Court Information
Ontario Court of Justice Grenville & William Davis Courthouse 7755 Hurontario Street, Suite 100 Brampton, Ontario, L6W 4T6V
Court File No.: 1473/11 Date: November 25, 2015
Parties
Applicant: Reginald Wells Counsel: Ms. M. Leonard
Respondent: Sherice Laing Duty Counsel: Ms. A. Sproule
Before
Justice J.W. Bovard
Ruling
[1] Introduction
This is a ruling with regard to Mr. Wells' motion to change child support.
The Applicant's Position
[2] Original Order
Justice Maresca made an order for child support on July 16, 2012 that Mr. Wells pay $508.00 per month for child support to Sherice Laing for their two children, Valentina Wells and Valencia Wells, both born on June 24, 2005. The order was based on Mr. Wells' annual income of $35,000.00.
[3] Motion to Change
In his motion to change, filed on September 8, 2014, Mr. Wells states that he wants Justice Maresca's order varied according to a change in his income. And he wants a reassessment for 2013 and 2014 for alleged overpayments.
[4] Applicant's Request
Ms. Leonard said in her submissions that Mr. Wells wishes to pay child support based on minimum wage. She stated "And just to clarify, Mr. Wells is asking to be imputed at minimum wage, not to not to pay child support to pay at the $12,000 rate. So it would be, he's asking for $320 per month, which is roughly the minimum wage. That's based on 21,000. If Your Honour wants to make it 20 or 22 that's fine as well, from September 1st 2012 to present and then ongoing" (Page 12, January 2, 2015 transcript).
The Respondent's Position
[5] Respondent's Submission
Ms. Laing submits that Mr. Wells' motion to change should be dismissed. She does not make any other claims.
Evidence Considered
[6] Materials Reviewed
I read the following materials for this motion:
- Mr. Wells' motion to change and change information form;
- Mr. Wells' financial statement and attachments;
- Ms. Laing's response to motion to change;
- Justice Maresca's final order.
[7] Affidavits
There are no affidavits from the parties. All of their evidence is contained in these sworn documents.
Applicant's Income Evidence
[8] Change Information Form
In his change information form, sworn on August 26, 2014, Mr. Wells states that his annual income is $8,332.14. He says that he has been unemployed since July 29, 2014 and that since January 2014, his income has been reduced.
[9] Income Discrepancies
He also states in the change information form that his income for 2013 was $34,731. However, his notice of assessment lists his annual income for 2013 as $12,806. I do not know why he said that it was $34,731. I find that the notice of assessment is more reliable. I accept it as reporting accurately what his income was in 2013.
[10] Financial Statement Income
In his financial statement, sworn on August 26, 2014, he states that he has been unemployed since July 29, 2014. He lists his annual income as $21,250.76.
[11] Pay Stubs
Mr. Wells attached what look like pay stubs to his financial statement. They cover the period of January 1, 2014 to July 22, 2014. They are not normal looking pay stubs, but rather a list of invoices with the names of vehicles next to them and a dollar figure.
[12] Tow Truck Driver Work
Mr. Wells was working as a tow truck driver during these periods. The invoices represent towing charges for which Mr. Wells was paid. The pay stubs also indicate amounts that were deducted for payments to FRO. Counsel did not add up the invoices and present the court with a total of income earned for this period. Counsel simply stated in submissions that "it just demonstrates that it's a low income" (page 10, transcript of January 22, 2015). I can say that the amounts are modest in amount and in number of invoices.
[13] Atlantic Towing Letter
Mr. Wells provided a letter from Atlantic Towing, dated January 2, 2014, which states that he was being relegated to part-time status "subject to review each and every month". The letter states that "due to increasing costs we…must cut our fleet in order to compete".
[14] Resignation Letter
Attached to his financial statement is a letter of resignation that Mr. Wells tendered to his employer on August 25, 2014. He says that his resignation is effective July 29, 2014 "due to health reasons".
