COURT FILE AND PARTIES

COURT FILE NO.: 24217/02
MOTION HEARD: 20120716

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Edwina Edith Johanna Doddington

AND:
Peter Robert Doddington,

BEFORE: MILLER, J.

COUNSEL: Both Parties Self-Represented

HEARD: July 16, 2012

REASONS FOR DECISION

[ 1 ] Peter Doddington brings a motion to change the final order of Clarke, J. made April 20, 2005 in respect of child support and spousal support. That order required Mr. Doddington to pay child support of $1,448 and s.7 expenses fixed at $512 monthly for Ben James Edwin Doddington born November 19, 1990 and Bill Peter Robert Doddington born November 26, 1992 and and spousal support of $2,500 monthly commencing May 15, 2005. It also required Mr. Doddington to pay arrears of support fixed at $17,884 at $400 monthly until paid.

[ 2 ] Mr. Doddington takes the position that Mrs. Doddington has been supported financially by her current spouse for the past six years and that he has overpaid spousal support. He asks that he be credited for the overpayment. Mr. Doddington also takes the position that child support for Ben should have ended in June 2009 when Ben graduated from highschool and for Bill should have ended in January 2011 when Bill graduated from highschool.

[ 3 ] Mrs. Doddington agrees that her commonlaw spouse has assisted her and the children financially but only because Mr. Doddington has been delinquent in his support payments. A statement from FRO dated July 5, 2012 indicates Mr. Doddington’s arrears of support are currently $97,143.40. Mrs. Doddington asserts that both children intend to return to post-secondary education and that they are both currently employed in an effort to earn enough money to do so. She takes the position that both children remain dependent.

[ 4 ] In the course of submissions from the parties, both agreed that it was the order made by Daley, J. December 2, 2008 varying the order made by Clarke, J. April 20, 2005 that was the subject of today’s motion. Mrs. Doddington indicated that she is not seeking to have Mr. Doddington pay spousal support on a go forward basis but feels he should be compelled to pay the arrears to date.

Background

[ 5 ] February 2, 2007 Mr. Doddington brought a motion to change the final order of Clarke, J. made April 20, 2005. That motion to change was settled December 2, 2008 by way of Minutes of Settlement. Daley, J. directed an order to go in accordance with the Minutes of Settlement. A draft order, in accordance with the Minutes of Settlement, approved as to form and content was filed with the Court. It does not appear that an order was ever taken out.

[ 6 ] The December 2, 2008 Minutes of Settlement provided that child support and spousal support arrears be fixed at $70,000 provided Mr. Doddington paid $35,000 before December 21, 2008 and $35,000 before Feb 14, 2009. If those amounts were not paid by those dates, arrears were to be fixed at $90,000. Spousal support on an ongoing basis ongoing was set at $750 monthly and child support at $1,049 monthly commencing December 1, 2008 based on Mr. Doddington’s income of $70,500. Section 7 expenses were to be paid by Mr. and Mrs. Doddington on a 70% and 30% basis respectively.

[ 7 ] Mr. Doddington confirmed in submissions that he never approved the formal order and did not make the December 21, 2008 or February 14, 2009 payments.

[ 8 ] In all of the circumstances, I am directing that the order of Daley, J. made December 2, 2008, and approved as to form and content by the Applicant, is to be taken out. I have reviewed the draft order and I am satisfied it is on all fours with the Minutes of Settlement which were the subject of Daley, J.’s endorsement of an order to go made December 2, 2008. The approval of the Respondent as to form and content is dispensed with.

[ 9 ] Mr. Doddington did not make the payments December 21, 2008 or February 14, 2009. In the result, in accordance with the Minutes of Settlement and the order made by Daley, J. December 2, 2008, Mr. Doddington’s support arrears were fixed at $90,000. This is reflected in the FRO statement of July 5, 2012 before this Court today.

[ 10 ] I note that figure is a substantial reduction of the amount FRO calculated was owing as at December 2, 2008.

