Court File and Parties

Ontario Court of Justice

Date: 2013-11-04

Court File No.: Brampton 720/97

Between:

Delvon Greene Applicant

— And —

Shelley-Ann Oliver Respondent

Before: Justice P.J. Clay

Heard on: November 1, 2013

Reasons for Judgment released on: November 4, 2013

Counsel:

• M. Roshan — counsel for the applicant
• K. Palmer — counsel for the respondent

CLAY J.:

BACKGROUND

[1] The Applicant Father brought Motion to Change the final order of the Honourable Mr. Justice J.D. Karswick dated June 26, 2003. That order had provided that he pay child support to the Respondent Mother for the child Delvan Greene born December 6, 1996 in the amount of $178.00 per month based upon his income from employment insurance in the amount of $21,000.00. The order also provided that he was to notify the respondent mother forthwith upon any changes in his employment circumstances and provide to her copies of his annual income tax returns.

[2] The Applicant Father did obtain employment but the order was not changed. He lost his employment in August 2012 when he was unable to perform his duties as a Personal Support Worker due to a rotator cuff injury that severely limited his mobility in his right arm and upper right side. He received lump sum compensation from W.S.I.B. He collected E.I. from September 2012 to June 2013.

[3] The Applicant Father brought this motion to change on February 14, 2013. He sought an order reducing his ongoing support to zero as he anticipated having no income. He also sought a set off for any child support that the Respondent Mother might owe him for the periods of time when the child resided with him.

[4] The Respondent Mother filed a Response in which she sought a retroactive variation of child support for three years as the Applicant Father had paid support on his E.I. income in 2003 not his employment income subsequently. She sought to have income imputed to the Applicant Father and to have him contribute to school uniforms and shoes as a s.7 expense.

[5] There was a disclosure order made. The parties filed affidavits attaching the disclosure and their calculations of the monies owed.

AGREED FACTS

[6] The parties were able to agree on the following facts:

1. The child resided with the Applicant father from July 7, 2011 to June 2012 (12 months) and for July and August 2013 (2 months). No child support was owed by the Applicant Father for those 14 months. No child support was owed by the Respondent Mother to the Applicant Father as she was on O/W during the relevant times.

2. The period for which retroactive support could be ordered was after April 2010 as the Respondent mother filed a Response claiming retroactivity on April 25, 2013. The parties agreed that three years prior to that "effective notice" was the earliest time to begin any retroactive order.

APPLICANT'S POSITION

[7] The Applicant modified his original position at the time of filing his final affidavit. He said that he had had no income since his E.I. ran out in July 2013. However he was prepared to pay $50 per month beginning Nov. 1, 2013 and $200 as "arrears" paid at the rate of $50 a month.

[8] The Applicant Father's affidavit stated that he had sought employment as a PSW but his limited range of motion and strength prevented him from getting work in his field. He stated that he was beginning Everest College on November 4 to retrain in a 9 month addictions and social services program. He will receive O.S.A.P. during that time.

[9] The Applicant Father responded to the Respondent Mother's questions with respect to the monies flowing through his bank account by providing an accounting of every deposit over $200 in 2013 as ordered. He said that he borrowed heavily from his girlfriend approximately $14,000 and from another friend approximately $6,000. He said he received $500 a month in "rent" from his 83 year old aunt who resided with him with for half of the year. He said he was able to buy a house after beginning this motion by "porting" his mortgage from his old home in Scarborough to his present residence in Hamilton and by borrowing monies on a second mortgage for which he did not have to provide income verification. Ms. Roshan argued that the fact that the Applicant Father's expenses were significantly more than his income could be accounted for by the loans, the fact that he has debt and the fact that some expenses were incurred when he had E.I income but were not paid after that. She also noted that the Respondent Mother filed a financial statement in which her expenses exceeded her income.

[10] Ms. Roshan addressed the retroactivity claim by noting that the seminal case from the Supreme Court of Canada D.B.S v. S.R.G. provided four factors that the Court must consider in determining retroactive claims.

1. A reasonable excuse not to have enforced—the Respondent Mother had gone to court before to change an order (1998 order changed in 2003) she chose not to do so in this matter.

2. Conduct of the payor—she said there was no moral blameworthiness on the facts of this matter.

3. The past and present circumstances of the child. Delvan was nearly 17 and had lived with both parents in the past three years so the lower support was not a hardship.

4. The hardship on the payor parent if a retroactive order was made—she said this "hardship" was a lower threshold then the "undue hardship" test in the CSG.

[11] Ms. Roshan said that the Court had a significant amount of discretion in making a retroactive order and it was not correct to simply look at the income earned in a given year and apply the table amount to that income.

[12] The Applicant Father conceded that the school uniforms were s.7 expenses but said that the cost was not $500 a year to be divided but that the better approach was to have both parents responsible for purchasing uniforms.

