Ako v. Manga, 2011 ONCJ 383

Brampton Registry No. 378/07 DATE: 2011·VII·19 CITATION: Ako v. Manga , 2011 ONCJ 383 ONTARIO COURT OF JUSTICE BETWEEN: CATHERINE EFUNDEM AKO, Applicant, — AND — JOHN EKEMA MANGA, Respondent (Moving party). Before Justice Steven R.

Clark Heard on 29 June 2011 Reasons for Judgment released on 19 July 2011 SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Payor’s income — Attribution of income — Payor “intentionally under-employed or unemployed” — Payor’s own conduct results in reduced income — Under child support order made 3½ years ago, payor father immediately fell into arrears and only now made motion to rescind arrears and to vary ongoing support obligation because of his alleged inability to find work — In past, father done manual work at which he had earned decent income, even though he had respectable academic credentials that he seemed unable to exploit — Lately, he chose to be more selective in his employment and preferred to subsist on social assistance while sending out résumés and then stubbornly, and unrealistically waiting for responses — But whenever teaching position presented itself, he claimed that he would be repeatedly turned down after prospective employer conducted routine credit check — Court rejected his use of bad credit rating as shield against his unemployability, when in fact he was author of his own misfortune in his fiscal irresponsibility — He presented evidence of having recently been accepted as associate professor of economics at African university but at which he would only be earning salary little different from social assistance payments that he was now receiving — Court found it unreasonable for father to accept job at salary range that would effectively render him “judgment-proof” — Test of reasonableness would be what reasonable parent would do if he were still part of intact family with child to support — Father’s choice in this case, without good reason, to earn less than he was capable of earning meant that he was intentionally under-employed — Payor failed to meet onus on balance of probabilities to demonstrate material change in circumstances and court dismissed his motion to vary.

SUPPORT ORDERS — Variation — Form of order sought — Discharge, variation or suspension of arrears — Grounds — General — Review of all factors — Under child support order made 3½ years ago, payor father immediately fell into arrears and only now made motion to rescind arrears and to vary ongoing support obligation because of his alleged inability to find work — In past, father done manual work at which he had earned decent income, even though he had respectable academic credentials that he seemed unable to exploit — Lately, he chose to be more selective in his employment and preferred to subsist on social assistance while sending out résumés and then waiting for responses — On issue of retroactive child support and father’s desire to rescind arrears, court considered factors in D.B.S. v.

S.R.G. , 2006 SCC 37 : 1. payor’s delay in seeking relief: payor father offered no explanation for his delay in seeking relief while arrears continued to pile up 2. payor’s blameworthy conduct: father’s refusal to pursue menial jobs that would pay more than professional jobs that he was seeking was blameworthy conduct because it promoted his own interests while ignoring those of his son whom he could not even be bothered to visit 3. child’s circumstances: court could infer from mother’s modest standard of living that child had not enjoyed financial benefits that he would have enjoyed if father had honoured his support obligation 4. hardship of retroactive award on payor: hardship gets less sympathy from court when it is result of payor’s own blameworthy conduct; nevertheless, court could reduce potential for any hardship to father by requiring to pay arrears by way of periodic instalments rather than by single lump sum.

Court dismissed father’s request to rescind arrears.

STATUTES AND REGULATIONS CITED Federal Child Support Guidelines, SOR/97-175 [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. 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.).

Applicant mother, Catherine Efundem Ako ......................................................... on her own behalf Sunny N. Vincent ................... counsel for the respondent father, John Ekema Manga (not present) JUSTICE S.R. CLARK:— 1: INTRODUCTION [1] The respondent father (hereinafter referred to as “the father”) brings a motion, dated 10 August 2010, to change thefinal order (hereinafter referred to as “the order”) of Justice June A.

Maresca, dated 31 January 2008, regarding arrears of and ongoingchild support. [2] The salient terms of the order include the following: 1. sole custody of the subject child, Hansel, a boy, born on 19 March 2005 (presently age 6), to the applicant mother(hereinafter referred to as “the mother”); 2. access at her discretion; 3. child support payable by the father in the amount of $425.00 per month, commencing on 1 May 2007, based onimputed annual income of $46,000.00, plus 64% of all reasonable extraordinary expenses, including child-carecosts, based upon his income (above) and the mother’s annual income of $26,000.00. [3] The total monthly child support payable has been $632.00.

