Atkinson v. Johnson, 2021 ONCJ 15

CITATION: Atkinson v. Johnson , 2021 ONCJ 15 COURT FILE No.: Toronto D 20882/18 DATE: 2021 01 12 ONTARIO COURT OF JUSTICE BETWEEN: TASHANNA ATKINSON Applicant — and — NEIL HUGH JOHNSON Respondent Before Justice Carole Curtis Heard on: 7and 8 December 2020 Reasons for Judgment released on 2021 01 12 Olivia Oprea................................................. for the Applicant Mother Misha Leslie................................................ for the Respondent Father CURTIS, J. INDEX: 1 . Over-view 2 . Background 3 . Claims at Trial 4 . Litigation History 5 . Positions at trial 6 . The Father’s Income (

a) The Law (

b) The Evidence and Findings about the Evidence (

c) Imputing Income to the Father 7 . Undue Hardship (

a) The Law (

b) The Evidence and Findings about the Evidence (

c) Treating all Children Consistently 8 . Orders 9 . Costs

Overview 1. This is the decision for a two-day trial to determine what child support the father should pay for the four children he and the mother have together. The issues at trial are the father’s income for support purposes, and his claim for reduced support due to undue hardship under the Child Support Guidelines. [1] Background 2. The mother Tashanna Atkinson is 42 years old (born 18 December 1978). The father Neil Hugh Johnson is 40 years old (born 22 February 1980). The parents were not married and did not live together. They had a 10 year relationship, which ended in about 2010.

They are the parents of four children: Taneilyah Tashanna, born 8 July 2001 (now 19 years old); Shaneil, born 12 February 2003 (17); Janeil Akayliyah, born 7 February 2006 (14); and, Daneilyah, born 15 September 2010 (10). Claims at Trial [2] 3. The mother makes these claims at trial: (

a) All four children are dependent children entitled to support; [3] (

b) Support should start on 1 January 2018; (

c) Income should be imputed to the father for all the relevant years higher than the amounts on his line 150 income; [4] and, (

d) No reduction should be made for undue hardship. 4. The father makes these claims: (

a) Support should start at the date of the application 7 June 2018; (

b) Support for 2018 and 2019 should be based on his line 150 incomes for those years; (

c) Support should stop for two of the children as follows: [5] a. For Taneilyah to stop on 1 September 2018; and, b. For Shaneil to stop on 1 November 2018; (

d) He does not claim undue hardship as part of his support claim until January 2020; (

e) The court should rely on the 2020 and 2021 income he provides; and, (

f) Undue hardship should result in a reduction of his child support below the table amount starting in January 2020. Litigation History 5. The mother started this court case for support on 7 June 2018. The father’s Answer disputed paternity of all four children and he obtained an order for paternity testing made 29 May 2019 by Zisman, J.. No paternity testing took place. 6. In this case there are two temporary support orders: (

a) Zisman, J. order, made 10 October 2019 for $1,705 per month for four children, from 1 November 2019 on income of $71,825; and, (

b) Zisman, J. order, made 6 March 2020 for $1,433 per month for three children from 1 Nov. 2019 on 2018 income of $71,825. 7. The claims regarding custody, access, travel and incidents of custody were settled on 22 October 2020.

8. The father amended his Answer on 11 November 2020 (about three weeks before the trial) to claim reduced child support due to undue hardship under the Child Support Guidelines. [6] 9. The father has 11 children with four mothers.

These are the father’s other children who are not part of this court case: Child’s name Date of birth Age at trial Mother Kaydian Edwards- Johnson Mother Natasha Wiggan Mother Eaideann Williams Aneila Hughwanna 2 April 2007 13 x Neil Tyree 5 Sept. 2008 12 x Shani’ah Johnson 18 Dec. 2010 ~10 x Khanell Josiah 20 June 2012 8 x Janeil 6 May 2015 5 x Treyneil 6 May 2018 2 x Ashneil 28 July 2020 5 mos x 10 . The father has a child support order and an agreement regarding support for four of these children: (

a) Consent order of Clay, J. [7] made 10 November 2016 (neither parent was represented by lawyers) for three children (Aneila, Neil and Khanell), as follows: i. Table support is $1,766 per month on 2016 income of $95,000; ii. Court order is $1,200 per month due to undue hardship; iii. The reduction of $566 per month in future is to be based on the father’s total income and on on-going proof that he is paying monthly child support for six other children, to be provided with annual financial disclosure; iv. There will be no change to the table amount if the father’s income changes by plus or minus $10,000; v.

The mother is to pay all s. 7 expenses; and, vi. The father shall make annual financial disclosure. (

b) A separation agreement signed 16 November 2020 for $200 per month for one child Shani’ah (no income is specified, and no start date is shown). 11 . The father has three children with his current wife, Eaideann Williams (5 years, 2 years, and 5 months old). Positions at Trial 12 . The mother claims income should be imputed to the father and child support for four children should be based on these incomes: 2018 $168,167 2019 $152,748 2020 $111,542 13 . The father claims that: (

a) support should start on 7 June 2018; (

b) These are the incomes the father says the court should rely on for child support purposes;

