Bolsover v. Nissen, 2022 ONCJ 35
ONTARIO COURT OF JUSTICE
DATE: January 6, 2022 COURT FILE No.: D 30350/19
BETWEEN:
Scott Jefferey Bolsover Applicant
— AND —
Melanie Nissen Respondent
Before: Justice Roselyn Zisman
Heard on: November 30, 2021 Reasons for Judgment released on: January 6, 2022
Counsel: Scott Jeffery Bolsover............................................................................... on his own behalf Jonathan Stankiewicz.............................................................. counsel for the respondent
Decision on Motion to Change
1. Introduction
1This a Motion to Change by the Applicant (father) commenced on August 17, 2020 to change the consent order of Justice Clay dated October 23, 2014. The Applicant seeks to retroactively decrease his child support obligation and to rescind or reduce his arrears.
2The final order of October 23, 2014 provided that the Applicant pay child support for 2 children, namely, Jack Nissen Bolsover born […], 2003 and Cullen Nissen Bolsover born […], 2001 of $1,124 per month based on an imputed income of $82,000. The order also required Applicant to pay $576 per month with respect to section 7 expenses without any accounting but with no further contributions. The Applicant and the Respondent (mother) were to contribute to the children’s postsecondary expenses in proportion to their income. The Applicant was also required to pay $300 per month regarding child support arrears and retroactive section 7 expenses set at $66,600 and a further $7,500 annually until the arrears were paid off. These terms regarding arrears was not subject to review or rescindable for any reason.
3The Respondent in her Response to the Motion to Change seeks an order dismissing the Motion to Change. But then also seeks an order for child support and section 7 expenses to be determined based on the Applicant’s income.
4There is also an enforcement proceeding before the court. The Family Responsibility Office (FRO) is currently receiving funds through a federal garnishment as the Applicant is in receipt of Employment Insurance.
5It was agreed that as of June 30, 2018 the arrears outstanding were $35,900. The Applicant is now only seeking to change the order as of July 1, 2018.
6The Applicant resides in Saskatchewan and has been self-represented in both the FRO default proceedings and in his Motion to Change. He has participated in these proceedings by telephone and videoconferences and on one attendance in person.
7He has not had any meaningful assistance from duty counsel or any assistance with drafting his pleadings or been provided with legal advice as to his legal remedies. Given the complexity of his circumstances he has faced the difficulty of dealing with many procedural hurdles as outlined below that resulted in non-compliance with disclosures orders, his filings being rejected by court staff and the striking of his pleadings.
2. Litigation Background
8As a result of the order of October 23, 2014 the Applicant’s arrears were set at $66,600. Based on the Statement of Arrears filed he was compliant with the terms of the order until about the Spring of 2018.
9The Applicant was employed as a sales representative by Fortress Real Estate Development from about January 2014 through the Spring of 2018. The Applicant was paid as an independent contract employee through a numbered company. No income taxes were deducted and the Applicant has not filed any tax returns since 2013.
10The company eventually dissolved as a result of allegations of fraud and litigation that resulted in large fines of over a million dollars in what was described as one of Canada’s biggest syndicated mortgage investment failures.
11FRO began default proceedings in June 2019 at which time his arrears were $51,731.09.
12On June 11, 2019 the Applicant entered into a temporary default order to pay $1,700 per month plus $300 towards arrears and to provide disclosure.
13On December 5, 2019 the Applicant was present in the jurisdiction and attended court. The temporary default hearing was continued and the Applicant was ordered to commence a Motion to Change.
14On April 3, 2020 the Applicant participated in the default hearing by telephone. He was in arrears of the temporary default order. The Applicant advised that he was unable to file his Motion to Change as his former employer (Fortress) was under investigation and he did not have any verification of his employment income.
15On July 16, 2020 the Applicant again participated by telephone conference. By this time, his arrears were $63,231.09 and he was in default of the temporary default order by $11,600. He was given leave to file his Motion to Change without his Notices of Assessment.
16The Applicant subsequently couriered his Motion to Change to the court but there was no affidavit of service that it had been served on the Respondent or sent to FRO. The default hearing was adjourned again on August 19, 2020 for the Applicant to properly serve his Motion to Change.
17At the attendance on October 9, 2020, the Applicant forwarded proof that he had served the Respondent with his Motion to Change. As it was unclear if the Respondent was given the details of the court attendance, the court staff sent the Respondent the call-in information and confirmed the return date.
