Court File and Parties

Court File No.: Brampton 338/05 Date: 2013-05-15 Ontario Court of Justice

Between: Bhagwantie Ragbeer, Applicant

— And —

Ramkissoon Ramnarine, Respondent

Before: Justice L.S. Parent

Heard on: April 29, 2013

Reasons for Judgment released on: May 15, 2013

Counsel:

• Patrick McCool, for the Applicant
• Aneesa R. Oumarally, for the Respondent

PARENT, J.:

The issue of child support is the central issue before the court in the Respondent's Motion to Change which proceeded to trial on April 29th, 2013.

BACKGROUND

1The parties were married on September 23rd, 1993 and separated on October 20th, 1999. There are two children born of their relationship, a son who is currently 17 years of age, and a daughter who is currently 15 years of age.

2The parties, while represented by counsel, signed a Separation Agreement on December 1st, 2000. This agreement provided that the Respondent pay to the Applicant, child support for the two children of the marriage in the amount of $605.00 per month commencing March 1st, 2000. The agreement indicated that the Respondent's income at the time of the signing of the agreement was $43,000.00 per year.

3The Separation Agreement further provided that the Respondent was to satisfy his support payments to the Applicant by way of post-dated cheques. The initial series of cheques was to have been provided on March 1st, 2000 covering the 12 month period until February 28th, 2001. The agreement further provided that annually, the Respondent was to provide to the Applicant a series of 12 cheques.

4The Separation Agreement further provided that the child support payments were to be adjusted annually by a cost of living adjustment as established by the Statistics Canada Consumer Price Index for the City of Toronto. It does not appear from the evidence lead by the parties today that this in fact occurred as the amount of support currently being enforced by the Family Responsibility Office (FRO) remains $605.00 per month.

5The Respondent is the moving party. He filed his Motion to Change on March 1, 2012 seeking to fix the arrears of support at nil effective December 31st, 2011 and reducing his ongoing child support obligation to $425.00 per month for the two children based on his annual income of $29,120.00.

6The Applicant filed a Response sworn March 21st, 2012 claiming that the arrears of child support owed totalled $57,536.13 as of March 21st, 2012. She did not indicate, in her response, a position with regard to the Respondent's request to vary the ongoing support.

7The Applicant did assign the child support payments to the Ontario Works and to the City of Toronto as she was in receipt of social assistance for three (3) periods following her separation, namely from June 1st, 2005 to October 31st, 2006; November 1st, 2008 to February 28th, 2009 and September 1st, 2010 to June 31st, 2012.

The Respondent's Position at Trial

8The Respondent seeks the following final order from the court, namely:

1. An order incorporating the terms contained in the Minutes of Settlement dated September 27th, 2012 between himself and the Assignees;

2. An order fixing the arrears of support owed by him to the Applicant in the amount of $3,019.29 payable in the amount of $100.00 per month commencing June 1st, 2013;

3. An order varying the terms of the Separation Agreement dated December 1st, 2000 regarding ongoing child support to require the Respondent to pay child support to the Applicant for the two children of the marriage in the amount of $496.00 per month commencing April 1st, 2012 and on the 1st day of each month thereafter based on his 2012 income of $34,068.28;

4. An order requiring the Applicant to provide him with proof of the children's enrolment in school in January and July annually;

5. An order requiring the Applicant to provide him with copies of the children's T-4 slips and Notices of Assessment annually;

6. An order requiring the Applicant to advise him immediately should the children not be enrolled in school; and

7. An order requiring the Applicant to advise him immediately should the children change their primary residence.

The Applicant's Position at Trial

9The Applicant's position at trial is that she has never received any monies directly from the Respondent since the signing of the Separation Agreement. Furthermore, the Applicant testified that she has not received any monies collected through the enforcement mechanisms engaged by FRO. She however concedes that these monies were collected and acknowledges that this amount, which she has advanced totals $22,208.58, should be credited to the Respondent. The Applicant therefore seeks an order fixing the arrears of support owed by the Respondent to her in the amount of $73,381.42 as of today's date.

The Respondent's Evidence at Trial

Arrears of Child Support

10The Respondent's evidence at trial was that he has complied with, and even at certain times throughout the parties' thirteen years of separation, exceeded his child support obligation as outlined in the parties' Separation Agreement by direct cash payments to the Applicant.