2018 $71,825 2019 $111,542 2020 $24,000 2021 $48,000 (

c) The court should order support based on his line 150 incomes for 2018 and 2019, for four children, and then for two children; [8] (

d) all 11 or nine children should be treated equally, and the court should order the same amount of support for each of the children; (

e) these four children should not be treated any better than any of the other children. The court should make a finding under s. 10 of the Child Support Guidelines regarding undue hardship, which finding would result in a reduction of his child support payments from the table amount; (

f) from 1 January 2020 onwards, the court should determine his income for support purposes, then determine the support that would be paid for 11 children, or nine children [9] , and apportion support per child accordingly (that is, divide the support for 11 children by 11, then multiply that number by four, to determine support for these four children); [10] (

g) there should be no support paid from January to June 2020 as he was not working; and, (

h) in determining the household ratios regarding the claim for undue hardship, the court should impute income to the mother of $60,000, or $50,000, or $40,000, or $30,000. Father’s Income The Law 14 . These are the child support issues in this case: (

a) what is the father’s income for child support purposes, that is, not what is he earning, but rather, whether there should be income imputed to him for the purposes of child support; (

b) what is the proper start date for child support; and, (

c) are the two oldest children, Taneilyah and Shaneil, eligible for child support. 15 . The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency. [11] 16 . Section 19(1) of the Child Support Guidelines addresses imputing income: i. 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: 1. (

a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse;

17 .

Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he is capable of earning. [12] 18 .

There is a duty to seek employment in a case where a parent is healthy. [13] 19 . There is no need to find a specific intent to evade child support obligations before income is imputed. The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income. [14] 20 . Section 19(1)(

a) of the Child Support Guidelines permits a court to impute income to a parent who is intentionally underemployed. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity. [15] 21 . A parent cannot pursue an improvident career path at the expense of the child. [16] 22 .

As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [17] 23 . The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. T he fundamental principle is that the court must estimate the actual means which the parent has available for child support. [18] 24 .

These are the general principles to be considered regarding child support and when determining whether to impute income: [19] (

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices; (

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children; (

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent; (

d) Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control; (

e) The determination to impute income is discretionary, as the court considers appropriate in the circumstances; (

f) Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision; (

g) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her

children, unless the parent establishes the reasonableness of his or her course of action; and, (

h) A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income. 25 . The support recipient bears the burden of proving that the support payor is intentionally under-employed. If the court is not satisfied that the support payor is intentionally under-employed, the inquiry ends there. Once you establish underemployment, the onus shifts to the payor to show one of the exceptions of reasonableness. Parents can take jobs with less money, as long as the decision is reasonable.

The onus of proving the payor is intentionally underemployed is on the recipient. If proved, the onus then shifts to the payor to establish an acceptable reason. Intentional underemployment requires a voluntary act by the payor. [20] 26 . Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. [21] 27 . Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness.

When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. [22] 28 . A parent is not to be excused from his child support obligations in furtherance of unrealistic or unproductive career aspiration. [23] 29 . The court may draw an adverse inference and impute income where a payor fails to comply with disclosure obligations. [24] 30 . Once the court determines that the father is under-employed, the next step is to determine what the father is capable of earning. 31 .

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence. [25] 32 . Even if the court decides to impute income due to the payor’s reckless behaviour or misconduct, it is not bound to impute income at the payor’s previous income level.

It can impute income in an amount different than what the payor had been previously earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. [26] 33 . A self-employed person has the onus of demonstrating the basis of his net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. [27] 34 .

Self-employed persons have an inherent obligation to put forward not only adequate but comprehensive records of income and expenses, from which the court can draw conclusions and the amount of child support can be established. [28] 35 . These are the legal considerations for imputing income to a person who, due to their own fault, is not earning what they are capable of earning: [29] The list of categories set out in

section 19 is not exhaustive. The court has the discretion to impute income in circumstances that are not only analogous but also those in which imputation would be consistent with legislative intent. [30]

The wording of

section 19 of the Guidelines is open-ended (“which circumstances include”), indicating that the categories listed in that

section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can and should be imputed. [31] Many cases have held that where a payor quits his or her employment, their previous level of income will continue to be imputed to them, irrespective of whether they have become unemployed or employed at a lower wage.

At the other end of the continuum, the caselaw has generally held that where a payor loses employment through no fault of their own, the resulting change in income will generally constitute a material change in circumstances, justifying adjustment of the support order. In some cases, it is difficult to determine if a payor is a victim of unfortunate financial circumstances, or whether he or she is the author of their misfortune. 36 . When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances.

The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent, the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands, and the hourly rate that the parent could reasonably be expected to obtain. [32] 37 . When imputing income, the court must consider the amount that can be earned if a person is working to capacity. [33] 38 .

In determining a party's capacity to earn income, the principles which the court should consider include the following: [34] (

a) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children; [35] (

b) The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un- remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments; [36] (

c) If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations; [37] (

d) When a parent experiences a sudden change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children; [38] (

e) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; [39] (

f) The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute; [40] and, (

g) A parent who decides to stay at home to care for subsequent children, or to work in the home at a reduced rate so that they can continue to care for the children, may be imputed a reasonable income in the absence of evidence to support a finding that the parent's underemployment is required by the needs of the subsequent children within the meaning of section 19(1)(

a) of the Guidelines. [41]

39 . The burden of proof is on the payor to satisfy the court on a balance of probabilities the amount of income upon which child support should be based. Where this information is lacking or is insufficient, the court may need to rely on other information. [42] 40 . Lifestyle can provide the criteria for imputing income. [43] 41 . Lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support. [44] 42 .