18Both the default and Motion to Change were before the court on November 16, 2020. The Respondent was present but not represented.
19The Applicant advised that as he was to unable to obtain any information about his employment income, he was advised by CRA to file a form RC-499 which is a declaration of income for the years 2014-2018. The Applicant was ordered to provide the Respondent with a copy of this form and any correspondence regarding this filing and provide proof of his current income. At this time, FRO was receiving some funds from the Applicant’s income source as the Applicant had obtained employment.
20On February 19, 2021 the default hearing and Motion to Change were again before the court. The Respondent was represented by counsel and a further disclosure order was made that required the Applicant to obtain an Equifax report, file his 2019 and 2020 tax returns, provide proof of his 2021 income and file an updated financial statement.
21On April 22, 2021, the Applicant agreed that he was only seeking a change of his child support and reduction or recession of arrears as of July 1, 2018. It was agreed that as of June 30, 2018 the arrears were $35,900. The Respondent’s counsel was requested to send the Applicant a list of any outstanding disclosure and given leave to bring a motion to strike the Applicant’s pleadings, if necessary.
22On June 17, 2021, the Respondent’s counsel brought a motion to strike the Applicant’s pleadings. Although there had been multiple attendances and several orders for disclosure the court endorsed that it was prepared to give the Applicant another opportunity to provide the court ordered disclosure. The Applicant did file some disclosure and it appeared clear that based on the disclosure that was filed that he was not earning $82,000. The Applicant was ordered to provide copies of his bank records from January 1, 2018 to April 30, 2019, proof of income from July 1, 2018 to December 30, 2019 and from January to June 2021.
23On September 13, 2021, as the Applicant had not complied with the disclosure orders the Respondent’s motion to strike the Applicant’s pleadings was granted. However, the endorsement indicated that the court would reconsider its decision and reinstate his Motion to Change if the Applicant submitted the disclosure ordered. In any event he was ordered to provide an updated financial statement and proof of current income. The matter was ordered to proceed as an uncontested hearing as the Respondent had made a claim for the Applicant to contribute to the children’s postsecondary expenses. 1
24On November 19, 2021 the applicant filed some further disclosure including his updated financial statement.
25The Motion to Change proceeded on November 30th. The Respondent filed an extensive 23C affidavit. It was the position of the Applicant that he had fully complied or at least substantially complied with the disclosure orders and the Request to Information to the best of his abilities and he should be given the opportunity for his Motion to Change to proceed.
26The court permitted the Applicant to rely on the materials he had filed. The Applicant and counsel for the Respondent made oral submissions and the decision was reserved.
3. Applicable law regarding Motion to Change
27Section 36 (2.1) of the Family Law Act provides that if the court is satisfied that there has been a change in circumstances, 2 within the meaning of the child support guidelines, the court may discharge, vary or suspend a term of the order, prospectively or retroactively.
28In the case of Colucci v. Colucci 3 the Supreme Court of Canada summarized the framework for applications to retroactively decrease child support in paragraph 113 as follows:
(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.
(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.
(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.
(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.
(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
4. Analysis
4(a) Has the Applicant met the onus of establishing a material change in circumstances?
29The Applicant filed proof that as of November 2019 he attempted to contact his former employer to provide proof of his income. As he explained all his personal and business files were locked down in the employer’s office when the landlord changed the locks on the sales office.
30As advised by CRA, he then filed a form RC-499 with an estimate of his income. He produced a spreadsheet in these proceedings of his calculations of his estimates of his earnings for the following years:
2014 - $60,455.48 2015 - $68,634.60 2016 - $68,814.00 2017 - $84,435.29 2018 - $25,000
31He also produced a further spreadsheet of earnings in 2019 of a base salary of $2,500 monthly or $30,000.
32As of September 2018, the Applicant began to work for Emerald Water initially paid through a numbered company and then paid personally. But he was laid off due to a shortage of work on December 25, 2020. His Record of Employment indicates that from September to December he earned $7,340.06.
33His source of income as of January 2021 then became Employment Insurance estimated at $23,296 for the year.
34The father did not file his 2018 or 2019 tax return. Although his explanation for not filing his 2018 tax return due to his inability to obtain proof of income is plausible, he did not explain why he did not file his 2019 tax return. Although I suspect that he has not kept proper corporate books or made any corporate tax filings this information was not before the court. It is a stark example of the difficulties that the Applicant encountered by being self-represented and without any legal advice.
