Daley v. Ivey, 2011 ONCJ 351

Brampton Registry No. 1034/10 DATE: 2011·VII·07 CITATION: Daley v. Ivey, 2011 ONCJ 351 ONTARIO COURT OF JUSTICE BETWEEN: JACQUELINE DALEY, Applicant, — AND — LANCELOT IVEY, Respondent. Before Justice Manjusha B. Pawagi Heard on 24 June 2011 Reasons for Judgment released on 7 July 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended], clause 19(1)(a). CASES CITED Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No.3731, 2002 Cars​well​Ont 3228 (Ont. C.A.). Demers v. Moar, 2004 ABCA 380, 361 A.R. 214, 36 Alta.

L.R. (4th) 221, 339 W.A.C. 214, 247 D.L.R. (4th) 569, 6 R.F.L. (6th) 240,[2004] A.J. No. 1331, 2004 Cars​well​Alta 1580 (Alta. C.A.). Glen A. Cook ................................................................................ counsel for the applicant mother Louis A. Robinson ....................................................................... counsel for the respondent father JUSTICE M.B.

PAWAGI:— 1: NATURE OF THE CASE [1] This case is about whether the respondent father can be exempt from paying child support for his child with theapplicant mother, as a result of his choosing to be unemployed so he can care full-time for his other children while his wife works andsupports their family. The applicant mother seeks custody and child support for the child, Javion Micheal Ivey, born on 14 October 2009(age 20 months). The respondent father is consenting to her having custody and to her having leave to obtain passports and travel withthe child without requiring his consent.

He is disputing her claim for child support on the grounds that he has not worked since 2006because he has been caring for his twin sons (now age 4). The parties agreed to conduct a trial of an issue regarding child support solelyon affidavit and documentary evidence filed and submissions by counsel. 2: BACKGROUND [2] The parties were never married nor did they ever live together. The respondent father lives with his wife and fourchildren: stepdaughter age 22, daughter age 15 and twin sons age 4. The respondent father has a high school education. He worked for

Western Toronto International for about 12 years in auto body repair until his employment was terminated in about 2006 because of thecompany’s change in ownership. In the last year that he was employed, he made $54,000 (according to his 2006 notice of assessment). [3] He reports not having any income since 2006 (according to subsequent notices of assessments) and deposes that hechose not to look for work but to remain at home full-time to care for his twin sons while his wife worked. His wife works as a personalsupport worker.

In 2008, she worked three jobs and made about $75,000 (according to her T4s from the Regional Municipality of Peel,Vigour Limited Partnership and Holland Christian Homes). No evidence about his wife’s income after 2008 was provided. Therespondent and his wife reside in a home worth about $340,000 and have two cars, a 2009 Mazda 7 and a 2000 Cadillac Escalade.

Theapplicant mother receives social assistance (about $16,444 per year), rents an apartment and has one car, a 1994 Acura. 3: POSITIONS OF THE PARTIES [4] The applicant mother’s position is that the court should impute an income of $50,000 to the respondent based on whathe earned when he was last employed. The respondent father’s position is that no income ought to be imputed because hisunemployment is required by the needs of his children. 4: ANALYSIS [5] The test for imputing income is provided in clause 19(1)(

a) of the Child Support Guidelines, O. Reg. 391/97 [asamended], which reads as follows: 19. Imputing income.—

(1) The court may impute such amount of income to a parent or spouse as itconsiders 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 reasonableeducational or health needs of the parent or spouse; . . . [6] The mother’s position at first instance is that the court ought to impute income to the father on the basis that he isactually not unemployed as he claims, but that he is working for cash. Her evidence to support that is the following: 1. She deposes that she has been in an intimate relationship with the respondent for over five years.

She would often meet upwith him and he would be dressed in his auto body-mechanic uniform with his name on it. She has filed a photo of him insaid uniform, date stamped 5 January 2010. He would discuss details of his job with her; for example, fixing a truck,fixing a school bus, complaining about getting burned while welding. The applicant’s adult daughter served therespondent at Ansa Auto Repair at 116 Orenda Road, Brampton because the applicant knew that this was where he workedand that he could be found there. 2.

The respondent’s financial statement sworn on 21 March 2011 shows his yearly household expenses as $67,652, and debtof $18,500 (not including mortgage). It shows no income for him and income for his wife of $75,000. However, heprovides no proof of his wife’s income after 2008. Their bank account records for 2009 and 2010 show deposits fromHolland Christian Homes of about $1,000 every two weeks which extrapolates to an annual net income of about $24,000from this source for his wife.

But the other deposits to their joint account could be either from him or his wife, it is notclear: • 1 September 2009 — two “ABM deposits” of $1,638 each; • 3 December 2009 — “deposit” of $4,000; • 18 May 2009 — “ABM deposit” of $150; • 22 May 2009 — “deposit” of $750; • 27 May 2009 — “deposit” of $300; • 16 June 2009 — “deposit” of $577; • 12 July 2009 — “deposit” of $400. [7] The father’s response is that he just happened to be at Ansa Auto Repair visiting friends when he was served there.

