Burton v. Fraser, 2023 ONSC 407

Court File and Parties

COURT FILE NO.: FC-09-282-1 DATE: 2023/01/16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sherri Ann Burton, Applicant AND: Scott Fraser, Respondent

BEFORE: Somji J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

HEARD: January 10, 2023

ENDORSEMENT - RE MOTION TO VARY CHILD SUPPORT

Overview

1The Applicant Sherri Ann Burton (“mother”) seeks to vary the child support order issued by Master Fortier (as she then was) dated May 31, 2021, (“Order”) on the grounds of a material change in circumstances, namely that she is no longer earning the income on which that support was calculated and has not been earning that income for some time.

2The parties child aged 16 has been residing full time with the Respondent father Scott Fraser (“father”) since before the Order. It is unclear how much parenting time is exercised by the mother. It is not disputed that child support is payable to the father. The only issue is the quantum going forward and if there should be a retroactive adjustment of the amount previously ordered.

3On May 31, 2021, Master Fortier ordered the mother to pay table child support of $507 per month to the respondent based on the mother’s annual income. The annual income is not stipulated on the Order, but the mother claims it was in the range of $50,000/year. The Order was issued on consent of the parties and the mother was represented by counsel at the time. The mother now claims that she only held the job on which the income was imputed for six weeks. She went on short term disability from February 23, 2022, until June 19, 2022, and received EI sickness benefits from June 19, 2022, onwards. She anticipates she will be earning an even lower income when she transfers to ODSP but it is unclear when that will occur. She reports she has outstanding debts with CRA and Ontario Works, has taken loans to pay those debts, and her monthly rent is $1280: Endorsement of Kaufman AJ September 27, 2022. She indicates she has no assets except a vehicle in her father’s name. In short, she has difficulty making ends meet.

4The father reports it has been difficult over the years to obtain support from the mother, and she now brings this motion only because the Family Responsibility Office (“FRO”) has started to garnish her wages. The father states he did not receive any child support until about the summer of 2022 when FRO provided him a lump sum payment of approximately $2500.

5The father also points out that the mother was ordered to pay him costs in the amount of $4,839 in May 2014 after Justice Minnema found her in contempt and, to date, she has not paid those costs. The mother has also failed to meaningfully contribute to the child’s s. 7 expenses, the most significant recent expense being the costs of braces. The father expressed frustration with the mother’s failure to provide support for the child.

6During the motion hearing, it became abundantly clearly that this is a high conflict case.

7The issues to be decided are what amount of child support is payable by the mother going forward and whether child support should be adjusted retroactively.

Issue 1: What is the child support payable going forward effective February 1, 2023

8Child support is determined on the payor’s income and the presumptive rule is that the quantum of support will be determined by the Table amounts: s. 3(1) Federal Child Support Guidelines, SOR/97-175, as am.; see also Colucci v Colucci, 2021 SCC 24 at paras 34 and 114.

9While the parties agreed to the mother paying table support of $507/month based on the mother’s income at the time, the mother has now filed evidence to indicate her income was in fact lower for 2021 and 2022. The mother did not file a tax return for 2021 but included in her materials her 2021 T4 Statement of Renumeration from TW Insurance Services Ltd. indicating her income for 2021 was $39,977. She claims her income was lower in 2022 when she went on disability. Until she is able to file her income tax return for 2022, the mother is agreeable to using the 2021 income figure for calculation of child support.

10In this case, I am satisfied based on the materials filed that child support payable going forward should be commensurate with the mother’s 2021 income of $39,977 in the amount of $358/month. There will be an order that:

1. The mother shall pay child support effective February 1, 2023, in the amount of $358/month based on her annual income for 2021 of $39,977.
2. The mother shall provide a copy of her 2022 income tax return and Notice of Assessment to the father by June 1, 2023.
3. Should the mother’s income for 2022 be different from $39,977 and the parties cannot come to an agreement on the Table amount based on that income, either party may bring an application to vary the child support amount payable in accordance with actual income. The application to vary child support can return before me given my familiarity with the matter.
4. Unless this Support Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
5. For as long as Child Support is to be paid, the Payor (“mother”) and Recipient (“father), if applicable, must provide updated income disclosure, including annual income tax returns and notices of assessment, to the other party by June 1st each year in accordance with the Child Support Guidelines.

Issue 2: Should the mother’s child support from May 2021 to February 2023 be decreased retroactively?

11With respect to the mother’s application to retroactively decrease the child support payable from May 2021 to present, I must consider the legal framework set out by the Supreme Court of Canada in Colucci. As the Court explained, under the Guidelines, the payor is only responsible for child support commensurate with income, but a retroactive reduction in support can result in a disruption to the certainty of support enjoyed by the child and the support recipient, in this case the father: Colucci at para 78. For this reason, once a payor, in this case the mother, establishes a change in circumstances, a presumption arises in favour of varying support to the date of effective notice given by the mother to the father of her change in income and her request to reduce support: Colucci at para 80. As the Court explains at paras 84 and 85:

The best interests of the child lie in predictability and stability of household finances. The Guidelines contemplate that a drop in payor income may lead to a drop in the child’s standard of living, just as it would if the parents were still together. However, payors must promptly communicate such changes to the recipient, just as they would if the parents had not separated, and move to have the terms of the order or agreement changed to restore certainty to child support arrangements between the parties. This ensures that the child is impacted as little as possible by the parents’ separation and continues to benefit from predictable and regular support from the payor parent. A drop in support can be presumed to have detrimental impacts on the child, but ongoing communication and disclosure cushions those impacts and preserves the child’s best interests to the fullest extent possible. For these reasons, in the absence of effective notice of a drop in payor income, certainty and predictability for the child are to be prioritized over the payor’s interest in flexibility

