Court File and Parties
Ontario Court of Justice
Date: October 20, 2016
Court File No.: Orangeville 191/2009
Between:
LYNDSEY NICHOLE McCLINTOCK Applicant
— And —
THOMAS JAMES POWER Respondent
Before: Justice Patrick W. Dunn
Heard on: 6, 7 and 8 September 2016
Ruling released on: 20 October 2016
Counsel:
- Lyndsey Nichole McClintock ........................... self-represented
- Ms. Shirley R. Woodley Griffin ...................... counsel for the Respondent
Endorsement
Background and Motion Overview
[1] JUSTICE P.W. DUNN:— Thomas James Power was the Respondent in earlier proceedings, but the moving party in this Motion to Change, dated 9 February 2015, which was before the court (herein, the "motion"). Lyndsey Nichole McClintock was the earlier Applicant, but the responding party to the motion.
[2] The Order sought to be changed was by Justice Allen dated 7 April 2010. Mr. Power was ordered to pay $823.00 monthly from 1 August 2009. It was based on an imputed income of $54,720.00. (herein the "Order"). It was registered with the Family Responsibility Office (herein the "Director"). The Order required Mr. Power to provide an income tax return and Notice of Assessment each year starting 1 June 2010. He was always remiss in this obligation.
[3] Mr. Power's request was to expunge all arrears under the Order, and to calculate what he should have paid in child support from 2009 to the present. He was then prepared to pay ongoing support pursuant to what the court would decide as his income.
[4] Ms. McClintock believed the Respondent has been underemployed, and that he is physically well and should be working, despite his protests that he cannot find employment. The Applicant wanted to maintain the arrears under the Order, and would consent to a reduction of $15,000.00. Then Mr. Power should repay the arrears in a manner to be decided by the court. With respect to the ongoing, Ms. McClintock would accept the Respondent's former offer to pay $438.00 a month from 1 October 2016, based on a proposed income of $30,000.00.
Procedural History and Case Progression
[5] This case has progressed over eight years and there were few documents to confirm dates for events. There was also ambivalence about the Respondent's self-employed earnings, and the quantum of payments he made to the Applicant before the Director became involved. I can be reasonably certain that the parties separated in or about July 2009. Hence there were eight years of the Respondent's income to review.
[6] After the July 2009 separation, the parties agreed that Mr. Power would remit $400.00 monthly child support, payable $200.00 every second week. That would have been based on a $24,000.00 annual income, which was likely reasonable at the time. This arrangement continued from July to December in 2009.
[7] There were casual methods for payments. Sometimes the $200.00 payment was made on access exchanges, and on other occasions, the money was deposited to Ms. McClintock's bank account. At some point in these proceedings, it was alleged the monthly $400.00 was to reimburse the Applicant for payments on her VISA account. I concluded the money was for child support.
[8] The only evidence the Respondent had that these $400.00 monthly payments were made between July and December 2009, were five receipts totalling $920.00 paid between May and July 2010. For all other monies allegedly paid in this period, there were no receipts.
[9] Mr. Power stopped the $400.00 payments in December 2010 when the Director advised him of the Order, and his employer was deducting $823.00 a month from his pay.
[10] Ms. McClintock complained that Mr. Power's payments were sporadic, and she launched an application for custody and child support. That led to Justice Allen's Order on 7 April 2010. The Respondent did not attend court that day, because he believed the $400.00 payment plan did not require any further action on his part. He also claimed he did not know about the Order until December 2010.
[11] In Ms. McClintock's 23C affidavit for the 7 April 2010 court hearing, she submitted that the Respondent's income should be imputed at $54,720.00. She based her calculation on information she had about Mr. Power's jobs, but she did not have any income tax returns from the Respondent to confirm her estimation of his income.
[12] Mr. Power denied that he ever earned $54,720.00 in any year. James Thomas Power and Ruth Mary Power, his parents, gave affidavits to support their son in this regard.
