Moskal v. Moskal, 2011 ONCJ 720

Brampton registry No. 1167/10 DATE: 2011·X·31 CITATION: Moskal v. Moskal , 2011 ONCJ 720 ONTARIO COURT OF JUSTICE BETWEEN: MALGORZATA MOSKAL Applicant, — AND — ROBERT MOSKAL Respondent. Before Justice Steven R.

Clark Motion to Change the Final Order of Minard J., dated June 9, 1999 Motion heard on September 30, 2011 Ruling released on October 31, 2011 Malgorzata Moskal................................................................................................... self-represented Robert Moskal........................................................................................................... self-represented CLARK J.: 1:0 INTRODUCTION [ 1 ] The moving party, the respondent father, Robert Moskal (hereinafter referred to as “the father”) brings a motion to change, dated August 9, 2010, to terminate the final order of Minard J., dated June 9, 1999.

Specifically, he seeks to vary the quantum of child support otherwise payable, having regard to the significant and material change in his financial circumstances. He is not working at present. He has recently enrolled in a retraining program. [ 2 ] The responding party, the applicant mother, Malgorzata Moskal (hereinafter referred to as “the mother”), concedes that the father may well have legitimately been laid off his job.

However, since January, 2010 to the present, he has not been diligent in seeking comparable employment, and has unrealistically limited the scope in his job-seeking efforts, when he ought to have taken virtually any job available in an effort to honour his child support obligations. [ 3 ] The parties were married in 1983.

They were divorced on February 27, 2000. [ 4 ] There are two children of the marriage. [ 5 ] Their son, Patryk, born February 5, 1989, presently age 22, has been enrolled as a kinesiology student at the University of Toronto. [ 6 ] Their daughter, Paulina, born February 26, 1993, presently age 18, is enrolled as a first year student at Carleton University in Ottawa, Ontario. [ 7 ] Both children otherwise reside with the mother. [ 8 ] Rather unfortunately, the father has not had a relationship with the children for approximately seven years.

He claims that the mother has prevented them from seeing them, while she maintains that he has never made the effort. In any event, the children are clearly of the age where they can make their own decisions in this regard. [ 9 ] The salient terms of the final order include the following: • the parties have joint custody of the children with primary residence to the mother. • access by the father is each Saturday, every third weekend, and one week each summer.

• the father is to maintain a life insurance policy with the children named as beneficiaries until they reach the age of 21. • the father is to pay child support in the amount of $898.00 per month, on annual income of $60,000.00, commencing June 15, 1989. The table amount is $823.00 per month, while special expenses for daycare totals $75.00 per month. [ 10 ] This matter first came before Clark J. on December 7, 2010. It has been in “conference mode” until September 30, 2011, in an effort to see if the father was able to secure comparable employment. Regretfully, this has not occurred.

He is now enrolled in a re- training program to improve his computer skills. 2:0 THE POSITIONS OF THE PARTIES 2:1 The Father [ 11 ] His reported income for 2008 was $78,402.00. [ 12 ] His reported income for 2009 was $76,395.00 [ 13 ] His income for 2010 is $45,418.00. He was laid off from his job on or around January 18, 2010, although he was paid until the end of June of this same year. Thereafter, he received employment insurance (E.I.) benefits.

He became eligible for same as of June 20, 2010, at a rate of $457.00 per week for 49 weeks. [ 14 ] His initial position is that he should no longer have to pay child support for Patryk, as he was not satisfied that he was still enrolled as a full-time university student. However, on the basis of information provided by the mother to the Court, the father is now satisfied that Patryk is enrolled in school.

Accordingly, he no longer seeks to terminate child support for Patryk, but merely to vary same. [ 15 ] Furthermore, as part of the motion to change, he is seeking to terminate the daycare expenses, as the children clearly no longer qualify. His initial position is that he wished to be credited for all of the years he made overpayments.

However, he has now abandoned this claim, partially on the basis that the Court will, hopefully, agree to vary his child support obligation on a going-forward basis. [ 16 ] He has been receiving a net amount of E.I. benefits of $402.00 per week. $55.00 per week has been deducted from the gross weekly amount of $457.00. The net amount has been garnished at a 50% rate. The Family Responsibility Office makes payments to the mother of $201.00 per week. [ 17 ] His position is that he should only be paying the table amount of child support for the two children based on annual E.I. benefits of $23,745.00.

The table amount is $358.00 per month, commencing July 1, 2010, until September 1, 2011. [ 18 ] He has filed documentation confirming his enrolment at the Toronto College of Technology, in the systems testing engineer program. This commenced on September 6, 2011 and will end on March 23, 2012. The program consists of 25 hours of classes per week. While enrolled in this program, he only receives a living allowance of $29.00 per week. His tuition and other school-related expenses are paid for by this training initiative. [ 19 ] He presently resides with his current spouse.

