Court File and Parties

Ontario Court of Justice

Date: December 6, 2016

Court File No.: Brampton 16-10004

Between:

Donovan Junior Campbell Applicant

— And —

Simmone Renne Thompson Respondent

Before: Justice P.W. Dunn

Ruling released on: December 6, 2016

Representation:

• Donovan Junior Campbell.................................................................................. Self-represented
• Simmone Renne Thompson.................................................................................. Self-represented

DUNN J.:

Background and Procedural History

[1] This was a Support Variation Application, dated 10 August 2015, brought under the Interjurisdictional Support Orders Act, 2002. The Applicant, Donovan Junior Campbell, lived in British Columbia, and the Respondent, Simmone Renne Thompson, resided in Peel Region in Ontario. The Applicant wished to change his child support from $1,129.00 a month to $650.00 monthly based on a hardship argument. He also requested that his child support arrears be fixed at zero.

[2] The Consent Order that the Applicant wanted to change was that of Justice Zuker dated 14 February 2011, which ordered him to pay $1,129.00 a month from 1 March 2011, based on an income of $77,500.00 and for two children.

[3] The Application was served on the Respondent on 18 March 2016, and she filed her Answer on 18 April, 2016.

[4] On 15 April 2016, the Respondent filed a motion to request a hearing on the Application, which was considered by Justice Khemani on 12 May 2016. That Justice dismissed the motion with a finding that an oral hearing would not be necessary in the circumstances of this case. However, the Justice found that the Applicant's materials were not adequate to consider the Application. Mr. Campbell was required to produce specified documents within sixty days, which would have been by about 15 June 2016. The Applicant was told in the 12 May 2016 Ruling that if he did not provide the disclosure, his Application shall be dismissed.

[5] When by 12 July 2016, the Applicant did not file the disclosure, Justice Khemani dismissed his Application.

[6] The Respondent brought a motion without notice seeking an Order for costs in the amount of $5,096.13 for opposing the Application. The motion was dismissed on 2 August 2016, because it should have been on notice.

[7] In September 2016, the Applicant filed a motion asking that:

1. The Order of 12 July 2016 (that dismissed the Application) be set aside;
2. The Applicant be given another sixty days to do the disclosure;
3. This motion should be heard before a hearing on the Respondent's motion seeking costs.

The Applicant's September 2016 motion was opposed by the Respondent.

[8] On 11 October 2016, Justice Khemani ruled on the Applicant's motion:

A. The Order of 12 July 2016 was set aside (meaning that the Applicant could proceed with his Application).

B. The Application would be considered before any request for costs by the Respondent.

C. The Applicant was given another thirty days to do the disclosure ordered on 12 May 2016 (ie by 11 November 2016).

Analysis of Disclosure and Evidence

[9] This court finds that the Applicant produced some documents in a timely manner but not all.

[10] In assessing the statements in both parties' affidavits and documents, there were contradictions and missing facts at times that made it difficult to view the entire picture. However, I am satisfied that there was enough cogency in the materials to be able to make clear rulings based on the information filed.

[11] On 12 May 2016 Justice Khemani required the Applicant to provide the following information. Here is what I find was supplied in response to the Order:

1. Reasons for Income Reduction

[12] In court on 14 February 2011, Justice Zuker was said by the Applicant to have averaged his income for the last three years in fixing it at $77,500.00. The Applicant was present when that Consent Order was made.

[13] The Applicant now claimed that a fairer determination of his income for 2011 would have been $71,261.00 (the Applicant's employer, Ledcor Industries Inc. ("Ledcor") wrote a letter dated 7 August 2012 that stated that as the Applicant's income for 2011.)

[14] Regarding the Applicant's income for 2012, his employer, Ledcor, wrote on 30 April 2013 to advise that his income for 2012 was $68,560.00. The Canada Revenue Agency reassessed it at $83,384.00.

[15] In a letter dated 23 October 2014, Ledcor wrote that the Applicant's income for 2013 was $67,100.00. His Notice of Assessment for the year stated it to be $77,149.00.

[16] The Applicant filed a Notice of Assessment for 2014 to show his income as $69,928.00. In 2015, his Notice of Assessment indicated an income of $83,752.00. The Applicant's financial statement sworn 6 July 2016, showed that his income was $59,696.00 for 2016.