Family Circumstances
[13] The parties cohabitated from 2001 until their separation in July 2009. They have two children:
- Jacob Thomas McClintock Power, born 24 October 2003
- Robyn Emily McClintock Power, born 17 September 2006
[14] Mr. Power has been in a new common law relationship with Angela Parker from February 2011. Together they have two children:
- Nathan James Power, born 12 June 2012
- Carley Joan Power, born 18 February 2015
Ms. Parker has another child, Jaxson Frederick Young, born 29 June 2009, who lives with the Respondent and her and Mr. Power is a step-father to Jaxson. When Mr. Power has access to Jacob and Robyn, there are five children in the Power-Parker household.
[15] There was no evidence about Ms. McClintock being in a relationship, and she has maintained regular employment to support her two children.
[16] Ms. Parker did not work outside the residence. Mr. Power had a reoccurring need for a driver for him to reach work, but Ms. Parker was unable to be very supportive because her three children are young and required her attention. One of her pregnancies was problematic, because she was on an I V machine for her nine months of pregnancy. Nevertheless, the Applicant believed Ms. Parker could have been more helpful in driving Mr. Power to work venues than she had been.
[17] Before the separation in July 2009, Mr. Power and Ms. McClintock had unstable living arrangements. The Respondent's parents and his late grandfather, James Joseph Power, made substantial contributions to their household to help with rent and food. After the parties parted ways, Mr. Power's family continued to support him on occasion.
[18] Ms. Parker complained the Respondent did not earn enough to properly feed the children, and her mother, Daniella Parker, provided financial assistance.
Respondent's Employment History
[19] At the separation in July 2009, Mr. Power worked as a labourer at Chalmers Fuels in Georgetown, earning $16.00 an hour. Three months later in October 2009, he was hurt and off work. When he recovered a month later, in November 2009, no job was available for him at Chalmers Fuels.
[20] When Mr. Power later sought a Record of Employment from Chalmers Fuels, the company was out of business. He said he did not know that he could have obtained the Record of Employment from Chalmers Fuels in Palmerston, where Ms. McClintock worked.
[21] There was no information of Mr. Power's employment from November 2009 to September 2010 (eleven months). In about September 2010, he worked with Power Broker Logistics as an independent contractor. He drove a truck and earned $120.00 a day, and this was the best job he ever had. During that employment, $823.00 a month was deducted from his pay and sent to the Director, in accordance with the Order. However in April 2012, Mr. Power had to leave this job. Insurance with the company could not be maintained for him because his licence was impeded by unpaid traffic fines.
[22] At this point, I will leave the Respondent's history as a labourer and turn to the Director's involvement in the case. On 11 April 2011, a default hearing was started against the Respondent. There were four court appearances, but Mr. Power only attended the first and third. On 9 November 2011, the third appearance, he entered a temporary default order. He was required to produce financial disclosure, and start a motion to change before his fourth appearance on 25 January 2012. Because he did not attend court on that date, and he did not do the disclosure, nor did he start the motion to change, Justice Pugsley did a final default order. It required the Respondent to continue to pay the ongoing of $823.00 a month, together with $345.00 monthly to arrears. Payments of $1,168.00 were to commence 1 February 2012. This order was served on Mr. Power. He did not make payments as required by that order of 25 January 2012, and he only began this motion on 9 February 2015, three years after the 25 January 2012 order.
[23] By 4 October 2012, the arrears were $19,144.00. Mr. Power had only paid $113.00 in support in the last eight months. The Director's first Notice of Intention to Suspend the Respondent's driver's licence was issued that gave the usual three options. Mr. Power took no steps pursuant to the Notice, and on 28 November 2012, his driver's licence was suspended. Because the Respondent made some payments, his licence was reinstated on 2 July 2013.
[24] On his own, Mr. Power brought an earlier motion to change, dated 20 August 2012. He sought specific access as a variation of the Order. He did not request a change in child support, because he said he did not know he could. (The Applicant was understandably content to leave the Order intact that required the $823.00 monthly payments.) On 12 February 2014, Justice Pugsley gave final orders for the Respondent's access, and there was no change in the earlier child support Order.
[25] On 21 March 2014, the Director issued a second Notice of Intention to Suspend Mr. Power's licence. As of then, $26,983.00 were the arrears, and there had not been payments since 12 December 2013. Again, the Respondent did not act on the available options, specifically he did not request a refraining order. His licence was suspended and it still is.
