no bad faith requirement (para. 36).

[30] As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income, and once it has been established that a parent is intentionally unemployed or under-employed, the burden shifts to that parent to establish what is required by virtue of his or her reasonable education needs (Drygala, para. 38).

[31] The court must determine whether the education needs are reasonable and this involves a consideration of the course of study; a parent is not to be excused from child support obligations in furtherance of unreasonable or unproductive career aspirations (Drygala, para. 39).

[32] The present case involves an evidentiary record limited to affidavit evidence in support of an interim order, as opposed to a more complete record that would be available at trial. Nevertheless, this does not preclude making findings based on the present evidentiary record in relation to interim child support.

[33] I find that the applicant is intentionally unemployed for the purpose of pursuing her education. Are the applicant’s educational needs reasonable? Despite the somewhat scant detail, I find the applicant’s desire to attend teacher’s college and become a teacher to be reasonable. Depending on when the applicant commenced her education after separation, the timespan to achieve her goal would range from approximately one-and-one-half to two years. The applicant’s evidence is that she will succeed and graduate in June 2024.

[34] The next aspect of the inquiry requires the court to determine what is required by virtue of the applicant’s education needs. The applicant has the burden of demonstrating that her unemployment is required by virtue of her reasonable education needs. In Drygala, the court explained this burden at paragraph 40.

[40] But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of a spouse.

[35] When imputing income, s. 19 of the guidelines is not an invitation to select an amount arbitrarily; rather, there must be a rational basis underlining the imputed amount, and the court’s discretion “must be grounded in the evidence” (Drygala, at para. 44).

[36] The court must consider what is reasonable in the circumstances. Factors to be considered include the parent’s age, education, experience, skills and health, and in addition, matters such as availability of job opportunities, the number of hours that can be worked in light of the parent’s overall obligations and the hourly rate that the parent reasonably can be expected to earn can also be considered (Drygala, at para. 45).

[37] If a parent fails to provide the court with adequate information on the types of jobs available, then the court can consider the parent’s previous earnings history and impute an appropriate percentage. This was stated in Drygala at para. 46.

[46] When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent's previous earning history and impute an appropriate percentage thereof. [my emphasis]

DECISION

[38] The applicant has failed to adduce sufficient evidence to demonstrate that unemployment is required to meet her reasonable education needs. However, common sense must prevail in finding that under-employment is required for the applicant to meet her reasonable education needs. This is a university level program leading to graduation in June 2024. It includes at least one practicum. The applicant also has to balance her education needs with her childcare responsibilities.

[39] I find that income should be imputed to the applicant. Given the lack of any details regarding the potential availability of employment, the proper approach is to consider the applicant’s previous earnings history and impute an appropriate percentage, as discussed in Drygala at para. 46.

[40] Submissions were made by the applicant that child support should commence in May 2022. I decline to do so. The applicant failed to provide evidence as to her income for 2022. Considering also that the application was issued in early January 2023, the interim order for child support should commence in January 2023, with the issue of any child support owing prior to January 2023 being left to the trial judge.

[41] On the evidence, the last known full year of employment for the applicant was in 2021. It is not known what portion of the year the applicant worked during 2022. Her earnings in 2021 were $45,691. An appropriate percentage to apply to those earnings would be in the range of 30% to 35% resulting in imputed employment income ranging from $13,707 to $15,991. Adding to this imputed income, the applicant’s 2023 income of $12,055 (from grants, bursaries and other benefits) results in a total income ranging from $25,762 to $28,046.

[42] The respondent provided several DivorceMate scenarios including a scenario[^7] showing the respondent’s income at $58,226 ($50,226 employment income plus $8,000 rental income) and the applicant having a total income of $26,431. This falls within the range discussed above. The set-off table amount owing to the applicant pursuant to s. 9(a) of the guidelines is $323.[^8]

[43] The child support payable in a shared parenting arrangement is governed by s. 9 of the guidelines:

9. Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought

[44] The table amounts payable in a shared parenting arrangement are considered under s. 9(a). However, the court is required to take into account also s. 9(b) and s. 9(c). In the present case, no evidence was adduced regarding increased costs of shared parenting pursuant to s. 9(b). However, in considering s. 9(c) and the condition, means, needs and other circumstances of each parent and the child, it is apparent, as discussed previously, that the respondent has a significant net worth compared to the applicant’s negative net worth and the applicant, as she put it, had to start at scratch living in her cousin’s basement.

