ENDORSEMENT

COURT FILE NO.: FC-01-368-3
DATE: 20120229

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Heather Jean Stone, Applicant

AND

Toby Broadfoot, Respondent

BEFORE: The Honourable Mr. Justice Martin James

COUNSEL:
Applicant, self-represented
Respondent, self - represented

HEARD: February 27, 2012

[ 1 ] The applicant requests payment of over $26,000.00 for child support arrears and retroactive child support and seeks other relief set out in the Motion to Change at Tab 1 of the Continuing Record.

[ 2 ] The applicant has failed to prove that there are arrears of support based on the existing order. The respondent says that support is up to date and refers to a letter from the FRO in August 2011 which appears to show that the arrears have been paid down to an insignificant amount.

[ 3 ] On the issue of retroactive adjustment of the proper amount payable for child support for Nicholas and Darrian, the parties agree that the respondent’s income has been much higher in recent years than the income of $25,100.00 upon which his support obligation of $364.00 per month was based. The order establishing the amount of support required the parties to report their income annually which the respondent has not done. The applicant claims retroactive adjustment commencing in 2008. The respondent’s actual income is as follows:

2008 - $31,012.00 which becomes child support for two children of $457.00 per month (on the 2010 tables)

2009 - $49,312.00 which equals $729.00 per month

2010 - $60,977.00 which equals $929.00 per month

2011 - $62,344.00 which equals $934.00 per month

[ 4 ] Expressed as an annual shortfall, the amounts are as follows:

2008 - $1,116.00

2009 - $4,380.00

2010 - $6,780.00

2011 - $6,840.00

Total: $19,116.00

[ 5 ] In addition, the applicant seeks extraordinary expenses for sports, cheerleading and glasses of about $1,604.75. It appears these expenses were incurred without prior discussion.

[ 6 ] The respondent is in a new relationship and has one child currently residing with him. Also, he is under an order from 2009 to pay child support of $500.00 per month for Cody Lennox. He claims that it would be a hardship to pay the full amount due. The applicant does not appear to have fully disclosed total family income for the period under review in response to the hardship claim.

[ 7 ] A claim for retroactive adjustment to child support does not simply involve a calculation of what the guideline support ought to have been. Ability to pay has to be considered. At the same time, a support payor should not be able to avoid paying existing obligations by incurring new ones and then saying he can’t afford to make all the required payments.

[ 8 ] On the evidence available to me at the time of hearing this motion, I am going to set the retroactive adjustment at the sum of $12,000.00 to be paid at the rate of $333.33 per month commencing April 1, 2012. This is in addition to any existing support obligations and includes all section 7 extraordinary expenses that have been incurred.

[ 9 ] In his response to the motion, the respondent requests that his on-going support be adjusted to reflect the fact that Nicholas is not his biological child. In my view, it is relevant that the respondent willingly paid support for Nicholas for a decade or so and I infer means he treated Nicholas as his child for support purposes. I have included the support for Nicholas in the calculation of the retroactive adjustment.

[ 10 ] Going forward from this point, however, it seems to me that the applicant ought to be seeking support from Nicholas’s biological father. No evidence has been tendered as to why this has no occurred except that the applicant has chosen not to pursue a claim. Therefore, starting April 1, 2012, the support payable for both Nicholas and Darrian shall be based on an income of $62,344.00 (the respondent’s 2011 income) but shall be adjusted downward from the 2012 guideline of $934.00 to $719.00. The guideline amount for three children would be $1,219.00. The respondent is paying $500.00 per month to Amanda Lennox for Cody, so applying this as a credit brings the amount down to $719.00. The reasons for the adjustment below guideline amount is the possibility of support from the father of Nicholas, recognition of the child support paid to Amanda Lennox, and the fact that there will be an additional $333.33 per month payable for the next three years due to retroactive adjustment referred to earlier.

[ 11 ] The respondent is also prepared, on a consent basis, to maintain Nicholas and Darrian on his extended health benefits available through his employer. Prescriptions will have to be filled with an approved pharmacy and the applicant has indicated a willingness to do this.

The Hon. Mr. Justice Martin James

Date: February 29, 2012

COURT FILE NO.: FC-01-368-3

DATE: 20120229

ONTARIO SUPERIOR COURT OF JUSTICE RE: Heather Jean Stone, Applicant AND Toby Broadfoot, Respondent BEFORE: The Honourable Mr. Justice Martin James COUNSEL: Applicant, self-represented Respondent, self - represented ENDORSEMENT James J.

Released: February 29, 2012