Court Information

Ontario Court of Justice

Date: 2018-07-26

File No.: Brampton 1370/04

Before: Justice Philip J. Clay

Motion Reviewed: June 22, 2018

Reasons for Order Released: July 26, 2018

Parties

Between:

RICHARD THOMPSON c/o I.S.O. Unit of F.R.O Applicant

— AND —

FRANCINE DEPARNY Respondent

CLAY J.:

I.S.O. APPLICATION

OVERVIEW

[1] The Applicant father ("father") who resides in Dartmouth N.S. brought an Application pursuant to the Interjurisdictional Support Orders Act (ISO) for an order changing the final order of the Honourable J. Kerrigan-Brownridge dated January 23, 2006. He sought to terminate his obligation to pay child support for the parties' daughter Karma-Jean Marie Thompson born July 20, 2003 and for an order for the Respondent mother ("mother") to pay child support to him pursuant to both s. 3 and s. 7 of the Child Support Guidelines retroactive to December 23, 2015 when the said child came to reside with the father in Dartmouth. The mother filed an Answer contesting the relief sought and she sought an order for a retroactive increase in child support prior to November 2015 when the child resided in her care.

THE EVIDENCE

Father

[2] The father sought an order terminating his support obligation on the basis that the child has resided with him since December 2015. He claimed table child support from January 1, 2016 on but did not provide any information as to the mother's income. He sought a 50% payment towards the child's s.7 expense of orthodontic expenses being the sum of $1,032.

Mother

[3] The mother filed her Answer with a Financial Statement (F.S.) and an affidavit that contained a number of exhibits.

[4] The mother sought a retroactive increase in child support from the father. She sent an e-mail that proved that she sought the father's Notice of Assessment in November 2012 with a view to increasing child support. She admitted that the child support was increased from $300 per month to $410 per month and that the father paid the monthly child support until their daughter came to reside with him.

[5] The mother stated that the father did not pay his 50% share of the child's s.7 expenses when the child resided with her. She included invoices and receipts for those expenses. They included the child care expenses in the years 2005-2009.

[6] The mother addressed her own income situation. She stated that her last day of work was September 15, 2016. Her 2015 Notice of Assessment showed her income to be $78,990 as a project manager for Pinchin Ltd. Her 2016 income was $67,681. The mother's financial statement stated that she was still receiving E.I. It is not clear if that is because the mother's claim was delayed due to a severance or whether she received E.I. disability insurance before, or at the same time, as she received her non-taxable disability payments from RBC. The F.S. does show that her disability payments are $4,357.70 per month which is $52,292.40 per year.

[7] The mother stated that relying upon legal advice she set aside monies in a child support trust as she claimed the father refused to accept child support from her when Karma came to reside with him. She said that she deposited $450 per month from January 1, 2016 to October 2017. After that she reduced her contributions to the account to $300 per month. Her F.S. showed that as at June 7, 2018 she had $8,485.98 in that account. If she made the June and July contributions she should now have $9,086 in that account.

[8] The mother made a claim of undue hardship. Such a claim is pursuant to s. 10 of the Child Support Guidelines and there are very restrictive grounds upon which a court may depart from the child support table to order a lower amount. The mother did not say what the amount should be but I will assume that she feels that $300 per month is appropriate given that that is the amount that she is saving.

[9] As evidence for the undue hardship claim the mother referred to the debt she has accumulated and to the cost of her travel to Nova Scotia to see Karma. The debt is not directly related to the relationship between the parties so it cannot be a ground for an undue hardship claim. The cost of going to N.S. in February 2018 and of the child coming to Ontario in March 2018 was $1,682.50. Unusually high access costs may be a reason to reduce table child support. The mother noted that in February she stayed with the father and her daughter but that she would not do that again such that her expenses will be higher in the future.

ANALYSIS

[10] I begin by noting that it is very unfortunate that this matter had to be brought to court through a process which is inevitably complex and time consuming for the parties. As I review the entire file I see that the father paid all of the table child support that he was required to pay. I note that the mother said he did not pay the s.7 expense of child care but it is not clear if he was provided with receipts. It does seem clear that even if he was the net cost of this child care was never determined. The mother's income was such that the tax deductibility of child care would mean that the net cost would have been far lower than the monies paid to the provider.

