Brosseau v. Lambert, 2011 ONCJ 54

North Bay Registry No. F0 77-07 DATE: 2011·II·08 CITATION: Brosseau v. Lambert , 2011 ONCJ 54 ONTARIO COURT OF JUSTICE BETWEEN: GINA BROSSEAU, Applicant (Responding party on motion), — AND — NORMAN LAMBERT, Respondent (Moving party).

Before Justice Louisette Duchesneau-McLachlan Heard on 28 January 2011 Reasons for Judgment released on 8 February 2011 SUPPORT ORDERS — Arrears — Child-support arrears — Effect of cohabitation between payor and recipient — Accrual held in abeyance — Father was long-distance truck driver and mother seemed to deal with his prolonged absences by associating with various boyfriends — After first separation 4 years ago, court ordered father to pay support for his two children — Month later, parents resumed cohabitation and stayed together for next 14 months before separating for second time — At mother’s insistence, provincial enforcement agency treated money ($9,464) that should have been paid as support for those 14 months as unpaid arrears — At subsequent court appearance (perhaps motion to vary support), court directed that arrears shown by enforcement agency be reduced by $9,646.

SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Payor’s income — Payor “intentionally under- employed or unemployed” — Reasonableness of payor’s intentional under-employment or unemployment — Father testified that he earned $800 per week when he was working as long-distance truck driver (technically giving him gross annual income of $41,000) but, because he was not yet permanent employee, there was some “down time” — He confessed that did not actively pursue reduction of “down time” because he did not want to spend all of his time travelling and looked forward to spend some time with his children, which mother actually encouraged —Court recognized father could, if he applied himself, earn gross annual income of $41,000 but refused to find him intentionally under-employed when all he wanted was to spend some time with his children — For purposes of child support, court therefore attributed gross annual income of $36,000 to father to allow him to maintain relationship with his children.

William A. Sangster ..................................................... counsel for the applicant (responding party) Respondent (moving party) Norman Lambert ....................................................... on his own behalf [ 1 ] JUSTICE L. DUCHESNEAU-McLACHLAN:— On 22 March 2007, a support order was made based on Mr. Lambert’s gross annual income of $45,689 for the two children of the relationship in the guideline amount of $689 per month, starting on 1 May 2007. [ 2 ] Mr. Lambert testified that he resumed cohabitation with Ms. Brosseau from June 2007 to July of 2008.

He claims that an order was made in March of 2007 as they had separated in February of that year but that they only were separated for about three months. He further indicated that they cohabited for about eleven months and then separated again. [ 3 ] Mr. Lambert testified that he was a long-distance truck driver and that Ms. Brosseau took care of the finances basically. He stated that the two separations were caused by her infidelity. [ 4 ] Mr. Lambert did bring a witness who knew both him and Ms. Brosseau and who supported Mr. Lambert’s evidence. [ 5 ] Ms. Brosseau denied Mr.

Lambert’s testimony, indicating that she could not stand being with a man who was away from home so much of the time and that she therefore had other boyfriends.

[ 6 ] It would appear that, although Mr. Lambert was convinced that they continued to be a couple, she on the other hand found companionship elsewhere. [ 7 ] On a balance of probabilities test, I believe Mr. Lambert. [ 8 ] Although Ms. Brosseau also had witnesses to support her position, it is clear that they could have assumed that she was telling them the truth when she indicated to them that Mr. Lambert was out of the picture.

How could they know when he was travelling for work quite a bit? [ 9 ] The Director’s statement of arrears also supports his position. [ 10 ] The support accrual shows a payment owing as of 1 May 2007 which was paid and then accrual starting again July of 2008. Subsequent to June of 2008, the aggregate support claimed owing by Ms. Brosseau in the amount of $9,646.00 was then added to the balance owing. [ 11 ] The arrears shown by the Family Responsibility Office shall therefore be reduced by the said amount of $9,646.00. [ 12 ] As to ongoing support, Mr.

Lambert did testify that he was on the whole making $800 per week when he was working. He did indicate that sometimes he was not on the job as he was not yet a permanent employee. For example, Mr. Lambert had not worked for two weeks at the time of this trial on Friday, 28 January 2011. Mr.

Lambert further indicated that he did not want to spend all of his time travelling as he did want to spend some time with his two children and that he was looking forward to work hours that would permit him to do this. [ 13 ] Although he could make some $41,000 gross annually by long-distance driving, I would suggest that he cannot be said to be intentionally under-employed when all he wants is to spend a bit of time with his children. He has the best interests of his children to heart. [ 14 ] I hasten to add that the mother Ms.

Brosseau also has the best interests of her children to heart since she is quite flexible in regards to access and encourages a relationship between the children and their father and his family. [ 15 ] I will therefore deem a gross annual income to Mr. Lambert of $36,000. From what I have heard by way of evidence, trucking for this kind of income would have permitted and would still permit Mr.

Lambert to maintain a relationship with his children and to take care of them adequately. [ 16 ] The ongoing support will therefore be based on a gross annual income of $36,000 for two children at the rate of $537 per month as of 1 January 2009. [ 17 ] The standard clauses shall apply and a support deduction order made.