Court File and Parties
Court File No.: D50337/10 Date: 2014-07-07
Ontario Court of Justice
Between:
TANICE NATASHA LEWIS Acting in Person Applicant
- and -
AKEEM ADESOGA ADESANYA Respondent
Counsel: Bola Adetunji, for the Respondent
Heard: July 4, 2014
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The applicant (the mother) has brought a motion to change the child support order of Justice Carole Curtis, dated March 14, 2012 (the existing order). The existing order provides that the respondent (the father) pay the mother child support for the parties' 4-year-old child (the child) in the sum of $276 per month, based on the father's income of $33,700 per annum. It also requires the father to provide the mother with annual financial disclosure.
[2] The mother asks that child support be adjusted in accordance with the father's actual income since 2012, starting on March 14, 2012. She is asking that his ongoing support obligation be based on an income of $160,000 per annum. The mother also asks for an order declaring that the father owes her $1,500 pursuant to the existing order, in addition to any retroactive order made. This, she says, represents an error in the records of the Family Responsibility Office (FRO), due to the father's failure to report to them a support refund she gave to him on March 31, 2012.
[3] The father submits that the mother's claim for support is excessive. He asks that his support obligation for each year be based on his annual income for the previous year. He opposes the mother's claim that he owes her $1,500. The father also claimed that he overpaid child support from February 1, 2010 until March 14, 2012 and seeks a credit for this. He proposes that his child support arrears be fixed at $139.34.
[4] The parties agreed that this motion to change would be argued based on the sworn evidence of the parties and submissions.
[5] The main issues on this motion to change are:
a) Should child support be adjusted retroactively?
b) If so, how much retroactive support should be ordered?
c) Should the father pay interest on the retroactive support award as requested by the mother?
d) Does the father owe the mother $1,500 under the existing order?
e) Should the father receive any support credit for the period prior to the existing order?
f) What income should be used for the father's ongoing support obligation?
Part Two – Background Facts
[6] The parties never lived together. They had the one child together.
[7] The child has always lived with the mother in Ontario.
[8] The father works as a power engineer in the oil and gas extraction field. He moved to live and work in Alberta in 2010 and continues to live there. He has a wife and child who live with him.
[9] The mother issued an application in this court for custody and child support on February 12, 2010. On August 12, 2010, Justice Curtis granted the mother final custody of the child, access to the father in the mother's discretion, imputed the father's income at $74,599 per annum and ordered the father to pay child support of $677 per month, starting on February 1, 2010. This order was made on an uncontested basis.
[10] The father brought a motion to change this order on December 7, 2011. He represented that his 2011 income was $33,700 and asked that his child support obligation be based on this income. He also asked the court to reduce his child support arrears to zero, based on the fact that he had not earned the income imputed to him in the August 12, 2010 order.
[11] The mother accepted the father's representation of his income and consented to the terms of the existing order. She also agreed with the father that his child support arrears should be fixed at zero as of March 14, 2012. These terms were incorporated into the existing order.
[12] The father brought a motion to change the access terms of the August 12, 2010 order on September 12, 2013. That motion to change is being case managed separately by Justice Curtis. The mother filed a Response to Motion to Change, which included her request to increase child support. This issue was sent to me for determination.
[13] The father earned $52,287 in 2012 and $140,727 in 2013. He filed a pay stub covering his pay period up until March 7, 2014, reflecting 2014 year-to-date income of $42,771.
Part Three – Legal Considerations
[14] The motion to change support is governed by subsection 37(2.1) of the Family Law Act that reads as follows:
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
[15] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
Reasonable excuse for why support not considered earlier.
Conduct of the payor parent.
Circumstances of the child.
Hardship occasioned by the retroactive order.
[16] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to take a holistic look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility (D.B.S. par. 133).
[17] Once a court decides to make a retroactive award, it must then determine the amount. There are two elements to this decision: first, the court must decide when the order should be retroactive to and second, the court must decide the amount of support that would adequately quantify the payor's deficient obligations during that time (D.B.S., par. 117).
[18] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5). The exception is where there is blameworthy conduct.
[19] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
[20] A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it. (D.B.S., par. 65)
[21] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S., par. 97)
[22] Where the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid. See: Vanos v. Vanos, 2010 ONCA 876; Also see: Wright v. Christie, 2011 ONCJ 109.
[23] Courts should use the current year's income wherever possible in assessing support obligations. See: L. (R.E.) v. L. (S.M.), 2007 ABCA 169, 40 RFL 6th 239 (Alb.C.A.); West v. West, (2001) 18 R.F.L. (5th) (Ont. SCJ).
