IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           These Reasons for Judgment flow from a review of the child support obligation owed by a father to his former spouse for the benefit of their 16-year-old son.  It arises in circumstances where the father’s actual income has declined in the wake of a sexual interference conviction.  The victim of the father’s sexual misbehaviour was his granddaughter—that is, the offspring of the parties’ other progeny, their adult daughter.

[2]           The review was initiated by a Notice of Motion filed by the applicant mother (“Mother L”) on August 31, 2016 in which she seeks “an order imputing income” to the respondent father (“Father C”) in the amount of $45,200 per year.  Such an order, fixing Father C’s annual guideline income at $45,200 going forward, would oblige Father C to pay child support for the benefit of the parties’ son (“Youth K”) in the amount of $425 per month.  In fact, an order in the terms sought would do no more than extend the obligation imposed upon Father C under an Order made by Judge Smith on April 26, 2016 and settled on July 22, 2016 (the “April Order”).  Under the April Order, Judge Smith imputed an income of $45,200 per annum to Father C and required that he pay child support for Youth K in the corresponding table amount of $413 per month.^[1]  Thus, it can be seen that in her motion Mother L essentially seeks the preservation and continuation of the status quo.

[3]           Father C opposes the granting of the relief sought by Mother L and asks the court to reduce his child support obligation substantially.

[4]           I consider that it will be helpful, before delving more fully into the evidence and the facts established by that evidence, for me to provide in this introduction a brief outline of the unusual circumstances surrounding Mother L’s motion.

[5]           Youth K has been diagnosed with cerebral palsy and dystonia, is on the autism spectrum and is hearing impaired.  At all material times he has been, and continues to be, home-schooled by his mother.  He has significant mobility limitations and his communication skills are also very constrained; much of the communication he is able to manage occurs through the use of a very basic and rudimentary repertoire of American Sign Language (“ASL”) gestures.  Youth K is thus significantly disabled and wholly dependent on Mother L (with whom he resides exclusively).

[6]           It is not disputed that Youth K is entitled to child support from Father C and that, by reason of his diagnoses and wholly dependent state, he will (in the language of s. 146 of the Family Law Act) be “unable to withdraw from the charge” of Mother L anytime in the foreseeable future.

[7]           Due largely to the demands associated with Youth K’s special needs, Mother L is and has throughout been unable to work outside the home.  She was, during the course of the parties’ marriage, dependent upon the income that Father C brought into the family household.  Since soon after the parties’ separation, social assistance benefits have been Mother L’s main source of income and her counsel on this review is retained and instructed by the Minister on her behalf, pursuant to the Employment and Assistance Act, S.B.C. 2002, c. 40.

[8]           As has been noted above, the parties’ separation in October 2014 was triggered by Father C being charged criminally with sexual interference with their grandchild.  In June, 2015, Father C ultimately pleaded guilty to the offence of sexual interference, contrary to s. 151 of the Criminal Code.  His sentence, imposed on June 29, 2015, consisted of intermittent imprisonment for a period of 90 days (served on weekends) followed by a three-year period of probation.

[9]           Beyond bringing a swift end to the parties’ marriage, Father C’s involvement with the criminal justice system as a result of the sexual interference charge involving his granddaughter also wrought changes to his employment that are central to the issues on this hearing.  Formerly he was a well-paid IT technician working for a British Columbia retailer of computer equipment (the “Electronics Retailer”).  Moreover, his income had then been supplemented on the side by paid, music-related employment at a church (the “Neighbourhood Church”).

[10]        Father C lost both positions (the music-related position with the Neighbourhood Church in early 2015 and the IT position with the Electronics Retailer in late 2015).  For a number of months after the second termination, and into 2016, his cash flow needs were met by severance monies he received from the Electronics Retailer.  When those ran out, he began drawing Employment Insurance (“EI”) benefits.  He also, during this period, supplemented the aforementioned sources of funding by withdrawing approximately $30,000 from an RRSP.  After taking some job-search courses and making some unsuccessful efforts to find IT positions, in June 2017 (two and a half years after separation) he finally found work at a franchised restaurant specialising in breakfast and luncheon fare (the “Fast Food Restaurant”).  There he is paid, for the most part, minimum wage or slightly above it.

[11]        I take cognizance of the evidence led by Father C at the hearing that during the time following his separation from Mother L, he:

[12]        As of the time of the present hearing, Father C’s bankruptcy proceedings had not concluded.  Further, notwithstanding the motor vehicle accident in March of 2017, Father C succeeded in obtaining employment at the Fast Food Restaurant three months later, in June of 2017.  That employment continues.

