ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-06-255-01
DATE: 2012-07-19
BETWEEN:
DONNA GAYE SWIFT-ARABSKI Applicant – and – JAROSLAW PETER ARABSKI Respondent
John S. Davies
Lloyd St. Amand
HEARD: at Brantford February 29, 2012
PARAYESKI J.
[ 1 ] The respondent seeks to vary his child support obligations as ordered by Arrell J. on December 11 th , 2009, retroactively to January 1 st , 2010. That order was based upon minutes of settlement dated October 8 th , 2009. Both parties were represented by counsel at the time of entering into the minutes and the order being taken out.
[ 2 ] The parties were married on June 10 th , 1995. They separated on October 5 th , 2005. They have an adopted daughter, Allanah Katrina Arabski, whose date of birth is June 25 th , 2000.
[ 3 ] The order, inter alia , granted joint custody of Allanah to the parties. Essentially, she lives with both parents on an alternating week about basis. Because of this arrangement, both parents’ incomes were used to arrive at the Guideline amount payable by each. These figures were then set off against each other, with the net result being that commencing November 1 st , 2009, the respondent was ordered to pay the applicant child support fixed at $442.00 per month. The respective incomes were described in the following terms:
“…the applicant’s 2008 line 150 income of $26,211.57 plus her CCA [Capital Cost Allowance] of $2,091.96 giving her a deemed 2008 income for child support purposes of $28,303.53; and the Respondent’s 2008 line 150 income of $79,139.00 less union dues of $2,631.00 giving him a deemed income of $76,508.00 for child support purposes”.
[ 4 ] In addition, the order called for mutual, annual financial disclosure, and readjustment of child support. This was to start February 1 st , 2010.
[ 5 ] Both parties were ordered to share equally any “reasonable and proper” extraordinary expenses in respect of Allanah, with consent being obtained in advance of the expense being incurred, with such consent not to be unreasonably withheld.
[ 6 ] All past issues with respect to overpayment of child support and/or compensation for extraordinary expenses were waived.
[ 7 ] Paragraph 10 of the order required “timely and comprehensive” disclosure by the parties to each other of “a material change in their (i) employment (ii) ability to work and/or (iii) financial circumstances”.
[ 8 ] The order also dealt with termination of extended health care benefits in respect of the wife, property equalization, and spousal support not being payable at the time of the order or into the future.
[ 9 ] Both parties admit that they knew that the income figures incorporated into the order were those of 2008, and that the respondent’s income would be lower in 2009. He had been laid off in April or May of 2009, and the applicant knew this.
[ 10 ] Both incomes dropped in 2009. Nonetheless, the applicant opposes readjustment of the set off figure starting on the adjustment date in the order. She acknowledges that she knew that the $442.00 per month figure was not “permanent”, but thought that it would, and should, be paid “for a while”. She argues that this was only fair given that the minutes of settlement and resulting order reflect concessions by her on other points that were at issue, such as healthcare coverage. She resists the respondent’s effort to rely on the adjustment paragraph while, she says, he ignores the negotiations that led to the order. Her position is not reasonable given that: (a) she knew when signing the minutes that the respondent’s 2009 income would be going down; and (b) the order itself calls for disclosure and adjustment in respect of the set off commencing February 1 st , 2010.
[ 11 ] At the same time, of course, the respondent also knew that his 2009 income was going to be lower than his 2008 income. He also knew that he had filed an application to retire in April of 2009. While it might have been disingenuous of him not to have revealed his imminent retirement, it was not fraudulent. The applicant’s 2009 income also dropped precipitously from the 2008 level, and she ought to have been aware of that fact by the time she signed the minutes of settlement in October of 2009. She does not appear to have revealed that as part of the negotiation process. Again, this was not fraud on her part.
[ 12 ] Absent fraud at the negotiation stage relating to the minutes of settlement, the order should be enforced as it reads in plain language.