[15] Medical Note
There is a note on letterhead from the Bramalea & Bovaird Walk-In Clinic. It states that Mr. Wells was "seen in our medical office on 25-Aug-2014, was unable to work and/or attend school due to medical reasons"…"From 25 – August – 2014 To: 1 –October- 2014".
[16] Weight of Medical Note
Ms. Leonard concedes that this letter is of little weight. She said "I'm not asking Your Honour to put substantial weight on [it] because the case law would suggest that these kinds of notes are not sufficient" (page 12, January 22, 2015 transcript).
[17] Arrears Agreement
On the date of argument of the motion the parties agreed that Mr. Wells did not owe any arrears of child support (page 14, January 22, 2015 transcript).
Court's Analysis
[18] Counsel's Submission on Income
Ms. Leonard submitted that Mr. Wells' income for the last several years was "12, or $13,000 a year, not 35. He thought that he could make these payments. He was prepared to agree to that, and frankly he was wrong other than in the sense that he has obviously managed to make the payments" (page 9, January 22, 2015 transcript).
[19] Court's Finding on Original Income
I am inclined to believe this submission and accept Ms. Leonard's argument that the annual income on which Justice Maresca based her order for child support was more a hope on his part than an accurate reflection of what his income was and/or was going to be in the future.
[20] Reasons for Finding
These are the reasons that I make this finding:
(1) Justice Maresca's finding that Mr. Wells' annual income was $508.00 was not made on an imputed basis. Although it is not clear why Justice Maresca chose this figure, it lends credence to the argument that Ms. Leonard made that he agreed to this amount thinking that he would be able to match it, but has not been able to do so;
(2) Mr. Wells' notices of assessment indicate that in 2011 his income was $12,312; in 2012 it was $13,490; and in 2013 it was $12,806;
(3) Despite the financial difficulties that Mr. Wells indicates, he is not in arrears. This demonstrates good faith and a willingness to pay his child support;
(4) Mr. Wells agrees to pay child support based on minimum wage;
(5) There is no evidence to contradict Mr. Wells' evidence of income during 2013 and 2014, the years for which he pleaded in his motion to change that he seeks relief.
Ruling
[21] Material Change in Circumstances
I am satisfied on the evidence that when Mr. Wells agreed that he could pay child support based on an annual income of $35,000, his income was in fact much lower, as indicated above. I am persuaded that he thought that he would be able to keep this commitment, but his income has not ever matched this figure. I find that the evidence is sufficient to satisfy the test that there has been a material change in circumstances. Therefore, Mr. Wells' motion is granted.
[22] Variation of Order
Justice Maresca's order will be varied only to the extent that Mr. Wells shall be obligated to pay child support to Sherice Laing for their two children, Valentina Wells and Valencia Wells, both born on June 24, 2005 in the table amount of $333 per month. This is based on his consent to use an annual income based on the minimum wage figure of $22,000. This order is effective from the date of Justice Maresca's order (July 16, 2012). An SDO will issue.
[23] Overpayment – No Reimbursement
With regard to the overpayment of child support, since Justice Maresca made her order Mr. Wells has valiantly complied with it in spite of the fact that his annual income was lower than that on which she based the order. This is to his credit and it shows how dedicated and committed he is to his children. There are no arrears owing. His children have benefitted from the payments that he has made. This is the object of child support and I am confident that Mr. Wells is happy that they have benefitted from his generosity.
[24] Best Interests of Children
I find that in these circumstances, since there are no arrears owing, it would not be in the children's best interest if the court were to order that Mr. Wells be reimbursed for overpayments. There would be no place for these funds to come from other than from his ongoing child support. Therefore, the children would be deprived. He would be taking back what he has already freely and generously given to them. Therefore, I do not think that would be an appropriate order.
Costs
[25] Costs Submissions
If the parties can agree on the issue of costs, they may file a 14B motion to my attention for an order. If not, they shall submit written submissions of no more than five pages by December 15, 2015. They shall send their submissions to my assistant, Mr. Marty Starkman, 905-456-4700, ex. 5152. No submission will be accepted after this date.
Justice J.W. Bovard