35The Applicant filed his personal 2020 tax return.
36The Applicant’s income and the proof filed to substantiate the income is as follows:
2018 - $25,000 based his own statement of his base salary and commissions 2019 - $30,000 based on his own statement of his base salary and commissions 2020 - $7,328.54 based on his tax return, T-4 and Notice of Assessment. The Notice of Assessment indicates income of $11,614.20 but the explanation note on his Notices of Assessment states that $6,680 was added to his income as he did not designate a repayment under the Home Buyers’ Plan 2021 - $23,296 - Employment Insurance copies of deposits provided
37The Applicant provided an Equifax report as ordered by the court that indicated he owed Rogers Communication $426, Virgin Mobile $527, Metrolinx Go Transit $120 and he had CIBC credit card debt of $24,835. He also provided proof of an RBC credit card debt of $16,439.42, and debt to Saskatchewan Power of $905.35 and $3,000 owed to P.R. Investments for rental arrears.
38The Applicant filed several financial statements sworn December 3, 2019, April 14, 2021 and November 19, 2021. The financial statements essentially set out the above noted debts plus further amounts owing to the FRO and a debt to his mother of $60,000. His expenses are minimal and he owns no property.
39Much of the disclosure provided came piecemeal and is still incomplete and raise questions that remain unanswered.
40Based on the BMO bank account statements provided, the Applicant opened this account in May 2019. His deposits from July to December 2019 total $9,646.46. In 2020 his deposits total $25,433.24. Some of these deposits are clearly attributable to Emerald Water whether by cash, e-transfer or cheque. But the source of some other e-transfers is not clear. The applicant was aware that there were questions about his income and the onus was on him to explain the source of his deposits. Nevertheless, the sums deposited from whatever source do not suggest a large amount of income.
41Counsel for the Respondent submitted that the Applicant must have another bank account that he has not disclosed. The Applicant was requested to provide proof of a CIBC bank account. He provided an email from CIBC stating that as his bank accounts had been closed for a considerable amount of time, he needed to provide his bank account numbers before the records could be located. It is clear the Applicant did not follow up with CIBC, but again I attribute this to his lack of counsel or assistance rather than an intention to mislead.
42At times the Applicant became quite frustrated with this process and what he viewed as unnecessary disclosure requests from the Respondent. Despite the fact that the requests from the Respondent’s counsel were appropriate and could probably have been easily answered as to why some of the disclosure was not attainable, the Applicant was unable to provide that information
43The Applicant deposed that for the last 3 years he has moved several times and been evicted for lack of payment of rent and that he has had no fixed address. He stated that he has been largely supported by his mother and friends. But he did not provide any proof such as an affidavit for his mother, a copy of a promissory note or his own specific evidence that explained the source of some of the deposits.
44Many of the disclosure items on the Request for Information relate to documents prior to July 2018 and were submitted before the Applicant agreed that he was only seeking a variation as of July 2018. However, despite his lack of compliance with many of the items of disclosure, it is still clear from the disclosure that he has provided that he is not earning anywhere close to the $82,000.
45While I appreciate the caselaw that requires timely, accurate and complete financial disclosure, I find that in this case, the Applicant has made good efforts, acting on his own in difficult circumstances to provide much of the relevant disclosure. Where he has not done so, the court can draw a negative inference. But he has provided sufficient evidence to meet the onus on him to prove that he has experienced a change in circumstances.
46I also note that as of June 2021, Jack is no longer in full-time attendance at school and this is also a change in circumstances.
47Further, although Cullen is still in school based on his 2020 tax return and Notices of Assessment, he earned $32,444. It surely could not be the intention of the outstanding order that the Applicant continue to support Cullen and pay the fixed amount of $576 per month towards his section 7 expenses and a further contribution towards his postsecondary expenses without a significant contribution from Cullen based on Cullen’s income.
4(b) Was there effective notice?
48Once there is a finding of a material change of circumstances, a presumption arises in favour of retroactive decrease of the child support to the date the payor gave effective notice, up to 3 years before formal notice.
49In this case, I do not accept the vague evidence of the Applicant that he told the Respondent that he wished to vary the court order due to his employment income drastically decreasing. Even if he did mention this to the Respondent, he did not provide her with any proof of his decrease in income. Accordingly, the Applicant did not provide effective notice to the Respondent.
