Slizewicz v. McKinnon, 2011 ONCJ 85

Brampton Registry No. 485/93 DATE: 2011·II·18 CITATION: Slizewicz v. McKinnon, 2011 ONCJ 85 ONTARIO COURT OF JUSTICE BETWEEN: ANNA SLIZEWICZ, Applicant, — AND — CRAIG McKINNON, Respondent. Before Justice Steven R. Clark Heard on 7 February 2011 Reasons for Judgment released on 18 February 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 19. Family Law Rules, O. Reg. 114/99 [as amended], Form 13, Form 14A, Form 15A and Form 15B. CASES CITED Gobin v. Gobin, 2009 ONCJ 245, 71 R.F.L. (6th) 202, [2009] O.J. No. 2191, 2009 Cars​well​Ont 3007 (Ont. C.J.). Whelan v. O’Connor, , 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, 2006 Cars​well​Ont 2581 (Ont. Fam. Ct.). Applicant mother, Anna Slizewicz ........................................................................ on her own behalf Respondent father, Craig McKinnon ..................................................................... on his own behalf JUSTICE S.R.

CLARK: 1: INTRODUCTION [1] The moving party, the respondent father, Craig McKinnon (hereinafter referred to as “the respondent”) brings a motionto change, dated 10 August 2010, the final order made by Provincial Judge Theo Wolder on 30 August 1994, regarding child support. [2] The subject child is Oliver Slizewicz, born ob 2 July 1991, presently age 20. [3] The respondent seeks to have child support terminated and arrears cancelled on the basis of a material change in hisfinancial circumstances. [4] The final order of Judge Wolder provided, inter alia, that the respondent pay to the applicant mother, Anna Slizewicz(hereinafter referred to as “the applicant”) the amount of $465.00 per month for child support, commencing on 1 May 1993 (it should benoted that no annual income was stated or imputed in this order). [5] The respondent submits that he is unable to work at any type of job because of medical problems that render him

unemployable. He has not been able to work for almost the last three years. He has become disabled because of ongoing problems with his hands, in particular. He was employed as a bus driver for approximately twenty-six years. He is presently receiving disability benefits. [ 6 ] The applicant, on the other hand, contends that the respondent is intentionally seeking to avoid his legal responsibility to support the subject child. She submits further that he is capable of earning income by taking some form of retraining program. [ 7 ] On 17 December 2010, Justice Juliet C.

Baldock made a temporary order that the respondent pay child support of $88.00 per month, based on disclosed income of $13,116.00 per annum, derived from Canada Pension Plan disability benefits, commencing on 1 January 2011. At this same time, Her Honour ordered an oral hearing of this motion to determine the issues of ongoing final child support, payments of arrears of child support, and retroactive child support. Both parties were granted leave to file further materials. [ 8 ] The oral motion was heard on 7 February 2011.

At the outset, the respondent filed further medical materials, on consent, including a letter from the Trillium Health Centre, dated 2 November 2009, from Dr. Lista; two letters from Dr. S.W. McKenzie dated 17 June 2008 and 5 January 2010; a letter from Dr. Wong dated 25 August 2008; and a Trillium Health Centre out-patient note dated 5 October 2009.

Additionally, the respondent filed a Canada Pension Plan disability newsletter, suggesting that, if one is receiving benefits, his child who is between the ages of 18 and 25, and who is attending school full-time, is eligible to receive up to $218.50 per month, for 2011. 2: THE POSITIONS OF THE PARTIES 2.1: The Respondent’s Written Materials and Documents [ 9 ] A refraining motion was brought on 3 August 2010 before Justice Baldock at which time an order was made that the Family Responsibility Office not cause his driver’s licence to be suspended, and that he commence a motion to change within twenty days.

Furthermore, he was ordered to file proof of receipt of social services, if obtained, and to continue paying $100.00 toward arrears of child support, commencing on 15 August 2010. [ 10 ] Thereafter, on 6 December 2010, Justice Manjusha B.

Pawagi ordered that he serve and file notice from his insurance company terminating his long-term disability benefits from his employer; his appeal of this decision; his application for C.P.P. disability benefits; and medical documentation regarding his ability to work. [ 11 ] All of the above-noted disclosure was filed by him on 17 December 2010. [ 12 ] It is his understanding, from his medical practitioners, that he suffers from a permanent joint dysfunction to his arms, elbows and shoulders.

