Court File and Parties

Court File No.: 05-FL-3211-03

Date: August 22, 2025

Corrected: August 25, 2025

Ontario Superior Court of Justice

Between:

Raymond William Oliphant, Applicant

– and –

Erica Lynn Oliphant, Respondent

Counsel:

• Raymond William Oliphant, acting in person
• Erica Lynn Oliphant, acting in person

Heard: November 25, 2024, and February 5, 2025

Reasons for Judgment

Hebner J.:

Background

[1] The applicant and respondent were married on June 27, 1998, and separated in 2005. They were both schoolteachers. The applicant father and respondent mother are parents to Madison, born in May 2000, and Sydney, born in November 2002. Madison is now 25 years of age and Sydney is now 22 years of age.

[2] On February 5, 2008, Rady J. made a final order based on Minutes of Settlement filed by the parties, both of whom were represented at the time. One of the terms of that order was that the father was required to pay child support to the mother for the two children in the sum of $469 per month based on his annual Sick and Accident Disability Benefits of $31,820. He has made no payments voluntarily. Any payments made to the Family Responsibility Office were by way of diversion of funds. As of November 14, 2024, the total arrears of support were $87,949.96.

[3] The applicant's motion to change issued January 25, 2022, seeks an order terminating the child support payments and fixing any arrears at $0.00.

Applicant

[4] The applicant was born on November 26, 1970. He was employed as a technological teacher with the Greater Essex County School Board and, at the time the parties separated, taught at Western Secondary School in Amherstberg, Ontario. By the date of the Rady J. order, the applicant was still employed at the school board but was no longer working as a teacher in the classroom. He was in receipt of Sick and Accident Disability Benefits.

[5] The applicant had been employed as a tech teacher with the school board for eight years. He was placed on sick leave in September 2007 due to, he asserts, physical illness and mental health concerns, namely, anxiety, depression, and difficulty managing stress.

[6] The applicant's disability leave ended in the spring of 2008. He made an assignment in bankruptcy in August 2008 and began receiving social assistance in the form of Ontario Works. In 2009, the applicant began to receive Ontario Disability Benefits (ODSP) and that continued until March 2018 when he began to reside with his employed common-law spouse.

[7] In 2008, the applicant commenced contempt proceedings against the respondent citing a failure to comply with the parenting provisions of the Rady J. order. At approximately the same time, the applicant launched a motion to change requesting a reduction in child support. Neither of these proceedings were ever heard. The applicant said that they "just languished."

Employment

[8] The applicant experienced difficulties in his employment before he was placed on sick leave. In a letter from his employer dated February 14, 2002, the applicant was reprimanded and told that his performance was "unacceptable." He was told to improve his performance or would be subjected to "further disciplinary action up to and including dismissal."

[9] The letter was put to the applicant in cross-examination. He said he "vaguely remembered some details that had to be addressed."

Long Term Disability

[10] During the litigation leading up to the final order of Rady J., the supervisor of human resources for the Greater Essex County District School Board, Michael Kraus, gave evidence under summons on December 14, 2007. He gave the following evidence:

• The applicant was employed as a teacher with the board commencing September 1, 1999.
• The applicant was absent from work from September 7, 2007, continuously to the date of the examination.
• His formal status at the time was "ill with pay."
• The applicant's sick pay was to expire on March 1, 2008.
• HR had already directed the applicant to fill out long term disability paperwork. HR had provided the applicant with the paperwork and the contacts to file the documentation with Manulife. As of that date, the applicant had not completed nor submitted the paperwork. Therefore the applicant had not yet applied.

[11] A letter to the applicant from Jill Howe, the senior claims examiner for Teachers Life dated July 29, 2009, was filed at the present trial. It said:

Based upon all the information received to date, there is insufficient information to support that you have experienced a physical or emotional illness that would prevent you from working at your occupation as a teacher. It is for this reason that we are unable to change our decision not to approve your claim.

[12] Based on that letter, it appears that the applicant did make the application and was denied. There is no evidence that he took the issue further.