4(c) Should the presumptive rule of a change only to the date of formal notice be applied?
50The Respondent received formal notice when the Applicant began this Motion to Change in August 2020. He is now only seeking a variation as of July 1, 2018. To only permit the Applicant to seek a change in his outstanding child support obligation as of August 2020, would be unfair as the facts establish that there has been a material change in his circumstances through no fault of the Applicant since the Spring of 2018.
51The court retains the discretion to depart from the presumptive date of retroactivity where the result would be unfair. In exercising its discretion the court is to consider the D.B.S. factors namely, if the payor has an understandable reason for delay in seeking a decrease, the payor’s conduct, the child’s circumstances and any hardship to the payor if support is not reduced viewed in the context of hardship to the recipient and child if support is decreased.
52I find that the Applicant’s delay in bringing his Motion to Change earlier was based on the dramatic facts that emerged regarding the company he was working for. He then encountered problems trying to obtain accurate records to prove his income due to the company’s legal difficulties. His difficulties were then compounded by his lack of legal assistance and the fact that he also resided outside the jurisdiction. He did compound the problem by not having filed his income tax returns for the previous years.
53I have considered that the Applicant had a good history of child support payments since the outstanding court order of October 23, 2014 and only began to pay less in July 2018 when the company came under investigation and became embroiled in legal difficulties. The Applicant cooperated with FRO and continued to make some payments. The Applicant also consented to only seek a variation as of July 1, 2018 despite his evidence that he did not earn $82,000 in the prior years.
54A retroactive decrease in the applicant’s child support obligation will not result in the Respondent being required to make a repayment to the Applicant. There is no evidence that a retroactive decease in child support will cause the children any hardship. The children have been able to enjoy a relatively privileged life with both enjoying skiing at a high-end ski club, Jack has been able to continue to attend private school and Cullen has been able to attend college. I have considered that this has obviously been due to the Respondent absorbing the entire share of these expenses since the Spring of 2018.
55In this case, there will be hardship to the Applicant if the order is not varied as of July 1, 2018 based on his change of income but also based on the dubious nature of some of the section 7 expenses.
56The outstanding order required the Applicant to pay a fixed amount of $576 per month or $6,912 per year for section 7 expenses. Although this may have been an expedient manner of resolving the issue of what qualifies for section 7 expenses, there is a lack of fairness to require the Applicant to continue to pay this amount based on his obvious reduced income and based on the nature of some of the expenses. For example, the Respondent claims reimbursement for private school for Jack in 2018 for $13,200, and in 2019 for $5,000 and in 2020 for $2,693. There is no explanation for the variance in these amounts. Further, based on the Applicant’s reduced income it is questionable whether he would have been required to pay these amounts. She further claims ski expenses in 2018 for $1,829.40. It appears from the invoices that the expenses include a capital replacement fund and food. A capital fund contribution and the cost of food would not constitute a section 7 expense. There is a further claim for orthodontal expenses of $1,764 that appears to represent the entire cost for that year. The total amounts claimed for section 7 expenses for Jack in 2018 are $17,653.40, in 2019 $5,000 and in 2020, $2,693.16.
57With respect to Cullen, the postsecondary expenses claimed are $2,461.57 in 2019, $2,001.58 in 2020 and $3,367.54 in 2021. There is also a claim for ski expenses in 2018, that include $299.45 for a staff jacket. If Cullen paid for a staff jacket this suggests that he had a job as a ski instructor. There are also claims for driving school fees of $650 in 2019 and scuba diving fees in 2021 of $452. Car expenses to drive to and from school of $227.06 in 2021 are also claimed. These are not appropriate section 7 expenses especially as Cullen earned $32,444 in 2020. He attends school for 4 days a week and works as an apprentice for the other day. There was no information about how he earned these monies but there is no reason to assume that he would not earn the same amount in 2021. I find that he would have an obligation to contribute to his own school and section 7 expenses given his level of income.
58There is a further issue with respect to the terms of the outstanding order that required the Applicant to not only pay the fixed amount of $576 per month but also contribute to the cost of postsecondary expenses. The Respondent has included the full cost of postsecondary expenses in her calculations.
