Court File and Parties
Ontario Court of Justice
Date: November 25, 2019
Court File No.: D40800/07
Between:
Nadine Alexander Applicant
— And —
Charles Duke Thompson Respondent
Before: Justice Roselyn Zisman
Heard on: November 12, 2019
Reasons for Judgment released on: November 25, 2019
Nadine Alexander ........................................................................................ on her own behalf
Charles Duke Thompson ............................................................................. on his own behalf
Decision on Motion to Change
Zisman, J.:
Background and History of Court Proceedings
[1] The Applicant ("mother") commenced this Motion to Change to change the May 16, 2007 consent order of Justice Brownstone. That order provided that the parties have joint custody of their son, Avant Charles Thompson born […], 2006, with primary residence with the mother and that the Respondent ("father") have reasonable access on reasonable notice. The father was ordered to pay child support of $325.00 per month based on his income of $32,000. The order further stipulated that this amount of child support was not in accordance with the Child Support Guidelines.
[2] In the mother's Motion to Change she sought an order for sole custody, contribution to section 7 expenses, access to the father to be determined and the father's child support to be determined based on his current income.
[3] The father in his Response to the Motion to Change sought an order that joint custody continue, access with some minor variations be reinstated and that he pay child support of $300 per month based on his current income of $34,560 and that there be a reduction for the $19 per month he was paying for daycare expenses that no longer were required.
[4] The mother has been self-represented throughout these proceedings. As she earned about $40,000, she does not qualify for legal aid but she cannot afford private counsel. Further although initially she was assisted by duty counsel, due to the recent cutbacks in legal aid funding the services of duty counsel were no longer available to her. Therefore, the mother needed to proceed with this somewhat complicated Motion to Change without any legal assistance.
[5] The father was represented initially but then he also became self-represented and he also was unable to obtain the assistance of duty counsel.
[6] As a result, the proceedings became unfocused and there was confusion about the relief being sought and confusion about what orders were being varied and some misunderstanding about the significance or even the existence of prior orders.
[7] Although the mother's Motion to Change indicated she was varying the final order dated May 16, 2007, the parties have been before the court many times on contempt motions and Motions to Change. There are at least 12 prior orders that vary the access orders, child support orders and payment of extraordinary expenses.
[8] The final order with respect to child support was the order of Justice Brownstone dated September 11, 2012. That order provided that, based on an attributed annual income of $35,000, the father pay child support of $325 per month as of January 1, 2011 and as of January 1, 2012 $303 per month based on the new Child Support Guidelines. The father was also required to pay $16 per month as his contribution to the child's daycare expenses.
[9] On October 12, 2018, with the assistance of duty counsel and while the father was represented by counsel, the parties agreed on a temporary basis that the father pay child support of $351 per month as of August 1, 2018 based on his 2017 income of $39,300 as set out in his 2017 income tax return.
[10] The order also required that the father provided disclosure.
[11] The parties were able to resolve the issues with respect to parenting after a Voice of the Child Report was filed and a final order was made on December 27, 2018. At the time of this order the father was still represented and the mother had the assistance of duty counsel.
[12] The December 27, 2018 order also resolved the issue of the father's contribution to the child's extraordinary extracurricular expenses and dental expenses for 2018. The order was clear that the mother could not claim any further special expenses for 2018.
[13] Further, the order stipulated the process with respect to any future expenses. The mother was to provide proof of these expenses as of August 31, 2019 and each year thereafter and the father was to pay his proportionate share by October 31st fixed at 50% unless changed by a court order. In the event that the father did not pay his share of the extraordinary expenses the mother could file her receipts with the Family Responsibility Office for endorsement.
[14] The December 27, 2018 order also required the father to provide a copy of his 2018 income tax return and Notices of Assessment and a statement of his earnings as had been previously ordered on October 12, 2018.
[15] On April 18, 2019 and a further disclosure order was made with respect to proof of the father's 2019 income.
Issue to be Determined and Position of the Parties
[16] The Motion to Change proceeded only with respect to whether the child support order of September 11, 2012 should be varied.
[17] It was the position of the mother that the father was working for both union and non-union jobs and earned about $40.00 per hour and that therefore he was now earning more than $35,000 per year.
[18] The mother also sought an order that the father to pay his share of the child's bus pass for transportation to and from school that totalled $924.56 for the school year.
[19] Although the father's initial position was that child support should be reduced based on to his reduction in income, he then produced medical letters alleging that he was unable to work.
Evidence of Father's Financial and Medical Circumstances
[20] The father filed a financial statement sworn September 27, 2018. His financial statement indicates that he earned $39,303 for the previous year and showed the same income for the present year. The financial statement indicates that he is employed by ESP Contracting.
