SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 121/01
DATE: 2012/03/07
RE: RICHARD OSBORNE , Applicant
AND:
SANDRA MOORE , Respondent
BEFORE: Turnbull, J.
COUNSEL:
Applicant, self represented
Respondent, self represented
HEARD: March 6, 2012
judgmenT
[ 1 ] The respondent Ms. Moore has brought an application for retroactive child support, retroactive daycare, medical and extraordinary expenses plus interest on those awards.
[ 2 ] Both parties testified in this matter.
[ 3 ] The parties started to co-habit in 1994 and were married March 10, 1995. The separated July 4, 1997 and were divorced March 15, 2001. They have one child of their marriage, Jenna Elizabeth Sandra Osborne born July 11, 1996. She has resided with her mother since the time of separation and for a number of years now, has had no relationship with her father. At this time, that reality is largely due to Jenna’s anger towards her father.
[ 4 ] The applicant Mr. Osborne is a member of the Canadian Armed Forces and has been so employed from at least the time of separation. He currently earns $66,500.00 and pays child support based on that salary.
[ 5 ] Ms. Moore has retrained as a Registered Practical Nurse and is employed on a contract basis, at Chateau Gardens. She has sworn that her income from that employment during 2010 was approximately $18,941.00. She estimated that she will have earned about the same in 2011 and hopes to earn more in 2012.
[ 6 ] On November 7, 2001, Scott J. signed a consent order which contained the following provisions which are relevant to these proceedings:
The applicant (Mr. Osborne) was to pay one half of any day care expenses incurred by Ms. Moore for the child Jenna within 10 days of Ms. Moore providing him with a receipt for same.
Mr. Moore was to pay child support of $382.00 per month commencing the first day of December 2001 based on an income of $44,400.00 in 2001.
The parties were ordered to exchange financial information in the form of the previous year’s income tax return and notices of assessment on or before June 1 st each year, commencing June 1, 2002.
The judgment was to bear post judgment interest at the rate of 6 per cent per annum from the date of the order. Where there was a default in payment, the payment in default was to bear interest only from the date of default.
[ 7 ] Mr. Osborne paid his child support of $382.00 per month at all times. However, he did not pay the costs of daycare, extraordinary expenses under section 7 of the Child Support Guidelines nor medical costs for Jenna.
[ 8 ] By 2002, the relationship between the parties had deteriorated to the stage that Mr. Osborne wrote a letter to Ms. Moore that she and Jenna should just get out of his life and everyone move on [1] . During 2001 and into 2002, Mr. Osborne found that increasingly Jenna was being alienated from him by Ms. Moore. After their separation, he had been stationed at the Canadian Forces base at Petawawa which is about a 6 hour drive from where Jenna and her mother were living with her new common law spouse. She gave birth to a son Austyn in 2001 and clearly had moved on with her life. He testified that he rented a room in a student housing facility near their residence so that he could visit with Jenna on alternate weekends. Finally, because of the lack of co-operation from Ms. Hughes, he testified that he just gave up trying to see his daughter.
[ 9 ] In 2004, he moved to Alberta with the Canadian Forces and lived and worked there until his transfer back to Ontario in 2008. Mr. Osborne remarried in 2003 and has a 15 year old stepdaughter from that relationship. He testified that from approximately 2006, he had sent notes and gifts to Ms. Moore for Jenna. Ms. Moore denied receiving any such notes or gifts. The net result is that Jenna has not had any contact with her father for a considerable number of years and either the respondent destroyed the gifts and letters and did not give them to Jenna or Mr. Osborne did not send them as he stated. I simply can not tell who is telling the truth on this issue.
[ 10 ] Mr. Osborne also testified that he ultimately obtained the respondent’s phone number and address in 2006 from her parents. When he tried calling their residence to speak to Jenna, he testified that no-one ever picked up the phone. It was always answered by an answering machine. Ms. Moore testified that she has a identicall feature on her phone and a phone privacy guard. Mr. Osborne produced phone records for late 2006 indicating that he had on one occasion at least tried to call Ms. Moore’s residence and was unsuccessful.