The court will usually draw an adverse inference against a party for his failure to comply with the disclosure obligations (as provided for in the Family Law Rules , the Family Law Act , and the Child Support Guidelines [45] ), and impute income. [46] 43 . A payor cannot fail to comply with the rules about disclosure and then benefit from his behaviour. [47] 44 . The court can consider and take into account monetary gifts that the payor received in determining his income. [48] The Evidence and Findings about the Evidence 45 . The mother has worked at the Radisson Hotel since 2012.

Her income has been supplemented throughout the years by Ontario Works. Her recent income is as follows: 2017 $60,939 2018 $58,356 2019 $62,131 46 . During the health emergency the hotel has been set up as a quarantine centre for travellers from Pearson Airport. The mother was laid off and has not had any work there since March 2020. She still has this job, but she does not know when she will be returning to work at the hotel. 47 . During the health emergency she has received the Canadian Emergency Relief Benefits (CERB), and since September 2020, employment insurance.

She also has income from social assistance and the child tax benefits. She expects to earn about $33,000 in 2020. 48 . The mother has two other children from a previous relationship, and they are not part of this court case. 49 . At trial, the children were 19, 17, 14 and 10 years old. Although the application claimed support for four children, the mother was seeking support for only two children before the trial started.

At the trial, she amended her evidence and her position to claim support for all four children, all of whom she says are in school and live with her. [49] She said she was intimidated by the father to drop her claim for support for the two oldest children, and by the fact that the father pressured the two oldest children to say they were not eligible for support. [50] 50 . The father was certified as a truck trailer service technician by the Ontario College of trades in 2007. He has worked as a mechanic technician since 2004 and has worked at Trailer Wizards from 30 March 2010 until 10 January 2020.

He was the lead mechanic after 2015. The father says he was laid off from this job, but his Record of Employment states that he quit this job. He says that his income fluctuates due to overtime. His recent income history (line 150 on his Income Tax Returns) is as follows: Year Line 150 income 2013 $70,878

2014 $85,420 2015 $115,116 2016 $100,456 2017 $92,018 2018 $71,825 2019 $111,542 51 . The father denies that he worked for cash for additional income, or that he earned income he did not report to Canada Revenue. 52 . The father is the sole shareholder of the company NEJ Truck and Trailer Services Inc., incorporated in October 2019. He started his own business in January 2020. He expects to earn $24,000 in 2020 and $48,000 in 2021. When he disclosed that he was working for this company on 27 August 2020, and provided a paystub, he did not disclose that he was the sole shareholder of the company .

On 8 October 2020 he disclosed an employment contract with the company dated 19 June 2020. The mother did not learn he was the sole shareholder of the company until 2 November 2020. 53 . The father says that he did not apply for CERB, and that he applied for employment insurance, but the application was denied. 54 . The mother says that the father paid no support for the children until after she started this court case in 2017 (the children were then 17, 15, 12 and 8 years old), and until the first temporary support order was made on 10 October 2019.

The father says that he gave the mother money for support, and that he gave the children money directly. There was no evidence to support his claim. 55 . The father’s current wife, Eaideann Williams, is 29 years old. He sponsored her to come to Canada about two years ago. She is not working outside the home and has not worked for about two years. She was a teacher in Jamaica but has not worked in Canada.

Despite the mother making requests for disclosure about the wife’s finances (including requesting a sworn financial statement and a current resume) the father provided no disclosure about her, other than notices of assessment. [51] 56 . The father made significant bank deposits in recent years: Year Line 150 income Bank deposits Deposits from employer 2018 $71,825 $109,969.54 $67,118.44 2019 $111,542 $101,946.99 $70,017.70 2020 $33,295.96 (9 months) 57 . The father could not recall the source of some of the deposits. He says that his father gave him money that he deposited as a gift for living expenses.

He says that his sister gave him money ($2,200 in 2020). He says that some friends lent him money and he deposited that money. The loans from friends are not shown as debts on his financial statements. None of the money received as gifts was shown as income. The deposits from his wife Eaideann Williams (total $11,300 in 2020) he says came from her parents (who are nurses living in New York). There was no independent or documentary evidence to support any of this. 58 . The father filed three financial statements in the court case (sworn 13 May 2019, 9 September 2020 and 25 November 2020).

These are findings from the father’s financial statements: (

a) He pays $1,400 per month for housing; (

b) He pays transportation costs of $1,010 per month (including $520 per month for car lease, and $280 per month for public transit or taxis); (

c) He was contributing in 2019 to an RRSP or RESP, however, he did not provide disclosure about the amount being held in these plans; (

d) He leased a BMW X5 in 2018 (the lease is shown as worth $17,000);

(

e) His expenses considerably exceed his income (2020 expenses $78,660 per year, 2020 income $24,000), yet he shows no debt other than a $1,000 credit card debt. 59 . These are findings from the disclosure produced by father: (

a) The father did not produce the requested disclosure about his business, including corporate bank accounts, credit cards, line of credit statements; (

b) His wife transferred significant sums to his bank account ($11,300 in 2020). He says that money came from her parents, but provided no proof of this; (

c) The father provided a copy of his passport issued in March 2020 and did not provide his previous passport; (

d) While his income on the two 2020 financial statements is less than the income on his 2018 financial statement, his net worth is greater, with almost no debt; (

e) A recent Equifax report (7 October 2020) shows two credit enquiries by a mortgage company dated 21 and 24 September 2020, which enquiries the father could not explain; and, (

f) Father’s income and bank deposits information: Year Line 150 income Bank deposits Deposits from employer Income mother claims father earns Income father claims he earns 2013 $70,878 2014 $85,420 2015 $115,116 2016 $100,456 2017 $92,018 2018 $71,825 $109,969.54 $67,118.44 $168,167 $71,825 2019 $111,542 $101,946.99 $70,017.70 $152,748 (notice of assessment) $111,542 2020 $33,295.96 (9 months) $111,542 0 to 2020 06 30 $24,000 2021 $111,542 $48,000 60 .

