Endorsement on Motion
Court File No.: FS-24-14571 (Chatham)
Date: 2025-04-25
Ontario Superior Court of Justice
Between:
Ann Marie Alexander Bedell (Applicant)
– and –
Camiel Wayne Bedell (Respondent)
Appearances:
Jonathan Quaglia, for the Applicant
Iain Sneddon, for the Respondent
Heard: December 16, 2024
Justice: Jacqueline A. Horvat
Introduction
[1] The applicant, Ann Marie Alexander Bedell (the “Mother”), brings a motion under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), for an interim order granting her various relief, including sole decision-making authority for the children of the marriage and ss. 3 and 7 child support based on imputed income to the respondent, Camiel Wayne Bedell (the “Father”), commencing November 1, 2024. For the reasons that follow, I:
(a) decline to make an interim order granting the Mother sole decision-making responsibility; and
(b) make an order, on an interim basis, imputing income of $137,610 per annum to the Father for the purposes of fixing ss. 3 and 7 child support.
The Facts
[2] In March 2016, the parties began living together in a common law relationship. On November 4, 2017, they were married. There are two children of the marriage: Asher John Bedell, born January 2, 2021, and Levi Walter Bedell, born March 2, 2023.
[3] On October 26, 2022, the parties separated. The Father moved out of the matrimonial home. The Mother was pregnant with the parties’ second child, Levi, at the time.
[4] On March 5, 2023, the parties signed a temporary separation agreement. Levi was not yet born when the agreement was prepared. The temporary agreement confirmed that Asher would live primarily with the Mother, detailed the Father’s parenting time, and set spousal support at $1,150 per month and child support at $1,385 per month payable to the Mother by the Father. The agreement expired on June 30, 2023.
[5] Since the birth of the children, the Mother has been primarily responsible for raising the children and making health care and childcare decisions for them. The Father assisted with childcare when his job hours permitted him to do so. The children’s family doctor and dentist are in Chatham.
[6] The following summarizes the Mother’s and the Father’s education, training and income prior to summer 2024:
| MOTHER | FATHER | |
|---|---|---|
| EDUCATION/ | University immediately following high school | Joined UA Local 66 Plumbers and Pipefitters (“Union”) in |
| TRAINING | 2013 as an apprentice pipefitter | |
| QUALIFICATIONS | Registered nurse | Licensed pipefitter, journeyman pipefitter (foreman) and |
| site supervisor | ||
| EMPLOYED BY | Chatham-Kent Public Health Unit | Union positions mainly in the Sarnia refinery belt |
| OVERTIME | No overtime | Significant overtime |
| 2020 INCOME | N/A | $148,065 |
| 2021 INCOME | $55,966 | $150,717 (plus $12,380 from crypto investments) |
| 2022 INCOME | $59,026 | $130,739 |
| 2023 INCOME | $81,382 | $131,376 |
[7] The Father had some periods of unemployment while he was an apprentice. Since he became a journeyman with foreman accreditation, however, he was generally steadily employed.
[8] The Father admits that he was not able to take advantage of the parenting time outlined in the temporary agreement given his work commitments. The parties, to the best of their ability, facilitated parenting time for the Father when he was available.
[9] On June 15, 2024, the Father’s contract ended, and his lawyer advised the Mother’s lawyer that the Father “is now unemployed with no contract pending.” The Father’s lawyer went on to state:
… my client will pay your client $1350 for the month of July, 2024, for child support. He will not be contributing anything towards spousal support.
Effective August 1, 2024, he agrees to pay $500 per month in child support notwithstanding he does not expect to have any income. The amount reflects an income of over $32,000.
[10] From January 1, 2023 until June 30, 2024, the Father paid to the Mother $2,400 per month in child support. Beginning in August 2024, the Father has paid $500 per month in child support. As of June 2024, the Father earned income of $42,310.49 for the year 2024.
[11] On July 2, 2024, the Mother commenced her application.
[12] On July 9, 2024, the Father advised the Mother that he was moving to London, Ontario and going back to school to enroll in a three-year full-time cyber security certificate program at Fanshawe College (the “Program”) beginning in September 2024. The Father, however, was not eligible to begin the program until January 2025. The Father also advised the Mother that he needed to reduce his parenting time as a result.
[13] Commencing on August 1, 2024, the Father terminated spousal support and reduced his child support obligation to $500 per month.
