Haimchand v. Haimchand, 2011 ONCJ 747

Brampton Registry No. 372-97 DATE: 2011·XII·12 CITATION: Haimchand v. Haimchand , 2011 ONCJ 747 ONTARIO COURT OF JUSTICE BETWEEN: HAIMWAITE HAIMCHAND, Applicant, — AND — SHULTZ HAIMCHAND, Respondent. Before Justice Steven R. Clark Motion to change the final order of Provincial Judge Ronald E. Stauth, dated 8 May 1997 Re: arrears and ongoing child support Motion heard on 5 December 2011 Ruling released on 12 December 2011 Applicant mother, Haimwaite Haimchand ............................................................ on her own behalf Mr.

Winston Deonarain ................................. counsel for the respondent father, Shultz Haimchand JUSTICE S.R. CLARK:— 1: INTRODUCTION [ 1 ] The respondent father, Shultz Haimchand (hereinafter referred to as “the father”) brings a motion to change, dated July 13, 2011, the final order of Provincial Judge Ronald E.

Stauth (hereinafter referred to as “the order”) made on 8 May 1997, regarding ongoing and arrears of child support. [ 2 ] The salient terms of the order include the following: • the applicant mother, Haimwaite Haimchand (hereinafter referred to as “the mother”) shall have sole custody of the children, Ryan, born January 24, 1991 (presently age 20) and Brian, born June 15, 1993 (presently age 18); • the father is to pay child support in the amount of $417.00 per child, for a total of $834.00 per month, commencing May 1, 1997.

This amount shall be increased annually by the indexing factor. [ 3 ] The present quantum of child support is $1,093.18 ($546.59 per child) taking into account this cost of living index. [ 4 ] Ryan is enrolled full-time in university (third year business at York University). Brian is in grade 12. He is intending to pursue post-secondary education in September, 2012. [ 5 ] Enforcement proceedings have commenced against the father by the Family Responsibility Office (FRO). As of February 7, 2011, the amount of arrears was $10,307.00.

The current amount outstanding, as of the month of November, 2011, is approximately $19,429.67. [ 6 ] The impetus for this motion to change is clearly due to the pending default proceedings. [ 7 ] The father’s position is as follows: 1. he should only be required to pay the table amount for the two children in the amount of $109.00 per month, based on his 2010 income of $11,072.00, retroactive to August 1, 2011. 2. arrears should be substantially rescinded and fixed at $2,000.00, as at July 1, 2011. He will pay $50.00 per month toward

these arrears, commencing August 1, 2011. 3. the child support annual increase by the indexing factor should be terminated. [ 8 ] The mother’s position, on the other hand, is that the court ought to deny the motion on the basis that the father is quite capable of earning income comparable to, or greater than the amount he was earning when the original order was made. Although his income was not specified at the time of the order, given the table amount for two children, this reflects that he must have been earning approximately $55,400.00 per year.

She further submits that the father is intentionally under-employed, and has not pursued meaningful employment in keeping with his abilities. Accordingly, he is not meeting his maximum earning potential. Instead, he is unrealistically trying to run his own business, which is not successful. Given his current business financial statement, his net income will be less than the minimum wage. She further submits that for a significant period of time he was working with his brother.

She believes that he was earning more money than he was reporting on his income tax returns. 2: THE POSITONS OF THE PARTIES 2.1: The Father [ 9 ] His filed materials, at tab 2 of the record, set out his reasons for seeking a change. He claims that for the past years his income has changed and he has been earning less. He was working with a company, Aertek Precision. This company closed in December, 2010. In January, 2011, he started his own business, Nexus Tools. His income changed significantly in 2010. Because he was earning less, he could not afford to pay child support and fell into arrears.

He has significant debts. He owes money to the Canada Revenue Agency, the Scarborough General Hospital and Canadian Tire. The Canadian Tire debt is presently in the hands of a collection agency. Furthermore, he has two other children to take care of who are in full time school. [ 10 ] His financial disclosure, set out at tab 3 of the Record, sets out the following: • income for 2008 - $25,782.00. • income for 2009 - $26,049.00. • income for 2010 - $11,072.00. • he has filed an unaudited interim business financial statement, dated May 31, 2011. Total revenue is only $10,881.00. Expenses total $4,987.00.