11During his testimony, the Respondent recited that shortly following the signing of the Separation Agreement, the Applicant insisted that she receive the child support payments in cash and not by way of post-dated cheques, as provided for in the Separation Agreement. The Respondent testified that he complied with this request given that he trusted the Applicant. The Respondent testified that he would withdraw money from his bank and provide this money directly to the Applicant. He indicated that he asked for receipts however the Applicant refused to provide any. The Respondent therefore kept records of the withdrawals of the monies paid directly to the Applicant.

12The Respondent testified that he was surprised when he received a letter from the Family Responsibility Office (FRO) in May 2006 indicating that he owed arrears of child support. He testified that he contacted the Applicant and they jointly drafted a letter to FRO. The letter was introduced at trial at Tab 3 of Exhibit 1.

13The relevant portion of this letter dated May 28th, 2006 states as follows:

"This is to inform you that I, Bhagwante Ragbeer, will like to withdraw in good faith all retroactive payment in arrears against Mr Ramkissoon Ramnarine that have accumulate during the period from March 1st, 2005 to the present time effective immediately"

14The Respondent's position is that the impact of this letter is twofold, namely to forgive all arrears accumulated between the period of March 1st, 2005 to May 28th, 2006 and to withdraw the involvement of FRO in the enforcement aspect of this matter.

15The Respondent testified that following the filing of this letter with FRO, he continued to pay the Applicant cash in the amount of one thousand ($1000.00) dollars, being the $605.00 child support payment and an additional amount of $395.00.

16The Respondent testified that he was surprised a second time when he received a second letter from FRO in November 2009 indicating that he owed arrears of support. He testified that he once again contacted the Applicant and they jointly drafted a letter to FRO. The letter was introduced at trial at Tab 4 of Exhibit 1.

17The relevant portion of this letter dated November 13th, 2009 states as follows:

"This is to inform you that on May 28th, 2006, I did request that all arrears and payment against Mr Ramkissoon Ramnarine be withdrawn in good faith. To this present day November 9th, 2009, Mr Ramnarine owes me no money. Arrears payment of six thousand and fifty dollar made in full $6050.00. Enclose is a receipt of the payment dated July 2nd, 2009 of the said amount. Mr Ramkissoon Ramnarine do not owes me any money for child support. I therefore request that his account #0889424 be cleared."

18The Respondent's position is that the impact of this letter is again twofold, namely to forgive all arrears accumulated between the period of May 29th, 2006 to November 9th, 2009 and to withdraw the involvement of FRO in the enforcement aspect of this matter.

19The Respondent testified that following the filing of this letter with FRO, he continued to pay the Applicant cash in the amount of six hundred and five ($605.00) dollars and would pay the Applicant additional monies when she asked. He indicated that he honoured this payment agreement in the belief that the Applicant would not be contacting FRO.

20The Respondent testified that he was surprised a third time when her received a letter from FRO in January 2012. He testified that he once again contacted the Applicant and presented her with a letter to FRO he had prepared and dated January 18th, 2012 The Applicant refused to sign or submit this letter to FRO.

21The Respondent's position is therefore that the only period of time capturing any calculations of arrears would be between December 1st, 2009 and March 1st, 2013. The Respondent's position is based on his reliance of the two letters (Tabs 3 and 4 of Exhibit 1) which he maintains forgave all arrears for the period between March 1st, 2005 and November 30th, 2009. The Respondent testified that he did not pressure, coerce or threaten the Applicant to sign either of the letters submitted to FRO.

Ongoing Child Support

22The Applicant, through counsel submissions, has agreed to a variation of the Respondent's ongoing child support payments to $496.00 per month commencing May 1st, 2013 based on his annual salary of $34,068.24.

The Applicant's Evidence at Trial

Arrears of Support

23The Applicant acknowledged through her testimony that the parties signed a Separation Agreement on December 1st, 2000. She denies ever entering into a verbal agreement with the Respondent that she was to receive her support payments by cash only.

24Throughout her testimony, the Applicant acknowledged that she signed the letters to FRO dated May 28th, 2006 and November 13th, 2009. She testified however that these letters were solely drafted by the Respondent.

25The Applicant testified that she signed the letter dated May 28th, 2006 as she felt sorry for the Respondent and that she wished to help him. She testified that the only agreement she made was to withdraw the enforcement by FRO as she believed the Respondent's promise that he would pay her directly. The Applicant testified that she signed the letter dated November 13th, 2009 as she once again felt sorry for the Respondent. She later added to her testimony that she felt pressure to sign this letter and that she was under stress as she was trying to do what was best for the children.

