Hall v. Hall, 2011 ONCJ 47

Brantford Registry No. F189/09E DATE: 2011·II·09 CITATION: Hall v. Hall , 2011 ONCJ 47 ONTARIO COURT OF JUSTICE BETWEEN: FILOMENA HALL, Applicant, — AND — GREG EDWARD HALL, Respondent. Before Justice Lawrence P. Thibideau Heard on 17 January 2011 Reasons for Judgment released on 9 February 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended]. CASES CITED D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta.

L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976. Galloway v. Cassino (Barrett) and Ministry of Community and Social Services , 2008 ONCJ 577 , [2008] O.J. No. 4525, 2008 Cars​well​- Ont 6740 (Ont. C.J.). Grala v. Grala , 2008 ONCJ 556 , 170 A.C.W.S. (3d) 828, [2008] O.J. No. 4395, 2008 Cars​well​Ont 6496 (Ont. C.J.). Ian Gerald T.

Smits ................................................................................... counsel for the applicant Greg Edward Hall .................................................................................................. on his own behalf [ 1 ] JUSTICE L.P. THIBIDEAU:— The respondent father brought a motion to change the support provision of an agreement made on 11 October 1994 with respect to child support for the child Nicholas Hall, born on 7 September 1992, whereby he agreed to pay the sum of $450 a month commencing on 1 November 1994.

That amount was agreed upon in the old regime whereby the payment was tax deductible for the respondent father and taxable for the applicant mother. [ 2 ] As of 1 January 2011, the statement from the Family Responsibility Office indicates there is $60,476 owing in arrears. The original amount was indexed to inflation over the years with the result that, as of 11 October 2010, the revised monthly payment was $602.33. [ 3 ] The father sought a variation based on 2009 income of $16,000 per year, to $140 a month.

At the hearing, he provided the court with a financial statement showing total income of $421.33 a month, approximately $5,000 a year, and sought to pay no support as a result of that income being below the level of the Child Support Guidelines , O. Reg. 391/97, as amended, for support to be paid. The respondent father describes himself as a self-employed person operating Greg Hall Contracting. However, his contracting business in not moving forward because he has lost his driver’s licence as a result of enforcement proceedings by the Family Responsibility Office.

In her response to “motion to change” document, the mother originally took the position that she was satisfied to fix arrears at $30,000 payable at $200 a month until fully paid and to accept $300 a month ongoing support, based upon a $33,000 per year income. [ 4 ] The issues are whether or not current support should be reduced in accord with the father’s stated income, or some other

attributed income, and whether or not the arrears should be reduced, and if so, by how much, and looking back for what period of years. The mother was prepared to accept that retroactivity extended for three years prior to the motion to change of 10 August 2009 brought by the father. HISTORY [ 5 ] The father states that he has a total of four biological children — the child in this action, another child, for whom there is an obligation to pay $450 a month, apparently in Manitoba, and two children for which there is no payment order and no payments are being made.

On the basis of the evidence at the hearing, the father apparently does not make the $450-a-month payments for the other child. The mother and father were both in the military at Camp Petawawa when the child was born and the agreement was made in 1994. The father has filed with the court a

schedule setting out his place of residence from shortly after the time of the agreement until now. That

schedule indicates that the father resided in: • Petawawa, Ontario to September 1995, • Brampton, Ontario till May 1998, • Saskatoon, Saskatchewan till June 1999, • Thompson, Manitoba to May 2008, • Toronto, Ontario till November 2008, and • Colborne, Ontario from then to the present. [ 6 ] Likewise, the father has set out his

schedule of his places of employment over that period of time. He left the armed forces in September of 1995, was unemployed for two months, then worked at a variety of jobs over a period of years. His most substantial employment was with M-R Plumbing in Thompson Manitoba from June of 2001 to June of 2004. He was three-quarters of the way through his plumbing apprenticeship when he terminated that job. Since June of 2007, he has carried on his own contracting business in Colborne Ontario. [ 7 ] The father also provided a

schedule of his income from 1995 to 2009. His best years were: • 1995 when he earned $26,755, • 2003 when he earned $24,240, • 2005 when he earned $30,142, • 2006 when he earned $26,284, • 2007 when he earned $52,755 and • 2008 when he earned $67,150.91. His average income over that 15-year period was $24,215 a year. As a result of this, the father wishes to have an order made retroactively altering the support from the year following the year that the agreement was made, the year in which he terminated his employment with the Canadian Armed Forces.

