Court File and Parties

Court File No.: D55500/11 Date: 2016-05-17

Ontario Court of Justice

Between:

FRANK STODOLAK Acting in Person Applicant

- and -

KATYA RIVERA Respondent

Counsel for the Respondent: Alice M. Palumbo

Heard: April 1, 2016

Justice: M. Sager

Reasons for Decision

Introduction

[1] This hearing was for a determination of the Respondent's Motion to Change the child support order of Justice Geraldine Waldman dated April 9, 2014. The Applicant asks that his child support and contribution towards the cost of daycare be adjusted retroactive to July 1, 2014.

[2] The Respondent opposes the relief being sought by the Applicant and asks that his Motion to Change be dismissed.

[3] The existing order was made on consent after three years of litigation. Both parties had counsel and it was agreed that income would be imputed to the Respondent in the amount of $46,452.00 annually effective July 1, 2014. The Applicant was ordered to pay $419.00 per month in child support plus $199.00 towards the cost of childcare for the child commencing on July 15, 2014.

[4] The Applicant was paying $289.00 per month towards the child support when he commenced the Motion to Change in February 2015 and he was $3476.58 in arrears of child support.

[5] The court was not provided with an updated Statement of Arrears from the Family Responsibility Office (FRO) at the hearing of the Motion.

[6] The parties submitted their evidence in affidavit form and each party made submissions.

Overview of the Application before the Court

[7] The parties were involved in litigation between 2011 and 2014 regarding their son, Nicklas Andrew Stodolak born May 11, 2011. Much of the litigation focused on the issues of custody and access.

[8] During the course of the litigation the Applicant, who was employed by Costco, went on short term disability as he was suffering from stress and anxiety caused by the litigation. He also claimed that the limited access he had to his son was contributing to his stress.

[9] On May 26, 2013, when the Applicant went on short term disability, he was a full time Merchandise Assistant Member earning $22.35 per hour or $46,452.00 annually. He had only been in this new position at Costco for three months. The Applicant has been employed by Costco since 2001. In 2012 his income was $25,860.00 and his 2013 income was $30,324.00.

[10] The Applicant had been approved for and was in receipt of long term disability benefits at the time of the April 9, 2014 order. These benefits are being paid by Manulife Financial.

[11] The Applicant claims that when he agreed to have income imputed to him in April 2014 at $46,452.00, he expected to return to full time work in July 2014. Despite his expectations, the Applicant did not and has not returned to work and continues to be in receipt of long term disability benefits.

[12] The Applicant commenced the Motion to Change on February 17, 2015, after receiving correspondence from the FRO in November 2015 notifying of their intention to seek a suspension of his passport.

[13] On September 23, 2015, Justice Nevins granted the Applicant a restraining order against the FRO and ordered the Applicant to pay $325.00 towards ongoing support for the months of September and October 2015.

[14] The Applicant has his 4 year old son in his care alternate weekends from Friday to Sunday.

The Evidence

The Applicant's Evidence

[15] The Applicant's evidence is straightforward. When income was imputed to him in April 2014 of $46,452.00 he expected to return to work full time in July 2014. Had he done so, he would have earned $46,452.00. That did not happen as he continued to suffer from physical ailments and mental health conditions that were impediments to his returning to work.

[16] The Applicant's evidence is that he suffers from stress and anxiety as well as the following physical medical conditions:

a) Thinning and degenerative disc herniation in his lower back diagnosed in July 2014;

b) Sciatica in his upper right leg diagnosed in July 2014;

c) Torn abdominal muscle fibres diagnosed in May 2015; and,

d) Two hernias diagnosed in July 2015.

[17] The evidence presented from the Applicant is that symptoms he experiences from the medical conditions are exacerbated by the stress and anxiety he is experiencing. The Applicant blames the ongoing stress and anxiety on this court proceeding, which he described as being "unnecessary" and "harassing".