Evidence of Income

[ 11 ] Mr. Doddington has produced copies of his income tax returns and T4 slips for 2008, 2009 and 2010. He has not provided any Notices of Assessment. He advises that he brought his taxes “up to date” 15-16 months ago and has not yet received Notices of Assessment. He advises he has not yet filed an income tax return for 2011. I note that paragraph 6 of Daley, J.’s order of December 2, 2008 requires both parties to exchange their respective income tax returns and notices of assessment each year by June 1 each year as long as the children are dependents.

[ 12 ] Mrs. Doddington takes the position that the information Mr. Doddington has produced in respect of his income is inaccurate as she believes he accepts cash payments which are not reflected in his T4 slips or in his income tax returns. She has no evidence of this but bases her belief on Mr. Doddington’s past behaviour.

[ 13 ] The evidence I do have is that Mr. Doddington earned, in 2008 $79,680.45; in 2009 $69,223.95 and in 2010 $67,106.60.

[ 14 ] Mrs. Doddington has sworn that in 2010 she earned $29,000 and in 2011 she earned $32,000.

[ 15 ] Based on the evidence before me I accept that Mr. Doddington earned in 2008 $79,680.45; in 2009 $69,223.95 and in 2010 $67,106.60. For the purposes of this motion I impute income to him for 2011 of $67,106.60. I accept that Mrs. Doddington earned in 2010 $29,000 and in 2011 $32,000.

Child Support

[ 16 ] Mr. Doddington seeks a termination of his obligation to pay child support for Ben James Edwin Doddington born November 19, 1990 as of June 2009 and for Bill Peter Robert Doddington born November 26, 1992 as of January 14, 2011.

[ 17 ] Mr. Doddington produced an affidavit from Ben indicating he completed highschool in 2009 and is currently living and working in British Columbia. Mrs. Doddington agrees that Ben completed highschool in June 2009.

[ 18 ] Monthly child support payable for Ben James Edwin Doddington born November 19, 1990 is terminated as of June 30, 2009.

[ 19 ] Mr. Doddington produced an affidavit from Bill indicating he completed highschool January 14, 2011. Mrs. Doddington produced evidence that Bill was still attending highschool up to and including June 2011. She also produced evidence that Bill has a learning disability. I find that Bill was attending highschool up to and including June 2011.

[ 20 ] Monthly child support for Bill Peter Robert Doddington born November 26, 1992 is terminated as of June 30, 2011.

[ 21 ] Applying the Federal Child Support Guidelines, Mr. Doddington’s obligation to pay child support for both children in 2008 was $1,155 monthly. As a result his arrears should be increased by $106 for one month’s payment in 2008.

[ 22 ] Applying the Federal Child Support Guidelines, Mr. Doddington’s obligation to pay child support for both children in 2009 was $1,031 monthly. As a result his arrears should be decreased by $18 per month for the first six months of 2009 for a total of $108.

[ 23 ] Applying the Federal Child Support Guidelines, Mr. Doddington’s obligation to pay child support for one child for July to December 2009 was $639 monthly. As a result his arrears should be decreased by $410 for the last six months in 2009 for a total of $2,460.

[ 24 ] Applying the Federal Child Support Guidelines, Mr. Doddington’s obligation to pay child support for one child in 2010 was $621 monthly. As a result his arrears should be decreased by $428 per month for 2010 for a total of $5,136.

[ 25 ] Applying the Federal Child Support Guidelines, Mr. Doddington’s obligation to pay child support for one child in 2011 was $621. As a result his arrears should be decreased by $428 per month for the first six months of 2011 for a total of $2,568, and by $1,049 per month for the last six months of 2011 and the first six months of 2012 for a total of $5,136.

[ 26 ] There is a total reduction in Mr. Doddington’s arrears of child support to date of $15,302.

[ 27 ] Mrs. Doddington maintains that both children are working to save money in order to attend post-secondary education programs. It is uncertain when this might occur. Mr. Doddington does not accept that it will ever occur.

[ 28 ] Mrs. Doddington takes the position that each parent should contribute to the costs of any post-secondary education on a basis proportionate to their respective incomes, with each child contributing 25% of the cost. Mr. Doddington takes the positon that he is happy to support his children, and although he provided no evidence of this, he maintains that he does send money to them.