[13]        It is important to note that Father C conceded in his testimony that he paid no child support whatsoever^[2] to Mother L for the benefit of Youth K from the date of the parties’ separation (in October, 2014) until September, 2017—a period just short of three years.  In September, 2017, he made his first voluntary payment of child support.

[14]        It was in the amount of $50.

[15]        After that, the Family Maintenance Enforcement Program (“FMEP”) intervened on Mother L’s behalf (at her request) and, from and after September 2017, FMEP has been collecting and remitting to Mother L what it has been able to garnish from Father C’s earnings at the Fast Food Restaurant.  In the latter regard, while arrears, penalties and interest had accrued to approximately $15,000 by June of 2018 (while this hearing was in progress), Father C did, that June, pay off the entire outstanding FMEP balance with monies that were gifted to him by relatives.

[16]        The $45,200 imputed annual income figure embraced in the April Order was drawn from the Form 4 Financial Disclosure Statement Father C filed on September 14, 2015.  It constitutes a very rough and conservative estimate of the income Father C was earning, following his conviction, in his continuing employment as an IT technician with the Electronics Retailer.  Father C expected that employment to continue despite his conviction and, for a period of months, it did.  (His employer there kept him on after learning of his conviction for sexual interfering with his grandchild; it was only in November of 2015 when the conviction was made the subject of social media postings that the Electronics Retailer chose to bring its employer/employee relationship with Father C to an end.)

[17]        The $45,200 estimate Father C gave of his 2015 income (as a predictor of his 2016 income) reflected an approximately $14,000 reduction, however, insofar as it did not include anything in the way of earnings for musical services to be provided by him going forward to the Neighbourhood Church.  This is because, immediately upon learning of his charges in early 2015, the Neighbourhood Church terminated Father C’s secondary employment there.

[18]        Despite the changes in Father C’s employment situation noted in the foregoing paragraphs—and in particular the loss of his job at the Electronics Retailer in November 2015—Judge Smith nevertheless considered it just to impute an income to Father C of $45,200.  Mother L urges the court on this review simply to preserve his obligation to pay child support for Youth K in the slightly revised amount of $425 per month^[3] (based on the same imputed income), notwithstanding the fact that in all years since Father C projected an annual income of $45,200, his earnings in fact have been substantially less than that amount.

[19]        For the reasons I outline below, I will say now that I am disposed to make orders that accord with Mother L’s wishes as expressed in her Notice of Motion.  That is to say, I see merit in her submission that, despite his actual lower earnings performance as revealed in subsequent Form 4 Financial Disclosure Statements and Father C’s testimony, the court should continue to base his child support obligations for Youth K on an imputed annual income of $45,200.  For reasons I shall also outline below, I consider it appropriate that the annual reviews contemplated by the April Order be discontinued and that—barring a successful application or motion being brought by either party under s. 152 of the Family Law Act—Father C’s obligation to support Youth K financially be predicated on a continuing, imputed income of $45,200 per annum.

[20]        The jurisdiction to impute an income to a payor of child support like Father C is conferred upon the court by section 19 of the Federal Child Support Guidelines, SOR/97-175, effective May 1, 1997, as amended to SOR/2017-224, ss. 1-3, effective November 22, 2017 (the “FCS Guidelines”).  The specific provision in that section that is invoked by Mother L against Father C is para. 19(1)(a).  That paragraph enumerates, as a “circumstance” in which a court may “impute such amount of income to a spouse as it considers appropriate,” the following:

[21]        Mother L contends that, following the parties’ separation and the subsequent termination of his employment with the Neighbourhood Church and then the Electronics Retailer, Father C was at first “intentionally unemployed”, and that since he obtained employment at the Fast Food Restaurant he has been “intentionally under-employed”.  She further contends that none of the exceptions acknowledged in para. 19(1)(a) that might be raised by Father C as defences to having income imputed to him apply on the facts established by the evidence here.^[4]

[22]        Father C contends, to the contrary, that when he became unemployed following the loss of his work—first with the Neighbourhood Church and then with Electronics Retailer—his lack of employment for that period cannot be ascribed to an intention on his part to be out of work.  Similarly, he contends that the fact that his earnings at the Fast Food Restaurant are markedly less than what they were when he was employed by the Electronics Retailer and the Neighbourhood Church is not attributable to an intention on his part to find and accept less remunerative employment.