Part Four – Retroactive Support
[24] The mother provided credible evidence that she first sought disclosure of the father's income shortly after June 1, 2012. The father did not provide disclosure at this time.
[25] The father did send the mother his 2012 income tax information in May of 2013, but the mother returned the package unopened. It appeared that was done in a fit of pique. The mother did not seek to change child support until the father brought his motion to change access.
[26] The father engaged in blameworthy conduct. He knew that his income had dramatically increased but never increased his child support payments – even after this motion to change was started. He preferred his own interests to those of the child.
[27] The mother candidly acknowledged that the circumstances of the child have not been disadvantaged by the father's failure to pay support. She advised the court that she has always ensured that the child's needs have been fully met.
[28] The father did not argue that a retroactive award would cause him hardship. However, a review of his financial statement indicates that immediate payment of a large retroactive award would be difficult for him. He has remarried and has another child. He also has more debts than assets.
[29] The court finds that there should be a retroactive support award. Although there was some delay in bringing this motion, this factor is outweighed by the father's significant blameworthy conduct. He has grossly underpaid support and knew or ought to have known that this was the case. Any hardship arising from a retroactive order can be adequately addressed through a reasonable repayment arrangement.
[30] It is appropriate to readjust support from the date of the existing order. In recognition of the mother's delay in bringing her change motion (in part, due to her failure to open the package with tax information that the father sent to her in May of 2013) the court will exercise its discretion and not grant interest on the retroactive award.
[31] The father asks that the support readjustment for each year be based on his prior year's income. The court is not prepared to do this. His income for 2012 and 2013 is already known. The court should determine his support obligations on the best income information available.
[32] Since the father resides in the Province of Alberta, the court is required to use the Federal Child Support Guideline Table amount for Alberta. Table is defined in the Ontario Child Support Guidelines in subsection 2(1) as follows:
"table" means,
(a) if the parent or spouse against whom an order is sought ordinarily resides in Ontario at the time of the application, the Child Support Table for Ontario set out in Schedule I to this Regulation,
(b) if the parent or spouse against whom an order is sought ordinarily resides elsewhere in Canada, the table set out in the Federal Child Support Guidelines for the province or territory in which the parent or spouse ordinarily resides at the time of the application,
[33] The Alberta guideline table amount for one child, based on the father's income of $52,287 for 2012, is $427 per month.
[34] The Alberta guideline table amount for one child, based on the father's income of $140,727 for 2013, is $1,224 per month.
[35] The father's support arrears for 2012 and 2013 are $12,735, calculated as follows:
| 2012 - 9 months @ $427 per month | = $3,843 |
| Less: 9 months @ $276 per month | = $2,484 |
| Balance: | $1,359 |
| 2013 – 12 months @ $1,224 per month | = $14,688 |
| Less: 12 months @ $276 per month | = $3,312 |
| Balance: | $11,376 |
| Total: | $12,735 |
Part Five - $1,500 Payment
[36] The mother deposed that on March 30, 2012, FRO deposited $2,065.93 into her bank account. She said that this was an overpayment of support, as FRO did not yet have the information that the father's arrears were fixed by the court at zero as of March 14, 2012.
[37] On March 31, 2012, the mother sent a money transfer of $1,000 to the father and withdrew $500 from her bank and gave it to him. She said that the father agreed that he would report the refund to FRO. The father never did this. Accordingly, when FRO received the existing order, they credited the father with $1,500. The father refused the mother's subsequent requests to correct this error.
[38] The father in his affidavit sworn on June 4, 2014 deposed:
I did not take any money from the applicant at any time. I do not understand the basis of an allegation that I took $1,500 from the applicant.
[39] In response, the mother provided documentary evidence that the wire transfer of $1,000 sent to the father on March 31, 2012 was accepted by him. She also provided a copy of her bank account showing the $500 cash withdrawal on the same day.
[40] It appears that the father, when he swore his affidavit of June 4, 2014, forgot what he deposed in his affidavit of January 8, 2014 where he said that "the money that she claimed she sent me through email transfer was to help her do some stuff at that time". The father did not explain what stuff he was referring to.
[41] The court finds that the mother paid the father $1,500 on March 31, 2012 as a support refund and the father breached his promise to notify FRO about this, resulting in an improper $1,500 support credit to the father.
[42] The sum of $1,500 will be added to the father's support arrears.
