Atkinson v. Spiridakis, 2011 ONCJ 696

Brampton Registry No. 1286/03 DATE: 2010·IX·13 CITATION: Atkinson v. Spiridakis , 2011 ONCJ 696 ONTARIO COURT OF JUSTICE BETWEEN: KAREN ATKINSON Applicant — AND — GERALD MICHAEL SPIRIDAKIS Respondent Before Justice Juliet C. Baldock Heard on September 6 and 8, 2011 Reasons for Judgment released on September 13, 2011 Mark Trenholme .................................................................................................... for the applicant Noel A.

Nolasco da Silva ...................................................................................... for the respondent BALDOCK, J.: [ 1 ] This is an application brought pursuant to the Interjurisdictional Support Orders Act (ISOA) by the respondent father, who attended the hearing from the province of Alberta where he resides. [ 2 ] He is seeking to change paragraphs 3 and 4 of the order granted by Justice Maresca on March 13, 2008 which provided as follows: (

a) That for the period January 1, 2007 to March 30, 2007 (i.e. three months) the respondent was to pay for two children, the guideline support of $930.00 per month, based on an income of $62,000.00. (

b) That there was to be no support payable for the period April 1, 2007 to July 31, 2007; and (

c) That as of August 1, 2007 the respondent was to pay $783.00 per month as base child support and a further $355.00 per month as his proportionate contribution to

Section 7 expenses. The last term was based on an imputed income of $52,000.00 per year. The order also confirmed that the previous order of Justice Karswick dated May 12, 2006 was to continue in force to the end of 2006. [ 3 ] The parties are the parents of two children, Stephen Nicholas Spiridakis, born April 6, 2001 (now 10) and Michael Brian Spiridakis, born February 1, 2004 (now 7). The respondent asks for an order varying the child support as of September 1, 2011 to $568.00 per month based on his projected income of approximately $39,000.00 for this year and the elimination of arrears.

In closing submissions however his counsel conceded that if the court were to determine that the respondent should have paid the guideline support for the period since August, 2007 or even since the order of March 13, 2008 some arrears would still be outstanding. [ 4 ] The applicant mother concedes that as a result of certain subsidies and other benefits which have been made available to her, she has not in fact incurred extra expenses since the granting of the March 2008 order.

It is therefore agreed that there are no arrears of s.7 expenses or any ongoing. [ 5 ] The respondent testified as to his income over the years and provided copies of his income tax returns from 2004 to and including 2010. He estimates his 2011 income to be $39,000.00.

[ 6 ] The respondent’s income history is as follows: Year: Income: 2004 $15,000.00 2005 $26,000.00 2006 $89,900.00 2007 $27,000.00 2008 $29,600.00 2009 $29,000.00 2010 $27,125.00 [ 7 ] The applicant did not challenge the correctness or authenticity of the tax returns but takes the position that the respondent is intentionally under employed and, as was the case in 2006, has the capacity to earn significantly more than his recent tax returns reveal. [ 8 ] The respondent’s evidence was that there was a “boom” in 2006/2007 which accounted for his much higher income.

He worked for North American Caisson for most of 2006 and was laid off due to lack of work. He then obtained employment at Ram Manufacturing. He believed he would not be able to maintain work due to the downturn in the economy and decided it would be beneficial to obtain a qualification as a welder. [ 9 ] He requested a lay off which was refused, which suggests that work was available at that time. He then left the job to pursue his training as a welder.

He subsequently discovered that there were many people with more experience and qualifications who were given preference in the job market and he was unable to find an appropriate apprenticeship which would allow him to continue in that field beyond a starting pay grade. At one point he attempted to get his old job back but was turned down. He testified that he had lodged a grievance with the union which may have played some

part in this but was somewhat vague with respect to the time line and details. [ 10 ] After a few other periods of employment, punctuated by periods on Employment Insurance, the respondent decided again to return to school, this time for a certificate as a plumber. [ 11 ] In making these decisions he has incurred substantial debt including: credit cards, a line of credit and money borrowed from his mother, which together totals over $38,000.00. [ 12 ] The applicant maintains that the respondent should have stayed at his job at Ram Manufacturing for as long as it was available to him.