The father states that there are two reasons why he delayed bringing the matter before the court. He tried and failed to contact the mother over the years because he did not know where she was located. He felt intimidated by the system and believed, at one point, that he required a lawyer both in Manitoba where he resided and in Ontario where the child resided.

He did not have resources to carry forward his variation request. [ 8 ] The result is that it is acknowledged that there was no informal notice and that the first notice was the service of the motion to change in this action on the applicant mother shortly after the issuance of the document on 10 August 2009. [ 9 ] The father provided some detail about attempting to contact mother through a Facebook connection to mother’s sister, also residing in Brantford. There is great difficulty with this evidence. The mother’s evidence on this point was particular and telling.

She was always employed by the military and could have been contacted through the military. She moved to Brantford in October of 1994 to be near her family, obtaining a military transfer to do so. She has resided at the same address in Brantford since 1998. She is in the phone book. Her parents have resided at the same address in Brantford for some 25 years and they were known to the respondent father.

In addition, the father admitted at trial that he was aware of the name of the mother’s lawyer (because of divorce proceedings) for many years prior to bringing the motion to vary, but did nothing. [ 10 ] The mother gave evidence that, after her move to Brantford in 1994, the father visited her at the armoury, her place of employment, one year later, in 1995. [ 11 ] The mother asserts — and the father does not deny — that, immediately after the agreement, she was encouraging of father to have contact with their son.

At his request, the only access that the father had was in her home for the brief period of months after the agreement was signed while he continued to live in Petawawa. From October of 1995 when father moved to Brampton Ontario until now, there has been no contact. [ 12 ] It is clear that father’s version of events is not trustworthy. In fact, if he had chosen to contact mother with respect to the issue of variation of child support, he had the ability to do so from the beginning.

It is noteworthy that the motion to change brought by the father in summer of 2009 more or less coincides with Family Responsibility Office enforcement proceedings resulting in the father’s losing his motor vehicle driver’s licence in the Province of Ontario. [ 13 ] The mother asserts that the father has never made a voluntary payment pursuant to the agreement and she only receives sporadic money from the Family Responsibility Office from time to time. The father does not deny this.

In fact, exhibit 2, the statement from the Family Responsibility Office, clearly shows that, from October 1995 until June of 2004, all collections were the result of FAOEA diversion receipts — the most likely source being garnishment of income tax refunds for the respondent father from time to time. From that time until March of 2008, there were some periodic and some lump-sum “other lock box” receipts that may relate to garnisheed income. From April of 2008 until the present, no payments have been made at all.

[ 14 ] It is clear that, despite the agreement being signed and varied employment over the years, there were no voluntary payments and no normal payments from recurring income, if at all, until mid-2004. [ 15 ] The father filed a financial statement with his original court documents sworn on 10 August 2009. In that statement, he set out that his income was $421.33 a month and his expenses were $3,309.23 a month. Those expenses included rent or mortgage, $1,052.50, property taxes $159.70, electricity and heating fuel $125, home insurance $100.45, home repairs and maintenance $100, alcohol and tobacco $300.

He also stated he was actually paying support in another case in the amount of $495 a month, but it is implicit in his testimony that this amount is not being paid and was not being paid at the time that the financial statement was sworn. He also indicated that income tax and Canada Pension Plan was being deducted from him at the rate of $123.25 a month even though he was self-employed, earning a net $421.33 a month. [ 16 ] From his own evidence, it is clear that the house in which he lives is owned by the parents of his common-law spouse and he contributes nothing to the upkeep of that residence.

The result is that his financial statement was grossly misleading as to his living expenses. The father explained the reasons why he left the military and the secure income and benefits that he had while serving in the military. He was dissatisfied with life in the military and wanted to be close to his son. The first explanation is accepted. With respect to the second, mother did move with the child to Brantford Ontario in October of 1994. Father remained in Petawawa till September of 1995.

He resided for two and a half years in Brampton Ontario and then spent the next 10 years in either Saskatchewan or Manitoba. None of the residences that he chose, including the Brampton residence, after mother and child left to reside in Brantford, were within easy driving distance of Brantford. No attempt was made by the father to seek out his child for access purposes during any of this time. This explanation is not accepted as a reason to terminate his employment. [ 17 ] The father stated that, over the years, he had a variety of employment circumstances; some jobs were menial and transitory, others were not.