The court finds that all four children are eligible for support (with a break of one year for Taneilyah (the eldest), who was not in school from September 2019 to September 2020). All of the children are living with the mother and are in school. And support can be reinstated for an adult child after a hiatus in entitlement. [52] 61 . Where there are disputes in the evidence the court makes the following findings: (

a) The father failed to make disclosure of significant and relevant matters during the litigation; (

b) He delayed making disclosure, failed to produce requested, reasonable disclosure and did not make full and frank disclosure as required; (

c) He has not provided adequate disclosure to conduct a proper standard of living analysis under the undue hardship provisions of the Child Support Guidelines;

(

d) he was not forthright and honest with the court on many issues, including his sources of income, the source of the bank deposits, and his current working situation; (

e) he did not disclose additional income received by him from his father, his wife, and other unnamed persons; (

f) he quit his job in January 2020; (

g) he could not explain the discrepancy between the amount of bank deposits and his reported incomes for the years 2018 and 2019; (

h) The court can look to the deposits in his bank account to determine his income and the money that was available to him each year; (

i) He paid no child support for the four children until the court order made 10 October 2019, and then paid support for what appears to be one to two months; (

j) He benefitted financially for many years by not paying any support for these four children; [53] (

k) The mother has been solely financially responsible for the children since their birth; (

l) During the litigation (since 2017) his net worth has increased, his lifestyle has improved, he has sponsored his wife to Canada, he has leased a car and he has no significant debt; (

m) he knew, from at least the consent court order of Clay, J. made 10 November 2016, that he had to pay child support, that it was based on his income and that it was in accordance with the Child Support Guidelines; (

n) little or no weight is to be given to the separation agreement signed by the father and Natasha Wiggans on the very eve of the trial (on 16 November 2020) regarding the child support obligation for that child; (

o) from January 2020 he has only provided for the three children he is living with; (

p) his child support obligation to these children should not be affected by his decision to start his own business; (

q) he tells the children he is busy because he is going to work; (

r) he has underreported his income by significant amounts for a number of years; (

s) he is capable of earning this year what he earned last year; (

t) if he is actually earning what he says he is earning in 2020 ($24,000 for the entire year) he is significantly under-employed; and, (

u) If his evidence is to be believed, all of the other seven children have had the benefit of receiving child support from him. [54]

The court suspects that the father is actually earning what he is capable of earning and is not disclosing it. If he is not earning what he is capable of earning, it is due to his own decisions and his own fault. Imputing Income to The Father 62 . The children are now 19, 17, 14 and 10 years old. The father has not supported these four children for their entire lives. During this period, he earned a good income, and, according to his evidence, was supporting other children.

A support order was made on 19 October 2019 for these four children, which it appears he may have paid for one to two months before he stopped paying in January 2020. In fact, according to the father’s evidence, these four children are the only children of his that he has not supported. 63 . The mother has supported these children on her own since their birth. She has worked, has had the benefit of additional income from social assistance and receives the child tax benefits. But it has been an onerous situation for her to support four children and she has struggled. 64 .

These four children are the oldest of the father’s children. While he was still in a relationship with the mother, he began relationships with two other women, and had four children with them (three children with Kaydian Edwards-Johnson, and one child with Natasha Wiggins). Then he sponsored his current wife, Eaideann Williams, to come to Canada and had three children with her in five years, including a child born only a few months before the trial started. 65 . It is hard to understand the decisions that the father has made to have eleven children. No explanation was offered. He is 40 years old.

He does not appear to believe that it is his obligation to support his children. He could not answer when asked who he thought would support all his children. 66 . The father has earned a significant income for many years. His recent five-year average income is $98,191.40 per year . But for all those years, he was not supporting these four children. 67 . The father’s behaviour regarding the number of children he has had, and regarding support for these four children, has been flagrant, reckless, unacceptable and quite surprising. 68 .

There has been a consent child support order in place regarding three others of the father’s children since 10 November 2016. That order shows that support is based on the payor’s income and that the court looks to and can rely on the table amount of support in the Child Support Guidelines. The father has known since at least 2016 that he has a legal obligation to support his children, that the support is based on his income and that the court uses the tables in the Child Support Guidelines to determine support. 69 . The father has clearly failed to recognize his child support obligation , and intentionally so.

He has made choices in this litigation not to make full and frank disclosure, and in fact, not to even make the minimum level of disclosure required in such cases. He has chosen to have eleven children. 70 . The father has made choices which contributed to his current financial situation. In 2020 he has made choices about his financial situation which allow him to claim that his income for 2020 should be $24,000, and to claim that he cannot afford to pay the table amount for his children. He is intentionally under-employed.

His children should not be subsidizing his desire to start his own business, particularly after so many years earing a significant income. And his four oldest children (in this court case) should not be subsidizing his care of his seven other children, and particularly his care of his three youngest children with his current wife. These four oldest children have been doing this now for many years. 71 .