[23]        There are several reasons why I have concluded that Father C’s imputed income should remain at $45,200 per annum.  I discuss each below.

[24]        I have already acknowledged that in his Form 4 Financial Disclosure Statement filed on September 14, 2015, Father C projected an annual income of $45,200 for that year (and for 2016).  By that time he had already lost his position with the Neighbourhood Church but he was continuing on with the Electronics Retailer.  (Neither Father C nor his employer knew, then, that his sexual interference with his granddaughter would become the subject of a social media posting and, in turn, lead to the termination of employment for him that the Electronics Retailer had, to that point, determined it would preserve for its own benefit and that of Father C.)

[25]        Father C projected an annual income from the Electronics Retailer of $45,200 for 2015, even though the T4 slip from that employer showed he had earned an income in 2014 there of $47,825.94.  His projection for 2015 (and 2016) was, thus, demonstrably conservative on that ground alone.

[26]        However, the T4 slip Father C obtained from the Electronics Retailer for his actual earnings there in 2015 shows that his projection was even more conservative when compared to actual performance.  That T4 slip—which is an attachment to Father C’s Form 4 Financial Disclosure Statement filed August 9, 2016—shows that Father C actually earned $49,057.37 in 2015, namely, almost $4,000 more than his projection of $45,200 and more than $1,200 higher than his actual earnings the previous year.  This is further proof that the $45,200 estimate—which guided Judge Smith to impute an income in that amount when he made the April Order, and which Mother L seeks simply to preserve as the basis of Father C’s imputed income going forward—was conservative when compared to Father C’s earnings performance with the Electronics Retailer for his last two years with that employer.

[27]        Seen in this way, it could be contended that the income that should serve as the premise for projecting Father C’s income in the years 2016 and following—when he was no longer working for the Electronics Retailer but arguably could have been similarly employed at a similar income—is the amount he actually earned at the Electronics Retailer in his last year there (2015)—that is, $49,057.37 and not $45,200.

[28]        Judge Smith’s use of the $45,200 figure when imputing income to Father C is manifestly conservative for still another, entirely different, reason.  Beyond arising from a conservative estimate of Father C’s future earnings as an IT technician based on past earnings performance at the Electronics Retailer, Judge Smith’s approach wholly disregards the income Father C previously earned at the Neighbourhood Church.  While I accept (as does Mother L) Father C’s argument that his prospects of obtaining a music director’s position at a church appear particularly bleak in the wake of his conviction for sexual interference with his granddaughter, I do not consider that there is evidence before me sufficient to establish that the prospects for him getting some kind of paid employment drawing upon his musical talent are correspondingly bleak.  Father C clearly has highly developed skills and aptitude as a musician, as witness his present involvement—albeit as a volunteer without remuneration—performing as a member of a local symphony orchestra of repute.  While the existence of the question regarding replacement of music-related income would ideally have led to more evidence on the point being brought before the court, the evidence I have heard and seen is sufficient, I believe, to at the very least justify the conclusion that in excluding income derived from the use of Father C’s musical skills and talents altogether from the imputed income analysis he conducted in fixing his imputed income in the April Order at $45,200—skills and talents that generated more than $14,000 in income in 2014—Judge Smith took a very conservative approach to imputing income that redounded to Father C’s benefit.

[29]        Moreover, that benefit is amplified by the fact that in this review hearing, Mother L is not asking that the $45,200 figure originally specified by Judge Smith be increased—either to take into account Father C’s noted higher past actual earnings performance at the Electronics Retailer or possible paid employment in the musical realm in the future, or both.  By not making that argument, but rather seeking only to tie Father C’s child support payments to the imputed guideline income of $45,200 accepted by Judge Smith, I would say (with respect) that Mother L has taken a modest and restrained approach in projecting what Father C could be earning had he gone out and diligently replaced his previous income from all sources with a comparable income.

[30]        Father C relies upon evidence of his diminished earnings in fact as a basis for resisting Mother L’s request that his child support continue to be based on an imputed annual income of $45,200.  He points to his Form 4 Financial Disclosure Statements and his testimony at trial and emphasizes the gap between the imputed figure in the April Order and what he actually reports as income.

[31]        To be sure, there is a difference revealed in the evidence between what Father C has been earning from 2016 forward and the imputed $45,200.  But the difference is not properly or forthrightly portrayed by Father C’s financial disclosure materials, at least as originally presented.