She is working and pays all of their necessary expenses. [ 20 ] He submits that he has been looking for comparable employment as a computer technician and software developer, but to no avail. This is the first time in 21 years where he has been without a job. [ 21 ] He has filed a significant amount of documentation confirming his job searches; agency contacts; employment ads; and available skills upgrading facilities and institutions. He has also filed a copy of his resume. [ 22 ] Notwithstanding his present circumstances, as a good-will gesture, he is prepared to pay $100.00 per month for child support.

He is ever hopeful that after March, 2012, he will be able to find a job paying what he was previously earning. [ 23 ] Over these last 10 months, he has been endeavouring to demonstrate to the Court by his actions and words that he was on the verge of securing a job in his field. He was interviewed in February, 2011 for a position as a software developer, however no job offer was forthcoming. He told the prospective employer that his salary range expectation was $60,000.00.

However, realistically, he understands that he is competing with college or university graduates who are prepared to take these types of jobs at a starting salary range of $45,000.00. [ 24 ] He came to realize that he must seek retraining to update and improve his computer skills in order to remain competitive. [ 25 ] He has been quite aware of the stark reality that he must also be seeking jobs outside of his area of expertise, and even unskilled jobs, even on a part-time basis. His position is that he has exhausted all avenues in this regard.

He has even prevailed upon “friends” in the construction/renovation business to do labour-type jobs. However, nothing has materialized in this regard either. [ 26 ] Now that he is enrolled in a retraining program, it is still problematic for him to secure even a part-time job. Many of his classes and lectures are scheduled in the evening and sometimes on weekends. He intends to continue to pursue some form of at least

part-time employment, although he has no leads at the moment. [ 27 ] Most recently, in August, 2011, he thought he had a lead on a job with the TD bank, with a salary range between $60,000.00 and $80,000.00, however, he was advised that there was now a “hiring freeze”. [ 28 ] On September 30, 2011, when final submissions were made by the parties on this motion to change, he advised that he will continue to look for a part-time job in a warehouse. He has made some inquiries in this regard. The salary range would likely be $11.00 to $12.00 per hour.

He understands, however, that this may require doing shift work, which will conflict with his retraining program. [ 29 ] He maintains that he is in dire financial straits at the present time due to circumstances beyond his control. His current wife is employed as a medical secretary. Their monthly expenses are in the range of $2,000.00. They pay $1,026.00 for rent; $247.00 for car insurance; $287.00 for a car loan; $118.00 for medications; and $200.00 for groceries. He maintains that he is required to have access to a vehicle to assist him in making himself as employable as possible.

He declared bankruptcy approximately one year ago. He has made no purchases of any other assets since this time. He purchased the motor vehicle before going into bankruptcy. 2:2 The Mother [ 30 ] She is most sceptical of the father’s true intentions to honour his child support obligations. [ 31 ] To her, it seems that he has stubbornly refused to seek or obtain employment, either outside his area of expertise, or at a salary range which he considers to be “below” or “beneath” him.

She states, rhetorically, “how convenient for him”. [ 32 ] It seems that he blames everyone else for his problems but himself. [ 33 ] It also seems that he is able to find money to continue to operate his car rather than investing in the education of his children. Of his stated expenses, there is over $500.00 per month available just from the car loan and car insurance that could otherwise be redirected to child support. [ 34 ] She also submits that the father knew he was going to be laid off since January, 2010. Yet, he was paid his regular salary until the end of June of that year.

It has now been more than a year and a half and yet, he has still not found a comparable job. This ought to call into question that he has not been seriously pursuing this issue with dispatch or in earnest. [ 35 ] Furthermore, she submits that the original order required that both parties were to exchange annual financial information including an income tax return, T4 slips, notices of assessment, and up-to-date pay statements showing year-to-date totals. Although she concedes that she has not been providing him with her information, her relatively minimal salary does not alter the situation.

On the other hand, it is clear that the father has been earning in excess of $60,000.00 on which the original order was based. Accordingly, she is seeking a retroactive order to increase child support back to January 1, 2008. 3:0 ANALYSIS 3:1 The Obligation of Child Support – General Principles [ 36 ] The authority to order support for adult children is found in the Family Law Act at s.31, which provides: 31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under sub-section (1) does not extend to a child who is 16 years of age or older and has withdrawn from parental control. [ 37 ] The purpose of s.31 of the Act is to foster the goal of making parents responsible for the education of their children.

The test to determine entitlement is one of reasonableness. [ 38 ] On the basis of the evidence and the information provided, both children are still entitled to child support. [ 39 ] This is acknowledged by the father. [ 40 ] It stands to reason that as income levels increase, or decrease, so will the parents’ contributions to the needs of the children, just as they would if the family had remained intact. [ 41 ] The Court understands that Patryk has completed his third year of a four-year kinesiology program at University of Toronto.

He now has an opportunity this academic year to play professional basketball in Poland, in which case he will be attending school there until May, 2012. [ 42 ] Paulina is now in residence in her first year of studies at Carleton University in Ottawa. She has received an OSAP loan to assist her with her attendant school expenses.