59The Respondent claims section 7 expenses, including the full cost of both Jack’s private school and Cullen’s postsecondary expenses in her calculations. In total the Respondent claims expenses of $18,132.85 4 for 2018, $8,111,57 for 2019, $6,739.76 for 2020 and $8,629.83 for 2021.But as indicated these expenses also include expenses of $7,830.69 for Cullen’s postsecondary expenses.
4(d) What income should be attributed to the Applicant?
60It was the position of the Respondent that if the court was prepared to grant a change to the Applicant’s child support obligation that income should be imputed as follows:
2018-$ 25,000 but grossed up as the Applicant did not pay income tax to $44,000 2019- $30,000 but grossed up as the Applicant did not pay income tax to $62,511 2020- $16,493 (based on the Notice of Assessment) and impute a further $30,000 to $52,630 2021 - $23,902 based on receipt of Employment Insurance 2022 - $60,000 imputed income 2023 - $82,000 imputed income
61It was submitted that the Applicant should be in a position in a few years to earn the income that he was imputed to earn in 2014. In addition, counsel for the Respondent seeks that the Applicant pay his share of all the section 7 expenses.
62The Applicant submits that he should pay child support based on his actual income as follows:
2018 - $25,000 2019 - $30,000 2020 - $30,000 2021 - $23,296
63The Applicant therefore generally agrees with the Respondent’s position except that he does not agree that his income should be grossed up. He also explained the calculation regarding his income in 2020 that is, that his actual personal income was only $7,340.06. It is his position that he will require more time to begin to earn the income that he previously earned. He suggests income be imputed at $40,000 in 2022, and $60,000 in 2023 and then $82,000 in 2024. Although this seemed more of a desperate attempt to respond to the Respondent’s counsel submission than based on any real plan.
64In determining an appropriate income to be imputed to the Applicant. I find that his income should not be grossed up. There is no indication that the Applicant was earning cash. The Applicant has begun the process of filing with CRA through the R-499 form. He will be assessed on his income and will owe income taxes.
65Further, I find that it is reasonable that a less aggressive transition period of time be ordered until the Applicant is able to increase his ability to earn an income in the range of $82.000.
66I find that it is reasonable that income continue to be imputed at the rate of $30,000 in 2022 and then increase to $40,000 in 2023. As the Respondent has herself encountered a steep decline in her self-employed income it is reasonable to assume that the Applicant will continue to encounter difficulties obtaining full-time employment due to the effect on the economy of Covid.
67The Applicant will be required to provide yearly proof of his income. If his income is greater than the income imputed to him he will be required to readjust his child support in accordance with his actual income. However, the Applicant will not be permitted to seek a decrease to less than $30,000 in 2022 and less than $40,000 in 2023.
68I wish to add that the Applicant did not seek a termination of child support with respect to Jack even though he is presently not attending school. But the court has a gatekeeper duty especially to self-represented litigants and as Jack is presently not attending school, he is legally not entitled to child support. Accordingly, I have made that adjustment in the calculations.
69As the Applicant resides in Saskatchewan in accordance with section 3(3)(a)(i) of the Federal Child Support Guidelines the applicable Child Support Guidelines table is Saskatchewan.
70As of July 1, 2018, and based on child support for 2 children based on the Applicant’s imputed income of $25,000 he shall pay child support per Child Support Guidelines of $376 per month.
71As of January 1, 2019, and up to December 2020 and based on child support for 2 children based on the Applicant’s imputed income of $30,000 he shall pay child support of $448 per Child Support Guidelines.
72As of January 1, 2021, based on child support for 2 children based on the Applicant’s income of $23,296 he shall pay child support of $354 per month per Child Support Guidelines.
73As of July 1, 2021, based on child support for 1 child Cullen Bolsover based on the Applicant’s income of $23,296 he shall pay child support of $186 per month per Child Support Guidelines.
74As of January 1, 2022, based on child support for 1 child, Cullen Bolsover based on his imputed income of $30,000 he shall pay child support of $242 per month.
75As of September 1, 2022, based on child support of 2 children Cullen Bolsover and Jack Bolsover based on the Applicant’s imputed income of $30,000 he shall pay child support of $448 per month per Child Support Guidelines. The Respondent shall provide proof that the child Jack Bolsover has commenced postsecondary education and provide proof to the Applicant and to FRO. If proof has not been provided then child support shall only be payable for Cullen Bolsover in the amount of $256 per month.
76As of May 1, 2023, the Applicant’s child support obligation of child support for Cullen Bolsover shall terminate.