[26] On 30 July 2014, the Director started a motion for a Warrant of Committal. An incarceration period of 120 days was sought, unless the sum of $27,804.00 was sooner paid.
[27] At the first court appearance on 8 October 2014, Mr. Power said he would formulate a plan to pay the arrears. He also agreed to paid $1,168.00 before 3 November 2014, which was the amount required monthly by Justice Pugsley's order of 25 January 2012.
[28] At the next court appearance on 5 November 2014, Mr. Power paid $1,168.00 to the Director, and said he would pay a further $5,000.00 before 21 January 2015. He also promised to start a motion to change, and these requirements were peremptory on him.
[29] At court on 21 January 2015, records showed that of the $5,000.00 he said he would pay, he surrendered $2,500.00, and that had been borrowed from a relative. He said he was employed full-time at Home Grace Renovations, earning $15.00 an hour. He had not yet started a motion to change.
[30] When the Director enquired about the Respondent's employment status with Home Grace Renovations, it learned he only worked there occasionally, one or two days a month to help with his rent.
[31] 11 February 2015 was the fourth appearance on the Director's motion for a Warrant of Committal. Mr. Power had started the motion before this court, and the case was further adjourned to 25 March 2015.
[32] The 25 March 2015 date was the first appearance on this motion. Mr. Power announced he was working at Breakaway Staffing Solutions ("Breakaway") as a labourer, and then this motion, and the Director's motion (for committal), were adjourned to 6 May 2015 to received payments from Breakaway.
[33] On 6 May 2015, the Respondent agreed to pay $300.00 a month to the arrears, starting 1 April 2015. In default of that payment, the Director was going to obtain a date for a hearing on its committal motion. Mr. Power did not pay the $300.00, and on 17 June 2015, the Director scheduled a date for the default hearing. It got postponed until this court finalizes the Respondent's motion.
Respondent's Self-Employment and Business
[34] Returning now to the chronology of the Respondent's work history, he ran a business called Power T Mobile from July 2006 to December 2010. On alternate weekends, Mr. Power greased between twenty-five to thirty trucks, earning $25.00 a truck. He said he grossed about $1,100.00 monthly, but netted only $600.00 a month. The Respondent professed that he could not produce more revenue because the equipment was old and frequently broke down, and could only be used in good weather.
[35] The evidence was unclear about what Mr. Power actually earned him in his greasing business. He declared that he gave all his records to his accountant to prepare the tax returns. He protested he did not have any records of the business left for this court to consider (other than his Notices of Assessment).
[36] Mr. Power stated that the cost of the greasing business was high. He had to pay a helper, and compressors needed replacement with expensive substitutes. There was the expense of travel to where the trucks were parked. He affirmed that by 2009, his clientele decreased. He hurt his ribs in October 2010, and then he needed extra help to do the work. By December 2010, he gave up the business, because he said he was not earning enough to make his efforts worthwhile.
[37] Ms. McClintock believed the Respondent's greasing business was more robust than he allowed, but she had no evidence to prove it.
[38] The Canada Revenue Agency became interested in Mr. Power's affairs. They seized the contents of his bank account, which he said, without specifics, contained little. Thereafter, he did not open another bank account for fear that it too would be seized. He cashed cheques from customers in the greasing business at Money Mart at a cost of 3 per cent per cheque. When the Applicant asked him for records about what cheques he actually cashed, he asserted he did not know and conveniently, had no records to produce.
Continued Employment and Challenges
[39] There was a five or six month gap in Mr. Power's employment between when he left Power Broker Logistics in April 2012, until he started as a labourer at Dambro Environmental ("Dambro") in September 2012. Again, his work at Dambro was seasonal and he earned $17.00 an hour. Dambro deducted $823.00 a month from his salary in compliance with the Order. The Respondent received a Record of Employment from Dambro, but he lost it, and did not obtain a replacement. He did have T4s from Dambro upon which his income could be calculated.
[40] As mentioned previously, Mr. Power's licence was suspended by the Director on 28 November 2012. The Respondent relied on family and Ms. Parker's mother to drive him to work.