[18] The Applicant relies on the fact that he has been assessed by his own doctors as well as doctors retained by the insurance company Manulife, who is paying his long term disability benefits. At the time of the hearing of this matter, the Applicant had not been medically cleared to return to work.

[19] The Applicant provided the following documentary evidence in support of his position:

i) Several letters from his psychiatrist, Dr. Brian Cho, including March 17, 2014, January 27, 2015, August 20, 2015 and November 26, 2015 which state that due to the symptoms of the Applicant's mental disorder "he cannot perform the duties required of him at his job";

ii) Several letters and reports from the Applicant's treating physician, Dr. Aida Hasic, from 2014 to November 15, 2015, setting out the Applicant's medical conditions and detailing his visits to various specialists and clinics. In several of the letters Dr. Hasic states that in her professional opinion the Applicant is unable to return to work;

iii) Letter from Manulife dated August 18, 2015 confirming the Applicant is unable to return to work and that his benefits have been extended; and,

iv) Letters from his employer, Costco Wholesale dated October 30, 2014 and September 1, 2015, stating that the Applicant is on approved medical leave from work and can only return to work once he is medically cleared to do so.

[20] In addition to the information set out above, the Applicant was required to produce his entire disability benefits file with Manulife Financial by order of Justice Carole Curtis dated June 23, 2015, a second order of Justice Stanley Sherr dated September 8, 2015, and, pursuant to the court's order of October 29, 2015. That information was ultimately produced and despite the fact that the Respondent served a Notice of Intention to Tender Business Records in relation to Manulife's file on the hearing of the Motion, neither party made reference to the voluminous file in their submissions.

[21] In summary, the Applicant's position is that the primary cause of his being unable to return to work is his mental health issues, specifically, severe anxiety. The Applicant gave evidence that with respect to his physical health, "The most drastic change [since the date of the final order] was the physical symptoms becoming full blown."

The Respondent's Evidence

[22] The Respondent's position is also very clear; she argues that the pertinent facts the Applicant relies on in his Motion to Change existed at the date of the final order and as a result, there has not been a change in circumstances since the order of Justice Waldman of April 9, 2014. As such, the Applicant's Motion to Change should be dismissed.

[23] The Respondent argues that at the date of the order the Applicant was in receipt of long term disability benefits, his disability leave was in relation to the same mental health issues, the child support order was made on consent, and, nothing has changed since the date of the order.

[24] When asked to address the Applicant's claim that his being unable to meet his expectation to return to work in July 2014, amounts to a change in circumstances warranting a change to the support order, the Respondent argued that the Applicant has not done enough to improve his circumstances and put himself in a position to return to work. As an example, the Respondent argued that the Applicant did not attend the physiotherapy sessions Manulife scheduled for him.

Legal Considerations

[25] The father's motion to change child support is governed by subsection 37(2.1) of the Family Law Act which 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.

[26] The Ontario Court of Appeal set out the considerations for the court to apply when determining a retroactive downward variation of child support by a payor in Gray v. Rizzi, 2016 ONCA 152.

[27] The court set out that where a payor seeks a retroactive decrease in support, the D.B.S. factors – such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support – remain relevant (par. 51). Although those factors require some minor alteration to suit circumstances where the payor's income has gone down, not up, the fundamentals still apply (par. 54).

[28] The court applied the process set out in Corcios v. Burgos as follows:

[56] First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."

[57] Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor's circumstances that affected the payor's ability to make the child support payments when they came due.

[58] A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

[59] Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: "[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly."

[29] In paragraph 60, the court in Gray stated that the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;

2. The ongoing needs of the support recipient and the child;

3. Whether there is a reasonable excuse for the payor's delay in applying for relief;

4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.:

"Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";

6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

[30] The court considered how the retroactive award should be calculated once it is decided that there should be an adjustment in pars. 61-64 as follows:

[61] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

[62] Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide "reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately." As put by Chappel J.:

A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor's circumstances has occurred.