[ 29 ] In the event that either or both Ben James Edwin Doddington born November 19, 1990 as of June 2009 and for Bill Peter Robert Doddington born November 26, 1992 enroll in a post-secondary education program, the child shall provide receipts of tuition, school materials including books and any living expenses to each parent. The child shall be responsible for 25% of those costs. The remaining 75% of the costs shall be shared by Mr. and Mrs. Doddington on a 70% and 30% basis respectively.

[ 30 ] Either party may bring a motion before the court to have the annual amount fixed and payable through FRO. If either child attends a post-secondary education program for any part of a year, both parties will be required to produce, within 30 days of being notified of that child’s enrolment, to the other, a copy of the previous year’s income tax return and notice of assessment.

Spousal Support

[ 31 ] Mr. Doddington seeks a termination of spousal support going back six years. He has not provided any income information to the Court before 2008. He has provided no information whatsoever with respect to his current assets other than $20 in one bank account. He acknowledges running a business but has provided no information whatsoever about the value of the business or of any business assets.

[ 32 ] Mr. Doddington has not provided any evidence with respect to the effect of her common law relationship on Mrs. Doddington’s ability to support herself. Mrs. Doddington acknowledges some financial assistance from her commonlaw spouse but maintains it was only to cover the shortfall caused by Mr. Doddington’s failure to pay support. I find there is no basis to revisit Mrs. Doddington’s entitlement to spousal support.

[ 33 ] I am however prepared to revisit the quantum payable.

[ 34 ] Mr. Doddington brought this motion November 28, 2011. Given Mrs. Doddington’s position that she does not seek ongoing spousal support, there will be a termination of the spousal support order as of November 28, 2011. No spousal support payments are payable after that date.

[ 35 ] December 2, 2008 Mr. Doddington was ordered to pay spousal support of $750 monthly commencing December 1, 2008. Applying the Spousal Support Advisory Guidelines to the parties’ respective incomes, and taking into account Mr. Doddington’s responsibility to pay child support up to June 2011, I find that Mr. Doddington should have paid in 2008 $1,128 monthly, in 2009 $741 monthly, in 2010 $653 monthly and in 2011 $653 monthly.

[ 36 ] Mr. Doddington’s arrears of spousal support are increased for one month in 2008 by $378. Mr. Doddington’s arrears of spousal support are decreased in 2009 by $9 per month for a total of $108; in 2010 by $97 per month for a total of $1,164; in 2011 by $97 per month for 11 months for a total of $1,067. From December 2011 to date Mr. Doddington’s arrears of spousal support are decreased by $750 per month for a total of $5,250. The total decrease in spousal support arrears is $7,211.

[ 37 ] As of today’s date, Mr. Doddington’s arrears of child and spousal support, which I accept were $97,143.40, should be reduced by $22,513 and fixed at $74,630.40.

Orders

[ 38 ] The order of Daley, J. made December 2, 2008, and approved as to form and content by the Applicant, is to be taken out. The approval of the Respondent as to form and content is dispensed with.

[ 39 ] Monthly child support payable for Ben James Edwin Doddington born November 19, 1990 is terminated as of June 30, 2009.

[ 40 ] Monthly child support for Bill Peter Robert Doddington born November 26, 1992 is terminated as of June 30, 2011.

[ 41 ] Spousal support is terminated as of November 28, 2011. No spousal support payments are payable after that date.

[ 42 ] Peter Doddington’s arrears of support are fixed as of today at $74,630.40. A support deduction order will issue.

[ 43 ] In the event that either or both Ben James Edwin Doddington born November 19, 1990 as of June 2009 and Bill Peter Robert Doddington born November 26, 1992 enroll in a post-secondary education program, the child shall provide receipts of tuition, school materials including books and any living expenses to each parent. The child shall be responsible for 25% of those costs. The remaining 75% of the costs shall be shared by Mr. and Mrs. Doddington on a 70% and 30% basis respectively.

[ 44 ] Either party may bring a motion before the court to have the annual amount fixed and payable through FRO. If either child attends a post-secondary education program for any part of a year, both parties will be required to produce, within 30 days of being notified of that child’s enrolment, to the other, a copy of the previous year’s income tax return and notice of assessment.

MILLER J

Date: July 16, 2012