[13] The applicant remained an employee with the school board and a member of the bargaining unit until 2019. There is no evidence that he attempted to return to work after 2007.

Education

[14] The applicant earned a Civil Engineering Technology diploma from St. Clair College in 1997. He subsequently completed various courses including CADD training.

[15] The applicant has made no attempts to locate alternative employment, either as a teacher or as an engineering technologist or in any other capacity.

Finances

[16] In July 2008, about the time the applicant applied for social assistance, the applicant made an assignment in bankruptcy. He said he was "in substantial arrears on all of my bills." By September 30, 2008, the applicant was in arrears of child support to the sum of $3,685.

[17] The applicant sets his income as follows:

• 2008 pre-bankruptcy: income of $26,985.60 comprised of teaching income ($20,460) and employment insurance ($6,525)
• 2008 post-bankruptcy: income of $6,786
• 2009 to 2017: social assistance of between $8,838 and $10,924 annually
• 2018 to present: no income

[18] The applicant applied for a CPP disability pension and was denied.

Criminal Proceedings

[19] In June 2005, the respondent reported to police that the applicant committed sexual assaults and assaults on her. The charges were ultimately resolved by way of the applicant entering a peace bond.

[20] In May 2009, the respondent reported to police that the applicant had criminally harassed her between June 2005 and May 2009. The applicant was charged. He was found guilty after a trial in 2014 and sentenced to 18 months in custody along with three years of probation. The applicant appealed from the conviction and sentence to the Court of Appeal. The conviction was upheld but the sentence reduced to 12 months in custody. The applicant was incarcerated from November 2017 to March 2018.

[21] In September 2019, following a disciplinary hearing, the Ontario College of Teachers found the applicant guilty of professional misconduct. His teaching certification was revoked.

[22] The applicant places blame for the charges against him on the respondent. He asserts that "the efforts made by the respondent to frustrate my access led to the charges that were laid against me in 2009."

After Release

[23] The applicant asserts that he did not return to work after his release from jail because of various ailments. He claims that his mental health continued to deteriorate. He was diagnosed with Charcot-Marie-Tooth disease, a disease that causes nerve problems in the hands, arms, legs and feet along with muscle wasting.

Music

[24] The applicant is a musician and maintains a Facebook account, captions of which were put into evidence by the respondent. There are numerous posts of the applicant playing a guitar at various venues in the community between 2011 and 2015 and in 2018.

Respondent and Children

[25] Madison graduated from post-secondary school in October of 2024 with a degree in biotechnology and business. She currently lives in Cambridge and works in Waterloo. Madison suffers from severe stress and anxiety.

[26] Sydney received a diploma in interior design from St. Clair College and is to start a bachelor's degree program in Ireland in September of 2025. Sydney has Charcot-Marie-Tooth disease, likely inherited from the applicant.

[27] Both girls have held part time and summer jobs since they were 15 years old.

[28] The applicant did not contribute to the costs of the post-secondary school education for either child. The costs were paid by the respondent and the children themselves.

[29] The respondent continues to work as a high school teacher full time. She took on second jobs to make ends meet, such as tutoring, course evaluations, and waitressing. The respondent has her own health challenges including osteoarthritis. She had a joint replacement in March 2022. She had back surgery in 2010. She battled cancer in 2024.

RESPs

[30] At the time the parties separated in 2005, they had joint RESP accounts for their children. The applicant stopped contributing to the accounts upon separation. At that time the accounts had balances of $3,867.53 (Madison) and $1,480.53 (Sydney). No further contributions were made.

[31] In April of 2009, the joint RESP accounts were cashed in because of the applicant's bankruptcy. One half of the accounts were lost to the bankruptcy and one half were paid to the respondent. The respondent asserts that the applicant could have avoided the loss if he had transferred his one-half share to the respondent before he made the assignment in bankruptcy.

[32] The respondent opened new RESP accounts in her name alone in 2006 and her one-half share of the joint RESP accounts were added to these accounts. The respondent alone contributed to the new accounts. The respondent saved $15,000 for Madison and $15,060 for Sydney in the RESP accounts. That money and the subsequent growth in the accounts were used for the children's education.