[63] This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor's financial situation. A payor's failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

[64] Finally, "with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating."

[31] A delinquent payor cannot use the principle of predictability as a shield against paying the full amount of support to which his child is entitled (Gray, par. 37).

[32] In Mao v. Zhao, [2007] O.J. No. 4587 (SCJ) the court did not rescind arrears of a payor in receipt of ODSP, because the medical evidence filed did not indicate that the disability would prevent the payor from working in the future.

[33] In paragraphs 51-60 of Trang v. Trang, 2013 ONSC 1980, the court discussed how courts should address support change motions when income was imputed to a payor in the existing order as follows:

51. When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on – or wait for -- representations from the payor.

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53. If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54. Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

55. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

56. If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.

57. If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.

58. Imputed income matters. The reason why income had to be imputed matters.

59. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

[34] The law was summarized by Justice Sheilagh O'Connell, who wrote in paragraph 38 of Nejatie v. Signore, 2014 ONCJ 653:

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, 2007 Carswell Ont 5819 (Ont. C.A.). Although the court always has discretion with respect to the issue 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.

[35] The mere accumulation of arrears without evidence of a past inability to pay is not a change in or special circumstance. Present inability to pay does not by itself justify a variation order. It should only be granted if the payor can also prove a future inability to pay. Otherwise, the option is to suspend, or order repayment of arrears. See: Haisman v. Haisman, 1994 ABCA 249, 157 A.R. 47 (C.A).

[36] Parents have a joint and ongoing obligation to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. CA).

[37] The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson

[38] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

Analysis

[39] The Applicant has produced evidence that he is medically unable to return to work. As a result, he did not return to work in July 2014 as anticipated and has consistently been in receipt of long term disability benefits since the final order of Justice Waldman.

[40] The evidence is that the Applicant sees his psychiatrist once to twice per month and has been prescribed antidepressant medication. On November 26, 2015, the Applicant's psychiatrist wrote in a letter to Manulife,

"I have continued to provide psychiatric care to Mr. Frank Stodolak. His current psychiatric diagnosis includes panic disorder without agoraphobia and adjustment disorder with depressed mood. His mood symptoms could also be conceptualized as a diagnosis of major depression in partial remission with exacerbations related to recurrent stressors such as on-going legal issues with the mother of his child, various physical impairments and the resultant financial strain caused by both issues."

[41] With respect to the medication prescribed to the Applicant, Dr. Cho wrote,

"In spite of his adherence to recommended treatment, Mr. Stodolak continues to experience ongoing symptoms of anxiety and depression. These symptoms include recurrent panic attacks, excessive worry, impaired focus, impaired concentration, fatigue and labile mood."

[42] On November 11, 2015, Mr. Stodolak's doctor wrote a note to Manulife updating the Applicant's medical condition. In this note, Dr. Hasic wrote,

"It is my understanding that Mr. Stodolak has been unable to work since 2013 and the main reason for his disability remains severe anxiety.

With respect to the other medical conditions, in my opinion most of them [are] aggravated by his severe anxiety and stress, Mr. Stodolak has been still struggling with recurrent episodes of severe low back pain specially when under a lot of stress, difficulty moving, bending standing or sitting for prolonged periods of time during those episodes[.] The diagnosis is chronic mechanical low back pain most likely related to pseudoarticulation."

[43] The evidence before the court is that the Applicant is not permitted to return to work until he is medically cleared to do so and he has not been medically cleared since he first began receiving short term disability benefits in May 2013.

[44] The court finds that the Applicant's evidence is sufficient to demonstrate that as a result of the symptoms of his mental health issues he is unable to return to work at this time.

[45] The court finds that the Applicant's inability to return to work in July 2014, as he had anticipated at the date of the final order, and the basis upon which the court relied when imputing income to him, is a change in circumstances that warrants a review of the child support order of Justice Waldman dated April 9, 2014.

