Drygala v. Pauli, (2002) 164 O.A.C. 241 (CA)

• Judge: Laskin, Borins and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 02, 2002
• Jurisdiction: Ontario
• Citations: (2002), 164 O.A.C. 241 (CA);2002 CanLII 41868 (ON CA);2002 CanLII 41868 (NS CA);61 OR (3d) 711;219 DLR (4th) 319;29 RFL (5th) 293;[2002] CarswellOnt 3228;[2002] OJ No 3731 (QL);164 OAC 241

Drygala v. Pauli (2002), 164 O.A.C. 241 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. OC.008

Anja Maria Drygala (petitioner/respondent) v. Anthony John Pauli (respondent/appellant)

(C36273)

Indexed As: Drygala v. Pauli

Ontario Court of Appeal

Laskin, Borins and Gillese, JJ.A.

October 2, 2002.

Summary:

Spouses divorced in April 2001. The father was ordered to pay child support of $266 per month based on imputed income of $30,000, retroactive to June 1998. The father appealed, submitting that no or less income should have been imputed and that child support should not have been made retroactive.

The Ontario Court of Appeal allowed the appeal in part. Imputed income was reduced from $30,000 to $16,500 and the amount of retroactive child support was reduced.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The Ontario Court of Appeal stated that "a party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion. ... A trial judge has the discretion to award retroactive child support that is fit and just in the circumstances. As part of the exercise of discretion, the trial judge must consider the fairness of such an award including whether it will create an unreasonable debt obligation on the part of the payor." - See paragraphs 53 to 54.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - Spouses divorced - They had a young child - The father quit steady employment ($33,000 in 1996) to attend university to become a teacher - The father was supported by his mother and stepfather, choosing not to obtain part-time employment - The trial judge found the father's educational pursuits reasonable, but also found him intentionally under-employed for the purposes of s. 19(1)(a) of the Federal Child Support Guidelines, and imputed annual income of $30,000 based on available part-time employment - The Ontario Court of Appeal agreed that the father was intentionally under-employed and that his educational pursuits were reasonable - However, the trial judge provided no reasons for selecting $30,000 as imputed income from part-time employment - That figure was unreasonable - Based on the father's course load, it was reasonable for him to work 50% of a normal work week, giving him imputed annual income of $16,500 - See paragraphs 1 to 52.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - The Ontario Court of Appeal stated that "there is no need to find a specific intent to evade child support obligations before income can be imputed. ... The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word 'intentionally' makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work. ... bad faith is not required." - See paragraphs 25 to 30.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - The Ontario Court of Appeal stated that "section 19 of the [Federal Child Support] 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. 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 such as age, education, experience, skills and health of the parent. ... I accept those factors as appropriate and relevant considerations and would add such matters as 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." - See paragraphs 44 to 45.

Cases Noticed:

Williams v. Williams (1997), 32 R.F.L.(4th) 23 (N.W.T.S.C.), disagreed with [para. 24].

Hall v. Hall, [1997] O.J. No. 453 (Gen. Div.), disagreed with [para. 24].

Hunt v. Smolis-Hunt (2001), 286 A.R. 248; 253 W.A.C. 248 (C.A.), disagreed with [para. 24].

Yaremchuk v. Yaremchuk (1998), 218 A.R. 153; 38 R.F.L.(4th) 312 (Q.B.), disagreed with [para. 24].

Goudie v. Buchanan (2001), 203 Nfld. & P.E.I.R. 34; 610 A.P.R. 34 (Nfld. S.C.), disagreed with [para. 24].

Ronan v. Douglas-Walsh (1994), 5 R.F.L.(4th) 235 (Ont. C.J. Prov. Div.), disagreed with [para. 24].

Woloshyn v. Woloshyn (1996), 109 Man.R.(2d) 35; 22 R.F.L.(4th) 129 (Q.B.), affd. (1997), 115 Man.R.(2d) 225; 139 W.A.C. 225; 28 R.F.L.(4th) 70 (C.A.), disagreed with [para. 24].

Montgomery v. Montgomery (2000), 182 N.S.R.(2d) 184; 563 A.P.R. 184; 3 R.F.L.(5th) 126 (C.A.), refd to. [para. 25].

Donovan v. Donovan (2000), 150 Man.R.(2d) 116; 230 W.A.C. 116; 190 D.L.R.(4th) 696 (C.A.), refd to. [para. 25].

Hanson v. Hanson, [1999] B.C.T.C. Uned. 688; 1999 CarswellBC 2545 (S.C.), refd to. [para. 25].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 27].

Cholodniuk v. Sears (2001), 204 A.R. 268; 14 R.F.L.(5th) 9 (Q.B.), refd to. [para. 45].

Brett v. Brett (1999), 119 O.A.C. 94; 46 R.F.L.(4th) 433 (C.A.), refd to. [para. 53].

Hoar v. Hoar (1993), 62 O.A.C. 50; 45 R.F.L.(3d) 105 (C.A.), refd to. [para. 53].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-115, sect. 19(1)(a) [para. 22].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Counsel:

David A. Sloane, for the appellant;

Steven F. McMurray, for the respondent.

This appeal was heard on April 11, 2002, before Laskin, Borins and Gillese, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Gillese, J.A., and released on October 2, 2002.