Net income for this same period is only $5,894.00. • the aforementioned outstanding debts total approximately $7,500.00. This amount is in addition to the approximate $19,429.67 for arrears of child support owing. [ 11 ] In his oral presentation, counsel for the father advised that on November 1, 2011, FRO agreed to have his driver’s licence reinstated. This was on the basis that he pay ongoing child support in the amount of $1,293.18 per month, commencing November 7, 2011, and in default, to serve five days of incarceration for each missed payment.

However, since November 1, 2011, he has sustained medical problems, resulting in the Ministry of Transportation suspending his driver’s licence. He is required to provide medical clearance before this problem can be rectified. No further details were provided regarding his medical issues. The court was told that the precipitating act resulting in the MTO intervention was due to him “passing out”. [ 12 ] Counsel also advised that the father left Canada in 2000 to return to his native country, Guyana, in an effort to seek employment. Unfortunately, this did not come to fruition.

Accordingly, he returned to Canada in 2003. He earned approximately $32,000.00 in 2003. He provided no information about his income in 2004. In 2005, he secured employment with a company called Central Gear. No details were provided about his income for this year either. In 2006 he was employed with his brother’s company, as a piece worker. He continued to be employed there until the business closed in December, 2010. [ 13 ] He anticipates that his total income for 2011, by year’s end, will be approximately $22,000.00.

Even though his filed materials indicate his willingness to pay only $109.00 per month, in his oral presentation, he indicated that he is now prepared to pay the table amount for two children, which is $335.00 per month. 2.2: The Mother [ 14 ] She reminds the court that the original order was made on the basis of the parties consenting to terms by signing minutes of settlement. [ 15 ] She queries why the father would have agreed with FRO on November 1, 2011, to pay ongoing child support in the amount of $1,293.18, considering his anticipated income for this year of only $22,000.00.

The corresponding annual income for this table amount for two children is $91,000.00!

Although she understands that he may have agreed to this figure to get his licence back, surely he would not have done so unless he had access to these funds from some ready source. [ 16 ] In the father’s oral presentation, he indicated that he borrowed this amount from his sister to pay for the month of November, 2011, but he has yet to secure the funds from this same source to make the December, 2011 payment. [ 17 ] It is her further view that he was not merely working for or with his brother for the stated years, but, in fact, was a part- owner of the business.

Furthermore, she believes that his reported income over these years was significantly less than what he was actually being paid.

[ 18 ] She served on him a Form 20 Request for Information, dated August 29, 2011, requiring him to provide income tax returns for 2008, 2009, and 2010. Furthermore, he was to provide copies of all bank statements for all personal and business accounts from 2008 to the present. She also requested production of copies of credit card applications submitted to all financial institutions from 2008 to the present.

Although he has provided copies of his income tax returns, and a business statement for the first part of 2011, he has not provided any information or any documentation regarding credit card applications. [ 19 ] She sent him a letter, dated November 6, 2011, indicating that although she was not prepared to forgive any arrears up to the end of November, 2011, she was prepared to accept ongoing child support for the two children as of December 1, 2011, the equivalent of 75% of what he would otherwise be required to pay.

This figure is $819.88. (75% of the current amount, $1093.18). 3: ANALYSIS [ 20 ] The case of D.B.S. v. S.R.G. , 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, sets out the factors to be considered respecting retroactive increases of child support: 1. delay in seeking retroactive support. 2. conduct of the payor. 3. circumstances of the children. 4. hardship for the payor. [ 21 ] These same factors can also be considered when a party is seeking a retroactive decrease in child support. [ 22 ] There is no priority, necessarily, to these factors. None of them is decisive.

The policy of providing certainty and consistency in child support orders must be balanced with the need for fairness and flexibility. [ 23 ] Applying the same factors set out in D.B.S. v. S.R.G. , supra , the court finds as follows: 3.1: Delay [ 24 ] This factor significantly militates against the father. The original order has been in existence for 14 years, since 1997! He indicated, through his counsel, in the oral presentation, that he had previously considered bringing a motion to change much earlier.

However, he did not have any money to either retain counsel or to address the arrears, and did not pursue the matter any further. This explanation is wanting. Failure to act promptly or with dispatch suggests that the terms of the original order and the amount of support to be paid was either something he was content with, or alternatively, was not so onerous that it became a priority for him to do anything about it.