[46] In applying the factors to consider when assessing a claim for a retroactive reduction in child support as set out in Gray v. Rizzi, the court finds it is fair and appropriate to grant a retroactive reduction in child support to July 15, 2014 for the following reasons:

a) The Applicant communicated with the Respondent on February 14, 2015 via email, requesting a change in the child support order, as he was unable to return to work in July 2014 as anticipated;

b) There was little to no delay in bringing the Motion to Change once the Applicant knew he would not be able to return to work in July 2014. In addition, he was not permitted to commence an action without leave of the court until the support order was 6 months old;

c) If there was a delay in commencing the Motion to Change, it is understandable given the Applicant's mental health issues and his difficulty managing stress and anxiety;

d) On February 18, 2015, the Respondent was served with the Applicant's Motion to Change which included an Affidavit sworn February 13, 2015, that attached as exhibits correspondence from the Applicant's psychiatrist, family doctor, employer and Manulife Financial clearly setting out that he was medically unable to return to work and still in receipt of long term disability benefits;

e) The Applicant has consistently paid child support since the first order was made on June 26, 2012. When he commenced the Motion to Change he was making partial support payments and was $3,476.58 in arrears;

f) The Applicant currently has limited ability to pay ongoing child support, contribute towards the cost of the child's daycare and make a payment towards significant arrears of child support;

g) According to the Respondent's Financial Statement sworn May 13, 2015, she has an annual income of $68,500.00 not including child support and contribution towards daycare paid by the Applicant. The Respondent's annual budget as set out in her sworn Financial Statement is $70,320.00, which includes 100% of the daycare costs. As the Applicant was paying $289.00 per month in child support until October 2015 when he began paying $325.00 as a term of a restraining order, his child support payments and the reduction in the annual cost of child care in 2015 mean the Respondent's and the child's expenses and needs are being met; and,

h) The Respondent discloses only $1700.00 of debt on March 13, 2015 in addition to the sum of $5,622.29 owed to her lawyer.

[47] The court looks to the decision of the Ontario Superior Court of Justice in Trang v. Trang, when being asked to vary a support order where income was imputed to the payor in the existing order. As stated in Trang, income imputed to a payor is a finding of fact. On a Motion to Change the payor must produce evidence of a change in circumstances that demonstrates that it would now be inappropriate to impute income to the payor at all or in the amount imputed to him or her on the previous hearing.

[48] This is not a case where the payor is attempting to argue that the income imputed to him was wrong or that he now has better evidence of what his true income is. The Applicant expected to be able to return to work in July 2014 and child support was set based on what his income was expected to be when he returned to work full time. He has been unable to return to work and has not earned the income he or the court expected and upon which the child support was fixed.

[49] In these circumstances the Applicant has met his onus of establishing that it would not be appropriate to continue to impute income to him of $46,452.00.

The Applicant's Income

[50] When the Applicant issued his Motion to Change in February 2015 he filed copies of his 2011, 2012 and 2013 Notices of Assessment. His total income in those three years was $99.00, $25,860.00 and $30,324.00 respectively.

[51] On the day of the Motion the Applicant filed an updated Financial Statement sworn March 30, 2016. The Applicant disclosed a current income of $24,408.00 and attached his T4s from The Manufacturers Life Insurance Company for 2014 and 2015 in the amount of $24,408.00 for both years.

[52] The Applicant has not filed his Income Tax Returns for 2014 and 2015, as he believed he was entitled to claim an income tax deduction for his contribution towards childcare and was waiting for copies of a receipt from the Respondent, which he requested but which was not provided.

[53] Paragraph 23 of the final order of Justice Waldman dated April 9, 2014, provides that "the Applicant father is to pay the Respondent mother $199.00 per month for his share of S.7 daycare expenses based on his i[m]puted income of $46,452.00 per year and the Respondent's income of $65,019.00."