[32]        For example, in his Form 4 Financial Disclosure Statement filed on August 9, 2016, Father C acknowledged income from two sources: approximately $8,000 by way of employment income and $18,000 by way of EI benefits.  Nowhere in that Form 4 Financial Disclosure Statement is there any mention of the approximately $30,000 that he withdrew from an RRSP.  While he claimed in his testimony that he spent the greater part of that money to retain a person fluent in ASL to supervise his parenting time with Youth K, he did not produce a single receipt or any testimony from a corroborating witness to substantiate that claim.

[33]        Father C gave further evidence that it was only as a result of advice he received from his trustee in bankruptcy that he ultimately re-filed his income tax return for 2016 and brought the monies withdrawn from the RRSP into income.  It strains credulity for him to contend that he believed he could remove tax-sheltered retirement savings monies from his RRSP before retirement and employ them to meet his cash flow needs in 2016 and yet not have to account for them as income for 2016.

[34]        Similarly, at a point in 2018 when he was working at the Fast Food Restaurant, Father C suffered a workplace injury and received income replacement in the form of workers compensation benefits while he was off work recuperating.  He admitted under cross-examination that that income was not acknowledged in the documentary evidence he tendered for that year at the hearing of this review (i.e., the pay stubs from the Fast Food Restaurant marked as Exhibit 7).

[35]        The self-serving and untrustworthy evidence Father C gave in the above areas, like other evidence he gave, compromised his credibility and left the court sceptical about his forthrightness and candour when giving testimony under oath in support of his contention that the child support he has been ordered to pay to Mother L for the benefit of Youth K should be markedly reduced.

[36]        It is, in the court’s view, significant indeed that, even knowing that Father C had been charged and ultimately convicted of a sexual interference offence, the Electronics Retailer nevertheless chose to continue employ him as a skilled IT technician.  This conduct on the part of the employer evinces respect and admiration for Father C’s skills in the IT field; indeed it evinces strong confidence in his continuing willingness and ability to make a significant contribution to the Electronics Retailer’s operations despite his criminal misbehaviour.  In a word, the evidence establishes that Father C was a highly valued employee—so much so that despite a very significant moral lapse on his part that attracted a forceful criminal sanction, the Electronics Retailer wished to retain him as part of its team and, accordingly, did so.  This evidence impresses the court as a compelling, independent and business-interest-driven endorsement of the marketability of Father C’s highly developed capabilities as an IT technician.

[37]        For a considerable time, the Electronics Retailer did continue to employ Father C as an IT technician.  And, given that Father C was bound by restrictive release conditions and, ultimately, comparably restrictive probationary conditions, it is evident that the Electronics Retailer was able to make whatever accommodations were necessary (e.g., isolate him from workplace contact with children) to keep him performing his daily IT technician’s duties.  Indeed, as Father C’s own testimony well demonstrated, it was only when a malicious and personal social media “attack” identified him and his criminal conviction in a public way affecting the Electronic Retailer that the employer chose, with apparent reluctance, to bring the employment relationship to an end.

[38]        This is powerful evidence that suggests (perhaps, counter-intuitively) that a person with Father C’s advanced skills, work ethic and track record for being a reliable employee could have found employment as an IT technician somewhere, despite his criminal history, had reasonable job-search efforts been made.

[39]        The evidence does not support Father C’s contention that he pursued such opportunities with the degree of diligence that the law requires.  Rather, he appears on the evidence to have been willing to “coast” for a time, first on severance monies and then on EI benefits, without making significant efforts to recapture employment that might have capitalised on his skills and reputation as a talented, reliable and hard-working IT technician.  After having attended some courses aimed at assisting him in job-search and other such skills, the evidence shows that Father C’s first real efforts to regain employment in IT came in or about October of 2016—about a year after his employment with the Electronics Retailer was terminated: see Exhibit 5.  That gap, during which—I have concluded on the evidence—serious effort to re-enter the IT sector was not expended was, in the court’s view, not satisfactorily explained by Father C.

[40]        Neither was the evidence Father C gave regarding the efforts that he testified he began to make in that regard in October 2016 persuasive or convincing.  Exhibit 5 is a table, prepared by Father C that simply lists dates, possible employers, positions and cryptic details about application efforts and status.  It covers the period from October 2016 to June 2017 when he finally secured and accepted entry-level employment at the Fast Food Restaurant.