A more compelling explanation, however, is that, given the significant amount of the arrears, he merely chose to ignore his ongoing financial responsibility, either hoping that it would go away, or that he would never be held to account for his actions. 3.2: Conduct [ 25 ] The court is entitled to take an expansive view of what constitutes blameworthy behaviour.

Anything that privileges the father’s own interests over the children’s right to an appropriate amount of support constitutes blameworthy behaviour. [ 26 ] Blameworthy conduct is present in this case for the following reasons: • although he made representations in the oral presentation to the effect that he has made periodic lump-sum payments toward the arrears (at one time $7,000.00; on another occasion, $2,000.00; and for 2011, $1,000.00) there is no evidence of this.

He has otherwise demonstrated a lack of attention to this obligation, and by allowing the arrears to mount, that he had a settled intention not to pay child support. • it was only when enforcement proceedings were taken by FRO which prompted him to finally do something meaningful. His motivation was due to the suspension of his driver’s licence. However, the terms on which FRO was prepared to forbear against him was on the basis of him paying an ongoing amount for child support which he is already unable to meet.

Although he has borrowed money from his sister to meet the November, 2011 payment, he has yet to make the December payment. In any event, it is hard to believe that he was negotiating in good faith. Rather, he was prepared to say anything and agree to anything to avoid losing his driving privileges, and in an effort to “buy time” until he figured out his next “artful” move. • his written materials, and oral information is “sketchy” at best. There is no clear explanation given as to why his brother’s business faltered and why it closed in December, 2010.

More importantly, the court questions how he chose to start a business that was going to yield him less money, at least on a net basis, than he could otherwise earn at even a minimum wage job?

Although there is scant information about his age, education, experience, skills, and health, other than the court being told that he has recently suffered some medical issues resulting in his driver’s licence being suspended until he receives medical clearance, the court has not been made aware of any other challenges or impediments to his earning ability or earning power. [ 27 ] The essence of this part of the analysis is reasonableness. In other words, the court asks itself what a reasonable person would do if he was in an intact family and had children to support?

Each parent has an obligation to provide support to the extent that he or she is capable of doing so. The court is also entitled to consider not only the amount of income a party was actually earning, but also the amount that he could or should be earning, if working to capacity.

[28] The case of 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.), provides an

interpretation of the word “intentionally”, whenconsidering if a payor is under-employed or unemployed. The proposition from this case is that there need not be any bad faith or motiveto avoid or evade child support obligations in order to find that the payor was intentionally unemployed or under-employed. A payorwill be subject to an order imputing income if he made a choice, without good reason, to earn less than he was capable of earning. [29] The court finds that the father appears to have set up his present financial affairs merely to avoid his obligations.

Furthermore, his apparent irresponsibility of “running up” his debts to keep things going, has had the effect of subverting or thwartingthe purpose of child support laws and rules governing financial disclosure. There is nothing in his unaudited financial statement for hisbusiness, nor any details provided in his documentation or oral presentation as to who his customers are; where they are located; andhow they usually pay for the product or service. A further question is how does his business pay for its expenses? If it is with cash, thissuggests the existence of cash reserves.

If by credit card, he has not provided any information or explanation about any or all credit cardapplications to all financial institutions, as per the request made by the mother. [30] In the result, there is ample evidence of blameworthy conduct by the father. He should not be able to benefit from this.

Where a party who has the onus comes to court asking for consideration of a material change in circumstances based on fragmentaryinformation, while perhaps suppressing other information, his credibility is compromised. 3.3: Circumstances of the Children [31] The court must consider the present and past circumstances. Children who have gone through hardship due to not beingproperly supported may be compensated. The argument is less convincing, however, when the children have enjoyed all the advantagesthey would have had if the father had been properly supporting them.

There is little, if any evidence presented in this case to suggest thatthe children have been living an elevated lifestyle. The older son has been attending university, while the younger intends to go tocollege after he completes high school. There is no evidence to suggest that the mother has not been able to help finance this, or whetherthe children have been working part-time in an effort to make a contribution.

Nonetheless, the court is entitled to consider a coreprinciple, that child support should, as much as possible, provide children with the same standard of living they enjoyed when theirparents were together. In the mother’s response to the motion to change, at tab 4 of the Record, she indicates that her income in 2009was $32,943.00. In 2010, her income was $39,899.00. Her income in 2011 will be $27,927.00.