[14] On August 2, 2024, the Father filed his Answer in this application.
[15] In September 2024, the Mother returned to work following maternity leave. She brought this motion on October 16, 2024.
The Issues and the Law
[16] The two issues before me are the following:
(i) Is it in the best interests of the children that the Mother be granted sole decision-making responsibility on an interim basis?
(ii) Is it reasonable in the circumstances of this case that income be imputed to the Father for the purposes of child support on an interim basis?
Decision-Making Responsibility
[17] Under s. 16 of the Divorce Act, the court is required to only take into consideration the best interests of the children when making a parenting order. The court is to give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being” when considering the factors outlined in s. 16(3), which include the following:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; and
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.
Imputation of Income and Child Support
[18] Parents have a joint and ongoing legal obligation to support their children. To meet this obligation, “a parent must earn what he or she is capable of earning”: Drygala v. Pauli, 61 O.R. (3d) 711 (C.A.), at para. 32.
[19] Under s. 19 of the Federal Child Support Guidelines, SOR/97-175, the court may impute income to a spouse when it considers it appropriate to do so in certain circumstances, including when “the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.” The court must first ask itself whether the parent is intentionally under-employed or unemployed. If the answer is yes, then the next question is whether the intentional under-employment or unemployment is required by the parent’s reasonable educational needs. If the answer is no, then the court must determine what income is appropriately imputed in the circumstances: Drygala, at para. 23.
[20] A parent will be found to be intentionally under-employed for the purposes of s. 19 if that parent chooses to earn less than they are capable of earning or when they choose not to work when they are capable of earning an income. Neither a finding of bad faith nor a specific intent to evade child support obligations is required. The onus at this stage is on the party seeking to impute income: Drygala, at paras. 25-26, 28-30.
[21] Once it has been established that a parent is intentionally under-employed, then the onus shifts to that parent “to establish what is required by virtue of his or her reasonable educational needs”: Drygala, at para. 38. This includes, first, a determination of whether the educational needs are reasonable and, second, whether the under-employment is required by virtue of their reasonable educational needs. As part of this analysis, as articulated in Drygala, at para. 40, the court should consider the following:
…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? …
[22] When determining the appropriate amount of income to be imputed, the court must consider what is reasonable in the circumstances. Factors for the court to consider include the age, education, experience, and health of the parent, the availability of job opportunities, the number of hours that could be worked given other obligations, and the hourly rate that could reasonably be expected to be earned. If the court does not have adequate information concerning the prospective employment, the court may consider the previous earning history, including the previous three years’ income, to determine an amount that is fair and reasonable: Drygala, at paras. 44-46; Tillmanns v. Tillmanns, 2014 ONSC 6773, 53 R.F.L. (7th) 210, at paras. 67-68.
Analysis
Decision-Making Responsibility
[23] The Mother seeks interim decision-making responsibility for the children.
[24] In addition to regular medical appointments, the only potentially pressing issue concerning the children is which school Asher will attend. Based on the record before me, there is no indication, and no argument was made, that the parties would be unable to agree on the choice of school. Given that the children reside with the Mother in Chatham and the Father resides in London, the Mother’s work schedule and the availability of childcare will need to be one of the main considerations when choosing a school. But, in my view, that is not enough for an order granting her sole decision-making responsibility at this stage. There is nothing in the record before me that would lead me to conclude that the Father would not take these factors into consideration when making a decision for the children.
[25] In the result, I find it is in the best interest of the children that both parents are involved in making major decisions for them at this stage and that the parties continue to have joint decision-making responsibility for the children.
Imputation of Income
[26] The first question I must determine is whether the Father is intentionally under-employed or unemployed. In my view, after careful consideration of the submissions made and the record before me, the answer is yes.
[27] The Father argues in his factum that he was “involuntarily laid off from his employment with no immediate prospects of returning.” In his affidavit, the Father says that he is “laid off now and the industry is uncertain.” However, he provides no evidence to support either the fact of his lay off or that the industry is uncertain. There is no evidence before me that the Father cannot obtain work as a pipefitter or as a foreman, that he has searched for comparable employment opportunities, or regarding what opportunities are or may be available to him. The Father is healthy and capable of earning a reasonable income. The Father did not argue otherwise. It is not clear, based on the record before me, what steps he has taken since June 2024 to earn an income, how he is earning money to live now, or how he plans to earn money to live during his schooling. The Father’s assertion that pipefitting is a dying profession or that there is no work for him is unsupported.