Hedid not provide a response as to the origin of the unnamed deposits to his and his wife’s joint account. [8] I find that, since he and his wife are able to cover their yearly expenses of $67,652, and since the only income definitelyattributable to his wife is about $24,000, that leaves expenses of about $43,652 that they are also somehow able to cover. He deposesthat they are covered by his wife’s working, but provides no evidence of that (saying his wife refused to provide any further evidence asshe was upset by this case).

Those expenses could just as easily be covered by his working for cash and is consistent with the mother’sevidence that he was served at an auto body repair shop. On that basis, I find that it would be reasonable to impute to him an income of$50,000. [9] In the alternative, if I accept his contention that he is unemployed for the purpose of caring for his twin sons, then Imust undertake the three-part analysis set out by the Court of Appeal for Ontario in Drygala v. Pauli, , 61 O.R. (3d)711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Cars​well​Ont 3228 (Ont.

C.A.), beforeimputing income pursuant to subsection 19(1). 4.1: Is the Spouse Intentionally Under-Employed or Unemployed? [10] The court is clear that “intentionally” in this context does not require the court to find bad faith in terms of an intention toavoid paying child support. Rather, it refers to the plain meaning of the word “intentionally” in that the under-employment or

unemployment is voluntary. Here, while the father’s termination of employment was involuntary (his company changed ownership) his subsequent decision not to look for work was voluntary. He has chosen to be unemployed. Thus, the first part of the test is met. 4.2: If So, Is the Intentional Under-Employment or Unemployment Required by Virtue of the Needs of a Child of the Marriage or Any Child under the Age of Majority? [ 11 ] The Alberta Court of Appeal, in Demers v. Moar , 2004 ABCA 380 , 361 A.R. 214, 36 Alta. L.R. (4th) 221, 339 W.A.C. 214, 247 D.L.R. (4th) 569, 6 R.F.L. (6th) 240, [2004] A.J.

No. 1331, 2004 Cars​well​Alta 1580 (Alta. C.A.), held that a parent did not have to show evidence of special needs on the part of the children to justify that unemployment to care for them is required and that it is a “trite fact” that children ages 2 and 4 months (as they were in that case) need constant care.

However, the court went on to note that a parent may well be required to lead evidence relating to the cost-effectiveness of placing the children in day care or with a baby-sitter given the income that the parent is likely to earn upon returning to work and that: . . . there may well be a presumption that the needs of a child favour the provision of childcare by a parent where the potential income which could be earned through employment by that parent does not significantly exceed the costs of daycare, babysitting and after-school care; See paragraph [21](c). [ 12 ] In the Alberta case, the mother in question could expect to have a minimum wage income imputed to her.

Thus, the court found it was reasonable for her to be unemployed to care for her young children. Here, the father has a work history of making much more than minimum wage. Thus, it would be cost-effective for him to return to work even with the child-care costs for two children. The father provided evidence that the costs for full-time care would be $185 per week per child for the extended hours of 7 a.m. to 6 p.m. at the privately run “Academic Kindergarten” which works out to about $9,620 per year per child, not accounting for the tax deductions available for child-care costs.

This cost is for children at the age of 4. No evidence was provided regarding how much child care would have cost when they were 2 and 3 years old.

But even if it were double the cost, it would still be cost-effective for the father to work, given his ability to earn $50,000 per year and the fact that the child care costs would be shared between him and his wife. [ 13 ] Thus, I find that his unemployment is not required. 4.3: If the Answer to Question 2 Is Negative, What Income Is Appropriately Imputed in the Circumstances? [ 14 ] I find that imputing an income of $50,000 per year is reasonable under the circumstances.

This figure is based on his last salary of $54,000 in 2006 and the Job Canada evidence presented by the mother that the majority of automotive mechanics in the greater Toronto area make between $53,000 and $66,000 per year. [ 15 ] Thus, I find that the mother has successfully demonstrated on a balance of probabilities that an income of $50,000 per year ought to be imputed to the father. 5: THE ORDER [ 16 ] The court orders as follows: 1. Sole custody to the applicant mother. 2.

The applicant mother may obtain, retain and renew passports and other travel documents for the child, and may travel with, or authorize travel for, the child without requiring the consent of the respondent father. 3. The respondent father shall pay child support of $462 per month commencing on 14 October 2009 and on the 14th of every month thereafter based on an imputed annual income of $50,000 and the Child Support Guidelines for one child. Any arrears created as a result of this order shall be paid at the rate of $100 per month commencing on 14 July 2011 until paid in full.

Support deduction order to issue. [ 17 ] The parties may make submissions regarding costs to the court in writing (no more than five pages) within 15 days.