He claims that he is unable to maintain any gainful employment with the City of Mississauga, who has been his employer for approximately twenty-six years.

Furthermore, he has been unable, medically, to re-qualify for a retraining program with his employer. [ 13 ] Other than the medical benefits that he has been receiving, he has been relying on the proceeds of a small amount of R.S.P. funds, as well as the generosity of his family and friends. [ 14 ] He has been living in subsidized housing since he became disabled. [ 15 ] He asks the court to vary child support to $100.00 per month commencing on 1 January 2011, and to rescind arrears to zero as of 1 February 2010. In his “change information form (Form 15A under the Family Law Rules , O.

Reg. 114/99, as amended) (at tab 3, volume 1 of the continuing record, at page 8), he estimated that his income for 2010 would be only $7,000.00. His materials further disclose that his annual income in the years 2008 and 2009 was $35,000.00. [ 16 ] In his Form 13, financial statement (at tab 3), he reports monthly income of $585.00 from social assistance, totalling $7,020.00 per annum. His expenses include $321.00 for rent; and $295.00 for car, gas and oil, insurance, licence and repairs and maintenance.

He further reports $175.00 per month for telephone, cellular telephone, cable and internet, and $270.00 for groceries and household supplies (which includes $50.00 for pet care). He claims further that he owns a 1994 Volvo motor vehicle, which has no present value. His expenses of $1,309.00 exceed his income of $585.00 by $724.00 per month. [ 17 ] His income tax return information shows total annual income of $20,687.00 (and not $35,000.00 as indicated in paragraph 16) in 2008 (which would result in a table amount of $177.00 per month for one child under the Child Support Guidelines , O.

Reg. 391/97, as amended); $33,274.00 in the year 2007 (which would be a table amount of $306.00 per month) and $53,981.50 in the year 2006 (which would be a table amount of $499.00 per month). [ 18 ] Further disclosure set out in documents filed under tab 5 of the continuing record reveal the following information:

(1) A letter from Sun Life Financial, dated 7 July 2010, advised the respondent that its decision to decline benefits beyond 31 January 2010 remained unchanged. The reasons appear to include the fact that the definition of “total disability” is that an individual is deemed unable to do any occupation for which he may become reasonably qualified for by education, training or experience. The definition also does not require that one be symptom-free, but incapable of performing any occupation duties.

Additionally, an employee will not be considered totally disabled if he does not take part, or co-operate in a reasonable and customary treatment program. Limited benefits were reinstated to the respondent on 4 November 2009 on the basis that he would participate in a computer training program and future benefit payments would be contingent on his full participation and attendance in such program, resulting in a return to some type of gainful employment. During this, he expressed that he was experiencing pain and an inability to continue on with repetitive keyboarding tasks.

He avoided all practical aspects of the program and chose to only participate in the theory portion.

(2) The respondent has now commenced an action, dated 17 May 2010, in the Superior Court of Justice, against the insurer, claiming, inter alia , payment of disability benefits due and owing, in addition to damages for breach of contract and mental distress, as well as punitive damages. Some of the information in support of the claim includes the fact that he is presently 53 years of age (date of birth, 16 July 1957). He has a grade XII education. He commenced employment as a bus driver in 1984. In 1989, he was diagnosed with bone cancer in his elbow. After an operation, the cancer was found to be benign.

He returned to work that same year. In 1998, he was diagnosed with a rotator cuff injury and was operated on. He returned to work later that same year. As medical problems continued over the years regarding the rotator cuff injury, the insurer required him to attend an independent medical to assess his condition. In the result, he had shoulder surgery and was further diagnosed with chronic tendonitis in his left elbow, as well as carpel tunnel syndrome in both arms. In 2008, he again had to leave the work force. The insurer ordered him to attend at computer courses.

It was problematic for him to do any keyboarding. The insurer continues to insist that he should be qualified for computer work, which the defendant submits is contrary to medical evidence that has been provided. He has been unable to work since 31 January 2010.