The payor’s interest in flexibility comes to the forefront once effective notice is given (H.G.S. v. S.G.S., 2018 ABQB 892, at para. 82). As such, by making the date of effective notice the presumptive date of retroactivity, the framework preserves ample flexibility for the payor. The presumption also provides payors with the certainty of knowing that any material change in income should be disclosed. Not only is the payor the one who is aware of their financial situation, but they also control the date on which they disclose that information. The payor therefore has control over the date of notice and the date of retroactivity.

12In this case, it is unclear when the mother put the father on notice that she wished to change the child support payable on the basis of a change in her income. A review of the history of the proceedings indicates that on August 23, 2022, the court heard an urgent motion by the mother to vary child support on the ground of dire financial circumstances. Kaufman AJ informed the mother that the motion could not proceed without notice and to serve the father accordingly. The mother served the father her motion materials and the matter returned before Kaufman AJ on September 27, 2022. At that time, Kaufman AJ declined to declare the matter urgent and it was adjourned to be addressed at a settlement conference. Based on this record, I find the effective date of notice to the father of the mother’s request to change retroactive child support is September 27, 2022.

13If retroactive variation is appropriate, quantum is governed by the statutory scheme that applies which in this case is the Guidelines. As the court explained in Colucci, the Guidelines provide the court with some discretion around child support to be awarded particularly if there is undue hardship. Consideration may also be given to whether the payor has been intentionally underemployed, has unreasonably deducted expenses from income, or engaged in blameworthy conduct: Colucci at para 109.

14In this case, having considered the submissions of both parties and the mother’s present financial circumstances, and notwithstanding that she has yet to pay the costs award from Minemma J, I am satisfied that for the period of September 22, 2022, (the date of effective notice) until March 1, 2023, child support should be adjusted retroactively in accordance with the mother’s 2021 income of $39,977 and the amount payable under the Guidelines is $358/month rather than the $507 that was ordered.

15There will be a further order that:

6. For the period of September 22, 2022, to March 1, 2023, child support shall be retroactively adjusted and the mother shall pay the father child support in the amount of $358/month rather than $507/month as provided for in the Order of May 31, 2021.
7. The Family Responsibility Office shall adjust the arrears payable and the mother shall be credited for any overpayments in child support.
8. A copy of this endorsement and Order shall be provided to the Family Responsibility Office to calculate the child support arrears, if any, owing as a result of this retroactive adjustment.
9. The matter will return to Superior Court at 9:30 am on Tuesday March 7, 2023. Counsel for the Family Responsibility Office is requested to provide this court and the parties at that time, if the information is available, an accounting of the current state of child support arrears on the part of the mother, if any, payable to the father. This will allow both parties to have some clarity on arrears owing so that they may plan their affairs, including the needs of the child, accordingly.

Issue 3: Should child support be adjusted retroactively for the period before May 31, 2021?

16Finally, while there had been some discussion during the hearing about the possibility of further retroactive adjustment to the child support arrears, having reviewed the legal framework in Colucci on retroactive decreases and upon examination of the pleadings filed, there is insufficient evidence upon which to make any further retroactive adjustments. No evidence has been filed of the Order governing child support payable prior to May 2021, what amounts were payable by the mother, what amounts were paid, and what notice, if any, was given to the father for a retroactive adjustment for the period preceding May 31, 2021. On the contrary, on May 31, 2021, Master Fortier issued retroactive arrears payable on consent of the mother. There is no evidentiary basis to interfere with that term of the Order.

Issue 4: Does the mother owe the father section 7 expenses

17The father seeks an order that s. 7 expenses be apportioned in accordance with the parties’ incomes. The mother does not dispute this.

18Presently, the father does not seek any retroactive s. 7 expenses except for the child’s orthodontic treatment which commenced in 2022 and is expected to continue into 2023.

19The father provided an invoice of the costs for the total treatment which is $7,365.00. The father’s insurance will reimburse the father $2,500 in total of that amount payable leaving the parties to pay the balance of $4,865.

20The father has already paid $4,200 to the orthodontist.

21The mother’s portion for the child’s orthodontic treatment is $1,751. Given the mother’s current financial circumstances, the mother will pay the father $150/month effective February 1, 2023, until her share of the orthodontic expenses is paid in full.

22There will be a further Order that:

10. The parties shall pay for s. 7 expenses proportionate to their annual income. The father’s 2021 income is $72,271. The mother’s income is $39,977. The father shall be responsible for 64% and the mother responsible for 36% of the s. 7 expenses.
11. The father shall notify and obtain the mother’s consent for anticipated s. 7 expenses. Consent shall not be unreasonably withheld by the mother.
12. The mother shall pay the father her portion of s. 7 expenses within 15 days of receipt of the invoice of the expense.
13. The mother shall pay the father for her share of s. 7 expenses for the child’s orthodontic treatment in 2022 and 2023 in the amount of $1751. The mother shall pay the father $150/month commencing February 1, 2023, until the amount is paid in full.

Costs

23The parties will each pay their own costs for this motion.

Somji J.