[41]        Even this table reveals interruptions in activity where no job-search initiatives appear to have been underway (between November 25, 2016 and March 1, 2017, for example).  Moreover, the detail in the table is generally very scant and sometimes plainly inadequate.  For many of the entries, the disposition cell in the table is simply left blank.  On May 17, 2017, for example, Father C records that he made “various applications” to UBC (no faculty or department indicated) the status of which are “on call-back”.  What use can the court make of such evidence when it seeks to determine whether Father C’s job-search efforts were duly diligent?  Very little.

[42]        Of greatest concern, however, is the absence of backup documentation to substantiate Father C’s claim that the table, marked as Exhibit 5, actually corresponds to verifiable job-search activities for which documentary back-up should be easily available.  Father C did not introduce into evidence the curriculum vitae that the court presumes he must have been relying upon when presenting himself as a candidate to prospective employers; neither did he tender as exhibits printouts of the job postings to which he responded, or the e-mails and letters he exchanged with prospective employers about possible openings.  He did not tender notes of any telephone calls he says he made and received in the course of his search for IT employment.  And Exhibit 5 gives no names for any of the contact people with whom he says he interacted at any prospective place of employment he says he approached when seeking employment.

[43]        Father C well knew that in a case where Mother L was taking the position that he was, at certain times, intentionally unemployed and at others intentionally under-employed, he would need to present cogent evidence of due diligence in his pursuit of employment comparable to that which he had had with the Electronics Retailer.  Exhibit 5 comes nowhere near to meeting that evidentiary burden and, given the general tendency on Father C’s part to give self-serving testimony of questionable reliability and believability that has already been noted in these Reasons, the court must and does approach Exhibit 5 and the testimony that surrounds it warily and with scepticism.

[44]        We know of course that Father C’s IT technician job-search efforts ultimately bore no fruit.  To the extent that he has failed to regain an income comparable to that which he was earning at the Electronics Retailer, Youth K has directly suffered economically through the deprivation of child support commensurate with Father C’s true earning capacity.  To the extent that, in turn, that failure to recapture a comparable income is attributable to a failure of proper job-search diligence on Father C’s part, Father C is answerable for that failure in this review hearing where the court is asked by Mother L—effectively on Youth K’s behalf—to impute income to Father C on the ground that he has been intentionally unemployed and underemployed.

[45]        Everything that has been said to this point under the current heading has been focused upon Father C’s manifestly marketable skill set and enviable reputation as an IT technician.  But it must not be forgotten that Father C has another marketable skill set as a musician.  I will say again that no one, including Mother L, expects Father C to regain part-time employment as a music director at a church after being convicted of a sexual interference offence involving his granddaughter.  But Father C gave essentially no evidence to show that he has been at all proactive in his efforts to redeploy that second skill set for his own economic benefit and, more importantly, that of Youth K.  That he continues to perform at a high level musically is borne out by the testimony he gave regarding the position he holds as a volunteer musician member of highly regarded symphony orchestra—an activity that also attests to the fact that he has been able to reintegrate with persons in the, at least, quasi-professional musical realm despite his conviction for sexual interference with a child.

[46]        Here as well Father C had every opportunity to tender to the court testimony and documents that show that he is not generating income from his musical talents despite best efforts to do so.  The evidence before the court on this hearing establishes that in the musical realm he did not exert such best efforts and that Youth K has suffered additional economic deprivation as a consequence.  The evidence, thus, once again invites the conclusion that Father C has been intentionally unemployed in the field of music.

[47]        The foregoing conclusions, adverse to Father C’s interests in this review and congenial to the interests of Youth and K Mother L, are fortified by the somewhat surprising evidence Father C gave under cross-examination confirming that, since he obtained his position with the Fast Food Restaurant, he has not pursued further efforts to obtain better paid employment commensurate with the significant, marketable skills he has to offer in two separate domains.  Rather, his testimony confirmed that he seems content now to limp along in an almost entry-level position, generating a paltry income by comparison to what he was earning before when his IT and musical capabilities were both properly subscribed in the marketplace.  He further asks the court to visit upon Youth K the diminished lifestyle implications that result from those greatly reduced earnings.  In this, and having due regard to the interests of Youth K—the interests that, to be sure, are paramount—I find that Father C asks entirely too much.