RESPONDENT'S POSITION

[13] On the retroactive issue Ms. Palmer referred to the 2003 order and noted that the Applicant Father had a positive obligation to advise the Respondent Mother when he obtained income or employment but did not do so. She said that she was not relying on moral blameworthiness to increase the retroactive period but the fact that the Applicant Father paid a low amount for years should mean that the Court should not hesitate to have him pay the correct amount from May 1, 2010 onwards.

[14] On the 2013 income Ms. Palmer stated that the Applicant Father could not account for all the money in his bank account and the money he received in loans did not make up for the shortfall between his income and expenses. She said that he must be getting the money from somewhere to meet the expenses and she asked the Court to impute to the Applicant Father the sum of his expenses as being his available income. She asked for an order based upon an income of $47,447.08.

[15] Ms. Palmer said that as the Respondent Mother had incurred $221.00 in school uniform and shoes expenses in the first three months of the year it was very reasonable to set $500.00 as a budget for s.7 expenses and to have the Applicant Father pay one half or $250.00 at the rate of $20.83 per month.

ANALYSIS

Retroactive Support

[16] There is no doubt that the Applicant Father knew or should have known that his child support order was based upon his 2003 E.I. income of $21,000.00. He ignored his obligation to advise the Respondent Mother of his employment and the income he was earning. He did benefit from paying a lower amount than he should have for a number of years.

[17] The parties acted reasonably to limit the start of an adjusted order to May 1, 2010. The Respondent Mother had not pleaded that the obligation to disclose triggered a date earlier than three years before the motion. The parties relied upon actual notice and that notice was the filing of the Answer and the claim for retroactive expenses.

[18] In the year 2010 the Applicant Father earned $37,851.00. Based upon the Child Support Guideline tables then in effect he should have paid $349.00 per month based upon that income. He should pay that amount from May 1, 2010 until Dec. 31, 2010.

[19] In 2011 the Applicant Father earned $35,698.00. He should have paid $330.00 per month based upon that income from Jan 1, 2011 to May 31, 2011. The child resided with the Applicant Father from June 2011 to June 2012 so no support should be paid by the Applicant Father during that period.

[20] In 2012 the Applicant Father earned $32,710.00. The child moved back in with the Respondent Mother on or about June 30, 2012. However the Applicant Father lost his job in August 2012 and started receiving E.I. income in September. The support should be based upon an imputed income of full time minimum wage which is approximately the same as the E.I. he would have received. The payment should be $175.00 upon an imputed income of $21,860.00

[21] I have considered the factors set out above from D.B.S. I find as follows:

1. The Respondent Mother had a reasonable excuse not to return the matter to court to seek a higher order. She had no need to do so as the Applicant Father was required to advise her of his income and paragraph 3 of the order of Karswick J. dated June 26, 2003 said that "Failure to comply with the aforesaid may result in a retroactive adjustment in support payments".

2. Conduct of the payor—I agree with the submission that with the exception of his non-compliance as noted above the Applicant Father showed no moral blameworthiness. He was the primary residential parent for 14 months since May 1, 2010. He provided detailed disclosure as ordered.

3. The past and present circumstances of the child. The child has lived his life in very modest circumstances. When the child support is so low any additional amount can be significant. Notwithstanding that the Respondent Mother may have been receiving the same O/W amount irrespective of the support paid there is no reason in law to discount the amount owed because the child may not have suffered any real loss of support.

4. Any hardship on the payor parent in this case was caused by his falling behind in the amount he should have paid due to his own non-compliance with the 2003 disclosure provisions. Furthermore the Applicant Father can be given time to pay the arrears so that it will not cripple his ability to spend time with his son or meet his basic needs.

2013 Income

[22] I cannot accept the position of either party on this issue.

[23] The Applicant Father has known since at least August 9, 2012 that it would be very difficult for him to return to his former position as a P.S.W. He could have started a retraining program much earlier so that when his E.I. ran out in June 2013 he would be in a position to move back into the workforce in a different capacity. He chose instead to buy a house in Hamilton and try and live a lifestyle that could only be supported through loans principally from his girlfriend but also from others.

[24] The Applicant Father's actions made this relatively simple matter much more complex. It is understandable that the Respondent Mother on welfare would be upset and suspicious when he purchased a house at the same time as he said he could not pay support. The Applicant Father's comingling of money with his girlfriend required an explanation and a detailed accounting was necessary to allay the Respondent Mother's concerns. At the end of the day she is still not satisfied that the Applicant Father does not have other income.