[ 13 ] The parties do not accept that the income for 2009 forward as reflected in their respective tax returns and/or financial statements are accurate. The respondent questions the business expenses claimed by the applicant, and says that she is under employed. The applicant, for her part, questions the rationale for the respondent’s retirement at age 62, suggests that he is capable of working, and says that he has been doing some work for cash which is not reflected in his evidence.
[ 14 ] The imputation of income, for which both parties ask, should be based upon evidence or concession. Self interested cynicism and finger pointing does not constitute evidence. The applicant has been pursuing, albeit not very profitably, a business she started with the respondent’s support before the separation. Her business expenses have been accepted as legitimate by the tax authorities, for what that may be worth. In his closing argument, her counsel conceded that I should impute an annual income of $25,000.00 to her, and I shall do so on a going forward basis.
[ 15 ] There is nothing sinister about the respondent retiring after 45 years as a pipefitter in the construction business. The facts that he can cut his lawn and do some maintenance on his boat does not mean that he is likely to be able to work competitively in his field.
[ 16 ] The set off shall be recalculated based upon the following income figures and readjusted on February 1 st of each year commencing in 2010 as per the order:
Respondent
Applicant
2009 - $49,891.00
2009 - $9,004.00
2010 - $41,269.00
2010 - < $7,526.23 >
2011 - $38,756.76
2011 - $25,000.00
[ 17 ] The applicant’s 2010 figure is taken from her 2010 tax return. The 2011 figure, as set out above, is imputed to her based upon concession.
[ 18 ] The respondent paid child support until some unclear point in 2011. This will have to be factored into the readjustment calculations. As I advised counsel, I am not prepared to do the calculation for the readjustments as ordered. If they are unable to agree on that calculation, then they may arrange to reappear before me at Hamilton, having presented their own figures to me in writing in advance.
[ 19 ] I turn now to the extraordinary expenses which the applicant says are owed to her by the respondent. There are three types of expenses being claimed. They are for:
Tutoring (for a total of $2,208.00 as per the “enrolment forms” contained in the applicant’s document brief);
YMCA Camp (for a total of $490.00 as per the applicant’s document brief);
Bingeman’s Day Camp (for $375.00, again as per the applicant’s document brief);
[ 20 ] The order of Arrell J. dated December 11 th , 2009, as previously described, calls for equal sharing of “reasonable and proper” extraordinary expenses provided that there is consent in advance of the expense being occurred, with that consent not to be unreasonably withheld.
[ 21 ] The child suffers from learning and behavioural issues. She is said to need help with her mathematics studies. Her behavioural issues result in explosive behaviour that has led to suspensions from school from time to time.
[ 22 ] The respondent resists the tutoring expense saying that he tutors the child himself when she is in his care, and that the applicant should do so while she is caring for the child, thus making the cost of tutoring unnecessary.
[ 23 ] I am satisfied that all of the expenses are both reasonable and proper. The respondent’s position on tutoring is unrealistic. The mother’s view of her own ability to tutor the child is likely to be more accurate than his.
[ 24 ] That said, there is a second element in the relevant portion of the order, that being consent before the expense is incurred. Here, the applicant admitted on cross-examination that she did not consult with the respondent in advance regarding the YMCA or Bingeman’s Day Camp expenses.
[ 25 ] The respondent shall reimburse the applicant for one half of the tutoring expenses. He need not do so with respect to the others. If the applicant wishes to benefit from the terms of the order, she should comply with the same.
[ 26 ] SDO to issue in respect of child support and the Section 7 expenses.
[ 27 ] If the parties are unable to agree with respect to costs, they may make brief written submissions to me in that regard. Each set of submissions, if any, should be no more than three typewritten pages in length, not including a costs outline. Such submissions are due on or before August 31 st , 2012, and should be forwarded to my attention at the John Sopinka Courthouse in Hamilton.
The Honourable Mr. Justice D. Parayeski
Released: July 19, 2012
COURT FILE NO.: FS-06-255-01
DATE: 2012-07-19
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DONNA GAYE SWIFT-ARABSKI Applicant – and – JAROSLAW PETER ARABSKI Respondent REASONS FOR JUDGMENT PARAYESKI J. MDP:mg
Released: July 19, 2012