[48]        In my view, on the basis of the evidence and analysis set out above in these Reasons for Judgment, there is a sufficient basis for a finding that Father C has—since his employment with the Neighbourhood Church and the Electronics Retailer were terminated in early and late 2015 respectively—been intentionally unemployed, then underemployed for the purposes of para. 19(1)(a) of the FCS Guidelines.  In those circumstances, and based on the reasoning set out above, I consider that the continuing imputation of a conservative annual income of $45,200 to Father C is warranted.  That, by itself, is sufficient to dispose of the central question raised on this review.

[49]        However, counsel have also made secondary and alternative submissions to the court on the separate question of whether, when a payor’s criminal actions result in a lost or diminished guideline income, the “intention” aspect of “intentional unemployment” or “intentional underemployment” for the purposes of para. 19(1)(a) is automatically engaged.  I shall therefore briefly address those arguments.

[50]        I shall begin by saying that I accept, but as a secondary and alternative basis for acceding to Mother L’s motion seeking an order imputing an income of $45,200 to Father C, the submissions on this issue that were advanced on Mother L’s behalf.  That is, I accept the argument that:

[51]        There is no shortage of authority for the proposition that criminal behaviour committed by a payor of child support which results in diminished earnings can attract the imputation of income to the payor under para. 19(1)(a) of the FCS Guidelines.  For example, in Brooks v. Brooks, [2017] O.J. No. 1405 (S.C.J.), Minnema J. stated, at para. 39:

[52]        In Van Dusen v. Van Dusen, 2010 ONSC 220 (CanLII), [2010] O.J. No. 313 (S.C.J.), Hector-Belliveau J. noted, similarly, that “[c]riminal conduct that prevents the earning of income is self-induced under employment [citations omitted]” (at para. 23).  See also, to the same effect, S.A.C. v. S.E.C., [2015] M.J. No. 96 (Q.B.) at para. 121, per Thomson J. who went on, at para 133, to state:

[53]        I should say quickly that I accept the submissions made on behalf of Father C that the aforementioned cases are distinguishable in some ways on their facts from the case at bar.  The same can be said about some of the authorities invoked in those decisions, including (for example) Courchesne v. Courchesne, [2004] O.J. No. 442 (S.C.J.), Billingsley v. Billinglsely, [2010] O.J. No. 3193 (S.C.J.), Hutchison v. Gretzinger, [2007] O.J. No. 5058 (S.C.J.), and Rogers v. Rogers, [2013] O.J. No. 1616 (S.C.J.).  Moreover, the specific reasoning within those cases in an imputed income context appears not to have been considered in British Columbia.

[54]        But when one steps back from the factual particulars of those cases and seeks to identify the key reasoning regarding the notion of “intention” that animates them, I consider that they still have something of value to guide me in the decision I must reach with respect to Father C on this alternative ground.  That is, I believe that the reasoning that animates those cases presents a helpful tool when considering whether, when a payor of child support commits a criminal offence that adversely affects his or her employment and income, any resulting unemployment or underemployment should be regarded as having been “intended” by the payor for the purposes of para. 19(1)(a) of the FCS Guidelines.

[55]        So what, then, is the reasoning that animates the approach to the concept of “intention” taken in Brooks, and Van Dusen and S.A.C. and the cases upon which they, in turn, rely?  I believe it can be seen clearly at work in a decision of the Supreme Court of Canada given almost 90 years ago in McNichol v. Grandy, 1931 CanLII 99 (SCC), [1931] S.C.R. 696 where, citing venerable English authority, Lamont J. stated:

[56]        That proposition (or presumption) has since been softened to downgrade the “must be taken to intend” to “may be taken to intend”—see Hosegood v. Hosegood (1950), 66 T.L.R. 735 per Denning L.J. at p. 738 (C.A.).  In the same passage of his judgment in Hosegood, Lord Denning also clarified that the presumption is one of good sense as opposed to one of law, re-articulating it as follows:

[57]        The Hosegood gloss has seen wide support in Canadian law.  See, for example, R. v. Beyo, 2000 CanLII 5683 (ON CA), [2000] O.J. No. 888 (C.A.) and R. v. Berger, 1975 CanLII 1250 (BC CA), [1975] B.C.J. No. 1181 (C.A.)

[58]        Applying this proposition of common sense to the case at bar, I will say that I have no hesitation in concluding on the evidence before me:

[59]        Importantly, while it was open to Father C to give evidence seeking to rebut the presumption of intention (as reformulated under Hosegood), he did not do so.  That is, he did not say anything exculpatory for present purposes about what he did or did not foresee as possible consequences when he set about touching his granddaughter for his own sexual gratification.