[25] Ms. Palmer's approach of assuming that expenses paid means that equivalent income must have been earned is flawed. It is useful to test a financial statement by reviewing the difference between income and expenses. However in this matter the shortfall was largely explained by loans and the timing of the receipt of funds. Expenses are amortized over a year. Many expenses expressed monthly are not actually paid every single month. There were gaps in the explanation of all expenses payments. However the Respondent Mother must do more than show gaps. To impute income she must convince the Court on the evidence that the Applicant Father either has, or should have, a higher income. There is no evidence of any income other than that disclosed.

[26] I find that income cannot be imputed on the expenses approach but as noted above I also find that the Applicant Father had a responsibility to maximize his earning capacity to support his child. He seems to have chosen to let his E.I. run out without seeking any education or employment in a field other than the one he is unable to do as a result of his disability. There are many jobs in which strength and mobility are not required assets. I find that taking a 9 month course to retrain to a non-physical job is reasonable in the circumstances although it would have been better if the Applicant Father had provided some information as to job prospects on his graduation.

[27] The Applicant Father earned E.I. income in 2013 and should pay support based upon that income which was supplemented by a non-taxable WSIB lump sum payment. He could have stretched out his WSIB payment and his E.I. to cover the time when he knew that E.I. payment would no longer be received. In all the of the circumstances I would impute an income equivalent to a full time minimum wage job which is $21,860.00 per year and order the applicable table amount of $175.00 per month for that time period from January 1, 2013 to June 30, 2013.

[28] The Applicant Father should be encouraged in his retraining as it will benefit the child if he can get back to earning close to, or even more than, his former income. It is not reasonable to expect that he can earn a full time income while attending college on a full time basis. Therefore in the period September 1, 2013 to July 31, 2014 he shall not be required to pay any ongoing child support. However he should find some income to make some payments to the arrears that have accumulated. I find that he is capable of finding some part time work that will pay him approximately $15,000.00 a year so he should contribute $100.00 per month to arrears during this time.

[29] Beginning August 1, 2014 the Applicant Father will again be imputed to have an income of $21,860.00 and ongoing support will return to $175.00 per month and the arrears payment of $100.00 a month will continue until all arrears are paid.

Section 7 Costs

[30] Ms. Roshan on behalf of the Applicant Father conceded that in this case school uniforms and good shoes were a s.7 expense. The party's incomes are so low that it is reasonable that they share in ensuring that Delvan has proper clothes for school. It is difficult to quantify the amount that will be required for uniforms in the last two years of high school. The Court notes that the Applicant Father has assumed a primary care giving role for 14 months of the last two years and therefore he would have had to purchase items for his son without any assistance by way of support from the Respondent Mother due to her financial circumstances. This is an unusual case where the Court should make an order that both parents contribute to the costs.

Costs

[31] To their credit counsel agreed that as both parents are of modest circumstances and both have had a primary care giving role with the child that required an adjustment to the order that this was not an appropriate case for costs.

FINAL ORDER

[32] The order of the Honourable Mr. Justice J.D. Karswick dated June 26, 2003 shall be changed as follows:

1. The Applicant Father shall pay to the Respondent Mother child support for the child Delvan Greene born December 6, 1996 as follows:

a) In the period from May 1, 2010 until Dec. 31, 2010 the sum of $348.00 per month based upon the Applicant Father's 2010 income of $37,851.00.

b) In the period January 1, 2011 to May 31, 2011 the sum of $330.00 per month based upon the Applicant Father's 2011 income of $35,698.00.

c) In the period June 1, 2011 to June 30, 2012 the Applicant Father shall not be required to pay any child support to the Respondent Mother as the said child primarily lived with the Applicant Father.

d) In the period July 1, 2012 to June 30, 2013 the Applicant Father shall pay the sum of $175.00 per month based upon an imputed income of $21,860.00.

e) In the period July 1 to August 31, 2013 the Applicant Father shall not be required to pay any child support to the Respondent Mother as the said child primarily lived with the Applicant Father.

f) In the period September 1, 2013 to July 31, 2014 the Applicant Father shall not be required to pay any ongoing child support as he will be attending college on a full time basis. He shall forward to the Respondent Mother confirmation of his acceptance at Everest College and details proving nine months of full time study.

g) In the period August 1, 2014 and for so long as the child is entitled to support the Applicant Father shall pay the sum of $175.00 per month based upon an imputed income of $21,860.00 per month.

2. Beginning September 1, 2013 the Applicant Father shall pay the sum of $100.00 per month towards the arrears, as adjusted by this order, until all arrears are paid.

3. The Applicant Father shall be responsible for purchasing one school uniform and a pair of shoes for the said child before December 31, 2013 and one school uniform and a pair of shoes for the said child on or before August 31, 2014 and on or before any August 31, 2015 if the said child will be in full time attendance at high school in the 2014/15 academic year.

4. S.D.O. to issue

5. The required annual disclosure clause

6. No order as to costs.

Released: November 4, 2013

Justice P.J. Clay