[28] It appears to me that the Father is essentially making a lifestyle choice and not a choice out of necessity. Based on the evidence before me, I find that the Father is choosing to earn less than he is capable of earning. In my view, the Father is intentionally under-employed based on the test in Drygala.
[29] The onus now shifts to the Father to establish what is required by virtue of his reasonable educational needs. This includes, first, a determination of whether the educational needs are reasonable and, second, whether the under-employment is required by virtue of their reasonable educational needs: Drygala, at paras. 38-41.
[30] Considering the evidence before me and the submissions made by both parties, in my view, the Program is not a reasonable educational need. There is no evidence to suggest that the Father considered or actively sought out any employment opportunities, including part-time opportunities while he is a student. It is the lack of evidence and information before me that would otherwise assist in the reasonableness analysis that causes me to conclude that the Father’s decision to pursue the Program rather than continue his trade as a pipefitter is not reasonable. For example, the Father alone has the following information and has not put it before the court:
(a) any details of the Program, including the number of courses that must be taken and when;
(b) how much time must be devoted in and out of the classroom to ensure continuation in the Program;
(c) the academic demands of the Program to determine whether the Father is excused from pursuing part-time work;
(d) whether the Program can be completed over a longer period with the Father taking fewer courses so that he could obtain part-time employment;
(e) the Father’s ability to earn paid employment income while pursuing the Program, including whether the rigours of the Program preclude part-time employment during the regular academic school year and whether summer employment is reasonably expected;
(f) any other income sources for the Father while he completes the Program;
(g) how the Father intends to fund his education;
(h) the Father’s vocational aptitude to complete the Program or even to enroll in the Program;
(i) the Father’s employability after graduating from the Program, including the types of jobs that the Father will be training for, the number of graduates placed by the school in positions, and the location of those placements;
(j) the Father’s plan to re-enter the workforce once he completes the Program; and
(k) the Father’s anticipated income after graduating from the Program.
[31] The Father argues that his decision to leave his trade as a pipefitter and go back to school is in the best interests of the children. He says in his affidavit: “With changing my career, I can have a clear work schedule so I know when I will be able to see my children as well as a reliable income so that I can provide for them without worry for the rest of their lives.” While this is a laudable sentiment, and while I have no doubt that the Father believes this, the reality is that I have no evidence before me to support his position.
[32] The Father argues that his decision to return to school is a reasonable one, that he has “done his due diligence to canvass the employment market,” and that his decision was not “made without research and deliberation.” Again, he has not produced that research, and there is no evidence before me as to what the employment market for graduates of the Program is today or forecasted to be in three years when he graduates. I am not even in a position in which I could make an educated guess regarding the Father’s potential salary range or career prospects following completion of the Program.
[33] Based on the record before me, I am not satisfied that the long-term benefits of the Father pursuing the program outweigh the reduction in his income and support obligations.
Quantum of Child Support
[34] Given that I have found that the Father’s decision to pursue the Program rather than continue his trade as a pipefitter is not a reasonable one, I must now determine what income is reasonably imputed to him in the circumstances: Drygala, at paras. 44-46.
[35] There is no debate that the children have legitimate expenses, including daycare, diapers, food, clothing, and a home to live in. While the Father may believe that, following completion of the Program, he will be able to earn a higher salary than he did as a journeyman pipefitter and site supervisor, there is simply no evidence before me, as outlined above, to support this position. The risk of a lower income for the years 2024, 2025 and forward because of the Father’s decision should be borne by the Father alone and not by the children. In these circumstances, I find that it is appropriate for me to consider the Father’s previous earning history, including his previous three years’ income, to determine an amount that is fair and reasonable: Drygala, at paras. 44-46; see also Tillmanns, at paras. 67-68.
[36] In my view, based on the record before me and taking into consideration what is in the best interests of the children, it is fair and reasonable to impute income in the amount of $137,610 per annum (being the average of $150,717 (2021), $130,739 (2022) and $131,376 (2023)) to the Father for the purposes of fixing ss. 3 and 7 child support, on an interim basis, retroactive to November 1, 2024.
Costs
[37] The costs of this motion are left for determination by the judge making any final order.
Jacqueline A. Horvat
Justice
Released: April 25, 2025