(3) In a medical letter from Dr. S.W. McKenzie, a neurologist, dated 5 January 2010, the salient features include his opinion that the respondent continues to have difficulty with his computer and rehabilitation program. He still has chronic nerve abnormalities. The difficulty is that many of the jobs for which he would be recommended require repetitive movement and this will aggravate his complaints. Accordingly, if there are no other strategies to recommend, the respondent may well be disabled.

(4) The letter from Dr. Zvi Margaliot, a hand, wrist and reconstructive plastic surgeon, dated 30 April 2010, confirms that he did an extensive assessment of the respondent. He experiences constant numbness in his thumb and index finger. He has tried wearing carpel tunnel braces on several occasions. He has a very difficult clinical picture, with over twenty years of carpel tunnel history. A tentative surgery

schedule is contemplated in the next year.

(5) Dr. Margaliot provided a further follow-up medical letter, dated 15 June 2010, indicating that his medical opinion has changed to the point where it is now highly unlikely that the respondent would benefit from having surgery. Nonetheless, should the respondent wish to proceed, it would likely be in July 2011.

(6) A medical letter from Dr. Wong, dated 17 August 2010, highlights that the respondent has difficulty even doing light-duty work.

(7) An out-patient note from the Trillium Health Centre dated 2 November 2009 from Dr. Lista, indicates that the respondent has been offered a retraining job but unfortunately, retraining on a computer requiring continued and excessive keyboarding will not be possible in his case. 2.2: The Respondent’s Oral Evidence [ 19 ] He testified that the insurance company “cut him off” in January 2010 because he was unable to complete the computer retraining program. The difficulty that he experiences, medically, is that he is unable to bend his index finger and thumb.

Representatives of his union have now retained a labour lawyer to assist him with his claim against the insurers. He advised that he attended a mediation meeting on 1 February 2011, in an effort to resolve the matter; however, nothing has been settled in this regard as yet. It is contemplated that the matter will move on to discoveries as the next step in the legal process. He stated that he is quite confused by the present status of this matter, as it is his understanding that there was an acknowledgement by the insurers that he is, indeed, disabled.

It is his further understanding that he is no longer in arrears, according to the Family Responsibility Office. He is presently holding $3,100.00 in his bank account, either to the credit of the applicant mother through the Family Responsibility Office, or alternatively he intends to pay it back to his insurers. He believes that he presently owes them $9,000.00. He currently resides in a federal housing co-operative in a three-bedroom apartment unit. He is in the process of moving to a two-bedroom unit, in the same complex. He is on a waiting list in this regard.

Apparently, the differential in his rent, however, would only be approximately $20.00 per month less. Although he acknowledges that he could be living in a one-bedroom unit, these are only available to “seniors” once they reach the age of 55. [ 20 ] He was asked, on cross-examination by the applicant mother, and indeed by the court, whether there was any other job that he was told for which he might qualify. Because he is unable to use his hands, this renders him virtually unable to perform any type of work, even light duties.

He believes that the reason why the insurers wanted him to take a computer course is that any job that might be available would require some form of manual use of a computer, even jobs in security or even as a parking lot attendant. Unfortunately, anything that requires repetitive use of his hands is something he is unable to do. [ 21 ] He is confident that he will be able to reach a settlement with his insurers. He hopes that he will be covered for the next three-and-a-half years until his retirement time (age 55 with 30 years of service).

If so, he will be able to maintain his benefits and, of course, keep the subject child Oliver covered as well. He has scheduled further appointments with his neurologist, in an effort to determine whether he should go forward with surgery. He is not presently optimistic that this will improve his circumstances. He has been told that his chances are no better than fifty per cent that there will be improvement. He states that he is not scared of having surgery, but scared of the results.

He has been told that it is possible that his situation could become worse if he goes through with it. [ 22 ] He testified that he now receives a total of $1,111.00 per month from C.P.P. as of 1 January 2011. This is all the money that he presently receives. His rent is presently $331.00 per month. He is required to pay his own utilities. Should he obtain a two- bedroom unit, his rent would go down to $301.00 per month. His rent is determined on the basis of his showing proof of income. The

present rent is based on his receiving zero income. He has only been paying the amount of $331.00 per month since August 2010. Prior to that, he was paying $958.00 per month. [ 23 ] The court queried on behalf of the applicant how he could claim $295.00 per month as an expense for the operation of his motor vehicle. Quite frankly, it would seem that, if he is unable to use his hands, he would also be unable to operate a car. He acknowledged that there was such a risk. In fact, his driver’s licence designation has been downgraded from a commercial licence to a general operator’s licence.