[11] Similarly the mother has acted responsibly. She has set aside monies for an anticipated child support claim. The mother says the father did not ask for child support in December 2015. The father says that the mother tried to back him off a claim by threatening a retroactive increase in his payments.

[12] I note that when the child support order was made on January 23, 2006 paragraph 4 of the order stated that the father was unemployed but it still required him to pay $300 a month "to allow this matter to reach some finality."

[13] Although the father made a s.7 claim he did not file a F.S. The father's application was completed on June 28, 2016. He sought the sum of $1,032 for the mother's 50% share of the orthodontic expenses. When she filed her Answer in May 2018 the mother provided an accepted interac transfer that showed that that sum was paid in November 2016. This means that there is no outstanding s.7 claim and no requirement for the father to file a F.S.

[14] The nature of the ISO process is that issues with service of documents can delay resolution. Without assigning any blame for this it is a simple fact that there was nearly two years between the time the Application was issued and the time it was served. Interestingly in this time prior to service the mother stayed at the father's home in order to see her daughter in N.S. I am sure it was awkward and uncomfortable for both of the parents but I give them credit for putting their daughter's interests in seeing her mother ahead of their own interests.

Mother's Income

[15] I find that the court should order child support based upon the best evidence available as to the income of the party required to pay child support. In 2016 the mother had income of $67,681 and that would lead to a child support payment based upon the CSG tables then in effect of $619 per month. In 2017 her income was a loss of $4,891. This was due to the loss she sustained with her self-employment as a "manager" of doTERRA. There was no information in the affidavit that would explain how the mother lost $31,036.25 in 2017 with this company. The attached statements from the company suggest that the mother was selling products provided by this company with an opportunity to earn commissions upon sales. Her sales were very modest and mostly to herself. I cannot rely upon speculation in my decision but it may well be that a franchise fee or other cost had to be paid in order to sell these products. There is a significant amount of evidence about the herbal supplements the mother purchases and she appears to be one of her own customers. I will not include any possible income or loss from doTERRA in my calculations. In the short term at least it appears to have been a poor business decision.

[16] The mother did receive RBC disability income in September 2016 and it continues until January 2019. This income is non-taxable so it will not show up on her Notice of Assessment in 2017 or 2018.

[17] In her F.S the mother stated that she should pay child support based upon an income of $45,727.47 which would lead to a payment of $424 per month. It is not clear to me how she arrived at that number which is significantly lower than the non-taxable income of $52,292.40 from her disability payments.

[18] I do accept that the mother will not retain her disability payments in the same amount after January 2019. The first two years of disability are based upon not being able to do the job that a person had at the time of the disability. After that the insurer is required to pay if the claimant can prove that they cannot do any job. I do not know if the mother can do any job. I do know that she has a bi-polar disorder and some other auto-immune disorders that resulted in her family physician's statement that he is not sure when she will be able to resume employment. In these circumstances it would not be fair to the mother to impute the disability income past December 31, 2018.

[19] I find that the fairest way to resolve this matter on the evidence before me is to impute to the mother a minimum wage income of $29,120 from and after January 1, 2019. Either she will be found to be disabled and unable to do any job and thus receive a disability income that might be related to minimum wage or she will be found not to be disabled and in these circumstances given the mother's health conditions it would not be reasonable to expect her to make more than $14 an hour which is the current minimum wage in Ontario.

Undue Hardship Claim

[20] As noted above, the only part of the claim that could be considered is s. 10 (b) which is the sub-section that deals with "unusually high expenses in relation to exercising access to a child". One difficulty in assessing this claim is that I have no evidence as to the household standard of living for the father. Unless the father has a very well-paying job it is likely that the mother's 2017 and 2018 non-taxable income is higher than the father's income and that as he has two other dependants that his house-hold standard of living is lower. I find that the total cost in 2017 of $1,682 is not so excessive for a person of the mother's income in that year especially since there is no other s. 7 claim put forward.