Analysis

[33] I start by noting that the applicant's obligation to pay ongoing child support for Madison ought to terminate as of August 31, 2024. The applicant's obligation to pay ongoing child support for Sydney ought to terminate as of June 30, 2026. The respondent mother is not seeking any contribution toward the post-secondary expenses or other s. 7 expenses. She is seeking an order that the applicant remain obligated to pay the arrears of support owing, pursuant to the Rady J. order, until the dates noted above.

[34] The applicant seeks an order fixing the arrears at $0.00 and terminating ongoing support.

[35] The quantum of child support that must be paid is governed by the Child Support Guidelines, with the income of the paying parent being the total income figure in their tax returns. In certain circumstances a court may impute income to the support payor. Those circumstances are set out in s. 19(1) of the guidelines and include the following:

(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.

[36] The Court of Appeal discussed the application of this section in the oft quoted case of Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.). In that case, Gillese J. speaking for the court at para. 25 said that there is "no need to find a specific intent to evade child support obligations before income can be imputed." There is no requirement of bad faith. Instead, the following principle from Drygala, at para. 32, applies:

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[37] In Lavie v. Lavie, 2018 ONCA 10, at para. 26, Rouleau J. put the principle thusly:

There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

[38] The principles that flow from these cases are summarized in Szitas v. Szitas, 2012 ONSC 1548, at para. 57:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.

2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.

3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

4. If a party chooses to pursue self employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.

5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

[39] In this case, the applicant asserts that he is unemployed because he is unable to work for health reasons. I reject that assertion for the following reasons:

1. The applicant last worked as a teacher in 2007. There is no evidence that he has made any efforts to work or otherwise earn an income since then.

2. The applicant's application for CPP disability benefits was denied.

3. The applicant's claim for disability income was denied by Teachers Life in July 2009 because there was "insufficient information to support that you have experienced a physical or emotional illness that would prevent you from working at your occupation as a teacher." There is no evidence the applicant made efforts to provide additional information to pursue the claim.

4. There is no medical evidence after 2009 to support the applicant's claim that he is unable to work.

5. The applicant appears to have had no intention to find employment or otherwise earn income since 2007. He has a post-secondary diploma, and he is a trained teacher. He also worked in the construction industry prior to his teaching career.

6. There is no evidence of any attempt to teach based on a reduced or modified schedule.

7. The applicant has made no support payments voluntarily, signaling that he never had an intention to comply with the support order.

[40] The support order of Rady J. was based on the appellant's sick benefits income of $31,820. Given the applicant's education and teaching qualifications, I find that he has been capable of and is currently capable of earning at least that much.

Disposition

[41] For these reasons, the application is dismissed. I make the additional orders:

1. The order of Rady J. shall be amended as follows:

   a. The child support payable for Madison shall terminate effective August 31, 2024.

   b. Commencing September 1, 2024, the applicant father shall pay to the respondent mother child support for one child, namely Sydney, in the sum of $264 per month based on imputed annual income of $31,820.

   c. Support shall terminate effective June 30, 2026.

2. The respondent is entitled to her costs as they were incurred to enforce the applicant's obligation to support his children. Based on the respondent's submission of amounts she has paid to lawyers in responding to the applicant's motion to change, and her own time spent, I assess reasonable costs at $10,000. I order the applicant to pay this amount to the respondent. The FRO is to enforce this order.

Pamela L. Hebner Justice

Released: August 22, 2025

Corrected: August 25, 2025

Correction Notice

The text at para. 32 of the original judgment dated August 22, 2025, has been corrected to state: "The respondent opened new RESP accounts in her name alone in 2006 and her one-half share of the joint RESP accounts were added to these accounts. The respondent alone contributed to the new accounts. The respondent saved $15,000 for Madison and $15,060 for Sydney in the RESP accounts. That money and the subsequent growth in the accounts were used for the children's education."

No other changes have been made to this judgment. This copy replaces all other copies.