She acknowledged that, generally the pursuit of a specialized trade is worthwhile but understandably questions the respondent’s decision to abandon his first set of goals to pursue a different trade. [ 13 ] I accept the evidence of both the respondent and his mother who testified on his behalf, that he is generally an industrious person who is having difficulty trying to get ahead in a poor economic environment with a limited (Grade 11) education. [ 14 ] It seems that after a number of false starts he does now have a viable career path with some prospect of making a reasonable livelihood.

It will however be at least two more years before he is fully qualified and in the meantime he will be working for low wages and attending school. [ 15 ] On the evidence before me, I cannot conclude that, save and except for his decision to leave his job at Ram Manufacturing the respondent intentionally sought employment at less pay than was available to him.

In quitting Ram Manufacturing he knew he would have lower wages but at the time his plan was to become a welder which offered the long term prospect of a good income. [ 16 ] Having regard to his overall income history, I find it is unreasonable to expect that the respondent would be able to sustain the same level as he received in 2006. Aside from that year, and his projected income for 2011, he has never earned more than $29,000.00. [ 17 ] The animosity between the parties was evident during the course of the trial.

Each party took every opportunity to denigrate the other by giving unsolicited evidence, editorializing, making rhetorical remarks and assigning blame. It is most unfortunate that this appears to have characterised their relationship since separation and it has resulted in the children having virtually no relationship with their father.

Access is not an issue before me on this ISOA application but is it very clear that the entirely negative view each parent has of the other has fed and nurtured a litigious attitude, prevented the possibility of resolution and increased legal costs. [ 18 ] I have no doubt that the children have, to some degree, been adversely affected and they will be further harmed if their parents continue in this manner. [ 19 ] The applicant mother takes the view that the respondent has, essentially, failed his family. She is sceptical of his efforts

to find and maintain employment and still harbours the expectation that he can earn significantly more than he has in the last few years.She is critical of his change in career paths and sees this as self serving and detrimental to herself and the children. [20] I find that the respondent has made some choices which may now be seen as ill advised. His flirtation with welding wasshort lived and unproductive.

It would certainly have been preferable if, in 2007 he had stayed with Ram Manufacturing until suchtime as either the company laid him off or he had secured an alternate source of income. [21] The net effect of that choice has been to deprive the children of some of the support to which they are entitled. [22] I cannot however, conclude that avoidance of his support obligations was a consideration, let alone his motivation.

Infact, I accept that the decisions he made were intended to provide a better income, if not immediately, then in the long term.Unfortunately, this has not happened to any significant degree and although the respondent laid blame on others for the situation, he isnevertheless responsible for his choices.

For example, he blames one lay off on the fact that he had no drivers licence to get to work as ithad been suspended for not paying support, a situation which was in fact due to a driving offence and therefore his own doing. [23] Having regard to his overall income history, I find that the respondent’s current ability to earn income is limited to$39,000.00 per year.

There is no evidence upon which I could conclude that he now has the ability to earn more than this,notwithstanding his “boom” year in 2006. [24] The applicant has, to her credit, been able to provide for herself and the children on a very modest income, supplemented,albeit inconsistently, by the support received from the respondent and occasionally help from her family. It is understandable that she iscritical, not only of the respondent’s choices but also of his ability to manage money.

From her perspective it is difficult to accept thathe, as a single person, earning in the range of $30,000.00 a year, incurred so much debt when she herself manages on that or less, withtwo children to raise. [25] In determining whether the respondent is, or has been “intentionally “ under employed within the meaning of s.19(1)(

a) ofthe Ontario Child Support Guidelines, I have considered the comments of Gillese J.A. in the Ontario Court of Appeal decision ofDrygala v Pauli 2002 CanL.ll 41868(ON CA) at p. 7, referring to the earlier case of Francis v Baker { (SCC), 1999] 3S.C.R. 250 : “Read in context and given its ordinary meaning “intentionally” means a voluntary act. The parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he orshe chooses not to work when capable of earning an income. The word “intentionally” makes it clear that the

section does not apply tosituations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.” Applying this construct, I find that the respondent was intentionally under employed in 2007. Such a finding does not however requirethat the court impute income, only that it may to do so. [26] The respondent did not earn the income attributed to him in Justice Maresca’s 2008 Order. He did not appeal thatdecision but commenced his Motion to Change in January, 2009.