In determining an amount to impute as income for the father for child support purposes, the court reviewed the age, education, experience, skills and health of the father, as well as his past earning history, the amount of income he could earn if he worked to capacity, the money he has actually earned over the last five years, his recent work history, and his ability to earn income, to determine an amount that is fair and reasonable. 72 . The court also reviewed the significant amounts of money deposited into his bank accounts in 2018 and 2019, and the amounts of

money received by him from sources other than employment. While lifestyle is not income, it is evidence that the payor may have undisclosed income. 73. The court can draw an adverse inference against a party for his failure to comply with the disclosure obligations (as provided for in the Family Law Rules , the Family Law Act , the Child Support Guidelines, and in this case, a consent disclosure order), and did so in this case. 74 . All support paying parents have an obligation to maximize their income. Income shall be imputed to the father under s. 19 of the Child Support Guidelines, at these amounts.

For the years 2018 and 2019, income is imputed to him consistent with the total deposits in his bank accounts in those years, then grossed up to take into account tax and other deductions. For 2020 income is imputed to him at the level of income shown on his line 150 on the Income Tax Return for 2019. Year Income Imputed 2018 $168,167 2019 $152,748 2020 $111,542 75. Child support for these four children should start on 1 January 2018 (a very reasonable start date requested by the mother, who has not received any support for these children for many years (the oldest child is 19 years old)). 76.

All four children are eligible to receive support, except for the one-year period September 2019 to September 2020, when only three children are eligible to receive support. Undue Hardship The Law 77. The objectives of the Child Support Guidelines are set out in

section 1: a. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; b. to reduce conflict and tension between spouses by making the calculation of child support orders more objective; c. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and d. to ensure consistent treatment of spouses and children who are in similar circumstances.

Section 3 of the Guidelines sets forth the presumptive rule that the amount of child support provided for in the tables, together with any "add ons" under

section 7 for special or extraordinary expenses, is the amount which the payor is required to pay for children under the age of majority. This presumptive rule can be deviated from in certain defined situations. One of those situations is where a payor can establish that the amount he or she is required to pay under the guidelines would cause "undue hardship" to either the payor or to a child in respect of whom the request for relief is made. [55] 79. Claims for u ndue hardship are governed by

section 10 of the Guidelines: Undue hardship 10.

(1) On the application of either spouse or an mother under

section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include, (

a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living; (

b) the parent or spouse has unusually high expenses in relation to exercising access to a child; (

c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is, i. under the age of majority, or ii. the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; (

e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education; (

f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II. Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so. 80. Courts across Canada have taken a very restrictive approach to undue hardship claims. The rationale for doing so is so as not to dilute or undermine the primary objectives of the Guidelines , those being to establish certainty and consistency in child support. [56] 81. It is very difficult to establish a successful undue hardship claim under

section 10 of the Guidelines. [57] Proving undue hardship involves meeting a high threshold. [58] 82. Undue hardship applications should be the exception, not the norm. [59] 83. There are three parts to the test for undue hardship: [60] (

a) The person making this claim must show that there are circumstances that could create undue hardship; (

b) If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s; and, (

c) If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties. [61] But the court also retains the discretion to refuse a reduction in the table amount even if the first two parts are made out. [62]

84. The first step in determining whether there is undue hardship involves a degree of subjective judicial discretion and lacks the precision and predictability of a mathematical calculation. [63] 85. The undue hardship test under

section 10 of the guidelines is two-fold. The spouse applying for relief under this

section must prove that payment of the table amounts would cause undue hardship under subsection 10(1) having regard to the criteria in subsection 10(2). [64] 86. Subsection 10(2) sets out a non-exhaustive list of circumstances which may give rise to a finding of undue hardship. If this test is met, the applicant must go on to establish that, if required to pay the amount of support otherwise payable under the guidelines, the standard of living of his or her household would be lower than that of the household of the other party.

If this dual test is met, the court has the discretion to award a different amount of support than that otherwise required under the Guidelines. [65] 87. Even if these two tests are met the court has discretion to refuse to reduce child support. 88. In the first part of the test under

section 10, the respondent must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. [66] The term "undue" has been interpreted by appellate courts as "excessive, extreme, improper, unreasonable, unjustified . . . more than awkward or inconvenient", [67] and as "excessively hard living conditions". [68] 89. The respondent has the onus of providing adequate supporting documentation to prove his undue hardship claim. [69] 90.

Where a payor alleges undue hardship due to a duty to support a second family, the payor should provide cogent evidence from which the court may reasonably infer that the children of the second family would suffer significant deprivation if the table amount of support were ordered for the children of the first family. [70] 91. The issue is not whether the father has a lower household standard of living than the mother, or whether the father is suffering hardship. The issue is whether that hardship is "undue" as that term has been defined in the case law. [71] 92.

Second families and attendant support obligations are not uncommon and the mere fact a payor’s household standard of living is lower than that of the other parent, due in part to the payor’s legal duty to another child, does not automatically create circumstances of undue hardship within the meaning of the Child Support Guidelines. [72] The Evidence and the Findings about the Evidence 93. The first part of the undue hardship test is that the father must show hardship that is exceptional, excessive or disproportionate, not merely awkward or inconvenient. The father did not meet his onus of proving this.