[41] Mr. Power was laid off by Dambro in December 2013 as the cold weather had arrived. The Respondent prepared to return to Dambro in March 2014, but did not because of an injury. While assisting a child with wart remover, he spilled some on his lower body. He was handicapped by that injury, and went to hospital on two occasions. When he tried to return to Dambro in June 2014 after his recovery, his former employer had no work for him.
[42] With respect to the injury from the wart remover, Mr. Power never offered any medical evidence to prove why he could not work.
[43] In 2014, Mr. Power did not work (other than for a few days at Home Grace Renovations). His excuse was that he did not have a licence to get to work (although a vehicle was available to him), and no one was accessible any longer to transport him. However from 2 July 2013 to 21 March 2014 (nine months), the Respondent did have his licence reinstated. He was working at Dambro in that period from July to September 2013, and he received income from his presence in the work force. But when he was laid off by Dambro in December 2013, for the next three months (December 2013 to 21 March 2014), he was licenced and could have driven to a worksite in Brampton or elsewhere, where a vehicle would have been needed.
[44] Between December 2013, when the Respondent was laid off at Dambro, until January 2015, almost two years later, there was no income source from which the Applicant could obtain child support.
[45] Mr. Power's last employer was Breakaway where he worked from March 2015 to November 2015. This was an employment agency which dispatched him to various construction locations. He had difficulty obtaining someone to drive him to work. Breakaway also deducted $823.00 a month from his pay in accordance with the Order. This employment ended, as happened with the other seasonable employers, in November 2014 with the onset of winter.
[46] On 6 April 2016, Mr. Power owed $640.00 to the County of Dufferin Community Services. He agreed to pay this sum, (which had been lowered significantly after negotiation), at the rate of $50.00 a month from 1 May 2016. By the conclusion of this trial, Mr. Power had made no payments. He will not receive any credit in regard to child support, based on the Respondent's agreement with the County of Dufferin.
Financial Disclosure Issues
[47] Mr. Power was stalled in his pursuit of his motion because he needed to have prepared seven income tax returns for the years 2009 to 2015 inclusive. He had to borrow funds to pay an accountant before that documentation could be assembled.
[48] A serious concern of Ms. McClintock was that Mr. Power had not provided enough disclosure to accurately assess his earnings. Ms. Griffen asked the Applicant:
Q) Mr. Power filed his income returns after launching his second motion to change. Once filed, you saw the returns that showed what he earned each year, and what he was to pay by way of guideline child support. Now that you have that information and what Mr. Power is to pay according to the guidelines, what is your view of the calculations?
A) I believe there is further disclosure to be made.
Q) What more do you need?
A) I need what I requested in my Request to Admit, to include what Mr. Power gave to his accountant, and his records from Money Mart.
Q) But you were given the information that the court uses, the notices of assessment and the income tax returns?
A) Yes.
Q) Why insist you cannot accurately address the disclosure put before you?
A) I do not believe it is truthful, what Mr. Power provided in the income tax returns.
[49] After considering Ms. McClintock's concern that the Respondent's financial disclosure was inadequate, I observe:
Since Ms. Griffen began acting for the Respondent, the Applicant has been provided with the usual disclosure required in cases of this type.
Justice Pugsley, the case manager, was sufficiently satisfied with the disclosure to set the case down for trial.
Ms. McClintock had the opportunity to address these alleged shortcomings in her cross-examination of Mr. Power. She was successful in pushing the Respondent to acknowledge deficiencies in his disclosure, such as the lack of records for the Money Mart cheques, but she was met with Mr. Power's sworn assertion that all cheques cashed were from his Power T Mobile business (greasing trucks), and that he was not hiding income from the Canada Revenue Agency. Ms. McClintock had no documents to gainsay Mr. Power's evidence.
At this point, in a case that has continued for six years, it would be inadvisable to adjourn for further disclosure, when a conclusion is urgently required. Also, the disclosure already in place is sufficient for the court to rule on the motion.