A support deduction order was made. [4] The father was also to have provided a sworn financial statement by 1 June of each year, and financial records from anybusiness in which he had an interest from the previous year. [5] It should be noted that the order was made on the basis of an uncontested hearing. The father was not present at thetime.

Furthermore, he had not served or filed financial disclosure resulting in his pleadings being struck and being noted in default. [6] He now claims that the order was made, based on a misrepresentation by the mother of his financial position. [7] For further context, the child has resided with the mother since birth. Access by the father had been sporadic at best. [8] The parties were never married, nor did they ever live together. They met in late 2003 or early 2004. The mother ispresently approximately age 41.

The father is approximately age 52. [9] He claims that, in addition to having to support four other children from other relationships, there has been a materialchange in circumstances as a result of his inability to secure employment, despite his significant educational qualifications as aneconomist and despite his diligent efforts to find a job either locally or internationally. He has been receiving social assistance in theamount of $585.00 per month since June 2010. He completed a job retraining program also in the summer of 2010.

Only recently, on 27June 2011, has he been able to secure a permanent position as an associate professor of economics at a university in Douala, Cameroon,Africa.

However, he submits that he will only be earning $600.00 (U.S.) per month, or the equivalent of $7,200.00 (Can.) annually. [10] The mother, on the other hand, strenuously opposes this motion, claiming that he has been selective in only seekingemployment in areas where it has been patently clear for some time that there are no opportunities, such that his unrealistic stance istantamount to being intentionally unemployed, or grossly under-employed, having regard to his qualifications and abilities.

Furthermore, she submits that he has set up his personal affairs in such a manner that there is an appearance of economic hardship, whilehis ability to frequently travel outside of the country, for example, belies this. Furthermore, she submits that he has not provided cogentor persuasive evidence of his job-seeking efforts, nor has he provided honest, accurate or full financial disclosure.

Given that he has aPhD and has previously worked at labour and factory-type jobs in the past, he should be expected to do more than merely send outrésumés and then wait for responses, without pursuing even menial jobs that would pay more than the professional jobs he seeks. Accordingly, she contends that he has not met the required onus to change the order. 2: BACKGROUND

[ 11 ] The father brought his first motion to change on 21 April 2009. The matter was adjourned from time to time.

Temporary orders were made requiring him to provide financial disclosure, including bank statements, income tax returns, consumer credit reports from Equifax Canada Inc., information from various institutes and universities confirming time period, job description and remuneration details, and confirmation of his receiving employment insurance and social assistance. [ 12 ] On 1 March 2010, an order of costs was made against the father, payable forthwith, on the basis that the mother had not yet received a credit report on him, which had been previously ordered. [ 13 ] The matter was set down for trial on 3 May 2010 on the issue of imputing income to the father.

However, he was not in attendance at this time. His counsel, Mr. Vincent, advised the court that the father had gone to Africa one or two weeks prior to the hearing date. No reasons were provided as to the nature of this trip. Justice June A. Maresca dismissed the motion to change. In her ruling, she noted that there were serious discrepancies in the father’s financial materials. One such discrepancy was the claim of a business loss of approximately $25,000.00 in his 2008 income tax return and yet, the said return did not disclose any details of such a business.

This loss was used to offset his employment and employment insurance receipts for the year, leaving net income of just over $3,000.00. There was no documentation filed to address this. Furthermore, Justice Maresca noted that the father had not paid the $200.00 costs award as a consequence of his failure to comply with a disclosure order.

Accordingly, Justice Maresca found that he had not demonstrated a material change in circumstances and had failed to meet the required burden of proof in this regard, particularly since he had chosen to leave the country at the time of trial, thus making it impossible to cross-examine him on his documents.

Subsequently, on 21 June 2010, Justice Maresca made an order for costs payable forthwith to the mother in the amount of $2,285.00, and enforceable as child support. [ 14 ] Subsequently, he brought this further second motion to change, dated 10 August 2010. (One queries whether he was entitled to do so, so soon after the first motion to change was dismissed on 3 May 2010.) [ 15 ] A case conference was then to have been conducted before Justice Steven R. Clark on 7 December 2010. The mother sought an adjournment, however, so that she could retain her previous counsel. Mr.

Vincent, on behalf of the father, consented to the adjournment request. At this time, the mother expressed concern that the father had not paid child support in the last three years and that he owed approximately $10,000.00 in arrears. The father, on the other hand, was seeking a temporary stay or suspension of child support obligations because of his ongoing difficulties in obtaining employment. Nonetheless, he offered to make a “goodwill” payment of some money to the mother in the interim, sometime in December 2010.