With respect to the first stage, the father failed to provide adequate evidence to support his claim for undue hardship. 94. These are facts that support the determination that the father does not meet with first part of the test, the undue hardship part: (

a) The father paid no support for the children (now 19, 17, 14 and 10 years old) for many years, until the court order made 10 October 2019, after which he paid support for one or two months; (

b) He benefitted financially for many years by not paying any support for these four children; (

c) He admitted that he paid no support in 2020 for any of the eight other children, other than the three children he is living with;

(

d) He quit his job in January 2020, a job in which he earned $111,542 in 2019; (

e) He did not apply for CERB, and applied for employment insurance, which application was denied; (

f) He is supporting his 29 year old wife and their three children (ages 5, 2 and 5 months). He sponsored his wife to come to Canada; (

g) the mother requested disclosure about his wife’s finances (including requesting a sworn financial statement and a current resume) and he provided no disclosure about her, other than notices of assessment; (

h) In 2018 he deposited $109,969.54 into his bank account and in 2019 he deposited $101,946.99; (

i) He did not make full and frank disclosure in the litigation, and did not produce the required disclosure about his business, including corporate bank accounts, credit cards, and line of credit statements; (

j) He did not make full and frank disclosure about the source of deposits into his bank and did not disclose on his three financial statements significant amounts he says he received from friends and from his wife’s parents as either income or loans, and he produced no evidence to prove who this money was from; (

k) He pays $1,400 per month for housing; (

l) He pays transportation costs of $1,010 per month; (

m) He was contributing in 2019 to an RRSP or RESP, however, he did not provide disclosure about the amount being held in these plans; (

n) He made two recent mortgage applications (in September 2020); (

o) His expenses considerably exceed his income (2020 expenses $78,660 per year, 2020 income $24,000), yet he shows no debt other than a $1,000 credit card debt; and, (

p) While his income on the two 2020 financial statements is less than the income on his 2018 financial statement, his net worth is greater, with almost no debt. 95. The father did not prove, on a balance of probabilities, that it would create an undue hardship, as defined in the case law, for him to pay the table amount of child support for these children. 96. The father is a 40 year old man with 11 children, ranging in age from 19 years to five months. He has had 11 children in 19 years, with four women.

Based on the ages of the children, for some time he appeared to be in relationships with three of the mothers simultaneously, and was having children with three of the mothers. 97. The father’s behaviour regarding his children and the four mothers involved can only be described as flagrant and profoundly irresponsible. He has had large families with three women (four children with the mother in this case, and three children each with two other women). He has had two more children since this court case was started.

And, when he already had eight children, and was not paying support for some of them, perhaps not for any of them, he started a relationship with a financially dependent woman, and had

three more children in five years with her. 98 . The father has made these decisions, and now he wants to benefit from those decisions by reducing the amount of support for the oldest four children. He expects the court, or more significantly, his oldest four children, to accommodate, and even validate those decisions, by the court awarding and the children receiving reduced support for those children. 99. The father has unrealistic expectations about who is supposed to be supporting these children. Whose responsibility are all these children? They are his responsibility.

These children are not just the responsibility of the four women who had children with him. And they are not just the responsibility of the Canadian taxpayer, who has contributed substantially and for many years to the support of these children. The father did not pay support for these four children when he had such an obligation for 18 years . This is an astonishing fact, especially given that during many of those years [73] the father was earning a significant income (average income was over $92,000 for those seven years).

As well, the father has known the nature of the child support obligation and how it would be calculated after the consent court order of Clay, J. made 10 November 2016. Yet he still did not pay support. 100. The basis of the father’s undue hardship claim is that he has a support obligation for his seven other children. That is a circumstance that can support an undue hardship claim (s. 10(2)(

d) of the Child Support Guidelines). But he did not establish to the court’s satisfaction that he pays any child support for any other children (other than the three children he lives with). There is no evidence that the father is actually paying support for any of his eleven children, other than the three children he is living with. None of the three mothers of his seven other children [74] gave evidence at the trial. If he wants the court to take into account his legal responsibilities to support seven other children, he must be actually paying to support those children.

He provided no evidence that he is paying support for any of his children. He admitted that in 2020, he is not supporting any of his children (other than the three children he lives with). And he is supporting his wife (their mother) who does not work outside the home. The onus was on him to prove that he is paying these child support obligations, not merely that he has these legal obligations. 101. The court was left with the distinct impression that the amounts the father claims to owe regarding his seven other children are being used by him to facilitate his undue hardship claim. 102.

The father’s circumstance is of his own making. He created this situation. He keeps having children that he now claims he cannot afford. He has made choices to have eleven children. He has a legal obligation to support all of them. This court case, however, is about his legal obligation to support these four children (Taneilyah, Shaneil, Janeil, and Daneilyah). 103. Given the father’s dismal history of paying child support for these four children, the court is not prepared to accept that he is suffering any undue hardship due to his support obligations for his other children. 104.

Payment of the table amount of support for these four children may be inconvenient for the father. It will not be exceptional, excessive or disproportionate. It may mean, in fact, that these four children are put first by him for what is likely the first time in their lives. 105.

The second part of the test, the household standard of living comparison, is only conducted once the court has made a finding of undue hardship. [75] Since the father did not meet the first part of the undue hardship test, it is unnecessary for the court to analyze the next part of the test — whether the father's household standard of living is lower than the mother's household standard of living. 106.