Calculation of Child Support Owed (2009-2015)
[50] There follows a calculation of what child support Mr. Power should have paid for the years 2009 – 2013 inclusive and 2015:
Year 2009
- Income for Respondent for 2009: $29,131.00
- Monthly support payable for 2 children: $432.00
- Payment due for August 2009 – December 2009: $2,160.00
- Amount to be paid for 2009: $2,160.00
Year 2010
- Income for Respondent for 2010: $16,084.00
- Monthly support payable for 2 children: $253.00
- Payment due for January 2010 – December 2010: $3,036.00
- Amount to be paid for 2010: $3,036.00
Year 2011
- Income for Respondent for 2011: $20,173.00
- Monthly support payable for 2 children: $307.00
- Payment due for January 2011 – December 2011: $3,684.00
- Amount to be paid for 2011: $3,684.00
Year 2012
- Income for Respondent for 2012: $16,628.00
- Monthly support payable for 2 children: $244.00
- Payment due for January 2012 – December 2012: $2,928.00
- Amount to be paid for 2012: $2,928.00
Year 2013
- Income for Respondent for 2013: $26,825.00
- Monthly support payable for 2 children: $394.00
- Payment due for January 2013 – December 2013: $4,728.00
- Amount to be paid for 2013: $4,728.00
Year 2014
- Income for Respondent for 2014: $0.00
- Monthly support payable for 2 children: $0.00
- Payment due for January 2014 – December 2014: $0.00
- Amount to be paid for 2014: $0.00
Year 2015
- Income for Respondent for 2015: $15,329.00
- Monthly support payable for 2 children: $204.00
- Payment due for January 2015 – December 2015: $2,448.00
- Amount to be paid for 2015: $2,448.00
Summary for Years 2009-2013 and 2015
For the years 2009 – 2013 inclusive and 2015, Mr. Power owed according to the Guidelines: $18,984.00
Less what the Respondent paid direct to the Applicant: -$920.00
Total child support payable for years 2009 – 2013 inclusive and 2015: $18,064.00
Calculation of Payments Made to Family Responsibility Office
[51] Now the court will consider what Mr. Power actually paid. There was some confusion at trial about which Director's statement to use. I trust that what follows will be an accurate reflection of the correct amount that was collected from the Respondent's employers, from diversions, and from cash advances for the period 15 November 2010 to 17 March 2016. (No payments were made after 17 March 2016).
Statement of Arrears: Thomas Power (Payor) / Lyndsey McClintock (Recipient)
F.R.O. Case No: 0775444
| Date | Amount Paid | Balance |
|---|---|---|
| 15/11/2010 | $823.00 | $823.00 |
| 15/11/2010 | $823.00 | $1,646.00 |
| 08/12/2010 | $823.00 | $2,469.00 |
| 09/02/2011 | $425.00 | $2,894.00 |
| 25/02/2011 | $850.00 | $3,744.00 |
| 30/03/2011 | $850.00 | $4,594.00 |
| 21/04/2011 | $850.00 | $5,444.00 |
| 20/05/2011 | $850.00 | $6,294.00 |
| 12/07/2011 | $850.00 | $7,144.00 |
| 25/07/2011 | $850.00 | $7,994.00 |
| 12/08/2011 | $850.00 | $8,844.00 |
| 21/09/2011 | $850.00 | $9,694.00 |
| 11/10/2011 | $850.00 | $10,544.00 |
| 09/11/2011 | $425.00 | $10,969.00 |
| 06/12/2011 | $850.00 | $11,819.00 |
| 13/01/2012 | $850.00 | $12,669.00 |
| 12/03/2012 | $213.50 | $12,882.50 |
| 01/08/2012 | $900.00 | $13,782.50 |
| 02/04/2012 | $189.92 | $13,972.42 |
| 05/04/2013 | $189.92 | $14,162.34 |
| 19/04/2013 | $118.98 | $14,281.32 |
| 26/04/2013 | $179.33 | $14,460.65 |
| 10/05/2013 | $46.75 | $14,507.40 |
| 16/05/2013 | $118.97 | $14,626.37 |
| 24/05/2013 | $65.02 | $14,691.39 |