The father gave evidence about a variety of occupations over the years, more particularly as an apprentice plumber from 2001 to 2004, but leaving that employment before he got his plumbers’ certificate. Opportunities were present for high- pay income, in a high-cost zone with respect to employment in Alberta from early 2007 until mid-2007.

He currently lives in a rural area, supported by his spouse and her family, unable to travel to work because of his loss of licence and unable to take advantage of the opportunities for his contracting business because of his relatively rural and isolated residence. [ 18 ] The only logical conclusion to reach is that the father has accumulated a large monetary obligation to the mother with respect to child support that is unsatisfied solely because of his meandering from job to job without any thought of his child support obligations in any way.

By hindsight, his leaving the military for better prospects was a disaster financially and was not anticipated in the agreement.

The proximity in time between the signing of the agreement and leaving the military, less than a year, coupled with the fact that no payments were made at all during this time, leads to an inescapable conclusion that the father intended to avoid his obligation to pay support when he signed the agreement. [ 19 ] It is in these factual circumstances that father wishes the court to reduce ongoing support and to drastically reduce the arrears of child support back to the year after signing. [ 20 ] The father provided a chart to the court, setting out his income from 1995 to 2009, which included a

summary of support actually ordered, support actually paid, and a suggestion for revision of support retroactively based on the present guideline amount and income earned over the years. If father’s mathematics were accepted, he would owe, as of the end of 2009, the sum of $223.70 in arrears of child support instead of $52,884.14 at that time. With respect to the payments over the years, the father takes the position that, so far, they (FRO) took the proper amount but at an inconvenient time for him through garnishments. [ 21 ] The mother’s position is quite different.

Since the birth of the child, she has always been employed by the Canadian Armed Forces. She has been a sergeant for many years including at the local armoury in Brantford, Ontario. She has been the sole provider for this child emotionally and psychologically; the father could have shared in this but chose not to. The mother has incurred extraordinary expenses over the years, related to music lessons, sports activities, summer camp and day care resulting from her employment. While the father says he could not find the mother, the mother found the father for purposes of serving him with divorce papers.

She did not broach the issue of extraordinary expenses at that time because the ongoing support order was not being honoured and any request for extra money would be useless. The mother also worked an extra job, chiefly to support her son as indicated.

The mother gave evidence that, after her move to Brantford in 1994, the father visited her at the armoury, her place of employment, one year later, in 1995. [ 22 ] These facts lead to the conclusion that a material change in circumstance has not been made out by father so that the original agreement, enforced through the courts, should be altered or varied. [ 23 ] In determining whether or not there should be a retroactive order with respect to child support, the considerations in the Supreme Court of Canada’s decision in D.B.S. v. S.R.G. ; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry ; Hiemstra v.

Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976, apply. Those considerations are considered acceptable both for a request for increase in support looking backward and a decrease in support looking backward. See Galloway v. Cassino (Barrett) and Ministry of Community and Social Services , 2008 ONCJ 577 , [2008] O.J. No. 4525, 2008 Cars​well​Ont 6740 (Ont. C.J.); and Grala v. Grala , 2008 ONCJ 556 , 170 A.C.W.S. (3d) 828, [2008] O.J.

No. 4395, 2008 Cars​well​Ont 6496 (Ont. C.J.). [ 24 ] The delay in this case was not only unreasonable but unconscionable. The overwhelming evidence is that the father had every means available to him to contact the mother with respect to variation of the agreement amount of support to be paid and simply chose not to do so. There is no reason on the facts of this case to extend the retroactivity period beyond the normal three years from date of notice.

In fact, there is no reason to use judicial discretion to extend the period to be considered at all from the actual notice date. [ 25 ] The evidence is overwhelming that the father deliberately avoided payment of child support, despite the fact that he entered into an agreement to do so. Any payments made have been the result of fortuitous circumstances and proper working of the enforcement system. In addition, the father has made deliberate attempts to mislead the court with respect to his conduct over the years

in relation to the notice issue and his current circumstances with respect to his living expenses as set out in his financial statement. [ 26 ] The fact that father terminated his employment with the military within a year of signing the agreement and commenced a pattern of frequent job changes, mostly because he was simply not satisfied with the work that he had, indicates a complete disregard for his obligation to be responsible for the financial support of his child.

