Décision

[1]           The parties are the parents of three minor children: X (9 years old), Y (6 years old) and Z (2 years old).

[2]           They live separately since August 7^th, 2018.

[3]           As the custodial parent of the three children, Plaintiff petitions for child support. Her motion to institute proceedings was served upon Defendant on September 16, 2019.

[4]           She asks the Court to determine Defendant’s income by considering his capacity to generate revenue after he quit, on a voluntary basis, his last job as a crane operator for the company A on August 27, 2019[1].

[5]           Defendant acknowledges his obligation towards his children but he argues that he has no financial capacity to pay for child support since he is actually unemployed and on welfare. Despite his efforts, he says he was unable to find a new job. According to his belief, the fact that he cannot speak and understand French hinders his chances of finding a new well-paid job.

[6]           Concerning the job at [Company A], he declares that he was not qualified to operate a crane. Since he was not able to afford the cost of the formation (roughly $21 000) and because he didn’t want to put himself or other employees at risk, he decided to quit that job.

[7]           He adds that Plaintiff should also make the reasonable efforts to work in order to generate revenue but she failed to do so.

ANALYSIS AND DECISION

[8]           Child support is in each minor child’s best interest and it is well known that both parents have a financial obligation to support their children[2]. The child support is established according to the custodial time of each parent, their disposable income and the number of children they have[3].

[9]           As justice Pierre C. Gagnon of the Quebec Superior Court rightly pointed out[4] :

« [13]    Il faut comprendre la façon dont fonctionne notre collectivité : lorsque deux parents mettent un enfant au monde, c’est leur responsabilité primaire de s’en occuper. On demande aux parents de déployer tous les efforts pour être responsables de leurs enfants à tous égards, notamment sur le plan financier. (…) Comme prérequis, ce mécanisme d’entraide requiert un effort suffisant de la part de chaque parent, à moins qu’il soit établi que ce parent soit dans l’incapacité, pour une raison physique ou autre, de générer des revenus lui permettant de veiller financièrement sur les enfants. »

[10]        It is also well known that when a parent has the capacity to work but refuses to do so or doesn’t make all the necessary required efforts to earn his/her living, the Court may determine, in accordance with section 446 of the Code of civil procedure, a parent’s income[5].

[11]        In the present case, the Court is of the opinion that both parties failed to make reasonable efforts to generate revenue in order to provide for the needs of their children. As a result, both parties do not work despite the fact there is no evidence of any kind of limitation to their capacity to generate revenue.

[12]        On one hand, Plaintiff decided not to complete her formation as a welder. She plans to do so in the future, but only when her youngest child (Z) will begin to go to school (as mentioned before, he is 2 years old). But having children is not, per se, an obstacle to earn money as many parents are working to provide for their family members.

[13]        Furthermore, there is no evidence concerning the mother’s annual income, as she did not provide the Court with a statement of her revenue. In the child support determination form, she only indicates that she would earn $5 808 in 2019. This is much less than any person working on the minimum wage would earn annually (approximately $26 000[6]). She could and should have done better than staying at home in order to provide for her children.

[14]        On the other hand, Defendant stated that he had no choice but to quit his job because he was worried about the possible consequences in case of accident when he was operating a crane without any qualifications[7]. In fact and according to his employer’s report[8], Defendant decided not to show up at work for a period of three days without prior notice at the end of August 2019. As a result, he lost the job he had since August 2014, and the annual income of approximately $40 000 that goes with it.

[15]        Instead of doing what he did and ending up on welfare, he should have exercised his right of refusal according to section 12 of an Act respecting occupational health and safety[9]:

« 12.     A worker has a right to refuse to perform particular work if he has reasonable grounds to believe that the performance of that work would expose him to danger to his health, safety or physical well-being, or would expose another person to a similar danger. »

[16]        Should he have done so on a reasonable ground, his employer would have had no choice but to comply with the law and Defendant would have continued to receive his salary.

[17]        Moreover, Defendant failed to demonstrate that he had made all the necessary efforts to find a new job within a reasonable time, despite the orders rendered by this Court since August 2019.

[18]        In these circumstances, the undersigned shares the opinion of Justice François Tôth when he decided, on an interim basis on January 23, 2020, that Defendant had the capacity to generate $40 000 of income annually.

[19]        Therefore, for the purpose of the calculation of the child support, the annual income of the parties, as determined by the Court, are the followings: $26 000 for the Plaintiff and $40 000 for the Defendant.

[20]        It is quite possible that the Covid-19 crisis will affect the earning capacity of the parties. If so, they shall present a motion in due time if they want to modify the child support.

WHEREFORE, THE COURT:

[21]       ORDERS Defendant to pay to Plaintiff, for the benefit of the children X, Y and Z, a child support of $675.28 per month, payable in two installments of $337.64 on the 1^st and 15^th of each month, in accordance with the provisions of an Act to facilitate the payment of support, retroactively to September 16, 2019;

[22]       ORDERS that child support be indexed annually, starting January 1^st, 2020, in accordance with section 590 of the Civil Code of Quebec;

[23]       ORDERS the provisional execution of the present judgment not withstanding appeal;

[24]       Without costs.