| 30/05/2013 | $189.92 | $14,881.31 |
| 10/06/2013 | $189.92 | $15,071.23 |
| 13/06/2013 | $103.42 | $15,174.65 |
| 13/06/2013 | $189.97 | $15,364.62 |
| 21/06/2013 | $189.92 | $15,554.54 |
| 21/06/2013 | $63.73 | $15,618.27 |
| 28/06/2013 | $189.92 | $15,808.19 |
| 28/06/2013 | $170.43 | $15,978.62 |
| 16/08/2013 | $189.92 | $16,168.54 |
| 16/08/2013 | $25.74 | $16,194.28 |
| 22/08/2013 | $189.92 | $16,384.20 |
| 22/08/2013 | $22.57 | $16,406.77 |
| 29/08/2013 | $124.88 | $16,531.65 |
| 29/08/2013 | $189.92 | $16,721.57 |
| 13/09/2013 | $146.44 | $16,868.01 |
| 13/09/2013 | $189.92 | $17,057.93 |
| 13/09/2013 | $82.72 | $17,140.65 |
| 27/09/2013 | $189.92 | $17,330.57 |
| 27/09/2013 | $103.47 | $17,434.04 |
| 04/10/2013 | $76.39 | $17,510.43 |
| 04/10/2013 | $189.92 | $17,700.35 |
| 11/10/2013 | $69.89 | $17,770.24 |
| 11/10/2013 | $137.54 | $17,907.78 |
| 17/10/2013 | $170.61 | $18,078.39 |
| 24/10/2013 | $189.92 | $18,268.31 |
| 24/10/2013 | $16.24 | $18,284.55 |
| 01/11/2013 | $106.61 | $18,391.16 |
| 01/11/2013 | $189.92 | $18,581.08 |
| 07/11/2013 | $170.60 | $18,751.68 |
| 14/11/2013 | $44.73 | $18,796.41 |
| 14/11/2013 | $189.92 | $18,986.33 |
| 21/11/2013 | $88.91 | $19,075.24 |
| 21/11/2013 | $189.92 | $19,265.16 |
| 29/11/2013 | $189.92 | $19,455.08 |
| 06/12/2013 | $176.43 | $19,631.51 |
| 12/12/2013 | $189.92 | $19,821.43 |
| 12/12/2013 | $83.04 | $19,904.47 |
| 20/11/2013 | $1,168.00 | $21,072.47 |
| Payment at court on 21/01/2015 | $2,500.00 | $23,572.47 |
| 19/03/2015 | $1,549.00 | $25,121.47 |
| 26/03/2015 | $1,664.00 | $26,785.47 |
| 26/03/2015 | $816.00 | $27,601.47 |
| 23/04/2015 | $75.00 | $27,676.47 |
| 04/05/2015 | $75.00 | $27,751.47 |
| 08/05/2015 | $75.00 | $27,826.47 |
| 19/05/2015 | $75.00 | $27,901.47 |
| 28/05/2015 | $75.00 | $27,976.47 |
| 05/06/2015 | $75.00 | $28,051.47 |
| 11/06/2015 | $75.00 | $28,126.47 |
| 29/06/2015 | $75.00 | $28,201.47 |
| 29/06/2015 | $75.00 | $28,276.47 |
| 06/07/2015 | $75.00 | $28,351.47 |
| 13/07/2015 | $141.22 | $28,492.69 |
| 21/07/2015 | $75.00 | $28,567.69 |
| 24/07/2015 | $75.00 | $28,642.69 |
| 06/08/2015 | $75.00 | $28,717.69 |
| 11/08/2015 | $75.00 | $28,792.69 |
| 24/08/2015 | $75.00 | $28,867.69 |
| 24/08/2015 | $75.00 | $28,942.69 |
| 10/09/2015 | $75.00 | $29,017.69 |
| 15/09/2015 | $75.00 | $29,092.69 |
| 18/09/2015 | $75.00 | $29,167.69 |
| 24/09/2015 | $75.00 | $29,242.69 |
| 05/10/2015 | $75.00 | $29,317.69 |
| 13/10/2015 | $75.00 | $29,392.69 |
| 23/10/2015 | $167.33 | $29,560.02 |
| 23/10/2015 | $199.57 | $29,759.59 |
| 30/10/2015 | $201.46 | $29,961.05 |
| 20/11/2015 | $162.26 | $30,123.31 |
| 20/11/2015 | $205.29 | $30,328.60 |
| 26/11/2015 | $140.60 | $30,469.20 |
| 30/11/2015 | $171.21 | $30,640.41 |
| 09/12/2015 | $171.12 | $30,811.53 |
| 15/12/2015 | $165.28 | $30,976.81 |
| 14/01/2016 | $204.00 | $31,180.81 |
| 14/01/2016 | $287.00 | $31,467.81 |
| 17/03/2016 | $68.00 | $31,535.81 |
Total collected by Family Responsibility Office from 15 November 2010 to 17 March 2016: $31,535.81
Analysis of Overpayment
For the years 2009-2013 inclusive and 2015, the Respondent paid: $31,535.81
The Respondent owed for that period: -$18,064.00
Therefore the Respondent overpaid: $13,471.81
Treatment of 2014 and Imputation of Income
[52] Before the court will consider how to give credit to Mr. Power for $13,471.81, it will first review the Respondent's circumstances for 2014.