When using the holistic approach, all of these factors combined demonstrate bad faith on the part of the father and result in the court’s refusing to exercise its discretion with respect to retroactivity. The considerations in D.B.S. v. S.R.G. , supra , namely, the father’s conduct that placed his own interests over that of his child and father’s conduct to avoid or diminish his support obligation are present. The father should not be allowed to profit from this conduct. [ 27 ] The needs of the child are a consideration.

The mother gave fairly detailed evidence about the fact that she managed to bring up her child on a relatively small military income supplemented by a second job from time to time. She explained that, at times, she would have been financially better off to be on welfare than working, but she chose to continue working. From the commencement of the support obligation in mid-1995 until the end of October 2001, the amounts received by way of garnishee were less than $1,200.

From the beginning of the obligation to the end of 2009, the total amount collected was some $36,000 or approximately $200 a month with arrears for the same period of $52,884.14. To allow the father to succeed in having his support obligation reduced retroactively would be a reward for child support avoidance and would fail to take into account the effort of the mother over the years to support this child. [ 28 ] There is no doubt that a refusal to reduce support retroactively will cause an undue hardship to the payor father. However, that hardship is self-inflicted.

To reduce the arrears would be to permit him to benefit from clearly blameworthy conduct. The discretionary remedy should not be given in these circumstances. [ 29 ] What is left to be decided is the proper amount for support going forward from the day of formal notice of the request for a change in the existing child support regime in late August of 2009. Many of the same considerations with respect to father’s conduct over the years apply.

This is especially so with respect to his history of income from employment, which for most years was less than the amount he would have received had he remained in the Canadian Armed Forces. However it is difficult to make a determination that the mistaken-by-hindsight decision to leave the armed forces should remain forever as an impediment to a change in the guideline support amount. [ 30 ] From 1995 until now, the father has not been afraid of work.

His difficulty has been in persevering with respect to any particular kind of employment that would result in a gradual increase of income and a gradual sense of security with respect to employment. On the whole of the evidence, it cannot be said that he terminated his employment from time to time, more than 16 jobs in 14 years, simply to avoid payment of child support. [ 31 ] Until the year 2005, all of the collections were of a sporadic nature, not indicating deductions from employment. From 2005 to 2008, there were payments made from a regular source of income.

From 2008 to the present, the period when the father was and continues to be self-employed, there have been no payments. This history demonstrates that, at least until 2008, the father continued to be employed, even though he knew deductions would be made from one source or another — regular deductions from pay or seizure of income tax refunds, etcetera — rather than continue to be unemployed. From 2008 to the present, his actions are more problematic as a self-employed person, particularly when his income in 2008 was some $67,000.

The result is ongoing support can be calculated on the basis of a history of income until 2008 of $24,215 a year and there can be imputation of a similar amount for income for the years 2009 and 2010 when he was self-employed. This takes into account the reality of the father’s financial situation over the years and avoids making the decision to quit the military in 1996 a financial mill stone around father’s neck permanently. [ 32 ] The result is that the equitable solution is to impute income based on his long-term income history.

A go-forward child support order in accord with the father’s historical circumstances, including imputing income to him for the time period that he has been self-employed is appropriate.

This is done taking into consideration all of the required circumstances that resulted in the denial of the retroactivity request and his current circumstances in which he continues to be underemployed, placing his own needs above his obligation to support his child. [ 33 ] As a result, an order will issue that there will be no change to the arrears of support owing by the respondent father to the applicant mother for the time period up to and including 31 August 2009.

From 1 September 2009 and monthly thereafter, the respondent father shall pay to the applicant mother guideline child support for one child of $205 a month based on imputed, current income of $24,200 per year. [ 34 ] Attention must be given to how the arrears are to be paid. On the one hand, some orderly payment on a monthly basis would be an incentive to a payor to earn income and comply with the order. On the other hand, such an order, with respect to an unwilling payor, may prevent the payee from collecting from intermittent sources, such as income tax refund, as the money becomes available.

In this case, absent any agreement between the parties to the contrary, the latter consideration prevails and there will be no order with respect to how the arrears are to be paid in the future. [ 35 ] Within 21 days of the date of this order, submissions can be made with respect to that issue and the issue of costs.