Given her reported income for theserelevant years, the court finds that the children could not possibly have enjoyed all of the advantages without the need for child supportbeing paid. 3.4: Hardship [32] This factor has diminished significance when the father, through his own actions or inactions, brought about the hardship. [33] He claims that he has two other children to support. However, the mere presence of a second family, and the addedfinancial obligations that flow therefrom, does not lead, inevitably, to a finding of hardship.

Although a payor should be able to move onin his life, and should not be left, necessarily, in a state of perpetual financial hardship, his first two children have no obligation to forgivehis debt and subsidize his second family. When a payor chooses to assume new responsibilities, he does not shed his previousobligations. Accordingly, the court finds that the father was fully aware of his ongoing duty to pay child support before he incurred otherfinancial responsibilities. He cannot avoid that which he clearly understood.

Accordingly, the court concludes that there has not been anunfair burden placed on him with a debt for which he did not have a chance to address or plan for. [34] In any event, the court must be mindful in crafting an order that, to the extent possible, minimizes hardship on him. Thiscan be ameliorated by ordering reasonable monthly payments as opposed to a lump sum. 4: CONCLUSIONS [35] The court makes the following conclusions: • the court is not satisfied that the change in circumstances is due to circumstances beyond the father’s control.

He has notsatisfied the onus that the material change was genuine, accurate, or not one of choice. • he had every option and opportunity to bring a motion to change much earlier if this was such a hardship to him, however,he did nothing. • the evidence shows that his under-employment and debt circumstances were avoidable.

At the very least, he had a dutyto mitigate and to take much earlier steps to responsibly address same. • any reduction or cancellation of arrears must be based on detailed and full financial disclosure, including the fact thatevery effort was made to earn more money during the relevant times, but that those efforts were not successful. Any party who wantsreduction or cancellation has a heavy duty to convince the court of significant and long-lasting changes in circumstances. Arrears shouldnot be reduced or cancelled unless it is grossly unfair not to do so.

The court finds that the father has not met this onus either. • in the result, the court finds that the father has been under-employed and that it was not reasonable to do so. • accordingly, there are sufficient grounds to impute income to him. Having regard to the terms of the original order wherehe agreed to pay $834.00 per month for the two children, and having further regard to his recent agreement with FRO to pay ongoingchild support of $1,293.18, this is the range in which an order can be made.

In that the mother, quite fairly, is prepared to grant himsome financial relief, the court finds that 75% of the current quantum ($1,093.18) is $819.88. This shall be the monthly amount fixed for

ongoing child support. • the court declines to rescind any of the arrears. However, the court does intend to grant some relief by making an order for periodic monthly payments as opposed to a lump sum. The amount the court intends to set, however, will be the equivalent of the 25% reduction which he would otherwise be required to pay for ongoing child support, which is $273.30. 5: ORDER [ 36 ] The court makes the following order: 1. The final order of Judge R.E. Stauth, dated May 8, 1997, is varied as follows: (

a) Paragraph 2 of the said order regarding access is changed to now allow the respondent father, Shultz Haimchand, access to the children, Ryan Leakram Haimchand, born January 24, 1991, and Brian Chetram Haimchand, born June 15, 1993, as agreed, and subject of the wishes of the said children. (

b) Paragraph 3 of the said order is changed regarding child support. The said respondent father shall pay to the said applicant mother child support for the said children in the amount of $819.88 per month, on imputed annual income of $54,500.00 commencing December 1, 2011, and on the first of each successive month thereafter. 2. The child support annual increase by the indexing factor shall be terminated. 3. Arrears of child support shall be fixed on the basis of the calculations made by the Family Responsibility Office, as at November 30, 2011, in accordance with the terms of Judge Stauth’s order.

Commencing December 1, 2011, the said respondent father shall make monthly payments toward the outstanding arrears in the amount of $273.30, and on the first of each successive month thereafter, until all arrears have been paid. 4. The total monthly amount payable, therefore, for ongoing and arrears of child support, commencing December 1, 2011 shall be $1,019.88 per month. 5. A support deduction order shall issue. 6. The parties shall exchange financial information annually including a sworn financial statement, and an income tax return, and notice of assessment, as well as any notice of reassessment if issued.

The financial disclosure shall be exchanged on or before the first of July of each year commencing in 2012. 7. No costs shall be ordered, as this would impact on the father’s ability to address his support obligations. Released: 12 December 2011 ______________________________ Justice Steven R. Clark