[21] Subsequently, the father filed a letter from ESP Contracting dated April 11, 2019 indicating that he worked an average of a 40 hours a week at an hourly rate of $20.53 per hour plus vacation pay and union benefits and that as of September 9, 2018 he had earned $26,640.
[22] The father also attached to his financial statement his Notices of Assessment for the years 2015, 2016 and 2017.
[23] The father also produced his 2018 T4 that indicated he earned $35,811 from ESP Contracting.
[24] The father did not provide any evidence of his 2019 income.
[25] The father filed a further affidavit sworn June 28, 2019 and attached a letter dated May 31, 2019 from Sandi Sarra executive assistant for the union the father belonged to, the Drywall Lathing and Insulation, Local 675. The letter was on the union's letterhead.
[26] The letter stated that the father was a member in good standing with the union since November 10, 2000 and had benefits through the union administrator, Manion Wilkins & Associates.
[27] The letter stated that the father's present rate of pay was $25.32 per hour and that he had not yet completed the requirements for the Canadian Certificate of Qualification to acquire journeyman status. The letter further stated that the father had not worked a union job since February 2016 due to health issues.
[28] The mother took issue with this letter maintaining that the father earned at least $40 hourly and that the letter was not genuine.
[29] As the parties were not represented, the court instructed a letter be sent to Ms Sarra asking her to confirm that she authored the letter of May 31, 2019.
[30] In the same affidavit the father also attached a letter dated June 13, 2019 from Dr. B. Farber stating that he saw the father on June 13th and confirmed that he suffers from bilateral osteoarthritis of his knees, that the problem with his knees began about 8 years ago and continues to be a chronic and debilitating problem.
[31] Dr. Farber's letter also stated that the father was under the care of himself and a rheumatologist and that his abilities to work to his fullest is restricted. The father also attached to his affidavit a copy of a prescription from his rheumatologist.
[32] On the next court attendance as Ms Sarra had not responded to the letter from the court, the mother was advised that she needed to summons Ms Sarra to court.
[33] The Motion to Change then proceeded on November 12, 2019. Ms Sarra attended court as did counsel for the union.
[34] The matter proceeded on brief oral testimony and each party was able to make submissions based on the affidavits they had previously filed.
[35] Ms Sarra was shown the letter of May 31, 2019 that had been produced by the father. She testified that she did not prepare the letter and it was not her signature.
[36] Ms Sarra produced the father's work history with the union from January 2016 up to July 20, 2019. She testified that in July 2019 the father advised that he would no longer be working through the union for personal reasons.
[37] The father did not cross-examine Ms Sarra and offered no explanation for the May 31, 2019 letter he had produced.
[38] The father filed a further medical letter for Dr. Farber dated September 18, 2019 that noted that he suffered from severe arthritis in both knees and that he was only fit for light duties and he was "unable to carry drywall, minimal stairs, no ladder or scaffold work." The latter also stated that this was a permanent condition.
[39] The Statement of Earnings, provided by Ms Sarra, indicate the number of hours the father worked and the income earned. Based on the father's disclosure and the Statement of Earnings from his union, the father's income information is as follows:
| Year | Income per the father's Notices of Assessment or T-4 | Father's income per the statement of earnings | Number of hours worked per statement of earnings |
|---|---|---|---|
| 2015 | $34,715 | No information | No information |
| 2016 | $33,427 | $46,420.47 | 1171 |
| 2017 | $39,303 | $34,946.33 | 858 |
| 2018 | $35,811 | $63,426.55 | 1390.50 |
| 2019 | No information | $35,952.81 (up to July 2019) | 860 |
[40] Based on the statement of earnings, the father's hourly income varies from $39.64 to $45.63 with an average hourly wage of $41.95.
[41] The statement of earnings from the union also includes the names of the various companies the father worked for none of which are ESP Contracting.
[42] When asked about the discrepancy between the statement of earnings from the union and his Notices of Assessment, the father stated that he submitted the T-4s that he had.
[43] The father stated that he worked despite his medical condition, but he could not do that any longer.
Discussion
[44] The issue for the court to determine is whether there has been a change in the father's income to justify a change in the outstanding order.
[45] The mother seeks a readjustment of the amount of support payable in accordance with the father's income. When the mother commenced this Motion to Change she had no knowledge of the father's income.
[46] The father seeks to reduce his child support obligation due to his inability to work as a result of his medical condition.
[47] The prerequisite to any variation of an existing support order is a finding that there has been a change in circumstances since the making of that order that would result in a different child support order.
[48] In this case, both parties have sought a change in the outstanding order. Therefore, the onus is on each party to prove on a balance of probabilities that since the order of September 11, 2012, the father's the father's financial circumstances have changed.