He also recognizes that his medical personnel could notify the Ministry of Transportation of his disability, in which case his licence would be revoked. More to the point, however, he was asked how he could justify keeping a car on the road when some of the money ought to be re-directed toward child support for his son. He indicated that he only goes short distances in his car and does not use it very often. He requires it, however, to attend medical appointments and for grocery shopping. He claims that the value of the car might only be $1,500.00.

In fact, he pays more in insurance premiums than its actual value. He also indicated that it is problematic for him to take public transit because of his instability in not being able to hold on to handles or to stand on a bus. Furthermore, from time to time, he requires the use of a car to visit his other children. He stated that it still represents a form of independence for him. He will be required to obtain an emission test for the vehicle in July 2011, when he is required to obtain his new licence sticker.

He acknowledged that, if the car, for whatever reason, requires any repairs in the future, he would be unable to come up with the money to pay for same, in which case it might be necessary to take it off the road. [ 24 ] He further acknowledged that he pays approximately $50.00 a month for his three cats. He recently had to pay a veterinarian bill of $175.00.

He stated that he requires the pets for companionship and that this is not such a significant amount for the care of animals, and that he should be entitled to this expense without impacting on his ability to pay support for his son. [ 25 ] He advised the court that he presently owes approximately $2,000.00 to family members and close friends who have loaned him money, and who all understand his present circumstances. He is hoping that he will be able to pay them back. There are no specific terms, however, for repayment at present.

He acknowledged that his expense for telephone, cable and internet could be pared down slightly. He only has one telephone now. He is unable to use a computer on any regular basis, he has kept the internet because his daughter tends to use it when she visits. He recognizes, however, that this may be an expense that he cannot afford to maintain. 2.3: The Applicant’s Written Materials and Documents [ 26 ] The applicant’s materials include a Form 15B (response to motion to change), and a Form 14A affidavit, dated 24 September 2010.

She claims that the subject child, Oliver, attends school full-time at Sheridan College. He is taking an architectural technologist course. He is in the second year of a three-year program. Thereafter, he aspires to go on to university to obtain a Bachelor of Arts degree and a Masters degree, if possible. Oliver has a number of medical conditions. A letter, dated 23 September 2010, is exhibit A to the applicant’s affidavit. It describes that he has a benign tumour on his upper right arm.

He also suffers from right-eye inflammation and has pain in the lower arches of his feet, requiring him to use orthotics. [ 27 ] She submits that, although the respondent states that he is now separated from his current wife, she believes that they still live in the same house together and that she is assisting in supporting him and paying some of the expenses. Furthermore, she questions how the respondent could spend $50.00 a month on his pets when he is only able to spend $100.00 a month for his son. She believes that his animals get better treatment than the child.

She claims that the respondent made a statement to her some time ago that he would retire at the age of 50 and, because he had already served this country for twenty-six years, he would not go back to work. 2.4: The Applicant’s Oral Evidence [ 28 ] The applicant testified that she and the respondent met approximately twenty years ago. She maintains that he did tell her that he was going to retire at age 50. This is why she believes he is not trying to look for alternate types of work in earnest. She believes that he should be able to find employment in the security industry.

Furthermore, she questions how he has been able to send text messages to his other children when he claims that he is unable to use a computer. Furthermore, she doubts that he lives alone. She believes that he is receiving support from another partner and from his other children. [ 29 ] She confirms that the Family Responsibility Office has advised her that the respondent is no longer in arrears. She further believes that the $3,100.00 that he is presently holding in his bank account should go toward ongoing child support for Oliver.

She does accept that the medical documentation provided by the respondent confirms that he is disabled. Nonetheless, she still believes that there must be jobs available to him. Furthermore, she submits that, if the respondent poses as a risk as an operator of a vehicle, he should no longer be driving. There is no reason why he could not give up his vehicle and take taxi cabs or other public transportation to attend to his medical appointments.