No Retroactive Increase

[21] The mother has sought a retroactive increase in the father's child support. The father did increase his child support to $410 a month and he paid that amount from January 1, 2013 to December 31, 2017 inclusive. It is impossible to know if the father paid the correct amount because I do not have his financial statement.

[22] The father was obligated to provide his financial statement as soon as he was served with a retroactive claim. He was served through I.S.O. with the claim in the mother's Answer on May 18, 2018 and had until June 17, 2018 to respond. He did not do so. I have chosen to proceed with this decision notwithstanding this lack of information for two reasons. Firstly, because this matter has been delayed for nearly two years already. Secondly, because the Supreme Court of Canada determined in a series of cases known collectively as DBS that a retroactive claim cannot be brought unless there was some indication at an earlier point in time that more money was sought and such a claim can only be retroactive to the time of the request, or a maximum of 3 years, whichever is shorter. Therefore, if I was to conclude that the court order provided an ongoing obligation to provide income information the earliest date of a retroactive order would be May 2015 which is 3 years before the claim was formally made in the Answer. As the child moved to live with the father on December 23, 2015 the mother's claim for increased support would be limited to the months of June to November 2015 which is 6 months.

[23] I see that the father did not make a formal demand for child support until June 2016 which was some 6 months after the child came to reside with him. The mother's sworn evidence is that the father initially refused child support. The father did not provide any information that he sought child support prior to issuing his Application. There was evidence that the mother's life was in crisis when the child was taken from her, placed with the grandparent in November 2015 and then ultimately placed with the father. Delaying the start of child support is fair in all of the circumstances of this matter. I will begin child support to be paid by the mother to the father in August 2016 which would have been the month after service of the documents, if service had not been delayed for so long through no fault of the father.

Summary

[24] I find that the mother should pay child support for the period August 1 to December 31, 2016 based upon her income of $67,681. That is the sum of $619 per month and the arrears of five months total $3,095.

[25] I find that the mother should pay child support for the period January 1, 2017 to November 30, 2017 based upon her disability income of $52,292. I recognize that her disability income is non-taxable and there is an argument that it should be grossed up to the amount of income one would have to earn to net or "take home" that sum. I have considered this argument, but in all of the circumstances of this matter I will base the support on the actual disability income received. This amounts to a payment of $472 per month which for 11 months is $5,192.

[26] I will change the amount of child support as of December 1, 2017 as the CSG table amounts changed effective November 22, 2017. The table amount for $52,292 after December 1 was $482 per month and the arrears for the period December 1, 2017 to July 31, 2018 are $5,302 (8 months x $482). This leads to a total arrears payment of $13,589 ($3,095+$5,192+$5,302). The mother should have in her child support trust account the sum of $9,086. I note that as of June 7, 2018 she had $5,250 in her chequing account. I find that the mother should be able to pay a lump sum for the arrears within 90 days. It will likely take that long for the Nova Scotia support enforcement office to set up a new file with the mother as payor and the father as recipient. If the mother is prepared to pay the father by cheque or interac transfer prior to that time she should retain proof of payment so that it can be credited when the payments are ready to be received in N.S.

[27] The payments of $482 per month shall continue from August 1, 2018 to December 31, 2018. At that time the child support payments shall be reduced to $248 per month based upon an imputed minimum wage income of $29,120.

ORDER

1. The final order of the Honourable Justice J. Kerrigan-Brownridge dated January 23, 2006 shall be changed to terminate the Respondent's obligation to pay child support to the Applicant for the child Karma-Jean Marie Thompson born July 20, 2003 effective December 23, 2015.

2. The Respondent shall pay to the Applicant child support for the said child as follows:

   a) beginning August 1, 2018 and payable on the first day of each and every month thereafter until December 31, 2018 the sum of $482 per month based upon an imputed income of $52,292; and

   b) beginning January 1, 2019 and payable on the first day of each and every month thereafter the sum of $248 per month based upon an imputed minimum wage income of $29,120 per year.

3. The Respondent shall pay to the Applicant arrears of child support in the amount of $13,589 within 90 days of the issuance of this order.

4. S.D.O. to issue

Released: July 26, 2018

Justice Philip J. Clay

Court staff are requested to prepare and issue this order.