Court File and Parties
Court File No.: FS-22-32 Date: 2023-10-30 Superior Court of Justice – Ontario
Between: Lawrence Da Silva, Applicant Self-represented
– and –
Allison Ferguson, Respondent Self-represented
Heard: October 30, 2023
Reasons for Judgment
Justice Van Melle
[1]
Procedural History
This motion to change proceeds today on an uncontested basis. The only issue is the respondent’s income for child support purposes since 2019 and whether the respondent owes retroactive support.
2On June 24, 2022 Justice Woollcombe presided over a case conference. The respondent had not filed any materials. Justice Woollcombe scheduled a DRO meeting and said:
The respondent must consult with counsel or educate herself as to what required of her now. By way of summary, if she is opposing the motion (as I understood from her she was), she must, in accordance with Rule 15 of the Family Law Rules, serve and file a Response to the motion to change (Form 15B) with all required attachments, by July 4, 2022. She is already late in doing so. She must also serve and file a completed Financial Statement (form 13). Again, this is to be completed by July 4, 2022
3The respondent did not comply with Justice Woollcombe’s order.
4On June 28, 2023 the parties attended before Justice McSweeney for a case conference. Given that the parties had already attended with Justice Woollcombe and then had two meetings with a Dispute Resolution Officer, Justice McSweeney converted the case conference into a combined Settlement/Trial Management Conference.
5Justice McSweeney’s endorsement included the following:
Ms. Ferguson shall have one last chance to comply with the Court’s orders. If she fails to do so, there will be no further DRO meetings, and she will lose her right to present evidence at trial.
Respondent shall have until no later than 4pm on Thursday July 27, 2023 to file the following with the Brampton SCJ Court office: (emphasis in original)
a. Response to the Applicant’s motion to change (Form 15B);
b. Signed and updated Financial Statement (Form 13), with documentation supporting the amount of income earned, monthly expenditures and pay stubs for the last six pay periods;
c. Copy of letter of employment/terms of employment for any position held since January 1, 2019, and of any education program enrollment and completion, including tuition payment documentation, since January 1, 2019;
d. Documentation from medical and other health care providers describing current health-related limitations/accommodation needs relating to her employment;
e. If the Respondent Ms. Ferguson is unable to produce any of the above, she shall also serve and file an affidavit with her disclosure by 4 p.m. on July 17, 2023, explaining her efforts to obtain the documents and the reason she has not produced them.
Ms. Ferguson is advised to work with her mother to plan to serve and file everything a week before the deadline: there will be no further extensions or explanations entertained if this final chance is missed.
If Ms. Ferguson does not comply in full with the disclosure ordered by 4 p.m. July 27, 2023, no extension will be given; she will not be permitted to present evidence at trial, there will be no DRO conference, and the Applicant may then proceed on an uncontested basis.
6The respondent failed to comply and this matter was scheduled for an uncontested hearing today. The respondent showed up in court. When asked about her failure to produce the documentation ordered by Justice McSweeney, she said that she had produced the documentation but was a few hours late so the court would not accept the filing. Upon further discussion, it turned out that the respondent had served her Financial Statement on the applicant, but nothing else. She did not bring with her today any of the documentation that she said that she sent to the applicant. She understood that Justice McSweeney’s order meant that the trial was going to proceed today.
[7]
The Existing Orders
There are two final orders. In 2016 Justice Selkirk ordered the respondent to pay child support to the applicant for the child born December 26, 2009, in the amount of $176 per month based on an imputed income of $22,000.
8The applicant seeks to have Justice Selkirk’s order varied to provide that the respondent pay child support in the amount of $330 per month based on her income of $37,440 commencing November 1 ,2023. He also seeks arrears in the amount of $11,764.
9On June 20, 2019 Justice Fraser fixed child support arrears under the 2016 order. Both of the parties were seeking a variation at that time. The main issue was the applicant’s request to relocate with the child. The relocation issue was resolved on consent.