[45] Additionally, given the applicant’s low income as compared to the respondent’s income, a significant portion of the applicant’s income will be used just to meet bare living expenses for herself and also the child when the child is in her care.

[46] Applying s. 9, I fix child support payable by the respondent in the amount of $425 per month. This amount is between the table set-off amount and the table amount based on the respondent’s income.

[47] No evidence was provided or submissions made regarding s. 7 expenses. Accordingly, the order is silent regarding s. 7 expenses.

[48] The order below provides that interim child support is only payable up to August 1, 2024. It is not possible on the evidence to go further than that without knowing whether the applicant has obtained a teaching job. If she has not, then she will be available for full-time employment, likely in jobs similar to those she held prior to attending teacher’s college. Evidence will be required whether such employment was obtained, and if not, why not. If the applicant obtains a teaching position, presumably effective September 2024, then that disclosure will need to be made.

[49] It is anticipated, having regard to these reasons, that the parties acting reasonably, and with the assistance of counsel, will be able to agree to interim child support for the period commencing September 1, 2024 after exchanging all necessary information and income disclosure. If not, the order provides for a further motion to be brought.

ORDER

[50] I make the following interim order:

1. Pursuant to the Family Law Act, the respondent shall pay to the applicant interim child support for the support of the child in the amount of $425 per month commencing January 1, 2023 and continuing monthly thereafter up to and including August 1, 2024, pursuant to s. 9 of the Ontario child support guidelines, and based on the respondent’s income of $58,226 and the applicant’s actual plus imputed income of $26,431.

2. Any claims for child support for the period prior to January 1, 2023, are left to the trial judge.

3. If the parties are unable to agree on interim child support payable for the period commencing September 1, 2024, then either party is at liberty to bring a motion.

4. Regarding para. 3, I am not seized if such a motion is brought, but the parties may request the trial coordinator to place the motion before me if I am scheduled to hear motions that day.

5. If the parties are unable to resolve costs, then the parties may make written costs submissions. The written costs submissions shall be served and filed with the court in the usual manner. The applicant’s written costs submissions shall be served and filed within two weeks, the respondent’s written costs submissions shall be served and filed within two weeks thereafter, and the applicant’s reply, if any, shall be served and filed within one week thereafter. The written costs submissions are limited to three typed pages (two pages for reply), double-spaced and minimum font 12. All references to authorities shall be hyperlinked. In addition to the written costs submissions, the parties may include copies of any bills of costs, time dockets and offers to settle. If costs are settled, then the parties shall advise the trial coordinator forthwith.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: June 14, 2024

[^1]: Applicant’s financial statement sworn September 29, 2022. [^2]: Respondent’s financial statement sworn March 20, 2024. [^3]: Applicant’s financial statement sworn January 31, 2024. [^4]: The applicant attaches as exhibits the relevant slips including T4A slips. [^5]: O. Reg. 391/97. [^6]: The respondent’s cases included also K. v. M., 2023 ONCJ 1 (Ont. C.J.), at para. 110; the applicant’s cases included also Tillmans v. Tillmans, 2014 ONSC 6773 (Ont. S.C.J.); and Szitas v. Szitas, 2012 ONSC 1548 (Ont. S.C.J.). [^7]: CaseLines – document 25, respondent’s documents. [^8]: Pursuant to the DivorceMate calculation, using an income of $58,226 for the respondent and an income of $26,431 for the applicant, the respondent’s child support obligation is $538, the applicant’s child support obligation is $215, and the net amount owing to the applicant is $323.