[43] The issue of entitlement for Patryk will have to be revisited next summer. Child support for Paulina will likely continuefor at least another three years after next summer. 3:2 Retroactive Child Support [44] The guiding principles for retroactive child support are set out by the Supreme Court of Canada cases of D.B.S. v. S.R.G.;L.J.W. v. T.A.R.; Henry v. Henry; and Hiemstra v. Hiemstra, [206] (SCC), 10 WWR 379 (S.C.C.). [45] As a general rule, the Court is entitled to go back three years to consider a support variation.

The issues to address in thepresent case include, what is the proper retroactive amount to be ordered, and what should the commencement date be? [46] The framework for analysis requires a consideration of various factors, including the age of the children, and thefollowing: • delay; • blameworthy conduct; • hardship to the children; or • hardship to the payor [47] Since the children are both enrolled full-time in post-secondary education, they continue to be entitled to child support. [48] Regarding delay, neither party has really done what they were supposed to do.

The original order provided that they wereto exchange financial information annually. The mother made no inquires, while the father did not disclose that his income, at least since2008 was significantly higher. Although he may have felt that because he was not seeing the children, his incentive to support them wassomehow less, he knew or ought to have known that the issues of access to the children and his continued responsibility to support themare mutually exclusive.

The Court finds that the delay factor actually militates against the merits of both parties’ positions. [49] Regarding conduct, blameworthy conduct is anything that privileges the payor’s own interests over his children’s right toan appropriate amount of support. It need not be intentional. Therefore, a payor who knowingly avoids or diminishes his supportobligation should not be allowed to profit from such conduct. The Court finds that the father should probably be paying a significantamount of retroactive child support for at least the years 2008 and 2009 until he was laid off from his job.

This should be offset by thenumber of years he has had to pay child care expenses which should have been terminated years ago. Having regard to all of thecircumstances, and the totality of the evidence, however, it is preferable to deal with this matter more on a “going forward” basis. In anyevent, the Court intends to make a temporary order only at this time, recognizing that two significant developments are likely to occurafter the first half of 2012. First, Patryk will have completed his education, in which case his continued entitlement to child support willlikely expire.

Second, the father will have completed his retraining program by the end of March, 2012. It is worth waiting to see if hisfinancial circumstances materially change for the better and whether he is able to put himself back in the job market. [50] Regarding the circumstances of the children, it is a core principle that the children’s standard of living shouldapproximate the standard they enjoyed while the parents were together, as much as possible. The Court is entitled to consider thechildren’s present as well as past circumstances.

Although it is quite likely that the children have gone without for an extended period oftime, it also appears that they have been able to pursue their education through various student loans and other sources.

Although theycould certainly have benefited from having more money available to them over these last years, they have not unduly sufferedeconomically. [51] Given the father’s present circumstances of having virtually no income, it might well be disproportionate to hold him to aretroactive order for 2008 and 2009, notwithstanding the significant differential between his salary in those years and the amount onwhich the original order was based. It would be a significant hardship for him to “find” this money, even if a reasonable repaymentschedule were to be set.

The Court finds that it is not quite as sceptical as the mother as to the father’s efforts to obtain employment.Quite frankly, giving due consideration to the documentation filed by him, his inability to secure employment has more to do with thecurrent economic climate, and perhaps his age, both of which are presently militating against him. Although there is no doubt that hecould have been making a more concerted effort to find any type of work, even unskilled, it was not altogether unrealistic that hecontinue to hold out some confidence and hope that a job within his field was “just around the corner”.

Unfortunately, it took almost ayear for him to finally realize that such a position was more wishful than real. [52] The Court cannot be satisfied that the father was intentionally unemployed. However, the Court does find, on a balance ofprobabilities, that he has been under-employed, at least to the extent that he did not realistically place himself in a position where hecould have been working at some unskilled job while he pursued his job of choice. For this, he must be held responsible.

In an effort tobalance his obligation and ability to pay, however, the Court will only order retroactive child support to July 1, 2010, rather than January1, 2008. 4:0 ORDER [53] The Court makes the following temporary order:

1. The final order of Minard J., dated June 9, 1991, is varied as follows: (

a) The respondent father, Robert Moskal, shall pay to the applicant mother, Malgorzata Moskal, child support for the two children, Patryk Moskal, born February 5, 1989, and Paulina Moskal, born February 26, 1993, in the amount of $358.00 per month, based on annual income of $23,745.00, commencing July 1, 2010, until August 31, 2011. (

b) The said respondent father shall pay to the said applicant mother child support for the said children in the amount of $326.00 per month, on imputed annual income of $21,320.00, which represents the minimum wage, commencing September 1, 2011 until May 30, 2012. A support deduction order shall issue. (

c) Child care expenses of $75.00 per month, payable by the said respondent father, are terminated as of July 1, 2010. He is to receive no credit for any overpayments. 2. This matter shall return before Clark J. on a date after June 1, 2012, to be set by the trial coordinator, at which time the issues of ongoing child support and entitlement shall be re-evaluated. 3. The parties shall exchange financial information including income tax returns, T4 slips, notices of assessment and notices of reassessment annually, commencing May 30, 2012. 4. There shall be no order for costs. Released: October 31, 2011 Justice Steven R. Clark