[ 11 ] Ms. Moore testified that she tried to contact Mr. Osborne on several occasions by mail as evidenced by the documents in exhibit #2, summarized on page 1 of that document. However, she indicated that she was not able to locate him after mid 2002 and took no further steps in that respect until June 2008. It was not long before that time that her common law relationship with Austyn’s father had ended. He was self employed in the car repair business and was earning approximately $65,000.00 per year in that business according to Ms. Moore. She agreed that that income was approximately the basis upon which he is paying child support to her for Austyn of approximately $590.00 per month.
[ 12 ] I am satisfied that Ms. Moore did not pursue Mr. Osborne for his annual income tax information, and his contributions to extraordinary expenses and medical expenses in that hiatus due to the fact that she was not facing significant need due to his failure to comply with the court order. Hence, she did not take all the steps appropriate to enforce the court order until her economic circumstances changed in 2007. That is confirmed by the fact that she did not pressure her lawyer to get Justice Scott’s order made in November 2001 issued and entered until 2008. In my view, she could have been much more assertive in enforcing her rights. For example, she could have brought a motion to the court and obtained an order for substitutional service on Mr. Osborne’s parents or his sister. However, I am satisfied, however, that despite Mr. Osborne’s blatant disregard of certain of the terms of the order of Scott J., Jenna did not suffer any significant lack of care nor did her well being suffer in any respect. No evidence was led to the contrary. Jenna is attaining B grades in school and her mother indicated that she has progressed appropriately through school.
[ 13 ] Mr. Osborne has indicated that he has tried to re-establish a relationship with Jenna but at this time, she is not open to the idea. He has acknowledged that his disregard of the order of Scott J. was wrong and he regrets his decision in that regard.
[ 14 ] Ms. Moore has helpfully prepared summaries of her claims and I will deal with them each in the analysis below.
The Law
[ 15 ] In the case of S. (D.B.) v G. (S.R) , 2006 SCC 37 , the Supreme Court of Canada gave direction to the trial judges of this country with respect to the principles to be applied in cases where a parent is seeking retroactive child support. The headnote of that case nicely summarizes the principles which I feel are relevant to the issue before me:
In determining whether to make a retroactive award, a court should strive for a holistic view of the matter and decide each case on the basis of its particular facts. The payor parent's interest in certainty must be balanced with the need for fairness to the child and for flexibility. In doing this, the court should consider the reason for the recipient parent's delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the child's needs at the time the support should have been paid, and whether the retroactive award might entail hardship. Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past. Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair. However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the award. Finally, the court must ensure not only that the quantum of a retroactive support award is consistent with the statutory scheme under which it is operating, but also that it fits the circumstances. [paras. 99-135]
Retroactive Child Support and Interest
[ 16 ] I find that effective notice was given by Ms. Moore to Mr. Osborne that she was going to seek increased child support with her letter of March 22, 2010. (exhibit 8). In that letter, she made it very clear that legal proceedings were going to be commenced.
[ 17 ] Hence, based on the guidelines specified by the Supreme Court, I find that Mr. Osborne should be responsible for retroactive child support for the three years 2007, 2008 and 2009. I have also considered the fact, though it is not by any means determinative of the matter, that in my view, there has been a significant degree of alienation of Jenna from her father encouraged by Ms. Moore. However, let there be no mistake that Mr. Osborne effectively abandoned his daughter from approximately mid 2002 for a period of approximately 5 years. I have also considered the financial circumstances of the parties, their household incomes and the hardship that would be imposed by a retroactive award of more than three years.
[ 18 ] In her helpful summary found in exhibit 6, Ms. Moore listed the arrears based on the Child Support Guidelines as follows:
2007 $2,172.00
2008 $2,856.00
2009 $2,343.00
Hence, the total arrears of monthly child support for those three years is $7,381.00.
[ 19 ] Pursuant to the order of Scott J., those arrears shall bear interest at six per cent per year from default. I conclude that as there was already default in the order with respect to payment of monthly child support based on the Child Support Guidelines and Mr. Osborne knew that (as he candidly acknowledged in his testimony), I find that interest should be paid at 6 per cent per annum until this date. I have calculated the interest due on the arrears as follow:
2007 $2,172.00 @ 6% per annum x 5.2 years = $677.66
2008 $2,856,00 @ 6% per annum x 4.2 years = $719.71
2009 $2,343.00 @ 6% per annum x 3.2 years = $449.86
Thus, the total interest owing on monthly child support is $1847.13.