Since then there have been a number of orders in the Alberta Courtsstaying enforcement. [27] Counsel for the respondent submits that as the 2008 order was based on incorrect information, that is to say, therespondent did not in fact earn $62,000.00 or $52,000.00 in 2007, it is open to this court to effectively set aside that order by making achange retroactive to 2007. In my view that would be substituting my decision for that of Justice Maresca which is in the nature of an appeal not a variation. I therefore only consider the period from the 1st of the month following the date of her order, i.e.

April 1, 2008. [28] Based on the actual income of the respondent, the result would be as follows: Year Income Monthly Child support 2008 $29,600.00 $439.00 (9 payments) 2009 $29,000.00 $431.00 2010 $27,125.00 $404.00 2011 $39,000.00 $583.00 [29] The applicant’s expectations must be tempered by the reality of the situation. Therefore while, as indicated above, I findthat in 2007 the respondent voluntarily made a choice which resulted in a reduction in income, that situation was already in effect andpreceded Justice Maresca’s decision.

In fact that order provided for a three month period without child support payments. Since thattime, the respondent’s income has largely been consistent with a 30% increase this year. Accordingly I find no justification for theimputation of income. [30] Furthermore, I find that the respondent does not at this time have the ability to pay any of the arrears but that he has areasonable prospect of doing so once he has acquired his trade certification. He should therefore have a period of time to improve hisfinancial affairs before being required to commence payments.

This however is conditional upon him making the base child supportpayments on a regular and timely basis, so that the applicant mother can rely upon them. [31] As success is divided, there will be no order as to costs.

[ 32 ] For these reasons an order will issue as follows: 1. The Order of Justice Maresca, dated March 13, 2008 is hereby varied as set out below. 2. Commencing April 1, 2008 the respondent shall pay for the support of two children, Stephen Nicholas Spiridakis, born April 6, 2001 and Michael Brian Spiridakis, born February 1, 2004 , the sum of $439.00 per month up to and including December 31, 2008; 3. Commencing January 1, 2009 the respondent shall pay for the support of the said children the sum of $431.00 per month up to and including December 31, 2009. 4.

Commencing January 1, 2010, the respondent shall pay for the support of the said children the sum of $404.00 per month up to and including December 31, 2010. 5. Commencing January 1, 2011 the respondent shall pay for the support of the said children the sum of $583.00 per month. 6. There shall be no order with respect to the payment of s.7 expenses and any and all arrears related to s.7 expenses are rescinded. 7. The respondent is to be given credit for any and all payments made on and after March 13, 2008. 8.

So long as the respondent’s payments with respect to ongoing support do not fall into arrears more than 60 days, enforcement of any arrears then outstanding (including those arising from the previous order of Justice Karswick dated May 12, 2006 but excluding any arrears related to s.7 expenses pursuant to that or the March 13, 2008 order) as well as those arrears which may have accumulated as a result of today’s order, is suspended for a period of 2 years, i.e. until October 1, 2014 at which time the respondent shall unless otherwise ordered, commence payments towards such arrears at the rate of $200.00 per month. 9.

In the event that the ongoing payments fall into arrears for 60 or more days, then the total amount owing (including those arising from the previous order of Justice Karswick, dated May 12, 2006 but excluding any arrears which relate to s.7 expenses) together with such arrears as may have accumulated as a result of today’s order shall unless otherwise ordered, immediately become due and payable. 10.

The parties shall keep each other informed as to their respective addresses and shall, annually, adjust the base amount of support payable effective October 1, commencing 2012, based on the Respondent’s projected income for that year. 11. The respondent shall make all reasonable efforts to continue with his education to obtain a trade certification as a plumber and shall keep the applicant advised of his progress. 12. There shall be no order as to costs. Released: September 13, 2011 __________________________ Justice J.C. Baldock