[60]        As the frequently cited Hosegood approach makes plain, there is (importantly) nothing inevitable or inexorable about the chain of inferences that has been set out above.  In a different case and with different evidence, the presumptive inference may not be sustainable and the presumption may be rebutted.  The Hosegood approach refined the law, after all, to make allowance for situations where it is not reasonable to infer that an individual in particular circumstances foresaw and intended all of the natural consequences of his or her acts.  But I repeat that there is no evidence before the court in the case at bar capable of rebutting the Hosegood presumption; that is, there is no evidence before the court that can take Father C and his actions vis à vis his granddaughter outside the ambit of what has repeatedly been called a “proposition of ordinary good sense” and fit him and his actions within an exception to it.

[61]        It follows that the continued imputation to Father C of an annual income of $45,200 for child support purposes (i.e., the extension of the status quo imposed by Judge Smith under the April Order) is justified on Mother L’s intentionality-analysis-driven secondary and alternative argument.

[62]        The April Order contemplates annual delivery, by Father C to Mother L every August 1st, of updated financial disclosure materials, all with a view to recalculating child support payable for the benefit of Youth K.  It also grants leave to the parties, should they simply be unable to agree on a variation of the amount of child support payable by Father C, to return to court for future reviews.

[63]        Counsel for Mother L submitted orally that the prospect of lengthy and burdensome reviews of the kind addressed in these Reasons for Judgment being scheduled regularly in the future is an unwelcome one indeed.  Counsel points to Mother L’s willingness—barring some extraordinary change in circumstances—to see Father C’s child support continue to be payable on the basis of an imputed annual income of $45,200 as a rationale for disengaging from reviews that result solely from disagreements arising in the course of year-to-year fine tuning.  It is submitted on Mother L’s behalf that she would prefer to have the imputed income continue at the $45,200 figure until further order of the court for so long as Youth K is entitled to child support.  This, I take to mean that she would prefer that there be no further court appearances to revisit the quantum of child support other than those that might result from applications properly brought under s. 152 of the Family Law Act.

[64]        Father C did not, through his counsel, substantively answer those submissions.

[65]        I do not consider that the benefit to anyone, least of all Youth K, of having the parties facing the possibility of annual reviews in the unique circumstances of this case would outweigh the burden of such regular reviews.  Certainly, should there be a material change of circumstances, or the discovery of evidence of a substantial nature not available before, or new problems in financial disclosure, then either party could still invoke such matters in the course of bringing an application to change, suspend or vary the Order that emerges from this hearing pursuant to s. 152.  That, I believe—with one caveat—would create all the flexibility necessary to make changes going forward.

[66]        The one caveat relates to financial disclosure.  I do believe that Father C should continue to be obliged to make fresh financial disclosure each year going forward so that Mother C can be kept properly informed about whether a s. 152 application against him as payor might be warranted.

[67]        Based upon all of the foregoing, I have reached the conclusion that Mother L’s motion seeking to have an annual income of $45,200 continue to be imputed to Father C for the purposes of defining his child support obligations must be allowed.  Imputation of an annual income in that amount gives rise to a duty on the part of Father C to pay to Mother L guideline child support for the benefit of Youth K in the amount of $425 per month.

[68]        In this respect, the conclusion I have reached simply preserves the status quo as prescribed by the April Order of Judge Smith, but with the monthly dollar amount of the child support slightly adjusted upward to take account of an intervening increase in the table amounts prescribed in the FCS Guidelines.

[69]        I have concluded that the continued imputation of a $45,200 annual income to Father C until further order of the court is proper and justified, despite the evidence and arguments raised against such a final order by him, given that:

[70]        I have reached the further conclusion that while, henceforward, Father C should continue to be required by court order to make annual, updated financial disclosure to Mother L on August 1st—that is, disclosure each year of his filed tax return for the preceding year and any corresponding Notice of Assessment and/or Reassessment—annual reviews and re-calculations of the quantum of child support required to be paid by him to Mother L for the benefit of Youth K are both unnecessary and excessively burdensome and costly.  Accordingly, I have concluded that any future court proceedings aimed at changing the quantum of child support payable by Father C for Youth K’s benefit may only be instituted, by either party, by application under s. 152 of the Family Law Act.

[71]        Orders accordingly.