Court File and Parties

Ontario Court of Justice

Date: 2015-09-04

Court File No.: Brampton 811/09

Between:

Cynthia Annakie Applicant

— And —

Winston Coore Respondent

Before: Justice A.W.J. Sullivan

Heard on: August 10, 2015

Reasons for Judgment released on: September 4, 2015

Counsel:

• Self-represented for the Applicant
• Self-represented for the Respondent

SULLIVAN J.:

[1] Nature of Motion

This is a decision on a Motion to Change filed by Winston Coore (the Respondent father), payor of child support.

[2] Parties' Positions

The Applicant, Cynthia Annakie, is the recipient of this child support and has answered this Motion to Change.

[3] Hearing and Conduct

The respondent father payor and the Applicant recipient were self-represented. The Motion to Change was argued on August 10, 2015 and this court reserved the decision to review all of the pleadings filed and reflect on the arguments made by both parties. Both the Respondent moving party payor and the Applicant recipient presented their cases in a precise and thorough manner.

[4] Original Order

The decision that the respondent father wishes to change is that of Justice Baldock, dated January 20, 2012. Specifically, paragraph 1 indicates the following:

a. Commencing February 1, 2012, the respondent, Winston Coore, shall pay to the Applicant, Cynthia Annakie, child support in the amount of $324.00 per month for the children Sydnee Coore, born May 7, 2003 and Madison Coore, born December 7, 2005, pursuant to the child support guidelines based on an annual imputed minimum wage income of $21,300.00.

b. The arrears of child support accrued pursuant to the order dated December 31, 2009 shall be fixed at $4,238.00 (four thousand two hundred thirty eight dollars) as of January 31, 2012. The fixed arrears shall be payable at the rate of $76.00 (seventy six dollars) per month, commencing February 1, 2012 and monthly thereafter until all arrears are paid in full.

[5] Disclosure Requirement

It should be noted that in 2012 Justice Baldock also ordered that the respondent, Winston Coore, notify the Applicant of any income of any source that exceeded $21,300.00 (twenty one thousand three hundred dollars) in order to affect any change in child support.

[6] Respondent's Position on Income

In the respondent's Motion to Change, Tab 3, Volume 4, paragraph 5, he indicates that his income on average over the past three years since the date of Justice Baldock's Order is $19,514.00 and that he wishes to pay $298.51 as his monthly child support obligation noted above instead of the amount ordered by Justice Baldock of $324.00 per month.

[7] Respondent's Request for Arrears Relief

In addition, the respondent, Winston Coore, did indicate in his Motion to Change, paragraph 6, Tab 3, and Volume 4 of the continuing record that he wished that all arrears that are currently owing be set at $0.

[8] Current Arrears

Neither party filed a recent Family Responsibility Office (FRO) statement of arrears but in their oral arguments agreed that the current arrears in child support payments are approximately $17,500.00 (seventeen thousand five hundred dollars). This is not a precise number but it was not contested by either party in their arguments before the Court.

[9] Applicant's Position on 2012 Settlement

The Applicant recipient indicates in her Answer to the Motion to Change, specifically page 4 found at Tab 8 - Volume 4 of the Motion record, that when Justice Baldock's Order was made in 2012 there was a settlement filed with the Court in which the respondent, Winston Coore, agreed that his income would be set at $21,300.00 and to begin paying child support for two children based on minimum wage. Based on this understanding it was agreed that the arrears at that time which were over $25,000.00 (twenty five thousand) were reduced to $4,238.00, if Mr. Coore's began paying both ongoing child support including repayment of $76.00 per month towards the lower amount of arrears noted above. Ms. Annakie indicates that this was a considerable compromise on her part.

[10] Applicant's Allegation of Non-Disclosure

Importantly, the Applicant recipient also indicates that Mr. Coore was to disclose his yearly ongoing income each time it exceeded $21,300.00 a year. She believes that his income for 2012, after this agreement was reached, was in the vicinity of $30,000.00 and not disclosed.

[11] Respondent's Dispute

The respondent moving party, in his affidavits filed for the Motion Tabs 10 and 13, Volume 4, disputes this, suggesting that the Applicant is doing incorrect math in how she arrives at his line 150 income for 2012 and onwards. This is a disputed issue.

[12] Applicant's Request for Section 7 Expenses

In addition, the Applicant, in her response to the Motion to Change 15B page 4, has asked for retroactive extraordinary expenses listed being hearing aid devices, a hearing test, tutoring for both children and some medical and dental costs.

[13] Affidavits and Financial Statements

Both parties were asked to file affidavits for argument in the Motion to Change in which they were to include all of their positions and argument. Tab 10 of Volume 4 contains the affidavit of Winston Coore. It consists of six handwritten paragraphs as well as an updating Financial Statement, both filed June 8, 2015, Tab 11, Volume 4. The responding affidavit of the recipient Applicant is found on Tab 12 and a reply affidavit of the Respondent is at tab 13 of the continuing record.

[14] Applicant's Arguments

The Applicant in Tab 12 does not plead the issue of s. 7 costs from the date of the 2012 Order, but does make the following argument:

a. That the respondent is capable of earning a higher income than the amount currently under discussion which is found in Justice Baldock's Order in the amount of $21,500.00.

b. That the only reason the respondent payor is in arrears is because he unilaterally decided to stop paying or was incremental in payments; hence the current arrears. The recipient Applicant points out that Winston Coore's income has been slightly higher based on his financial disclosure and his income tax return for the past three years and effectively there is no material change in circumstances that supports his requests set out in his Motion to Change.

c. The fact that the respondent stopped paying is what caused the arrears.