[53] Mr. Power was laid off in January 2014. He was not employed again until one year later, at Breakaway, in January 2015. The Respondent said he did not work because of illness, no driver's licence, and no available employment.
[54] However, the court considered:
Mr. Power never produced any medical confirmation that he could not work.
He did have a driver's licence from January to March in 2014, and was therefore able to get to worksites.
Mr. Power said he was not interested at all in searching for work in the food industry. Thus he imprudently abandoned a viable opportunity for employment.
He did not learn about bus schedules that could have carried him to job locations.
He dismissed the idea of moving closer to better employment areas, because he thought the rent would be too high, and he would be further away from his children.
I believe the Respondent could have obtained some driving assistance to reach work locations in at least part of 2014.
If Mr. Power had started his motion much earlier, which was what he had been ordered to do at the time of the temporary default order on 9 November 2011, he could have been driving and working in 2014.
[55] The Court does not have sympathy for the Respondent's plight in 2014. A minimum wage income will be imputed to him in the amount of $22,704.00.
[$11.00/hour x 40 hours/week x 4.3 weeks in a month x 12 months = $22,704.00]
[56] The Guidelines for two children would require payments of $342.00 a month.
[57] The child support payable for 2014 would be $4,104.00 ($342.00/month x 12 months).
[58] I apply the amount of child support the Respondent owes for 2014, against his credit entitlement for overpayment in prior years:
- Credit: $13,471.81
- Child support owed for 2014: -$4,104.00
- Remaining credit owing to the Respondent: $9,367.81
Final Orders
[59] What the Respondent needs in particular is a finding that there are no arrears under the Order.
ORDERS
There are no child support arrears and no other monies owing under the Order of Justice Allen dated 7 April 2010, as of 8 September 2016.
There is no order as of 8 September 2016 requiring the Respondent to pay child support for Jacob Thomas McClintock Power, born 24 October 2003 and Robyn Emily McClintock Power, born 17 September 2006, until further order of this court.
Matters Remaining for Trial
[60] When the trial resumes on 8 December 16, the following remains to be addressed:
What are Mr. Power's earnings in 2016, upon which the Guidelines should be applied?
Should an income be imputed to Mr. Power for 2016?
Has Mr. Power received a Notice of Assessment to confirm his 2015 income?
How to apply Mr. Power's credit for overpayment of child support?
[61] It is noted that the Applicant was prepared to accept child support of $438.00 a month from 1 October 2016, based on an income of the Respondent of $30,000.00. Ms. Griffen advised that the $30,000.00 figure was estimated when Mr. Power worked at Breakaway. However, he never earned that sum at Breakaway; only $15,329.00. Hence the court will not necessarily use the $30,000.00 figure, but will consider the actual financial situation for the Respondent in 2016.
Administrative Matters
[62] Administration is requested to send this ruling to Ms. Griffen and to Ms. McClintock.
[63] I waive the requirement of the Applicant to approve these orders to be taken out by Ms. Griffen.
Released: 20 October 2016
Justice P.W. Dunn