Daycare Expenses
[ 20 ] In exhibit 1, Ms. Moore has listed the cost she has incurred for daycare in the period 2002 to 2005 and for which she seeks re-imbursement as $1316.56. This was specifically ordered by Scott J. and I see no reason why that sum should not be paid by Mr. Osborne. That amount should bear interest from 2004 at 6% interest which I calculate at $78.99 for 8.2 years which totals $647.74.
Medical Expenses
[ 21 ] However, I do have some difficulty with the claims relating to medical care. Mr. Osborne testified that he had paid directly to the respondent two cheques to cover some of the costs of medications to the Family Responsibility Office in 2001. In his affidavit sworn September 7, 2001, and to which he drew the court’s attention during his testimony, he swore that in November 2001 he had provided the respondent with two cheques totalling $1133.62 towards those expenses. Ms. Moore testified that those cheques were returned NSF. She was not able to prove the cheques were returned NSF, which is not surprising given the time that has elapsed since those events. Ms.Moore further indicated that she submitted some of the medical expenses to FRO but they were rejected as not being specifically ordered by Scott J. in November 2001. Mr.Osborne has testified that he is currently up to date with FRO with respect to all court ordered payments. No statement was provided to the court by Ms. Osborne indicating whether or not some of the medical expenses were included in the account of Mr. Osborne with that office.
[ 22 ] Hence, on the totality of the evidence, I dismiss the claim for medical expenses. The onus to prove they were incurred and not paid has not been satisfied by Ms. Moore. Furthermore, with the passage of time, I do not feel that it is appropriate that years after the event a parent should be confronted with such expenses when it is difficult to re-create and identify the circumstances around an alleged debt.
Section 7 or Extraordinary Expenses
[ 23 ] Ms. Moore has helpfully summarized these expenses on page 1 of exhibit 1. In my view, the child support guidelines distinguish ordinary expenses which are part of the usual expenses of raising a child and those which are beyond the usual expenses. Hence, some of the amounts claimed by Ms. Moore are not “extraordinary” expenses in my view but are expenses already factored into the payment of monthly child support according to the table amounts under the Child Support Guidelines.
[ 24 ] I allow the following “extraordinary expenses” for the year 2010:
a. Daycamp $1430.00
b. Curriculum Trip $ 650.00
c. Camp $ 250.00
d. Hockey $ 350.00
e. Cheerleading $ 154.50
Total for 2010 $2,834.50
[ 25 ] Based strictly on their 2010 incomes, Mr. Osborne would be responsible for paying approximately 88 per cent of that sum. However, Ms. Moore agreed that in all the circumstances that would be excessive and suggested that Mr. Osborne should be responsible for 70 per cent of that amount. I concur. Ms. Osborne is apparently also an Avon representative. She has also indicated that she was only working part time hours in 2010. Hence, for 2010 extraordinary expenses, Mr. Osborne shall pay Ms. Moore the sum of $1984.15 plus interest at 6 per cent for 1.2 years which amounts to $142.86. Hence, the total owing by him to Ms. Moore for 2010 extraordinary expenses is $2,127.00.
[ 26 ] I allow the following extraordinary expenses for the year 2011:
a. Camp $300.00
b. Hockey $350.00
Total for 2011 $650.00
Based on a 70/30 division of expenses as in 2010, Mr. Osborne shall pay Ms. Moore the sum of $455.00 for extraordinary expenses for the year 2011.
Conclusion:
[ 27 ] It is ordered that the respondent Ms. Moore shall have judgment against the applicant Mr. Osborne in the sum of $13,774.44.
[ 28 ] It is ordered that the Registrar of Personal Property Security shall forthwith discharge Personal Property Security Act, R.S.O. 1990, c.P.10 File 672699645, Registration # 20110906 0958 1793 3702.
[ 29 ] It is ordered that the respondent Ms. Moore provide the applicant with copies of invoices for extraordinary expenses for the child Jenna and that the applicant shall remit payment of those invoices within 60 days to the respondent, unless the parties or one of them determines that such payments shall be enforced through the office of the Director of Family Responsibility.
[ 30 ] This judgment shall bear post-judgment interest at the rate of 3% per annum.
Turnbull, J.
Date: March 7, 2012
[1] Exhibit 2, page 7