[54] Section 7(1) of the Child Support Guidelines provides as follows:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1) ; O. Reg. 446/01, s. 2.

[55] Section 7(3) of the Guidelines sets out how section 7 expenses are to be calculated. It reads as follows:

Subsidies, tax deductions, etc.

7 (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.

[56] There is no reason to presume that the Applicant was entitled to receive receipts for his contribution towards the childcare and claim a tax deduction for his payments. The order clearly states that the amount owing by the Applicant for his share of childcare is to be paid to the Respondent, not to the daycare. As section 7(3) instructs the court to calculate the cost of section 7 expenses after taking into consideration any income tax deductions, it is only logical, without wording to the contrary in the order, to conclude that the $199.00 the Applicant was ordered to pay the Respondent was his share of the after tax cost of the expense to the Respondent.

[57] The Applicant relies on his 2014 and 2015 T4s from Manulife Financial that both show an annual income of $24,408.00 as evidence of his income. While the Applicant should have served and filed complete copies of his 2014 and 2015 Income Tax Returns and Notices of Assessments prior to the hearing, based on all of the evidence, I am satisfied that the Respondent's income for the purpose of fixing his child support obligation is $24,408.00.

The Respondent's Income and Section 7 Expenses

[58] The Respondent provided the following evidence:

i) The Respondent's 2014 annual income was $66,831.00;

j) The total cost of childcare in 2014 was $6744.00;

k) The Respondent's 2015 annual income was $68,282.00;

l) The total cost of childcare in 2015 was $3677.00;

m) In May 2016, the Respondent's daycare subsidy was reassessed and she is required to pay $607.00 per month during school months and $750.00 per month in July and August.

[59] The Respondent was paying $20.21 per day in child care in 2016 up to and including April 2016. That translates to $437.55 per month. As of May 1st, 2016, the monthly fee for the school year was increased to $607.00 and the $750.00 for July and August.

[60] The total cost of daycare for 2016 is calculated at $1750.20 for January to April 2016; $3642 for the months of May, June, September, October, November and December 2016; and, $1500 for July and August 2016. The total cost of daycare in 2016 will be $6892.20.

Review of the Applicant's Child Support Obligation

[61] What is not as clear from the evidence is whether the Applicant is doing all that he can to address the symptoms of his stress and anxiety. The court cannot find from the evidence that he is doing all he can to return to work. For example, the Applicant explained that he did not attend the physiotherapy sessions scheduled by Manulife because his benefits only covered a portion of the costs and he could not afford to pay for the service out of pocket.

[62] The court has difficulty with the Applicant's explanation for not attending physiotherapy given that his family has been contributing to his support since he went on medical leave from work and, even more problematic for the court, he has been paying over $630.00 per month towards his vehicle since he commenced this Motion to Change in February 2015.

[63] The Applicant also failed to attend an appointment at the Wasser Pain Centre on October 14, 2015 that was scheduled as a result of his request for a second opinion. At the date of the Motion the Applicant had not yet attended the appointment but it has been rescheduled.

[64] Since the court had the opportunity to see the Applicant hobble around the courtroom during which he appeared to be in great pain, it would appear that he should have attended the physiotherapy sessions scheduled by Manulife and the appointment at the Wasser Pain Centre.

[65] The evidence is not that the Applicant is permanently disabled. His own evidence is that he expects to be able to return to work once he can focus on his recovery rather than this litigation. The Applicant said he needs closure on this matter so he can get back to work. Clearly the Applicant expects to return to work at some point in the future. Therefore, it is reasonable for the court to set a date to review the Applicant's efforts to return to work to determine if the Applicant is doing all that he can to maximize his income. If the Applicant has not made sufficient efforts to return to work, the court will consider imputing income to the Applicant at a higher amount than he currently receives in the form of long term disability benefits.

Conclusion

[66] The Applicant's income has been $24,408.00 since 2014. The table amount of child support pursuant to the Child Support Guidelines is $195.00 per month.