The mother was not content that the court make any type of temporary order suspending the payment of either arrears or ongoing child support. She questioned how he was able to travel back and forth to Cameroon so frequently. Furthermore, it was her belief that he had an office job there, but he was not disclosing this to anyone. The court made no order at the time, but merely adjourned the matter to 15 March 2011. [ 16 ] On 15 March 2011, the matter proceeded as a case conference, notwithstanding that the mother was not present. Prior to the court date, she sent correspondence to Mr.

Vincent advising that she was unable to get time off work. In any event, she was seeking a further adjournment so that she could retain her previous counsel. She also took the position that the father had still not paid the outstanding costs orders, nor had he made any voluntary payment in December 2010. Mr. Vincent asked the court to note the mother in default for her non-attendance. The court was not prepared to do this. Mr. Vincent advised the court that the father’s credit rating was a significant obstacle and impediment to his being employable, notwithstanding his qualifications.

He submitted that, once prospective employers did a credit check, the father was no longer being favourably considered. Mr. Vincent was also concerned that, if the Family Responsibility Office sought to suspend or somehow prevent the father from obtaining a passport, that this would eliminate any chance of his securing employment out of the country. Mr. Vincent also submitted that he believed the approximate amount of arrears of child support at this time was $7,446.00.

He proposed that the father pay a nominal amount of $100.00 per month for ongoing child support and a further $100.00 per month toward the arrears, both commencing on 1 March 2011. This was on the basis that the father was receiving social assistance in the amount of $585.00 per month, which is $7,020.00 per year. In the result, the court made a temporary order suspending ongoing child support and enforcement of arrears as of 15 March 2011.

However, the court also ordered that the father was to serve and file a job search list and a list of all expenses and sources of funds received from friends and family for all trips taken out of the country from July 2009 to the present. The matter was then adjourned to 29 June 2011. [ 17 ] The motion to change proceeded on 29 June 2011. The mother was present and unrepresented, but the father was not present, although represented by Mr. Vincent, who filed three documents on his behalf. The first was a copy of an e-mail dated 15 June 2011 from the father to Mr.

Vincent advising that he had had three interviews with a university in Douala, Cameroon, and one interview with the Cameroon government. These were referrals from the Prime Minister of Cameroon. The second document was a letter dated 27 June 2011 from the rector of Saint-Jerome Catholic University, which document represented an official offer of a permanent position as an associate professor of economics, commencing in the fall of 2011. The details of employment include a starting monthly salary, the equivalent of $600.00 (U.S.).

His duties and responsibilities consist of conducting research and teaching two courses. The third document was a letter from the father, dated 27 June 2011, accepting this position on the stated terms. The understanding is that there would be a three-month probation period commencing in the fall quarter of 2011. Mr.

Vincent further advised that the father would be returning to Canada this summer to deal with his personal affairs and to make the necessary arrangements to obtain travel documents. 3: THE POSITIONS OF THE PARTIES 3.1: The Father [ 18 ] He filed an affidavit, sworn on 10 May 2011, in support of his position. In it, he claims that all efforts to secure employment in Canada have been fruitless.

He was shortlisted for a position as Director of International Services for Sheridan College, but subsequently, he was confidentially informed that a credit check was done and, because of his bad credit rating, an offer would not be extended to him. Furthermore, he was advised by his social worker that it would be very difficult for him to secure employment because of this. Accordingly, he was required to intensify his job search outside of Canada.

[ 19 ] He provided documentation confirming scheduled interviews in South Africa, Spain and Cameroon, for the months of July 2009, December 2010, and April to June 2010.

He submits that the flight and accommodation expenses to attend these interviews were covered by the prospective employers. [ 20 ] Further documentation supports that he has been invited to interview for a position at Lawrence University, in Appleton, Wisconsin, on 15 July 2011, and that his expenses will be paid for this. [ 21 ] He submits that any of his travels outside of Canada have not been for social visits. [ 22 ] Although he has now been hired to work in Cameroon, he submits that he intends to support his son as soon as he is able to do so.

He believes that, if the support order is changed, he will have a greater scope to look for a job in Canada and abroad. He also undertakes to inform the mother as soon as his financial conditions improve.