77As of June 1, 2023, the Applicant shall pay child support for Jack Bolsover of $319 per month based on the Applicant’s imputed income of $40,000, as long as proof of Jack Bolsover’s full time postsecondary attendance is provided to the Applicant and to FRO. Child support shall terminate upon Jack Bolsover graduating from postsecondary school attendance. The Respondent shall advise FRO and the Applicant as to the date he completes his postsecondary education.
5. What amount should the Applicant pay for section 7 expenses retroactive and ongoing?
78With respect to the Applicant’s retroactive and ongoing payment of section 7 expenses, I have considered that the Respondent income is as follows:
2018 - $40,964.87 2019 - $43,821.25 2020 -$57,346.15 2021 - $8,900
79The complication in this calculation is based on the pre-existing order which I find is no longer appropriate or fair. I find that except for the agreed upon fact that Jack should attend at private school and that it was reasonable for his orthodontal treatment to be completed in 2018 most of the other expenses do either not qualify as extraordinary expenses or are not within the financial ability of the Applicant.
80With respect to Cullen his post secondary school fees for 2019 are reasonable. But as Cullen earned $32,444 in 2020, he should be required to pay the full cost of his school expenses as of 2020. As the Respondent did not explain the source of the income or if it is continuing as part of his apprentice program or other employment, he should be able to afford to meet his own costs. The Applicant will still be required to pay child support for him.
81With respect to the Applicant’s proportionate share of the special expenses in 2018, the total expenses for school and orthodontal expenses for Jack total $14,964. But as the arrears for both child support and section 7 expenses was agreed to be $35,900 as of June 30, 2018 the Applicant, should receive credit, in accordance with the outstanding order, of $576 per month for 6 months or $3,456. However, in accordance with the order made today the Applicant’s proportionate share of those expenses is $5,700 for the year. The Applicant therefore owes $2,248 being $5,700 less credit of $3,452 for $2,248.
82In 2019, I find that the total cost of schooling for both children is $7,461.57. The Applicant’s proportionate share would be $3,024.
83In 2020, Cullen’s postsecondary expenses were $2,002. The Applicant’s proportionate share would be $684.
84In 2021, Jack’s private school fees were $2,693.16. The Applicant was in receipt of Employment Insurance income of only $23,296. The Respondent’s income was severely decreased to only a projected income of $8,900 as she is self-employed and her business was severely impacted by Covid and the CERB payments she was receiving were terminated. Section 7 (1) of the Child Support Guidelines states that the court may provide that a parent pay an amount to cover all or any portion of a section 7 expense. Although the guiding principle is that the cost be shared in proportion to income, the amount of the expense and income of the parties is a relevant consideration. In this situation where both parties have limited financial means I find that it is appropriate and reasonable that they share this expense equally. The Applicant’s share would therefore be $1,346.
85The Applicant will be required to pay a lump sum of $7,302 for all retroactive section 7 expenses from July 1, 2018 to August 31, 2022 will be enforced by FRO. I do not intend to set a minimum monthly payment in view of the Applicant’s ongoing child support obligations and his uncertain employment situation.
86In 2020, the Respondent did not include any cost for Jack’s private school so there is no contribution required by the Applicant.
87With respect to Cullen’s school expenses, as indicated based on Cullen’s earnings it is reasonable that he should be responsible his own schooling costs for the remainder of his schooling in 2021, 2022 and 2023 unless there is proof that he is no longer earning an income above $10,000. As even with a diminished income, Cullen should be able to meet his own school expenses as they are quite modest.
88With respect to any future claims for section 7 expenses such expenses should be agreed upon in advance in writing. The cost of post-secondary education for Jack should be in proportion to income and limited to tuition fees, incidental school related charges, books and any other course related equipment. The Respondent shall provide the Applicant with a copy of any receipt for such expenses, less any grant or scholarship received by Jack, and the Applicant will pay his proportionate share with in 30 days.
6. Reduction or recission of arrears
89As explained in Colucci, a claim for rescission of arrears is based on a present or future inability to pay. Such a claim generally arises when a request to retroactively decrease arrears based on a change of past financial circumstances has been unsuccessful.
90In this case, based on the findings made, there has been a reduction of the outstanding arrears based on findings of the Applicant’s past income. The new arrears will now be calculated and there is no basis for any further recissions.
