Court File and Parties

Court File No.: Brampton 10060-11 Date: 2012-03-28 Ontario Court of Justice

Between: Cindy Emma Lewis Applicant

— And —

David Clive Layton Respondent

Before: Justice J.C. Baldock

Heard on: February 3, 2012

Reasons for Judgment released on: March 28, 2012

Representation:

• Cindy Emma Lewis ............................................................................................... on her own behalf
• David Clive Layton ............................................................................................... on his own behalf

BALDOCK, J.:

Background

[1] This Motion to Change was commenced by the respondent father pursuant to the Interjurisdictional Support Orders Act ("I.S.O.A."). The respondent (named as the applicant on the ISOA documents) resides in New Brunswick where he is currently serving in the Canadian Armed Forces.

[2] His claim is for either termination of support or a reduction in the amount payable for the parties' daughter Courtney-Paige Noel Lewis ("Courtney") born March 8, 1993 (now almost 19 years of age).

[3] The applicant mother (named as the respondent on the ISOA documents) responded to the father's claim by filing her own affidavit, and requesting an oral hearing.

[4] A hearing was then scheduled, which the father also attended. As he has now attorned to the jurisdiction of the court, it is no longer necessary to treat the matter as having been brought under the ISOA.

Existing Order

[5] The existing order was granted on June 3, 2004 by Justice Brownstone in the court at 47 Sheppard Avenue East, Toronto (File #D245-93A1). It provided for child support to be paid in the amount of $392.00 per month plus a further $43.10 for the respondent's contribution to the cost of guitar lessons, commencing May 1, 2004. At that time, the respondent's income was found to be $45,556.86.

Evidence Regarding Courtney's Residence and Education

[6] Both parties gave evidence. The applicant mother testified that although she completed high school in 2011, Courtney is attending Lakeshore Collegiate, taking a full course of study, to enable her to gain entry to a college where she wishes to take a course in Police Foundations and/or Criminal Justice.

[7] The respondent father believed that Courtney was no longer living at home, as her address was shown as being in Etobicoke (Toronto) whilst the applicant's address is in Mississauga.

[8] According to the applicant, Courtney provided the Etobicoke address (which was that of her grandmother) so that she could attend Lakeshore Collegiate.

[9] The respondent telephoned the school and as a result of the information he was given, maintains that there is in fact no residence requirement for either the school or college.

[10] On this conflicting evidence I was not persuaded that there was any legitimate reason why the Etobicoke address was given unless Courtney actually resided there at some point.

Undue Hardship Claim

[11] The respondent has asserted an undue hardship claim.

[12] His current income has increased over the years and is now $56,796.00. The guideline child support payment is $514.00 per month, which is the amount sought by the applicant. He currently resides with his wife and four young children. His wife is self employed and he has reported her income as being $9,000.00 for a total household income of $65,796.00.

[13] It is not clear whether the income of the respondent's spouse as reported is net of business expenses and/or tax and no reference is made in his Financial Statement of any child tax credits received. However, on reviewing the material subsequently filed in accordance with my direction, I note the spouse reported a net business loss in 2010. I therefore accept for 2011 the respondent's evidence that it is $9,000.00, and I conclude that this is net of business expenses.

[14] The applicant's income is approximately $48,000.00. She testified that she resides with her son Nicholas, her mother (who no longer resides in Etobicoke) and Courtney, who has a part time job at which she works approximately 20 hours per week at minimum wage.

[15] There is no evidence as to what, if any, financial contribution is made by the applicant's mother. I have therefore disregarded her for the purposes of assessing household income.

[16] The respondent takes the position that having four young children to support constitutes undue hardship.

[17] The respondent was of course aware of his ongoing obligation to support Courtney when he assumed his new responsibilities, which are shared with his wife.

[18] This is not a situation where events have occurred which are beyond the respondent's control. However, it is the reality of the situation and the court must balance the respondent's obligations to ensure that one child is not supported at another's expense.

Section 7 Expenses

[19] The applicant frankly acknowledged that she has not incurred the expense for Courtney's guitar lessons for "at least four years". This means the respondent has overpaid approximately $2,068.00. I accept the respondent's evidence that receipts were never provided. Likewise, I accept that the respondent did not furnish tax returns prior to commencing this Motion to Change.

Current Entitlement to Support

[20] I am satisfied that, notwithstanding the applicant's evidence relating to Courtney's residence, she is currently living with the applicant and attending school full time. She therefore continues to be entitled to support through June 2012.

[21] It is not confirmed that she will be attending college as she still has to apply and be accepted. The applicant testified that Courtney will, if accepted, be applying to the Ontario Student Assistance Programme ("O.S.A.P.") for financial help.

CONCLUSION

[22] I find that the respondent has made a case for undue hardship based on his new family responsibilities. Having regard to the parties' respective household incomes, I reduce the respondent's obligation pursuant to the Guidelines to the amount of the existing order and I decline to make any retroactive or ongoing adjustment to increase support, notwithstanding the respondent's increase in income.

[23] Courtney's plans for her education have not been finalized. She will have some resources available to her – from her part time earnings and O.S.A.P. It would therefore not be appropriate to continue her support beyond the end of this school year without further evidence.

[24] Before the respondent's contribution (if any) to college expenses can be quantified, more information is required, including: the cost of tuition, books, supplies, transportation etc.; the amount earned by Courtney; and the extent of any O.S.A.P. loan, grant or bursary available.

[25] I therefore decline to make any order with respect to postsecondary education costs at this time.

[26] I make the following order:

ORDER

1. Support payable by the respondent pursuant to the order of Justice Brownstone granted June 3, 2004 for Courtney-Paige Noel Lewis terminates effective June 30, 2012.

2. The respondent's contribution to s.7 expenses as set out in the said order is hereby terminated and there are no arrears related to such expenses.

3. The respondent shall be credited with an overpayment with respect to s.7 expenses in the amount of $2,068.00 to be applied as follows:

   (a) to arrears of child support, if any;

   (b) to ongoing child support up to and including June, 2012;

   (c) the balance, if any, to be refunded to the respondent by the applicant.

Released: March 28, 2012

Justice J.C. Baldock