He maintains that he has previously provided the mother with Equifax reports, which he submits are accurate. 3.2: The Mother [ 23 ] The mother, on the other hand, questions the integrity of the documentation. [ 24 ] Furthermore, she submits that the father has concocted a scheme with the Cameroon authorities to make it look like he will only be earning a nominal salary, roughly the equivalent of what he is receiving here in Canada in the form of social assistance. She further submits that this is yet another effort on his part to act in bad faith.

The amount he claims that he will be earning is below the threshold of the Federal Child Support Guidelines , SOR/97-175, as amended. [ 25 ] She asks the court to note that the father continues to say one thing and then to do another. He had not paid either of the outstanding costs orders, nor has he made any goodwill payments, which he, in fact, volunteered to do last December 2010. [ 26 ] Furthermore, she submits that he continues to take a job that merely suits his purposes, rather than one that should be taken with a view to being in the best interests of the subject child.

As an example, quite apart from the fact that she disputes the authenticity of the letter from Lawrence University, inviting the father to attend for an interview on 15 July 2011, there is no indication in the document what the level of remuneration is to be. Rather than pursuing this, the father has merely accepted a job now in a university in Cameroon without even trying to seek a position that ought to pay him a salary commensurate with his qualifications.

The reason that she questions the authenticity of the letter from Lawrence University is that she is aware of the fact that one of his brothers is a lecturer there and he could very easily have conspired to set up a fictitious interview. [ 27 ] She submits further that the father has had experience in the past working in a window factory in 2008. It is her belief that a job of this nature would likely yield more money than he is now about to earn as a professor. [ 28 ] She believes that an updated Equifax credit report would disclose more information about the father’s present financial circumstances.

She submits that his affidavit, sworn on 10 May 2011, is rife with inaccuracies. She claims that his 2009 income tax return is not complete. His 2008 notice of assessment shows total income of $3,409.00. His 2009 income tax return shows a total of $4,449.47 from social assistance. His reported income for 2010 is $5,240.81, also from social assistance. [ 29 ] Her ultimate position is that his numbers just do not add up.

Even if the costs of flights and accommodation to attend various interviews abroad are not coming out of his pocket, he could not possibly absorb any other incidental expenses on the income he claims. This does not even take into account any ongoing fixed expenses while residing in this jurisdiction, including rent. [ 30 ] She submits that she is quite surprised that the father can set up such a sophisticated scheme to avoid his child support responsibilities so easily. He has now effectively been able to set up his affairs so that he can leave Canada to avoid his child support responsibilities.

Although she realizes that the court cannot order him to remain in the jurisdiction, what she does ask the court to consider is that, if he remained here, surely there would be an expectation that he could not merely accept a job that pays less than minimum wage. Therefore, the court should still be entitled to impute the same level of income as was imputed in the original order. [ 31 ] It is her view that the father has been “gambling” with this legal issue and that he has been merely “buying time” to make his move to leave the country.

She believes that, as soon as this case is over, he will likely find a way to return to Canada and the slate will effectively have been wiped clean. [ 32 ] Finally, she acknowledges that her income over the years has increased from $26,000.00 when the original order was made. She now presently earns $41,000.00 annually.

She is, therefore, content that the court can recalculate the percentage payable by the father for extraordinary expenses, but the court should otherwise dismiss this motion to change and continue to impute annual income to him of $46,000.00. 4: ANALYSIS [ 33 ] The court finds that the amount of $46,000.00 continues reasonably to reflect the father’s capacity for the payment of monthly child support. [ 34 ] Regarding the issue of retroactive child support, and the father’s desire to rescind or to vary same, the cases of 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, set out the general principles and guidelines from the Supreme Court of Canada. The court has considered the relevant factors of delay; the conduct of the payor father; the circumstances of the child; and any hardship occasioned by making a retroactive award. Of course, none of the unidentified factors is decisive. An holistic view of the overall circumstances of each

particular case should be evaluated. [35] An unreasonable delay in seeking to change the order often militates against making a retroactive order, but it should benoted that child support is the right of the child and cannot be waived by parental agreement. The father waited some time beforebringing his first motion to change. He did not follow up or follow through either with dispatch or with diligence. [36] Furthermore, the court finds that there is an abundance of blameworthy conduct on his part.

This concept encompassesconduct where the payor seeks to promote his own interests at the expense of the child to whom he owes the support obligation. Blameworthy conduct also exists where he knowingly chooses to ignore his child support responsibilities.