[49] The relevant legislation provision is subsection 37(2.1) of the Family Law Act R.S.O. 1990, c. F-3, as amended, which provides that:
(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. 1997, c. 20, s. 6
[50] Therefore, the court has the discretion to grant the relief sought by either party. However, the granting of any variation of ongoing or retroactive child support and the reduction or recession of child support arrears is discretionary.
[51] I find that the mother has met the onus on her to prove that there has been a change in the father's income.
[52] I find that the father has not met the onus on him to prove that his income has been reduced either for medical or other reasons.
[53] I find that it is appropriate to vary the outstanding order of September 11, 2012 retroactively to January 1, 2016.
[54] I would have considered varying the order retroactively to an even earlier date due to the father's blameworthy and possible criminal behaviour but the court only has trustworthy evidence of the father's income as of 2016.
[55] It is obvious that the father Is not a credible witness and has been deceitful. The father or someone at his request provided the court with the forged May 31, 2019 letter purportedly signed by Ms Sarra that was intended to deceive the mother and the court.
[56] Accordingly, it is impossible to rely on any document the father has filed with this court including his financial statement, the letter from ESP Contracting that purportedly outlined his income for 2018 or his T-4 from that company. The evidence of Ms Sarra and the documents she produced, in particular the father's statement of earnings from the union, clearly indicate that the father has not been truthful with this court.
[57] I am also unable to rely on the medical letters filed by the father. If the father was able to provide a forged letter on the union letterhead what confidence can the court have that the letters from Dr. Farber on his letterhead are genuine.
[58] It is also evident that despite the father's alleged medical incapacity he had been able to work extensively through his union up until July 2019 when he advised the union he was no longer able to work for "person reasons".
[59] It is also difficult to rely on the father's Notices of Assessment as they do not coincide with the income he earned through his union. The father stated that he filed the T-4s he had to explain the discrepancy between the union's statement of his income and his income as set out in his Notices of Assessment. Accordingly, he admitted that his Notices of Assessment do not accurately reflect his income.
[60] I find that the most accurate information about the father's income is as set out in the information provided by Ms Sarra namely, the statement of earnings from the union.
[61] The father would have been entitled to deduct his union fees from his income but as it appears he never claimed his actual income on his income tax return or produced those returns as ordered by the court, the court is not in a position to ascertain what deduction he would be entitled to.
[62] I find that for child support purposes, the father should be required to pay child support for 2016 based on an income of $46,420 and for 2018 based on an income of $63,426. With respect to 2017, the statement of earnings indicates that he earned $34,946.33 but the father's Notices of Assessment claimed an income of $39,303. I assume that the father earned further income through non-union employment. In all of the circumstances of this case, I find that the mother should obtain the benefit of the father's stated higher income in 2017.
[63] The difficulty is how to calculate what the father earned or what he is capable of earning in 2019.
[64] In 2019, according to the statement of earnings from his union, the father earned $35,953 from January to July which if annualized would be about $61,119. However, it is possible that he would not have continued to earn the same amount for the full year.
[65] As the father's income has fluctuated in the last 3 years, another method of calculating his income would be to average his earnings for the years 2016, 2017 and 2018. That average would be $49,716.67. I find that this is a realistic income to attribute to the father.
[66] With respect to the mother's claim for the cost of the child's bus fare, I do not find that this is an extraordinary expense as defined by section 7 of the Child Support Guidelines.
Order
[67] There will be an order as follows:
1. The Respondent's Motion to Change is dismissed.
2. The Applicant's Motion to Change is granted and the order of September 11, 2012 is varied as follows:
The Respondent shall pay child support to the Applicant for the benefit of Avant Charles Thompson born […], 2006 as follows:
(i) As of January 1, 2016, $419.00 per month based on an attributed income of $46,420;
(ii) As of January 1, 2017, $352.00 per month, based on an attributed income of $39,303;
(iii) As of January 1, 2018 $589.00 per month based on an attributed income of $63,426; and
(iv) As of January 1, 2019, $458.00 per month based on an attributed income of $49,716.00
3. For clarity, the Respondent shall be given credit for any funds paid to the Family Responsibility Office in accordance with prior child support orders.
4. Support Deduction Order to issue.
5. The Applicant's claim for the Respondent to pay for the child's transportation costs is dismissed.
6. In view of the number of times both parties have been before the court and the confusion by both parties as to what court orders they were seeking to change, no motion to change shall be commenced without prior leave of the court. A Form 14B shall be submitted seeking leave of the court and attaching to the Form 14B a draft copy of the proposed Motion to change.
[68] As the Applicant was the successful party she is presumed to be entitled to costs, if costs are sought the Applicant shall submit her cost submissions, not to exceed 3 pages and a bill of costs within 30 days and the Respondent shall have 30 days to respond. All cost submissions to be filed with the trial coordinator.
Released: November 25, 2019
Signed: Justice Roselyn Zisman