[17] The best information about the Applicant's income for 2016 was in his financial statement sworn 6 July 2016.

[18] Hence it does not appear that the Applicant's income decreased by $30,000.00 from 2012 to 2014. It dropped somewhat but not significantly. In Form A in the Applicant's Application, he requested that the child support be decreased from $1,129.00 a month (as ordered by Justice Zuker) to $650.00 monthly. He did not explain what support he should currently pay based on what salary he earned before he sought a reduction to $650.00 a month based on hardship.

2. Employment Efforts

[19] Other than for a short one-time period, the Applicant has maintained regular employment.

3. Medical or Work Capacity Evidence

[20] The Applicant offered no such evidence.

4. Household Income and Standard of Living Analysis

[21] At the outset, it is important to observe that apparently Mr. Campbell and Ms. Abdul live at separate addresses: he at 14129 Park Drive, Surrey, British Columbia, and she at Apt. 116, 15501 89A, Surrey, British Columbia.

[22] Ms. Abdul wrote an undated note, unsworn, that was part of the Applicant's affidavit sworn 7 July 2016. The note said that Ms. Abdul graduated in November 2015 as a licenced practical nurse. She was scheduled for a licencing exam in January 2016, but there is no indication whether she became licenced. At whatever time Ms. Abdul wrote her note, she had employment as a caregiver at $18.25 an hour. She had four-days-on and four-days-off; with eight hour shifts.

[23] As of 22 April 2016, Ms. Abdul's student loan was $21,464.00, which was to be repaid at the rate of $239.00 a month, from 30 June 2016. Her Notice of Assessment for 2015 reported an income of $5,760.00

[24] This incomplete information from Ms. Abdul did not help the Applicant in his hardship argument, because it does not show what Ms. Abdul could be earning as a licenced practical nurse. However, any financial contribution by Ms. Abdul to Mr. Campbell may be irrelevant if she does not live with him.

[25] Mr. Campbell did not say whether there was any adult living with him in his residence, which he was required to state.

5. Legal Obligation to Support Additional Children

[26] There was no Order requiring the Applicant to support Ms. Abdul's children, post any separation between the Applicant and Ms. Abdul or otherwise. Mr. Campbell was not the biological parent of these three children. It also was not clear whether at any time Mr. Campbell and Ms. Abdul cohabitated and then separated.

[27] The Applicant described an obligation he felt to support the three children "approximately one-half the time," when either Ms. Abdul was in school, or later, when she did her four day shifts. He provided food and clothing, which he estimated to be about $500.00 a month, but no specifics were offered about this sum.

6. Child Support for Additional Children

[28] Mr. Campbell neither paid nor received any money in the nature of child support for these three children.

7. Not Applicable

8. Updated Financial Statement

[29] As mentioned earlier, the Applicant did file a financial statement sworn 6 July 2016, that indicated his present income at $59,695.00.

9. Documentation of Debts

[30] I do not observe that Mr. Campbell is claiming to be responsible for any debts arising from the parties' brief relationship from February 2004 to May 2005.

[31] The debts appear to relate to current obligations of a personal nature that the Applicant incurred:

• Canadian Tire $7,313.00 (credit limit $12,300.00)
• Scotiabank Visa $1,384.00 (credit limit $3,300.00)
• Scotiabank car loan $40,048.00
• Debt to Canada Revenue Agency $4,807.00

10. Access Costs

[32] The Applicant was unclear regarding the frequency of access travel between Peel Region and British Columbia. However, in her affidavit sworn 15 April 2016, the Respondent swore that there was only one trip in 2013 for the children to see the Applicant in British Columbia since he moved there in 2007.

[33] In information provided after the Respondent's 16 April 2016 affidavit, the Applicant suggested that he paid for the children's airfare for access in 2016 in the amount of $1,584.00.

Respondent's Position on Hardship

[34] It was Ms. Thompson's position that there should be no hardship claim permitted to Mr. Campbell for these reasons:

1. There were no debts incurred by the Applicant, either to support the parties' family when they were together, nor for him to earn a living.

2. Because of the Applicant's irregularity in exercising access, he did not have high expenses to do so.

3. The Applicant has no legal obligation to support Ms. Abdul's children, nor anyone else, other than their own two children.