Part Six – The Father's Claim for Support Credit
[43] The father seeks a support credit, arguing that he overpaid child support based on an improper imputation of income to him in the order of August 12, 2010.
[44] This request is dismissed. The father brought a motion to change the August 12, 2010 order on December 7, 2011. He raised this very same argument in that case. He negotiated a final resolution of the issues which resulted in a reduction of his ongoing support obligations and the elimination at that time of all of his support arrears. This agreement was incorporated into the existing order. He cannot revisit this issue now. His argument is res judicata.
Part Seven – The Father's Ongoing Support Obligation
[45] The father asks that his ongoing support obligation be assessed based on his 2013 income of $140,727.
[46] The mother asks that the father's ongoing support obligation be assessed based on an income of $160,000.
[47] The father claims that he was previously given a lot of overtime at work and he does not expect to earn anywhere close to $160,000 in 2014. The father's claim has little credibility for the following reasons:
a) He has significantly underpaid support since the existing order.
b) He has not provided financial disclosure on a timely basis.
c) He failed to advise FRO of the $1,500 payment made by the mother to him.
d) In his financial statement sworn on June 12, 2014, he deposes that his gross income is $125,127. This is despite the fact that his March 7, 2014 pay stub indicates that he had already earned $42,771 in 2014 (this projects to an income of over $247,000 in 2014).
e) The father failed to produce an updated paystub that might have shown that he wasn't earning income at the same pace as that reflected in the March 7, 2014 pay stub, despite an order to provide financial disclosure by Justice Curtis on May 26, 2013.
f) The father failed to provide any evidence that his overtime will no longer be available.
[48] The mother's request to fix the father's income at $160,000 for 2014 is very reasonable, and possibly conservative, based on the evidence before the court. It is better evidence of the father's current income than his 2013 income. The father should consider himself fortunate that the mother did not seek a higher amount. I also find that notwithstanding the fact that the father's income is over $150,000 per annum, the guideline table amount, as set out in section 3 of the guidelines, is appropriate in calculating the father's ongoing support obligation.
[49] The Alberta guideline table amount for one child, based on the father's 2014 income of $160,000, is $1,393 per month. The father's support obligation for 2014 shall be adjusted as follows:
| January – June – 6 months @ $1,393 per month | = $8,358 |
| Less: 6 months @ $276 per month | = $1,656 |
| Balance: | $6,702 |
[50] The father will be required to pay the mother the Alberta guideline table amount of $1,393 per month on the 14th day of each month starting on July 14th, 2014.
Part Seven – Conclusion
[51] The father owes the mother the sum of $20,937, calculated as follows:
| Retroactive child support adjustment as set out in paragraph 35: | $12,735 |
| Improper support credit to father as set out in Part Five: | $1,500 |
| Support adjustment for 2014 as set out in paragraph 49: | $6,702 |
| Total: | $20,937 |
[52] A final order shall go on the following terms:
a) Paragraph one of the March 14, 2012 order of Justice Curtis is varied to provide that:
i) Starting on March 14, 2012, the child support payment shall be $427 per month, based on the father's 2012 income of $52,287.
ii) Starting on January 14, 2013, the child support payment shall be $1,194 per month, based on the father's 2013 income of $140,727.
iii) Starting on January 14, 2014 and on the 14th day of each month thereafter, the child support payment shall be $1,393 per month, based on the father's income of $160,000 per annum.
b) The father's support arrears shall be fixed today in the sum of $20,937, as calculated in paragraph 51 above. This order assumes that the sum of $276 was paid by the father in June of 2014. If this is not the case, then that amount should be added to the arrears. The Family Responsibility Office shall amend their records in accordance with this order.
c) The arrears may be repaid at the rate of $1,000 per month, starting on August 14, 2014. However, if the father is more than 30 days late in making any ongoing or arrears support payment, the entire amount of the arrears shall immediately become due and payable.
d) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source (such as HST or income tax refunds) or any lottery or prize winnings.
e) The father is to advise the mother within 14 days of the name and address of any new employer and provide her with his first three pay stubs from them.
f) The mother may use the father's present address of service on the court records to serve him with any future court documents unless the father serves and files a Notice of Change of Address with the court.
g) Paragraph 3 of the March 14, 2012 order of Justice Curtis shall remain in full force and effect.
h) A support deduction order shall issue.
[53] If the mother seeks costs, she is to serve and file written submissions by July 21, 2014. The father will then have until August 5, 2014 to make written response. The submissions should not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.
Justice S.B. Sherr
Released: July 7, 2014