However, in all of the circumstances of this case, if the father does meet the first part of the test for undue hardship, and if his household standard of living is considered to be lower than that of the mother ( neither of which is found by the court), the court would exercise its discretion to not adjust the table amount of support by reducing it. 107. The father's claim to reduce support based on undue hardship is dismissed, for all the reasons set out above. Treating all Children Consistently 108. The objectives of the Child Support Guidelines are set out in

section 1: (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(

b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and, (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. 109. The father argues that the Child Support Guideline’s objectives mandate equal treatment for all his children. He argues that s. 1(d) “ consistent treatment of children who are in similar circumstances” means equal treatment. He argues that this this means that they should all be receiving exactly the same amount of child support. 110. This is what the father seeks: (

a) all 11 children, or nine dependent children [76] should be treated equally, and the court should order the same amount of support for each of the children; (

b) these four children should not be treated any better than any of the other children; (

c) from 1 January 2020 onwards, the court should determine his income for support purposes, determine the support that would be paid for 11 children under the tables, and apportion support per child accordingly (that is, divide the support for 11 children by 11, then multiply that number by four, to determine support for these four children). 111. Equal treatment (and equal amounts of child support) for all of the father’s children is not what s. 1(

d) of the Guidelines says. It does not refer to equal treatment, it refers to consistent treatment of children in similar circumstances. That may or may not mean that all children should receive the same amount of child support. 112. These 11 children are not in similar circumstances to each other. In fact, these 11 children have never been in similar circumstances. In every way, the four oldest children [77] have been at the greatest disadvantage of all of the 11 children, and have not ever been supported financially by the father.

Three of the other children [78] have had a child support court order in their favour since 2016. The three youngest children [79] have lived with the father for their entire lives, have been supported by him, have had the benefit of him supporting their mother (who has been at home caring for them full time), and have had the benefit of his significant income in their own household. [80] There was scant evidence about the other child [81] but that child has a separation agreement for child support in her favour (although only very recently signed (20 November 2020)). 113.

The oldest four children have never lived with the father, he has never supported their mother (who has worked for many years [82] to support them) and they have never had the benefit of his significant earning power in their own household. As well, he has never paid support for these four children, although for many years he was earning a significant income. 114. Due to the fact that they have not received support from the father, for many years (the oldest child is 19) these four children have been subsidizing the father’s life and his choice to have seven other children.

They have particularly subsidized his life with his current stay-at-home wife and their three children. 115. Should the father’s argument be adopted, it would not mean lower child support for these four children. It might mean that these four children are now entitled to be supported in the same way and at the same level that the other seven children have been supported, particularly at the level that the three youngest children have been supported while living their entire lives in the father’s household, with a stay-at-home mother. 116.

The father’s argument for equal treatment of all children, meaning that the table amount should be reduced, is without merit, and is not the law.

Orders 167. The father shall pay child support to the mother, according to the Child Support Guidelines table amount, for the children, asfollows: (

a) From 1 January 2018, for four children, $3,527 per month on imputed income of $168,167; (

b) From 1 January 2019, for four children, $3,255 per month, on imputed income of $152,748; (

c) From 1 September 2019, for three children, $2,738 per month, on imputed income of $152,758; (

d) From 1 January 2020, for three children, $2,102 per month, on imputed income of $111,542; and, (

e) From 1 September 2020, for four children, $2,502 per month, on imputed income of $111,542. 170. Father shall produce to mother every year by 1 July, starting in 2021, copies of his Income Tax Returns and Notices ofAssessment pursuant to s. 24.1 and the disclosure requirements of the Child Support Guidelines. 171. The other claims made by the parents not otherwise specifically addressed are dismissed. Costs 172. The mother was successful at trial and is entitled to her costs.

The parties may make submissions regarding amount of costsonly, in writing, maximum two pages (plus Offers to Settle and summaries of time spent). Submissions shall be filed with a Form 14B. This is the timeline for submissions: Mother by Friday 29 January 2021 Father by Friday 12 February 2021 Released: 2021 01 12 _________________________ Justice Curtis [8] For Taneilyah to stop on 1 September 2018; for Shaneil to stop on 1 November 2018. [11] Lee v. Lee, (Nfld. C.A.). [12] Drygala v.

Pauli, (ON CA), 2002 CarswellOnt 3228, 29 R.F.L. (5th) 293, [2002] W.D.F.L. 406, 219 D.L.R.(4th) 319, 61 O.R. (3d) 711, 164 O.A.C. 241 (Ont. C.A.), para 31, 32, 35.

[13] Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 38. [14] Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 28. [15] Drygala v. Pauli, supra, 2002 (Ont. C.A.). [16] Evans v. Gravely, (ON SC), [2000] O.J. No. 4748 (Ont. Sup. Ct.), para. 10. [17] Weir v. Therrien, (ON SC), [2001] O.J. No. 2612, 20 R.F.L. (5th) 199, 106 A.C.W.S. (3d) 494 (Ont. Sup. Ct.),para 25. [20] Rilli v. Rilli, [2006] O.J. No. 4142, , 2006 CarswellOnt 6335, 151 A.C.W.S. (3d) 1130 (Ont. Sup. Ct.), para 18. [21] Lo v. Lo, 2011 ONSC 7663 (Ont. Sup. Ct.). Charron v. Carriere, 2016 ONSC 4719 (Ont. Sup. Ct.). Tahir v. Khan, [2021] O.J. No. 12 (Ont.