She also questions why he should continue to pay $175.00 per month for telephone and internet, if he is unemployed, unemployable and is making no effort to look for a job. 2.5: Reply Evidence by the Respondent [ 30 ] He categorically denies that he ever made any statement to the applicant about intending to retire at the age of 50, regardless of his circumstances. This could not be so, because he did not start his employment as a bus driver with the City of Mississauga until the age of 27.

He knew, quite clearly, that he had to put in thirty years of service before he could be eligible for retirement with full benefits. This would take him, therefore, to the age of 57. In any event, he maintained that he would very much like to find some type of employment if only he was physically able to do so. 3: ANALYSIS [ 31 ] The main issue in this motion to change is whether the court can, or should, impute income to the respondent on the basis

that he is either intentionally unemployed or under-employed, or whether he is unreasonably deducting expenses from income. [32] A general principle is that payors must not arrange their financial affairs so as to prefer their own interests over those oftheir children. Indeed, a payor will engage in blameworthy conduct even when he does nothing active to necessarily avoid hisobligations if he consciously chooses to ignore them.

The case law provides that it is not necessary to prove bad faith in order to findblameworthy conduct. [33] A parent is required to act responsibly when making financial decisions that may affect the level of child supportavailable from him. [34] However, the case law makes it clear that “intentionally” does not apply to situations beyond a payor’s control. [35] As a practical matter, it is not always easy to determine when a payor is a victim of unfortunate financial circumstances,or whether he is the author of them. [36] The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

Therefore,the court may decide not to impute income where the payor establishes the reasonableness of his decision or his situation. [37] Any discretion used must, of course, be grounded on evidence. The court can consider the payor’s age, education,experience, skills, health, as well as the availability of job opportunities, the number of hours that could be worked in light of otherobligations and what hourly rate could reasonably be expected for him. [38] Suspicions of bad faith are easy to have, but this is not enough.

Such things as reductions in income that arise frommarket forces, or legitimate health issues will not qualify as voluntary reductions in income. [39] When a payor alleges that he is unable to work for medical reasons, he must obviously provide a sufficient evidentiarybasis to support this claim. See Whelan v. O’Connor, , 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, 2006 Cars​well​Ont2581 (Ont. Fam. Ct.); Gobin v. Gobin, 2009 ONCJ 245, 71 R.F.L. (6th) 202, [2009] O.J. No. 2191, 2009 Cars​well​Ont 3007 (Ont. C.J.). 4: CONCLUSIONS [40] There is no doubt that the respondent is legitimately disabled.

The medical documentation amply supports this position. [41] Although originally sceptical, the court is now satisfied that he is presently unable to perform any type of meaningfulemployment, notwithstanding that he is still relatively youthful, very articulate and intelligent, and willing to work. [42] It is, indeed, a very unfortunate set of circumstances facing the respondent at this time. [43] The court is further comforted in knowing that the insurers, who are monitoring and determining his medical status, arevery likely putting the respondent through more scrutiny than this court might even have done, since they have a vested interest inrehabilitating him to a state of employability. [44] Therefore, this court is unable to find that the respondent is intentionally unemployed or under-employed. [45] Nonetheless,

section 19 of the Child Support Guidelines provides a mechanism whereby income can be imputed. The listof nine specific examples set out therein is not exhaustive. However, it does capture the most common situations often presented. Oneof the categories applicable in the present case relates to the situation where a parent unreasonably deducts expenses from income. [46] When submissions were made by the parties, the court advised them of its obligation to carefully consider and scrutinizethe utility of some of the expenses claimed on the respondent’s financial statement.

The court finds that he cannot afford the luxury ofmaintaining internet service merely so his adult daughter can use it to download information when she comes for visits. Furthermore, ifhe is not intending to apply for any jobs, there is no further purpose for it. Accordingly, this $30.00 monthly expense can be recaptured. [47] The other arguable expense relates to the continued use and maintenance of a car.

The court quite understands andappreciates that the respondent wishes to maintain a certain quality of life and a level of dignity and independence by having theconvenience of driving to his medical appointments and shopping for the necessaries of life. However, this is another luxury that hecannot afford, particularly when there are meaningful and viable alternatives. Although the use of a car may be considered as a necessityin some cases, this is not so in the circumstances of this case. He does not require it on a daily basis.