[10]
Material Change in Circumstances and Imputed Income
On a motion to change, the first issue is always whether or not there has been a material change in circumstances. I find that the respondent’s failure to comply with the disclosure requirements under both the 2016 and 2019 orders forced the applicant to seek judicial assistance. Additionally, I find that the respondent has completed a medical office assistant program and therefore is capable of earning more than $22,000 per year.
11Initially the applicant asked that the respondent’s income be imputed to $49,000 which he submits is the amount that a medical office assistant can earn. He accepts however, that the applicant has some medical issues which likely result in her inability to earn $49,000 per year and is therefore asking that her income be imputed at $37,440. The applicant’s request is reasonable and I accept that $37,440 should be imputed to the respondent.
[12]
Retroactive Child Support
The applicant claims three years of retroactive support from April 3, 2019. He cannot go back further than Justice Fraser’s Order of June, 2019. I was not provided with the information that would have been before Justice Fraser, but as she made an order that there were no child support arrears, I assume that she had some indication of the parties’ respective incomes. Even if she did not, I cannot go behind her order. As such the earliest date that an increase could conceivably have been awarded would have been January of 2020.
13The 2016 order and the 2019 order both contain a final paragraph:
For so long as child support is to the paid, the applicant and the respondent shall provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
14In June of 2021 the applicant sent a text to the respondent asking for her Notice of Assessment and two current paystubs. The respondent refused saying that the applicant had to send an affidavit or wait until she did her income tax. She went on to say that legally she did not have to give him the information and would not give him anything until she heard from a lawyer or got paperwork.
15In February 2022 the applicant again requested the information. The response was “Get a lawyer to email me in regards to T4.”
16Given the respondent’s failure to provide the information that she was legally required to provide, I am prepared to grant a retroactive increase in child support as of January 1, 2022, covered by the first request in June 2022. (Presumably had the 2022 request been responded to, the respondent’s income for 2021 would have been confirmed and any variation in child support would have been effective as of January 2022.)
17Although not specifically referenced, it appears that the respondent completed the medical assistant program in late 2019 or early 2020.
[18]
Arrears and Section 7 Expenses
The applicant filed with the court the uncontested trial record which contained his affidavit in support of the relief claimed, including a chart setting out a calculation of child support that is due to him for the child.
19The first two entries in the chart are for arrears that the Family Responsibility Office will be collecting. Those two items totalling $901 will be removed from the chart.
20The applicant claims for 2022 arrears of $1,853 based on an income of $37,440. He claims arrears to date in 2023 of $1,544 also based on an income of $37,440.
21The applicant asks for the respondent’s 36% contribution to the child’s competitive swimming in the amount of $750. The respondent agreed by text message to contribute this amount.
22The applicant asks for $1,255 as the respondent’s 35% share of medical and dental costs and $200 representing 10% of the child’s orthodontic costs. It appears from the materials however, that this covers the insurance premiums. This does not meet the requirement in the 2016 order which says that section 7 expenses include medical and dental expenses not covered by insurance. The implication is thus that the cost for insurance is not a section 7 expense.
[23]
Costs
The applicant also claims costs of $2,196. He is entitled to costs even though he is self-represented. It was the respondent who insisted that she receive a lawyer’s letter rather than comply outright with the 2016 and 2019 court orders regarding disclosure. It is entirely the respondent’s fault that nothing was accomplished at two previous court attendances and two DRO meetings. She failed to comply with her obligations under the Family Law Rules and two very specific court orders for disclosure.
[24]
Disposition
In the result, an order will issue that the respondent pay to the applicant monthly child support for the child born December 26, 2009 in the amount of $330.40 based on an annual income of $37,440, commencing November 1, 2023. The respondent will pay to the applicant arrears of child support and section 7 expenses in the amount of $4,147. The respondent will pay to the applicant costs of $2,196. Given that the costs were expended to obtain child support, the award of costs is enforceable by the FRO as child support.
Van Melle J.
Released: October 30, 2023