Given that he has notexercised access in any meaningful way also demonstrates that he has abrogated his responsibilities as a parent. [37] Regarding the circumstances of the child, although there is no direct evidence to consider on this point, it is patentlyobvious from the evidence presented that the mother has not enjoyed a particularly high standard of living and, by inference, the childhas not enjoyed the financial benefits to which he is otherwise entitled. [38] Regarding any hardship occasioned by a retroactive award to the father, this factor is of less concern where it results fromhis own blameworthy conduct.

In any event, the court will attempt to craft an order that might minimize the potential for any hardship tothe father, by way of periodic payments rather than an immediate lump sum. [39] Regarding the issue of whether the father is intentionally under-employed, this occurs when a payor chooses to earn lessthan he is capable of earning. The factors to be considered include his age, education, experience, skills and health, as well as his pastearning history. The essence of this issue is reasonableness.

In other words, the court must ask: Is the father doing what a reasonableperson would do if he was in an intact family and had a child to support? The court certainly understands that there are individuals witha specific skill set who cannot always find employment in their chosen field, but a parent has an obligation to provide support to theextent that he is capable of doing so. Therefore, the court must not only consider the amount of income that a party states that he isearning, but also the amount of income that he could be earning if working to capacity.

Accordingly, the court can impute income,where appropriate. However, this cannot be done on a mere hunch or speculation that the payor is either hiding income or has anothersources of income that cannot be determined. In many cases, there if often a paucity of evidence, which makes it difficult for the courtto arrive at a reasoned decision. 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.), makes it clear, however, that there need not be anybad faith or motive to avoid paying child support, for the court to find that a payor is intentionally under-employed. The court can makean order imputing income if the payor made a choice, without good reason, to earn less than he was capable of earning. 5: CONCLUSION [40] The court finds that the father has been intentionally under-employed. There is nothing in relation to his age, education,experience, skills, health or any other personal circumstances that serve as a barrier to being employable and employed.

It seems that theonly factor that has been an impediment, at least according to him, is his credit rating. The court finds that he cannot now seek to use thisas a shield, when in fact he is the author of his own misfortune in this regard. [41] Furthermore, the court finds that he rather stubbornly, and unrealistically, only tried to pursue training-specific jobs, whenhe ought to have been pursuing at least minimum wage jobs with more earnest. [42] The court finds that it is not reasonable for the father to take on a job at a salary range that effectively renders him“judgment-proof”.

Quite frankly, the court finds this arrangement as “too good to be true”. Having regard to the fact that he secured aposition through the Prime Minister of Cameroon, this is either hyperbolic bragging on his part, or he is so well-connected that he oughtto be able to parlay this into a position that pays what it should for a person of his credentials and qualifications. [43] The court is not trying to make an order in this matter that will effectively “scare” the father away by being so onerousthat he will have little incentive to return to Canada.

On the other hand, he must clearly understand that, if he does wish to make his lifein this, or any other jurisdiction in Canada, he will be expected to keep the interests of his son at the forefront of his financial concerns. [44] The amount of money that he must have spent for incidental travel expenses and will continue to spend going back andforth from Canada to Cameroon in the future must easily be at least $425.00 per month, the amount he is required to pay pursuant to theorder. He must be getting this money from somewhere.

The court concludes, and finds, that he can also get the money from the same“somewhere” to pay his monthly child support and to also address the arrears of same. [45] Accordingly, the court finds that the father has not met the onus on a balance of probabilities that there has been amaterial change in circumstances, and the motion is dismissed. Put another way, the court finds that the mother has demonstrated, on abalance of probabilities, that the father is intentionally under-employed. 6: ORDER [46] The court makes the following order: 1.

The motion to change the final order of Justice Maresca, dated 31 January 2008, is otherwise dismissed except asfollows: (

a) The father shall pay child support to the mother on behalf of the subject child in the amount of $452.00 permonth, based on imputed income of $46,000.00, from 1 May 2007. (

b) The father shall pay 50% of all reasonable extraordinary expenses for the subject child subject to themother providing the necessary receipts.

(

c) The Family Responsibility Office shall calculate the arrears of child support. (

d) Arrears of child support and ongoing child support, which were suspended on 15 March 2011, are now reinstated. There is no rescission of any of the arrears of child support. (

e) The father shall pay $100.00 per month toward outstanding arrears, commencing on 1 September 2011.