[15] Respondent's Arguments

The moving party respondent father, in his Affidavit, as well as his Motion to Change of Information Form Tab 3, 4, of the continuing record made the following argument:

a. That his income is lower: he quotes $19,514.00 and also as he puts it, "my obligations toward three other children" named in paragraph 1 of his Affidavit of June 8, 2015, Tab 10, along with the obligations of the two children of this matter is causing undue hardship and that this obligation to the other three children were never included in the facts considered at the time of the 2012 Order of Justice Baldock.

b. The respondent further indicates that he attempted to find work in Western Canada, specifically Saskatchewan, but due to poor weather this employment did not last long.

c. In the respondent's oral argument, although not before the Court in any sworn statement, he indicated that currently he is employed, working for a haulage company in Ontario, specifically in the greater Toronto area, on a building project for FedEx hauling gravel to a construction site for which he is paid 24% of the delivery costs of the loads. He did not provide any evidence of income from this but indicated it is full-time work for the time being and that he hopes to re-group and find more significant and greater income out west very soon.

[16] Failure to File Hardship Calculation

The respondent did not prepare or file a hardship calculation pursuant to the Child Support Guidelines that this court could have considered. Therefore, his submissions on hardship cannot be made out.

[17] Applicant's Evidence on Earning Potential

The Applicant recipient, in her Affidavit, Tab 12, Volume 4, paragraph 6, has invited the court to consider that Mr. Coore's income can be in the range of $40,000.00 to $55,000.00 for a newly licensed truck driver and experienced driver from $60,000.00 to $80,000.00 or more.

[18] Independent Evidence on Trucking Industry Income

The applicant filed Exhibit "D" from independent sources in the trucking industry noting these potential incomes that a person with Mr. Coore's experience level could earn in this industry.

[19] Respondent's Actual Income

In the respondent payor's financial statement he attached his Notice of Assessment for 2011, 2012 and 2013. Though his income for 2011 was $15,178.00 (line 150), the other two years were $22,826.00 in 2012 and $20,538.00 in 2013.

[20] Income Comparison to Original Order

This level is not far from the amount originally imputed to the respondent in Justice Baldock's Order of January 20, 2012.

[21] Legal Framework for Arrears Reduction

In assessing whether to grant the request for reduction of arrears, this Court has discretion although it must be exercised in a balanced way, considering a number of factors. The Ontario Court of Appeal in DiFrancesco v. Couto, 2001 O.J. No. 4307 (CA) directs that some of these factors that this court should consider are looking at the total picture and weighing the actual needs of the custodial parent and children and the current financial capacity of the respondent.

[22] Test for Change in Circumstances

In deciding whether a change in circumstances has occurred for the purpose of a change in child support, the Court must consider whether the alleged change was "significant and long lasting: whether it was real and not of choice". Brown v. Brown, 2010 CarswellNB 31 (N.B. C.A.).

[23] Res Judicata and Imputed Income

In regards to the issue raised by the respondent moving party that his other three children were not factored into discussions when arriving at imputing his income in January 2012 I cannot consider this information as this is a re-litigation of the original matter on its merits. Justice O'Connell, in Nejatie v. Signore, 2014 ONCJ 653 indicates the following:

a. It is well settled law that, if income is imputed, then the issue will generally be res judicata on a motion to vary or change support. See Bemrose v. Fetter, 2007 ONCA 637, 228 O.A.C 311, 42 R.F.L. (6th) 13, [2007] O.J. No. 3488 (Ont. C.A.). Although the court always has discretion with respect to the issues of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits.

[24] Finding: No Change in Circumstances

In taking into consideration all of the above evidence and the law, I find that the moving party, Winston Coore, has not shown a change in circumstances from the date of the original Order of Justice Baldock dated January 20, 2012.

[25] Applicant's Earning Potential Argument

The Applicant, Cynthia Annakie, has raised the potential for Winston Coore to be able to earn greater income. After considering the Applicant's pleadings and arguments I conclude that was done not as much as a request for this court to impute new income level to the Respondent, but rather as a defence to this motion to change.

[26] Arrears Due to Non-Payment

I agree with the Applicant recipient that the Respondent payor is in arrears today in the amount of approximately $17,000.00 because he has simply decided not to pay and for no other reason.

[27] Respondent's Earning Capacity

I accept the Applicant recipient's argument supported by evidence that the respondent is capable of earning minimally the imputed amount found in the January 20, 2012 Order of Justice Baldock with no difficulty.

[28] Section 7 Expenses Not Considered

The Applicant's Answer, Tab 8 Vol. 4, contains a request that the Respondent pay 50% of a number of expenses claimed for the children as s. 7 expenses under the Child Support Guidelines. I have not considered this nor granted this order. Although the Applicant has properly raised this issue in her Answer, this issue was not outlined in her Affidavit for argument of this motion, Tab 12 of the continuing record. The applicant is free to pursue this issue in the future given the Respondent's need to disclose his income each year.

[29] Disposition

Therefore, paragraphs 1 and 2 of Justice Baldock's Order remains in place and the respondent's motion to change is dismissed.

Released: September 4, 2015

Justice A.W.J. Sullivan