Although he claims that he mightneed his car in the event that he is contacted on short notice about a medical appointment, this has not happened to date. In any event,even if it should eventuate, there is absolutely no reason why he could not take a taxi, or where appropriate, public transit, provided he isable to travel outside of rush hour times so that his continued health or instability would not be compromised.

Furthermore, his claimthat he needs his car to go grocery shopping can also be addressed in a meaningful and practical way, by either walking to a conveniencestore and picking up groceries as needed, instead of in bulk, or more importantly, by making arrangements with his other adult children. The evidence is that they are in contact with him and visit him on a regular basis. They could make the necessary purchases, therefore,on his behalf. [48] In the final analysis, the court is not trying to be unfair to the respondent, as he is hardly living a lavish lifestyle.

To hiscredit, he acknowledged in this hearing, that some of his expenses are no longer legitimate, when faced with the continued responsibilityof providing meaningful, but appropriate child support for his son. [49] In addition to the $30.00 for the internet expense, the court finds the further amount of $125.50 should be recapturedfrom the car expenses. This way, the respondent is not being forced to divest himself of his car immediately, but hard decisions willhave to be made by him soon. Rather than making an order that leaves him with no other choice but to give up his car, the court would

prefer to have him come to this realization himself and to rearrange his affairs, both medical and personal, accordingly. [ 50 ] The total amount to be recaptured from his expenses, therefore, is $155.50. Added to this amount will be a further $91.00, which is the table amount on his stated annual income of $13,332.00 ($1,111.00 per month x 12).

The total amount the respondent will be required to pay monthly for child support, therefore, is $246.50. [ 51 ] The court has given further consideration to the possibility that the subject child, Oliver, may qualify for a Canada Pension Plan monthly benefit of $218.50, if he is attending school full-time. It should be noted, however, that these benefits are not automatic. There is some indication from the newsletter provided by the respondent that the child must be under the care and custody of the C.P.P. recipient.

This is likely to be an impediment, therefore, to Oliver’s collecting this money, as the respondent does not have care or custody of him. If this did eventuate, however, this amount of $218.50, added to the monthly amount that this Court intends to order for child support of $246.50, would total the amount of the original order of Judge Wolder, which was $465.00. If the C.P.P. benefit does come through, so much the better.

However, this court is making a final order on the basis that this is not likely to happen. [ 52 ] The court has considered the documentation and evidence regarding arrears of child support and varying the quantum of child support retroactively. Since the evidence points to there being no arrears of child support payable at the present time, the court intends to make an order confirming this. However, the court is not prepared to retroactively vary the quantum of child support to the date suggested by the respondent (1 February 2010) or to any date prior to the present.

For reasons that are still unclear to the court, the respondent is holding $3,000.00 or $3,100.00 in his bank account, which he claims are “earmarked” either to be paid to the Family Responsibility Office, or to his insurers. Whether or not this is an “overpayment” of some sort, or not, the fact that he has these funds to be used for either purpose ought to compensate for any retroactive variation of the quantum of the child support payable. [ 53 ] Accordingly, the court intends to make an order that only deals with child support on an ongoing basis. 5: ORDER [ 54 ] The court makes the following final order: 1.

The final order of the Honourable Judge Theo Wolder, dated 30 August 1994, is hereby terminated. 2. The respondent, Craig McKinnon, shall pay to the applicant, Anna Slizewicz, for the support of the child, Oliver Slizewicz, born on 2 July 1991, the amount of $246.50 per month, commencing on 1 March 2011. The said amount consists of the table amount of $91.00 for one child on the basis of annual income derived from disability benefits totalling $13,332.00, plus an additional $155.50 recaptured from his monthly expenses. 3.

The said amount shall be paid until the subject child’s 25th birthday on 2 July 2015, or until such time as he is no longer enrolled full-time in post-secondary education, whichever comes first. 4. Any arrears of child support otherwise payable by the said respondent are fixed at zero as of 7 February 2011. 5. The said respondent father shall make application, forthwith, to the Canada Pension Plan for disability benefits for the subject child. 6. The parties shall exchange financial disclosure annually by 1 July, commencing in 2011. 7. There shall be no order as to costs.