[67] Based on the Applicant's 2014 income of $24,408.00, the Respondent's 2014 income of $66,831.00, and the cost of daycare in 2014 of $6744.00, the Applicant's proportionate share of the after tax cost of daycare is $98.00 per month.

[68] Based on the Applicant's 2015 income of $24,408.00, the Respondent's 2015 income of $68,282.00, and the cost of daycare in 2015 of $3677.00, the Applicant's proportionate share of the after tax cost of daycare is $53.00 per month.

[69] Using the parties 2015 incomes as there is no evidence of a material change in either party's income, and the projected cost of child care in 2016 of $6892.00, the Applicant's proportionate share of the after tax cost of child care in 2016 is $99.00.

[70] The Respondent shall be entitled to claim a deduction on her income tax return for 100% of the daycare expense in each year it is incurred. The Applicant is not entitled to claim his share of the child care as a tax deduction as it is based on the after tax cost of the expense to the Respondent.

Order

The order of Madam Justice Waldman dated April 9, 2014 shall be varied as follows:

1. Paragraphs 21 and 22 shall be deleted and replaced with the following:

"Commencing on July 15, 2014, and on the 15th of each month thereafter, the Applicant shall pay child support to the Respondent for the child of the relationship namely, Nicklas Andrew Stodolak, born May 11, 2011, in the amount of $195.00 per month based on the Applicant's annual income of $24,408.00 and the Child Support Guidelines."

2. Paragraph 23 shall be deleted and replaced with the following:

"Commencing on July 15, 2014 and up to and including December 15, 2014, the Applicant shall pay $98.00 per month as his proportionate share of the after tax cost of the child's daycare. This amount is calculated based on the Applicant's annual income of $24,408.00, the Respondent's 2014 income of $66,831.00, and, the cost of childcare in 2014 of $6,774.00."

3. Commencing January 15, 2015 and up to and including December 15, 2015, the Applicant shall pay $53.00 per month to the Respondent as his proportionate share of the after tax cost of the child's daycare. This amount is calculated based on the Applicant's annual income of $24,408.00, the Respondent's 2015 income of $68,282.00, and, the cost of childcare in 2015 of $3,677.37.

4. Commencing January 15, 2016 and on the 15th of each month thereafter for so long as the Applicant incurs daycare costs for the child or until the cost of daycare changes, the Applicant shall pay $99.00 per month to the Respondent as his proportionate share of the after tax cost of the child's daycare. This amount is calculated based on the Applicant's annual income of $24,408.00, the Respondent's 2015 income of $68,282.00, and, the cost of childcare in 2016 of $6892.00.

5. The Respondent will provide the Applicant with proof of the daycare costs annually so that the parties can determine if there should be an adjustment to the Applicant's proportionate share of the after tax cost.

6. The Applicant shall notify the Respondent immediately upon receiving employment income of any kind and shall cooperate to adjust his child support payments accordingly.

7. The Respondent will receive credit for all amounts he has paid in child support and contribution towards childcare as reflected in the records of the Family Responsibility Office.

8. The balance of the order of Justice Waldman dated April 9, 2014 shall continue in full force and effect.

9. The Applicant's child support obligation shall be reviewable in 18 months to determine if the Applicant is making reasonable efforts to address his medical issues in a meaningful way which would enable him to return to employment and earn income in the amount he is capable of earning. If he is not, the court will consider imputing a higher income to the Applicant and recalculating his child support obligation.

10. If either party is seeking costs of the Motion to Change they shall deliver their submissions to the other side within 20 days of the date of this order and the responding party shall have 15 days to respond. Submissions whether in support of an order for costs or in response to a request for costs must be no more than 3 pages in length not including attachments or a Bill of Costs.

11. The cost submissions, if any, shall be delivered to the trial coordinator so that they may be brought to my attention.

Dated this 17th day of May 2016.

Justice Melanie Sager