4. The Applicant offered no explanation about how the child support figure of $650.00 a month was reached.

5. The Applicant did not return to this court with "clean hands". He did not provide any income tax returns, nor Notices of Assessment, as the 14 February 2011 Order required. Also Mr. Campbell did not advise the Respondent when he changed employers. It was the Respondent's position that this court should not view the Applicant's claims with any sympathy.

Court's Decision on Hardship

[35] I agree with the Respondent's concerns, and in the result, the Applicant's hardship argument is dismissed.

[36] The Applicant expressed regret about the Respondent interfering with the access of Rosalee Rhoden, the paternal grandmother. The Applicant should bring separate proceedings under the Children's Law Reform Act to address access issues.

Arrears and Prospective Support

[37] I have not been requested to do an analysis of whether the Applicant underpaid or overpaid in each year from the time of the Order in 2011, according to his income for each year.

[38] The Applicant requested that arrears be set at $0.00. The Respondent believes the arrears are $12,193.00, as of the end of April 2016. However there is no up-to-date statement from the Director to explain anything after 23 June 2015, and the statement that was filed puts the arrears at $6,776.00 as of 23 June 2015.

[39] Since I do not know if there are arrears after 23 June 2015, I will fix the total arrears owing under the Order of Justice Zuker as of 23 June 2015 at $6,774.00. The Applicant will be ordered to pay those arrears of $6774.00 at the rate of $100.00 a month from 1 January 2017.

[40] Since the arrears have been fixed as of 23 June 2015, a new child support order should commence on 1 July 2015 based on the Applicant's income of $83,752.00, for 2015. The Applicant should have paid the monthly guideline required in British Columbia for an $83,752.00 income, for two children in the amount of $1,261.38 per month. That was not paid. There will be an Order that the Applicant pay child support arrears of $7,568.28 for the period of 1 July 2015 to 1 December 2015, with payments to begin on 1 January 2017 in the amount of $800.00 a month until the arrears of $7,568.28 are paid in full.

[41] Then, commencing 1 January 2016, based on the Applicant's income for the year of $59,695.00, the Applicant shall pay $905.56 a month beginning 1 January 2016. $905.56 is the Guideline child support amount in British Columbia for two children.

[42] The Respondent requested that the Applicant be required to contribute to the children's future special expenses. Based on the Applicant's income of $59,695.00 and the Respondent's at $50,000.00, the Applicant shall pay 54% of the children's special expenses. The Respondent will submit paid bills to the Applicant, and he shall pay his proportion within 15 days after receiving the bills.

Final Orders

1. The court fixes the total child support arrears under the Order of Justice Zuker, dated 14 February 2011, at $6,774.00 as of 23 June 2015. The Applicant shall repay the arrears at the rate of $100.00 a month starting 1 January 2017, until the arrears are paid in full. Support Deduction Order to issue.

2. Based on the Applicant's income of $83,752.00 for 2015, the Applicant should have been paying the British Columbia Guideline child support for two children in the amount of $1,261.38 per month for each of the months of 1 July 2015 to 1 December 2015 inclusive, which should total $7,568.28. This amount of $7,568.28 has not been paid.

   Order that the Applicant shall pay $800.00 a month starting 1 January 2017, and regularly thereafter, until the sum of $7,568.28 is paid in full.

3. Order for Applicant to pay $905.56 a month child support from 1 January 2016, and regularly monthly thereafter. This Order is based on the Applicant's acknowledged income of $59,695.00 and the Guideline Table for British Columbia requires monthly payments of $905.56 for two children.

4. The parties shall pay the children's special expenses in proportion to their respective incomes. At present, the Applicant's income is $59,699.00, and the Respondent's is $50,000.00. The Applicant's share of the special expenses shall be 54%.

   The Respondent shall consult with the Applicant about the children's special expenses. The Respondent will pay the expenses and submit the bills to the Applicant, who will pay his proportion of the bills within 15 days after receiving the bills.

5. The Applicant is ordered to give the Respondent, by July 1 in every year, starting 1 July 2017, a copy of his income tax return for the prior year, together with a copy of his Notice of Assessment or Reassessment.

6. The Respondent is ordered to give the Applicant by July 1 in every year, starting 1 July 2017, a copy of her income tax return for the prior year, together with a copy of her Notice of Assessment or Reassessment.

Released: December 6, 2016

Justice P.W. Dunn