26The Applicant testified that she refused to sign the third letter and that she was quite upset that the Respondent had involved their son in this matter by having him deliver the letter to her.

27The Applicant testified that she did not read either the May 28th, 2006 or the November 13th, 2009 letters in detail but rather just signed them.

28The Applicant testified that she needed child support as she was struggling to meet the financial needs of the children, including the payment of her rent. Given these struggles, she testified that she never would have forgiven the arrears of support as claimed by the Respondent.

29The Applicant testified that she did not, throughout the period of separation, re-file with FRO to correct the amount of arrears of support she now claims are owed to her.

ANALYSIS

Arrears

30In their submissions, both counsel agree that the burden of proof lies on the Respondent to satisfy the court that any accumulated arrears of support should be rescinded. In this matter, the Respondent has advanced two arguments in support of his position.

1. Arrears accumulated between the period of March 1st, 2005 to November 30th, 2009

31The Respondent relies on the two letters signed by the Applicant on May 28th, 2006 and November 13th, 2009 to rescind all arrears of support owed from March 1st 2005 to November 30th, 2009. The Respondent further relies on his evidence that, during this period, he provided cash payments to the Applicant which met his child support obligation of $605.00 per month as agreed upon by the parties in their signed Separation Agreement dated December 1st, 2000. The Respondent also relies on his evidence that he, at times throughout this period, also paid an additional $395.00 to the Applicant.

32The Applicant relies on her evidence that she did not intend the letters to forgive the accumulated arrears. She testified that her sole intention was to have the enforcement mechanisms initiated by FRO suspended. She testified that she never received any monies directly from the Respondent.

33I am satisfied, after hearing the evidence of the parties and upon a careful review of the letters dated May 28th, 2006 and November 30th, 2009, that any arrears accumulated between March 1st, 2005 to November 30th, 2009 were forgiven by the Applicant. The impact of the letters filed with FRO are to forgive the arrears and to withdraw the enforcement of the Separation Agreement from their mandate. Any ambiguity regarding the impact of the May 28th, 2006 letter regarding the forgiveness of the arrears for this initial period is eliminated by the clear language of the second letter dated November 13th, 2009 which expressly forgave all arrears accumulated between the period of March 1st, 2005 to May 28th, 2006.

34The testimony of the Applicant does not refute this clear intention of the letters nor am I accepting of her perspective that she was pressured, coerced or influenced by the Applicant to sign the letters.

2. Arrears accumulated between the period of December 1st, 2009 to April 1st, 2013

35Given my finding that any arrears owed between the period of April 1st, 2005 to November 30th, 2009 were forgiven by the Applicant, the next relevant period is from December 1st, 2009 to April 1st, 2013.

36The Director's Statement of Arrears filed at Tab 10 of Exhibit 1 indicates that the arrears of support as of March 1st, 2013 total $17,032.29.

37Neither party has disputed the fact that FRO has collected monies from the Respondent during this period. The DSA at Tab 10 indicates that the amount of $4,539.68 has been collected by diversion efforts and voluntary payments by the Respondent between the period of December 1st, 2009 to March 1st, 2013. This credit has therefore been taken into account in arriving at the amount of $17,032.29 owed by the Respondent on March 1st, 2013.

38The Respondent claims that the amount of arrears should be further reduced as he is claiming a change in circumstances in his income, namely a reduction in his annual income from $43,000.00 to $34,068.28, which would reduce his child support obligation from $605.00 to $496.00 commencing April 1st, 2012 to present. The Applicant has indicated her consent to this request. Accordingly, the child support arrears are to be further reduced by $1,308.00, being 12 months x $109.00. The arrears are therefore reduced to $15,724.29 as of March 1st, 2013.

39Throughout this period, the Applicant did assign the child support payments to the City of Toronto as she was in receipt of social assistance from September 1st, 2010 to January 31st, 2012. Final Minutes of Settlement have been entered into between the Respondent and both Assignees whereby arrears of support owed to the City of Toronto for the period from September 1st, 2010 to January 31st, 2012 have been fixed at $9,680.00 and arrears of support owed to the Regional Municipality of Peel for the periods of June 1st, 2005 to October 31st 2006 and November 1st, 2008 to February 28th, 2009 have been fixed at $1,210.00.

40Accordingly, the monies owed to the City of Toronto in the amount of $9,680.00 must be deducted from the arrears owed by the Respondent to the Applicant. The arrears are therefore reduced to $6,044.29 as of March 1st, 2013.