Ct.), para. 38. [23]Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 39. [25]Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 44. [26]Menegaldo v. Menegaldo, 2012 ONSC 2915 (Ont. Sup. Ct.). Tillmans v. Tillmans, 2014 ONSC 6773 (Ont. Sup. Ct.). [30] Bak v. Dobell (2007) 2007 ONCA 304 , 86 O.R. (3d) 196 (Ont. C.A.) [31] Riel v. Holland (2003) , 67 O.R. (3d) 417 (Ont. C.A.). [32]Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 45. [33] Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 46. [35] L. (N.) v. P. (B.), (ON SC), 2000 CarswellOnt 2487 (Ont. Sup. Ct.). [36] Hanson v.

Hanson, (BC SC), 1999 CarswellBC 2545 (B.C.S.C.); L. (N.) v. P. (B.), supra, 2000 (Ont. Sup. Ct.) [37] Lawson v. Lawson, (ON CA), 2006 CarswellOnt 4789, [2006] O.J. No. 3179, 214 O.A.C. 94, 29 R.F.L. (6th) 8,81 O.R. (3d) 321 (Ont. C.A.); Blake v. Blake, 2000 CarswellOnt 2477 (Ont. Sup. Ct.). [38] Barta v. Barta, 2005 CarswellOnt 74 (Ont. Sup. Ct.); M. (S.D.) v. M. (K.F.), 2004 CarswellBC 70 (B.C.S.C.); Quintal v. Quintal, 1997 CarswellOnt 3213 (Ont. Gen. Div.). [40] Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.). [41] Lachapelle v. Vezina (2000), (ON SC), 11 R.F.L. (5th) 328 (Ont. Sup.

Ct.). [42] Scholes v. Scholes, (ON SC), 2003 O.J. No. 3432 (Ont. Sup. Ct.). [43] Aitken v. Aitken [2003] O.J. No. 2780 (Ont. Sup. Ct.); Jonas v. Jonas [2002] O.J. No. 2117 (Ont. Sup. Ct.); Price v. Reid, 2013 ONCJ 373 (Ont. Sup. Ct.). [46] Smith v. Pellegrini, (ON SC), [2008] O.J. No. 3616, (Ont. Sup. Ct.); Maimone v. Maimone, (ON SC), [2009] O.J. No. 2140, (Ont. Sup. Ct.). [52] F. (R.L.) v. F. (S.) (1996), (ON SC), 26 R.F.L. (4th) 392 (Ont. Gen Div.). MacLennan v.

MacLennan, 2003 NSCA 9 Canlii (N.S.C.A.). [53] In claims for retroactive or historical support, the court can take into account the benefit to the payor of unpaid child support for thefull time in which it was unpaid. Michel v Graydon, 2020 SCC 24 (S.C.C.), para. 125.

[55] Ponte v. Paiva, 2010 ONCJ 603, 2010 CarswellOnt 10353, 2010 ONCJ 603, [2011] W.D.F.L. 2338, [2011] W.D.F.L. 2342, 197A.C.W.S. (3d) 460 (Ont. Ct.), para. 6. [56] Ransom v Coulter, [2017] N.W.T.J. No. 50, 2017 NWTSC 47 (N.W.T. S.C.), para. 5. [57] Ponte v Paiva, supra, 2010 (Ont. Ct.), para. 5. Honigan v Lincoln, supra, 2011 (Ont. Ct.), para. 50. Dormer v Tucker, supra, 2014 (Ont. Ct.), para. 50. Reid v. Fortune, 2018 ONCJ 486 (Ont. Ct.), para. 19. Barnes v. Thompson, 2020 CarswellOnt 1873, 2020 ONCJ 81, 315 A.C.W.S. (3d) 525, (Ont. Ct.), para. 27. [60] Honigan v Lincoln, supra, 2011 (Ont. Ct.), para. 50.

Dormer v Tucker, supra, 2014 (Ont. Ct.), para. 50. Reid v. Fortune, supra, 2018 (Ont. Ct.), para. 19. Barnes v. Thompson, supra, 2020 (Ont. Ct.), para. 27. [61] Matthews v. Matthews, (ON SC), [2001] O.J. No. 876 (Sup. Ct.). [62] Ransom v Coulter, supra, 2017 (N.W.T. Sup. Ct.), para. 6. Honigan v Lincoln, supra, 2011 (Ont. Ct.), para. 51. Dormer v Tucker, supra, 2014, (Ont. Ct.), para. 51. Ransom v Coulter, supra, 2017 (N.W.T. S.C.), para. 8. Reid v. Fortune, supra, 2018 (Ont. Ct.), para. 20. Barnes v. Thompson, supra, 2020 (Ont.

Ct.), para. 28. [68] Ellis v Ellis (1999), 1999 NSCA 31 , 45 R.F.L. (4th) 234 (N.S.C.A.). Ransom v Coulter, supra, 2017 (NWT. S.C.), para. 19. [69] Van Gool v. Van Gool, supra, 1998 (B.C.C.A.). Marrone v Marrone, supra, 2007 (Ont. Sup. Ct.). Dormer v Tucker, supra, 2014 (Ont. Ct.), para. 52. Reid v. Fortune, supra, 2018 (Ont. Ct.), para. 21. Barnes v. Thompson, supra, 2020 (Ont. Ct.), para. 29. [71] Ransom v Coulter, supra, 2017 (N.W.T. S.C.), para. 15. [75] Barnes v. Thompson, supra, 2020 (Ont. Ct.), para. 37.