7. Order
91There will be an order as follows:
The order of September 13, 2021 striking the Applicant’s Motion to Change is set aside.
As of June 30, 2018, the Applicant’s arrears with respect to child support and section 7 expenses are set at $35,900.
Paragraphs 5, 6, 7, 8, 10 and 11 of the order of October 24, 2014 are varied as follows: a) As of July 1, 2018, and based on child support for 2 children based on the Applicant’s imputed income of $25,000 he shall pay child support per Saskatchewan Child Support Guidelines of $376 per month. b) As of January 1, 2019, and up to December 2020 and based on child support for 2 children based on the Applicant’s imputed income of $30,000 he shall pay child support of $448 per Saskatchewan Child Support Guidelines. c) As of January 1, 2021, based on child support for 2 children based on the Applicant’s income of $23,296 he shall pay child support of $354 per month per Saskatchewan Child Support Guidelines. d) As of July 1, 2021, based on child support for 1 child Cullen Bolsover and based on the Applicant’s income of $23,296 he shall pay child support of $186 per month per Saskatchewan Child Support Guidelines. e) As of January 1, 2022, based on child support for 1 child, Cullen Bolsover and based on his imputed income of $30,000 he shall pay child support of $242 per month per Saskatchewan Child Support Guidelines. f) As of September 1, 2022, based on child support for 2 children Cullen Bolsover and Jack Bolsover and based on the Applicant’s imputed income of $30,000 he shall pay child support of $448 per month per Saskatchewan Child Support Guidelines. The Respondent shall provide proof that the child Jack Bolsover has commenced postsecondary schooling and provide proof to the Applicant and to FRO. If proof has not been provided then child support shall only be payable for Cullen Bolsover in the amount of $242 per month. g) As of May 30, 2023, the Applicant’s child support obligation of child support for Cullen Bolsover shall terminate. h) As of June 1, 2023, the Applicant shall pay child support for Jack Bolsover of $319 per month based on the Applicant’s imputed income of $40,000, as long as proof of Jack Bolsover’s full-time postsecondary attendance is provided to the Applicant and to FRO. Child support shall terminate upon Jack Bolsover graduating from postsecondary school attendance. The Respondent shall advice the FRO and the Applicant as to the date he completes his postsecondary education. i) The Applicant will pay a lump sum of $7,302.00 for all section 7 expenses from July 1, 2018 to August 31, 2022. The Applicant shall not be responsible for any postsecondary expenses incurred by Cullen Bolsover unless his income is less than $10,000. j) With respect to any future claims for section 7 expenses such expenses should be agreed upon in advance in writing. The cost of post-secondary education for Jack Bolsover should be in proportion to income and limited to tuition fees, incidental school related charges, books and any other course related equipment. The Respondent shall provide the Applicant with a copy of any receipt for such expenses, less any grant or scholarship received by Jack, and the Applicant will pay his proportionate share with in 30 days. k) The Applicant shall provide to the Respondent a copy of his income tax return and Notices of Assessment annually as of July 15, 2022 and each year that he is required to pay child support. In this regard the Applicant shall file his income tax returns annually. The Applicant’s child support obligations shall be adjusted in accordance with his actual income. However, there will be no reduction of child support below an income of $30,000 in 2022 and $40,000 in 2023. If the Respondent is seeking a contribution from the Applicant regarding any section 7 expenses, she shall provide him with her income tax returns and Notices of Assessment on the same terms.
Support Deduction Order to issue
92Although the Applicant has been successful on this motion, in view of the amount of work that Respondent’s counsel needed to do to organize the Applicant’s disclosure and due to his lack of timely and complete financial disclosure I find that he should not be entitled to any costs. If despite the Applicant being successful the Respondent made an offer to settle that is as good as or better than the orders made, her costs submissions can be submitted within 30 days and any response by the Applicant within 30 days thereafter.
Released January 6, 2022 Signed: Justice Roselyn Zisman
Footnotes
- The Respondent’s position with respect to whether she was requesting the sharing of postsecondary expenses in addition to the fixed amount of $576 per mo as set out in the outstanding order was unclear
- As the language of a “material change of circumstances” is issued by the court in Colucci I have applied this higher test
- 2021 SCC 24 ; although the decision pertains to proceedings pursuant to the Divorce Act the test of a retroactive variation is the same pursuant to provincial legislation
- The Respondent claimed $17,952.85 but the court corrected the mathematical error.