41Counsel for the Respondent has further submitted that the arrears of support should be further reduced by the direct cash payments provided by the Respondent to the Applicant during the period between September 1st, 2010 and December 31st, 2011. The Respondent has testified that he kept records of the payments made to the Applicant in cash throughout this period. He testified that a co-worker saw him 90% of the time give cash to the Respondent and that he kept detailed records of these payments and has produced at Tab 8 of Exhibit 1 a chart indicating that these payments total $7,917.91.

42The Respondent did not call his co-worker as a witness to corroborate his testimony of cash payments to the Respondent. The Respondent has also provided copies of his personal bank account statements at the Royal Bank of Canada as support for these payments. The production of the bank statements in my view is insufficient to support the Respondent's claim that he provided cash payments to the Applicant. The records can confirm that withdraws were made however cannot confirm that the money was placed in the hands of the Applicant. Furthermore, some of the entries noted by the Respondent on his chart do not correspond with the withdrawal entries in the bank statements.

43Accordingly, there will not be a credit given to the Respondent for the cash payments he claims were made by him for the period between September 1st, 2010 and December 31st, 2011.

44Counsel for the Applicant has submitted that the amount of arrears should be increased by an additional $605.00 to reflect the April 1st, 2013 payment as required under the Separation Agreement. I agree with submission of counsel in so far that given the parties consent on the variation issue, the arrears should be increased by $992.00, being a payment of $496.00 each for the months of April and May 2013. The arrears of support therefore total $7036.29 as of May 1st, 2013.

Ongoing Child Support

45The Respondent has to show a change in circumstances within the meaning of the Child Support Guidelines to successfully change a child support order. The Applicant has accepted that the Respondent's annual income has changed from $43,000.00 per year at the time of the signing of the Separation Agreement dated December 1st, 2000 to a current income of $34,068.26. Accordingly, the Respondent, on consent of the Applicant, has demonstrated on a balance of probabilities that he has suffered a change in circumstances which warrant a variation of the child support. Furthermore, it is accepted by counsel that this court has the authority to vary child support arrangements provided for in separation agreements as established by the Ontario Court of Appeal in Tierney-Hynes v. Hynes, [2005] O.J. No. 2661.

ORDER

46I make the following final order:

1. The arrears of child support owed by the Respondent to the Applicant are fixed at $7,036.29 as of May 1st, 2013;

2. The Respondent shall pay the arrears owed to the Applicant at the rate of $250.00 per month commencing June 1st, 2013 and on the 1st day of each month thereafter until they are paid in full.

3. The arrears of child support owed by the Respondent to the Assignee the City of Toronto for the period of September 1st, 2010 to January 31st, 2012 are fixed at $9,680.00;

4. The arrears of child support owed by the Respondent to the Assignee the Regional Municipality of Peel for the periods of June 1st, 2005 to October 31st, 2006 and November 1st, 2008 to February 28th, 2009 are fixed at $1,210.00.

5. The Respondent shall pay the arrears owed to the Assignees at the rate of $100.00 per month commencing October 1st, 2012 and on the 1st day of each month thereafter until they are paid in full;

6. In addition to the payments aforesaid, the Director, Family Responsibility Office, is entitled to collect any and all federal monies that may be due or owing to the support payor.

7. In addition to the payments aforesaid, the Director, Family Responsibility Office, is entitled to collect any and all windfall monies, such as lottery winnings or inheritance, received or to be received by the support payor.

8. All payments under this order are to be paid to the Director, Family Responsibility Office, who in turn shall pay them to the creditors giving first priority to Bhagwantie Ragbeer, support recipient.

9. The Respondent shall pay to the Applicant as ongoing child support for the two children of the marriage the amount of $496.00 per month, based on his current income of $34,068.26, commencing June 1st, 2013 and on the 1st day of each month thereafter until further order of this court or written agreement between the parties;

10. The Applicant shall provide the Respondent, in writing, and within fourteen (14) days of this order the name and addresses of the children's schools so that he may direct inquiries as to their enrolment and attendance and to obtain copies of their report cards directly from the school; and

11. A Support Deduction Order will issue.

47Should counsel wish to address me on the issue of costs, please contact my legal assistant, Laurie Findlay, at (905) 456-4833 within ten (10) days of the date of this order to arrange a teleconference to discuss a timetable for this issue.